J-A21018-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALEXANDER DIAZ :
:
Appellant : No. 2137 EDA 2017
Appeal from the Judgment of Sentence May 22, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0000992-2011
BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 09, 2018
Appellant, Alexander Diaz, appeals from the judgment of sentence
entered on May 22, 2017, following resentencing on his jury trial convictions
for possession with intent to deliver a controlled substance (PWID), possession
of drug paraphernalia, and conspiracy.1 Upon review, we affirm.
We briefly summarize the facts and procedural history of this case as
follows. A jury found Appellant guilty of the aforementioned crimes on
December 8, 2011. On April 25, 2012, the trial court sentenced Appellant to
four to eight years of imprisonment for PWID, 10 years of probation for
conspiracy (consecutive to PWID), and one year of probation for possession
of drug paraphernalia (consecutive to the other two sentences). On March
16, 2017, this Court vacated Appellant’s judgment of sentence and remanded
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1 35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(32), and 18 Pa.C.S.A.
§ 903, respectively.
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the matter for resentencing. See Commonwealth v. Diaz, 168 A.3d 318
(Pa. Super. 2017) (unpublished memorandum). In that decision, we
determined that the trial court erred in imposing a mandatory minimum
sentence for PWID under 18 Pa.C.S.A. § 6317 (drug-free school zones). Upon
remand, on May 22, 2017, the trial court sentenced Appellant to 30 to 90
months of imprisonment for PWID, with a consecutive term of 10 years of
probation for conspiracy, and one year of probation for possession of drug
paraphernalia, concurrent to his sentence for conspiracy. This timely appeal
resulted.2
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2 At the conclusion of his re-sentencing hearing, Appellant signed a statement
acknowledging he received an explanation of his post-sentence rights. N.T.,
5/22/2017, at 11. Counsel for Appellant did not object to the new sentence
as excessive at the resentencing hearing and did not file a post-sentence
motion to reconsider Appellant’s new sentence. Appellant filed a pro se notice
of appeal while incarcerated, despite his representation by counsel. “While
hybrid representation is generally not permitted, our Supreme Court has held
that a pro se notice of appeal from a judgment of sentence filed by a
represented appellant is not automatically void.” Commonwealth v.
Johnson, 2018 WL 3197588, at *2 (Pa. Super. 2018) (citation omitted).
Moreover, pursuant to the prisoner mailbox rule, we deem a pro se
prisoner's document filed on the date he delivers it to prison authorities for
mailing, in this case, June 19, 2017. See id. Thus, we deem the appeal
timely. Appellant also filed a pro se concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b) on July 24, 2017. On October 23,
2017, this Court entered a per curiam order remanding the matter to the trial
court because court-appointed trial counsel failed to file a timely criminal
docket statement with this Court and did not respond to this Court’s
correspondence. We directed the trial court to determine whether trial counsel
abandoned Appellant and, if so, whether Appellant was eligible for new,
court-appointed counsel. On November 14, 2017, the trial court appointed
Tiffany Griffin, Esquire to represent Appellant. Attorney Griffin did not seek
nunc pro tunc relief to file a post-sentence motion on Appellant’s behalf.
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On appeal, Appellant raises the following issues for our review:
1. Is it not evident [that] Appellant’s sentence of 30 months to
90 months is in gross excess of the standard range, which is
[three] months to 12 months [of] incarceration, that the [trial]
court erred by applying the school zone enhancement for
sentencing purposes?
2. Without explanation, did the [trial] court’s sentence of 2½ to
7½ years’ incarceration for the [PWID] conviction [of] 0.11
grams of a schedule I controlled substance, wildly deviate from
the standard range, and its unduly harsh 10-year consecutive
probation for [Appellant’s] [c]onspiracy conviction prove an
abuse of the court’s discretion.
Appellant’s Brief at 4.
Both of Appellant’s issues involve the discretionary aspects of
sentencing. The application of a sentencing enhancement for selling drugs
near a school zone implicates the discretionary aspects of sentencing:
[E]nhancements only direct a sentencing court to consider a
different range of potential minimum sentences, while
preserving a trial court's discretion to fashion an individual
sentence. By their very character, sentencing enhancements do
not share the attributes of a mandatory minimum sentence that
the Supreme Court held to be elements of the offense that must
be submitted to a jury. The enhancements do not bind a trial court
to any particular sentencing floor, nor do they compel a trial court
in any given case to impose a sentence higher than the court
believes is warranted. They require only that a court consider a
higher range of possible minimum sentences. Even then, the trial
court need not sentence within that range; the court only must
consider it.
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Instead, she filed a supplemental concise statement pursuant to Pa.R.A.P.
1925(b) on January 30, 2018. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on April 9, 2018.
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Commonwealth v. Ali, 112 A.3d 1210, 1226 (Pa. Super. 2015) (emphasis
in original), vacated and remanded on other grounds, 149 A.3d 29 (Pa. 2016)
(examining the admissibility of victim impact testimony at sentencing).
Moreover, Appellant’s second claim that the trial court imposed an excessive
sentence, above the standard sentencing guideline range, also implicates the
discretionary aspects of sentencing. See Commonwealth v. Antidormi, 84
A.3d 736, 760 (Pa. Super. 2014) (“The sentencing guidelines are not
mandatory, and sentencing courts retain broad discretion in sentencing
matters, and therefore, may sentence defendants outside the guidelines.”).
This Court has previously determined:
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:
[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. Patterson, 180 A.3d 1217, 1232 (Pa. Super. 2018)
(internal case citation omitted).
Here, Appellant filed a timely notice of appeal and included in his brief
a concise statement of the reasons relied upon for allowance of appeal
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pursuant to Pa.R.A.P. 2119(f). However, Appellant failed to raise either the
school-zone enhancement or excessiveness of sentence claims at the
resentencing hearing or in a post-sentence motion. “[I]ssues challenging the
discretionary aspects of a sentence must be raised in a post-sentence motion
or by presenting the claim to the trial court during the sentencing proceedings.
Absent such efforts, an objection to a discretionary aspect of a sentence is
waived.” Commonwealth v. Heaster, 171 A.3d 268, 272 (Pa. Super. 2017).
Accordingly, Appellant waived his challenges to the trial court’s sentencing
discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/9/18
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