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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL CANCEL :
:
Appellant : No. 3171 EDA 2017
Appeal from the Judgment of Sentence September 11, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002545-2016,
CP-51-CR-0003457-2013
BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED APRIL 11, 2019
Appellant, Daniel Cancel, appeals from the judgment of sentence
entered on September 11, 2017, as made final by the denial of his
post-sentence motion by order dated September 21, 2017. We affirm.
As our resolution of this appeal is based on the procedural posture of
the case, we need not set forth the factual background at length. In short,
while on probation for possession with intent to deliver (“PWID”) and
conspiracy at docket number 3457-2013,1 Appellant violently attacked and
robbed a young woman after she refused to have sex with him. On June 8,
2017, Appellant, at docket number 2545-2016, pled guilty to attempted
____________________________________________
1 18 Pa.C.S.A. § 780-113(a)(30) and 18 Pa.C.S.A. § 903, respectively.
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murder,2 aggravated assault,3 robbery,4 theft by unlawful taking,5 receiving
stolen property,6 possession of an instrument of crime (“PIC”),7 simple
assault,8 and recklessly endangering another person.9 On September 11,
2017, the trial court sentenced Appellant to ten to 20 years of confinement
each for attempted murder and aggravated assault, to run concurrently, ten
to 20 years of confinement for robbery, to run consecutively, and two and
one-half to five years of confinement for PIC, to run consecutively. The trial
court also found Appellant to be in violation of his probation at docket number
3457-2013, and revoked his probationary sentence. In addition, the court
imposed a new sentence of five to ten years’ incarceration for both offenses
at docket number 3457-2013, to run consecutively to one another and
consecutively to the sentence imposed at docket number 2545-2016.
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2 18 Pa.C.S.A. § 901(a).
3 18 Pa.C.S.A. § 2702(a).
4 18 Pa.C.S.A. § 3701(a)(1)(ii).
5 18 Pa.C.S.A. § 3921(a).
6 18 Pa.C.S.A. § 3925(a).
7 18 Pa.C.S.A. § 907(a).
8 18 Pa.C.S.A. § 2701(a).
9 18 Pa.C.S.A. § 2705.
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Appellant filed a post-sentence motion for reconsideration of sentence, which
the court denied on September 21, 2017. This appeal followed.10
Appellant presents one issue for our review:
Whether the trial court abused its discretion in ordering an
aggregate sentence of 22 ½ to 45 years’ incarceration following a
guilty plea where Appellant showed genuine remorse, was heavily
under the influence of alcohol at the time of the crime, presented
character witnesses, and did not have a significant criminal
record[?]
Appellant’s Brief at 5.
In his single issue, Appellant argues that he received an excessive
sentence because the trial court did not adequately consider certain mitigating
factors. This issue challenges the discretionary aspects of his sentence.
Pursuant to statute, Appellant does not have an automatic right to appeal the
discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b). Instead,
Appellant must petition this Court for permission to appeal the discretionary
aspects of his sentence. Id.
In order to reach the merits of a discretionary aspects claim,
we must engage in a four part analysis to determine: (1) whether
the appeal is timely; (2) whether Appellant preserved his or her
issue; (3) whether Appellant’s brief includes a concise statement
of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence is
appropriate under the Sentencing Code.
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10 On October 18, 2017, the trial court issued an order requiring Appellant to
file a concise statement of matters complained of on appeal within 21 days
pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. The trial court
filed its 1925(a) opinion on February 12, 2018.
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Commonwealth v. Foust, 180 A.3d 416, 438-439 (Pa. Super. 2018)
(cleaned up). Appellant filed a timely notice of appeal and preserved his issue
in a post-sentence motion. He failed, however, to include a Pennsylvania Rule
of Appellate Procedure 2119(f) statement in his appellate brief and the
Commonwealth objected to this omission in its brief. Thus, Appellant waived
the challenge to the discretionary aspects of his sentence. See
Commonwealth v. Heaster, 171 A.3d 268, 272 n.3 (Pa. Super. 2017),
appeal denied, 181 A.3d 1078 (Pa. 2018) (citation omitted). As Appellant
failed to preserve any discretionary challenge to his judgment of sentence, we
affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/19
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