J-S87020-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HOLLY A. KASZUBA
Appellant No. 896 MDA 2016
Appeal from the Judgment of Sentence Dated May 3, 2016
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000262-2015
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
JUDGMENT ORDER BY SOLANO, J.: FILED JANUARY 30, 2017
Appellant, Holly A. Kaszuba, appeals from the judgment of sentence
following her guilty plea to corruption of minors.1 She raises, for the first
time on appeal, claims challenging the discretionary aspects of her sentence.
We affirm.
Recitation of the facts underlying Appellant’s conviction is unnecessary
for our disposition of her sentencing claim. On December 15, 2015,
Appellant pleaded guilty. On May 3, 2016, the court sentenced Appellant to
one to two years’ imprisonment followed by two years’ probation, a
minimum sentence above the standard range. That day, Appellant filed a
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 6301(a)(1)(i).
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motion for reconsideration of sentence, which requested that the court
impose a minimum sentence in the standard range based upon her alleged
completion of drug rehabilitation. The court denied the post-sentence
motion on May 10, 2016. On May 18, 2016, the court issued a clarifying
order that its sentence was consecutive to Appellant’s sentence for an
unrelated conviction.
Appellant timely appealed and timely filed a Pa.R.A.P. 1925(b)
statement raising the following issues:
A. Whether the sentence imposed was inappropriately harsh and
excessive and an abuse of discretion?
B. Whether the court failed to state on the record reasons or
sufficient reasons for imposing a sentence in excess of the
standard sentence range/in the aggravated range?
Appellant’s Rule 1925(b) Statement. Appellant did not raise either issue in
her post-sentence motion or at the sentencing hearing. She now reiterates
both issues in her appellate brief.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right.” Commonwealth v. Glass, 50 A.3d 720,
726 (Pa. Super. 2012), appeal denied, 63 A.3d 774 (Pa. 2013). Instead,
this Court has set forth an analytical framework under which we determine
whether we may exercise our discretion to hear such an appeal:
Before we reach the merits of this [issue], we must engage
in a four part analysis to determine: (1) whether the
appeal is timely; (2) whether Appellant preserved his
issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of
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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. . . . [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide
the substantive merits of the case.
Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014)
(citation omitted), appeal denied, 109 A.3d 678 (Pa. 2015).
“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. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). Appellant admits that she did not preserve these
issues in her post-sentence motion, but insists that her Rule 1925(b)
statement preserved the issues for appeal. Appellant’s Brief at 5. We
disagree. It is well-established that a defendant cannot raise, for the first
time, a discretionary challenge to a sentence in a Rule 1925(b) statement.
Moury, 992 A.2d at 170; Commonwealth v. Watson, 835 A.2d 786, 791
(Pa. Super. 2003) (“a party cannot rectify the failure to preserve an issue by
proffering it in” in a Rule 1925(b) statement). Because Appellant failed to
preserve her issues before the trial court, she failed to satisfy the second
prerequisite to appellate review under Colon, 102 A.3d at 1042-43. We
therefore may not exercise our discretion to resolve her sentencing claim.
Accordingly, we affirm the judgment of sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2017
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