J-S65011-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CARLOS MARTINEZ,
Appellant No. 2381 EDA 2014
Appeal from the Judgment of Sentence Entered July 15, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001631-2010
BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 08, 2015
Appellant, Carlos Martinez, appeals from the judgment of sentence of
an aggregate term of 4½ to 9 years’ imprisonment, imposed after the court
revoked his term of probation based on technical violations and a new
conviction in an unrelated case. Appellant challenges the discretionary
aspects of his sentence. We affirm.
The trial court summarized the procedural history of this case in its
Pa.R.A.P. 1925(a) opinion, as follows:
On April 21, 2010, [Appellant] pled guilty to Failure to
Comply with Registration of Sexual Offenders Requirements (18
Pa.C.S. § 4915(a)(2))[,] a felony of the second degree.[1]
Sentencing was deferred pending completion of a mental health
evaluation and pre-sentence investigation report. On August 25,
2010, Judge Karen Shreeves-Johns sentenced [Appellant] to one
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1
This case was docketed at CP-51-CR-0001631-2010.
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year to two years[’] incarceration followed by five years[’]
probation.
On March 14, 2013, a bench warrant was issued when
[Appellant] did not appear at a hearing for a probation violation.
On July 15, 2014, this [c]ourt conducted a … hearing, revoked
[Appellant’s] probation, and sentenced [Appellant] to two
years[’] to four years[’] incarceration, credit for time served, and
four years of consecutive reporting probation. This sentence was
to run consecutive to CP-51-CR-0006106-2012, where
[Appellant] was sentenced to two and a half years[’] to five
years[’] incarceration by Judge Joan A. Brown for Contraband-
Possession of controlled substance contraband by inmate
prohibited (18 Pa.C.S. § 5123(a.2))[,] a felony of the second
degree, and Knowingly or Intentionally Possessing a Controlled
Substance by a Person not Registered (35 P.S. § 780-
113(a)(16)), an ungraded misdemeanor. On July 28, 2014,
[Appellant] filed a Petition to Vacate and Reconsider Sentence
imposed by this [c]ourt.
Trial Court Opinion (TCO), 1/14/15, at 1-2.
The trial court did not expressly grant reconsideration or vacate
Appellant’s sentence. See Commonwealth v. Coleman, 721 A.2d 798,
799 n.2 (Pa. Super. 1998). On August 12, 2014, Appellant filed a timely
notice of appeal. After the court granted Appellant’s request for an
extension of time to file a Pa.R.A.P. 1925(b) concise statement, Appellant
timely filed a Rule 1925(b) statement, and the court subsequently filed a
Rule 1925(a) opinion. Herein, Appellant presents the following issues for our
review:
1. Did not the lower court err when it imposed a significant state
sentence without ordering a pre-sentence investigation report
where the judge was meeting [Appellant] for the very first
time at the revocation hearing, did not gather sufficient
information about [Appellant] to fashion an individualized
punishment and failed to state her reasoning to dispense with
a pre-sentence report on the record?
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2. Did not the lower court err and violate the tenets of the
Sentencing Code which mandate individualized sentencing
when it utterly failed to consider [Appellant’s] background,
character or rehabilitative needs and imposed an excessive
sentence of two to four years of consecutive confinement
during a revocation of probation hearing?
Appellant’s Brief at 4.
Appellant’s allegations relate to the discretionary aspects of his
sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant
challenging the discretionary aspects of his sentence must
invoke this Court’s jurisdiction by satisfying a 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, 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).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citations
omitted).
Initially, the Commonwealth argues that Appellant’s claims are waived
because he failed to raise his objections at the sentencing hearing and his
post-sentence motion was untimely filed. We are constrained to agree. The
record reflects that Appellant failed to raise any objections regarding the
discretionary aspects of his sentence at the sentencing hearing on July 15,
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2014, and Appellant’s post-sentence motion to reconsider sentence was
untimely filed on July 28, 2014.2 See Pa.R.Crim.P. 708(E) (providing that a
post-sentence motion to modify a sentence imposed after revocation shall be
filed within ten days of the date of imposition); See also Commonwealth
v. Wrecks, 931 A.2d 717 (Pa. Super. 2007) (stating “An untimely post-
sentence motion does not preserve issues for appeal.”).
Based on our conclusion that Appellant’s claims have been waived, we
are unable to address the merits of these issues.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2015
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2
The trial court informed Appellant of the 10-day time requirement for filing
a post-sentence motion. See N.T. Revocation Hearing, 7/15/14, at 13.
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