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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KEVIN JONES, :
:
Appellant : No. 1046 EDA 2015
Appeal from the Judgment of Sentence entered on March 6, 2015
in the Court of Common Pleas of Delaware County,
Criminal Division, No. CP-23-CR-0002089-2013
BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 25, 2015
Kevin Jones (“Jones”) appeals from the judgment of sentence imposed
following his guilty plea to rape, involuntary deviate sexual intercourse,
kidnapping, robbery, robbery of a motor vehicle, theft, indecent assault,
terroristic threats, possessing an instrument of crime, and conspiracy. 1 We
affirm.
The trial court set forth the relevant history of this case as follows:
The victim, a 22 year-old mother, was alone in her motor vehicle
Christmas night, December 25, 2012. She was parked outside
of a closed water ice stand waiting for her boyfriend[,] who was
across the street in Rudy’s Tavern, Upper Darby Township,
Delaware County, saying goodbye to family members. The
victim was looking at her phone when [Jones] and two other Co-
Defendants approached her car, put a gun to her window and
told her to get out of the car[,] while ripping open the door. Co-
Defendant [Brehon] Rawlings assaulted her with a weapon and
1
18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 2901(a)(3), 3701(a)(1)(iv),
3702(a), 3921(a), 3126(a)(2), 2706(a)(1), 907(b), 903(c).
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then forced her to move over[,] and all three entered the car
with the victim inside. Co-Defendant Rawlings drove the car
away from the location while the victim screamed and cried
hysterically. The trio[,] with [the] victim inside[,] drove around
Upper Darby and Philadelphia for most of the night, threatened
the victim repeatedly with death and bodily harm[,] and told her
she had to do what they say to ever see her daughter again.
Each of the three Defendants forced her to perform oral sex on
them[,] and [C]o-Defendant Rawlings raped the victim vaginally.
Trial Court Opinion, 6/1/15, at 1-2.
On November 5, 2014, after a jury had been selected, but before trial
began, Jones entered an open plea of guilty to the above-mentioned crimes.
On March 6, 2015, the trial court sentenced Jones to an aggregate prison
term of 15 years and 2 months to 32 years and 4 months. Jones was also
required to register as a sex offender.
Jones filed a timely Notice of Appeal of his sentence. The trial court
ordered Jones to file a Pennsylvania Rule of Appellate Procedure 1925(b)
concise statement. Jones filed a timely Concise Statement.
On appeal, Jones raises the following questions for our review:
1. Is there a substantial question for which [this] Court should
grant allowance of an appeal from the discretionary aspects of
sentencing?
2. Is the sentence harsh and manifestly excessive, and[,]
therefore[,] unjust and unreasonable?
3. Whether the [t]rial [c]ourt abused its discretion when it failed
to consider mitigating factors at sentencing, and thereby
imposed upon [Jones] an excessive sentence?
Brief for Appellant at 4.
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Jones contends that the sentencing judge abused her discretion in
imposing an excessive sentence by not adequately taking into account
several mitigating factors. Id. at 18. Jones argues that those factors
include his age (17 years old at the time of the crime), his lack of prior
record, his limited role in the offenses, and his cooperation with the
prosecution. Id. at 18-19. Jones asserts that the sentencing judge did not
adequately consider the Sentencing Code guidelines, and the individual
characteristics of the committed crime and Jones. Id. at 19. He argues the
judge’s reasoning for the sentence indicates that she focused exclusively on
protection of the public, without properly considering the mitigating factors.
Id.
Jones challenges the discretionary aspects of his sentence.2
[W]e 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,
see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
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. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008).
(quotation marks and some citations omitted).
Here, Jones has filed a timely Notice of Appeal, but the issue was not
properly preserved at sentencing or in a motion to reconsider or modify the
2
Jones entered an open plea agreement, so he was not precluded from
raising a discretionary aspects of sentence claim. See Commonwealth v.
Tirado, 870 A.2d 362, 365 n.5 (Pa. Super. 2005).
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sentence. Id.; see also Pa.R.Crim.P. 720 (stating that “a written post-
sentence motion shall be filed no later than 10 days after imposition of
sentence[.]”). Thus, the issue is waived, and we cannot review it on appeal.
See Commonwealth v. Evans, 901 A.2d 528, 534 (Pa. Super. 2006)
(holding the defendant’s challenges to the discretionary aspects of
sentencing were waived because he failed to raise the claims at the
sentencing hearing or file a post-sentence motion as required by
Pa.R.Crim.P. 720).
Further, Jones’s brief fails to include a separate Pa.R.A.P. 2119(f)
concise statement, and the Commonwealth objected to this defect. Brief for
the Commonwealth at 8; see also Commonwealth v. Love, 896 A.2d
1276, 1287 (Pa. Super. 2006) (stating that failure to include a Rule 2119(f)
statement precludes this Court from addressing the merits of a claim when
the Commonwealth objects to the omission of the statement). 3 Accordingly,
Jones’s claim is waived on appeal.
Judgment of sentence affirmed.
3
We note that the trial court had the benefit of a pre-sentence investigation
report. See Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super.
2010) (stating that “where the trial court is informed by a pre-sentence
report, it is presumed that the court is aware of all appropriate sentencing
factors and considerations, and that where the court has been so informed,
its discretion should not be disturbed”). Further, the trial court thoroughly
set forth its reasons for the sentence on the record. See N.T. 3/6/15 at 18;
see also Trial Court Opinion, 6/1/15, at 5-6.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2015
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