J-S59028-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL SCHAEFER
Appellant No. 388 EDA 2014
Appeal from the Judgment of Sentence December 10, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0005919-2012
BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 03, 2014
Michael Schaefer appeals from his judgment of sentence imposed by
the Court of Common Pleas of Montgomery County after he pled guilty to
nineteen counts of robbery1 and one count of conspiracy to commit robbery.2
This appeal stems from the robbery of a delicatessen located in Lower
Merion Township, Montgomery County on July 14, 2012. On September 13,
2013, Schaefer entered an open guilty plea to the aforementioned offenses.
Following a hearing on December 10, 2013, the court sentenced Schaefer to
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 3701(a)(1)(ii).
2
18 Pa.C.S. § 903(a)(1).
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probation.
On appeal, Schaefer challenges the discretionary aspects of his
Commonwealth v. Allen, 24
A.3d 1058, 1064 (Pa. Super. 2011).
An appellant challenging the discretionary aspects of his
four-part test: (1) whether [the] 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, see Pa.R.Crim.P. [720]; (3)
see 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. § 9781(b). Commonwealth v. Evans, 901
A.2d 528, 533 (Pa. Super. 2006).
Allen, 24 A.3d at 1064.
Our review of the record discloses that Schaefer failed to preserve the
issue he now raises on appeal. Following sentencing, Schaefer filed a motion
to modify sentence, in which he requested that the court vacate his
probation. Motion to Modify Sentence, 12/16/13, at 1. Now, in his Rule
1925(b) statement, Schaefer presents the following issue for our review:
Did the court sentence [Schaefer] based solely on the
seriousness of the offense and fail to consider all relevant factors
where:
a) the court claimed [Schaefer] had a shotgun during
the robbery when in fact he did not;
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b) the court quoted from a victim impact statement of a
c) t,
d) the court claimed [Schaefer] was the organizer when
there was no evidence to support the allegation; and
e)
chance of recidivism.
Brief of Appellant, at 2.
Because Schaefer failed to raise this issue before the trial court, he
aspects of his sentence.3 See Allen
jurisdiction to review challenge to discretionary aspects of sentencing,
appellant must preserve issue(s) in a post-sentence motion); see also
Pa.R.A.P. 302(a) (issue cannot be raised for the first time on appeal).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/3/2014
____________________________________________
3
Even if Schaefer had properly preserved his issue on appeal, we would
See Trial
Court Opinion, 3/3/14, at 4-11.
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