J-S40038-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT DEAN CHAPMAN
Appellant No. 190 MDA 2014
Appeal from the Judgment of Sentence July 19, 2012
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001528-2010
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY PANELLA, J.: FILED AUGUST 21, 2014
Appellant, Robert Dean Chapman, appeals from the judgment of
sentence entered July 19, 2012, by the Honorable John H. Chronister, Court
of Common Pleas of York County. We affirm.
The trial court previously recounted the facts and lengthy procedural
history of this case as follows.
In March 2010, Appellant was charged with Burglary,
Criminal Conspiracy to Commit Burglary, Criminal Trespass,
Theft by Unlawful Taking, Recklessly Endangering Another
Person, and Driving While Driving Privilege Suspended.
According to the Affidavit of Probable Cause filed by State
Trooper Justin Dembowski, on October 20, 2009 at
approximately 10:10 a.m., a black pickup truck was fleeing from
a residence located at 1287 Paper Mill Road in Peach Bottom
Township in York County, Pennsylvania. The owner of the
premises. According to the owner, as he was approaching his
house he observed an unknown black pickup truck in his
driveway. As he was pulling into the driveway, the owner
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the unknown truck and that two unknown white males were
running from his house. The Owner stated that he observed
Appellant
accelerated towards the owner, forcing him to swerve into his
yard to avoid a collision with the fleeing vehicle.
According to the owner, he caught up to the black truck
and provided police with the registration plate. After an
extensive search, one hour later the police located Appellant
approximately 300 yards from the vehicle from which he had
fled. The other male, the codefendant, was also located.
Trial Court Opinion, 9/27/11 at 2-3.
following charges: burglary pursuant to 18 Pa.C.S. § 3502(a)
and criminal conspiracy to commit burglary pursuant to 18
s plea was accepted by [the trial
court], and as a result, Appellant was given a sentence of 48-96
months in a state penitentiary. On January 7, 2011, [the trial
-
Petition. On [a]ppeal, the Sup
in its Opinion that the trial court should have treated a pro se
motion, filed by Appellant on October 8, 2010, as a timely-filed
pro se post-sentence motion. Also, [this] Court found the record
to be devoid of any evidence that the trial court sought to
determine that Appellant was informed of his post-sentence and
system. The matter was remanded for further proceedings.
[See Commonwealth v. Chapman, No. 227 MDA 2011 (Pa.
Super., filed May 9, 2012).]
On remand, during the June 12, 2012 Post-Sentence
Motion Hearing, [the trial] [c]ourt granted in part and denied in
-senten
determined that the subject burglarized structure was not
occupied at the time of the burglary, and therefore, the Offense
Gravity Score should be a seven (7) rather than a nine (9).
Appellant was resentenced on July 19, 2012 for the
aforementioned charges upon the acceptance of his nolo
contendere plea. Further, the burglary conviction was graded as
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a felony of the first degree pursuant to 18 Pa.C.S. § 3502(c)(1).
Finally, the [c]ourt sentenced Appellant within the guideline
range for burglary with an offense gravity score of 7.
On November 7, 2012, Appellant was scheduled for
another PCRA Hearing. During this PCRA Hearing, Appellant
made an oral post-sentence motion, which requested the [trial]
[c]ourt to allow him to withdraw his PCRA petition, and to
reinstate his appellate rights nunc pro tunc
was granted.
Appellant filed a Notice of Appeal on December 6, 2012[,]
from the Sentencing Order of July 19, 2012. Pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b), [the trial]
[c]ourt ordered Appellant to file a Concise Statement of Matters
Complained of on Appeal within twenty-one (21) days from the
date of the Order. The Appellant filed his statement on
December 26, 2012. [The trial] [c]ourt filed its opinion pursuant
to Pa.R.A.P. 1925(a) on February 6, 2013. [This] Court affirmed
[1]
[On
January 10, 2014, by agreement with the Commonwealth,]
tated.
Trial Court Opinion, 3/11/14 at 1-3. This timely appeal followed. Both
Chapman and the trial court have complied with Pa.R.A.P. 1925.
On appeal, Chapman raises the following issue for our review:
The lower court erred in determining sentencing guideline
calculations when sentencing Appellant by applying the gravity
score for an unoccupied structure adapted for overnight
accom[m]odations (OGS 7) when the structure was not adapted
for overnight accom[m]odations (OGS 5).
____________________________________________
1
In that appeal, Chapman raised the same challenge to the discretionary
aspects of his sentence as in the instant appeal, but failed to include a
Pa.R.A.P. 2119(f) statement with his appellate brief, and the Commonwealth
objected. Due to this omission, a panel of this Court determined that
Chapman had waived his challenge on appeal. See Commonwealth v.
Chapman, 82 A.3d 1080 (Pa. Super., filed July 26, 2013) (mem. op.).
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sentence. See Commonwealth v. Jackson, 585 A.2d 533, 428 (Pa.
Super. 1991) (assertion that trial court applied wrong offense gravity score
in applying the sentencing guidelines challenges discretionary aspects of
sentence). A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted).
An appellant challenging the discretionary aspects of his
four-part test:
[We] conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code, 42. Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(quotation marks and some citations omitted).
Initially, we must address whether Chapman adequately preserved this
issue at sentencing. The transcript from the resentencing hearing conducted
July 19, 2012 reveals that Chapman acknowledged that the trial court had
previously dropped the offense gravity score from a nine to a seven. See
N.T., Resentencing Hearing, 7/19/12 at 4. After Chapman finished his
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remarks to the court, the following exchange occurred between defense
counsel and the trial court:
THE COURT: Anything else?
[DEFENSE COUNSEL]: No. As to the offense gravity score, I
the PCRA hearing testimony.
THE COURT: He agreed to it as I recall.
[DEFENSE COUNSEL]: He agreed to it. It was a home being
the issue. And the guidelines are the guidelines, 35 to 45 for the
most serious offense.
Id. at 7 (emphasis added). Later, in imposing the sentence, the trial court
being burglary, is a 7. The Defendant has agreed that that is the OGS for
Id. at 8.
Based on the foregoing, it is clear that, at the very least, Chapman
failed to contest the application of an offense gravity score of seven to the
charge of Burglary at sentencing, and, at most, he acquiesced to that
calculation. As such, we are constrained to find that Chapman has failed to
invoke our jurisdiction over his challenge to the discretionary aspects of his
sentence. See Moury, supra. We note that even if we were to address
offense gravity score for burglary of a structure adapted for overnight
accommodations in this instance. See Trial Court Opinion, 2/6/13 at 7-10.
Therefore, we would still find this claim to be without merit.
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Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2014
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