Com. v. Giannotto, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JONATHAN M. GIANNOTTO
Appellant No. 270 MDA 2015
Appeal from the Judgment of Sentence of January 12, 2015
In the Court of Common Pleas of Adams County
Criminal Division at No.: CP-01-CR-0001115-2013
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED NOVEMBER 09, 2015
Jonathan M. Giannotto appeals his January 12, 2015 judgment of
sentence. Giannotto challenges the discretionary aspects of his sentence.
However, because Giannotto failed to comply with the procedural
requirements necessary to invoke our jurisdiction, his claim must fail. We
affirm.
On October 6, 2014, Giannotto pleaded guilty to homicide by a vehicle
while driving under the influence of alcohol and a controlled substance, 75
Pa.C.S. § 3735(a), and driving under the influence, 75 Pa.C.S. § 3802(d)(2).
The record supports the following summary of facts underlying
Giannotto’s convictions. On August 14, 2013, after having consumed alcohol
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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and controlled substances, Giannotto drove his pick-up truck on Forest
Drive, in New Oxford, Pennsylvania, a road that Giannotto travels daily.
While exceeding the speed limit, Giannotto failed to notice Charles Ankney
riding his lawn mower on the right side of the road. Giannotto struck
Ankney with his pick-up truck, sending Ankney airborne for over two
hundred feet and killing him. Ankney’s wife observed the accident from her
window. She immediately went to assist her husband, to no avail.
When police and emergency personnel arrived at the scene, Giannotto
entered his vehicle and attempted to flee. The police were able to remove
Giannotto from his vehicle and confiscate his keys. A strong odor of alcohol
emanated from Giannotto’s person. There was also a strong odor of alcohol
coming from the passenger compartment of the vehicle. Giannotto
submitted to a preliminary breath test, and tested positive for the presence
of alcohol. Giannotto refused to submit to field sobriety testing.
Giannotto also refused to submit voluntarily to a blood draw. Thus,
the police secured search warrant for Giannotto’s blood, which was drawn at
Gettysburg Hospital hours later. Giannotto had a blood alcohol
concentration of .134%. The blood draw also revealed that Giannotto had
concentrations of marijuana and diazepam in his system. An accident
reconstructionist determined that Giannotto was traveling between 59-64
miles per hour in a posted 35 miles per hour zone.
On January 12, 2015, following Giannotto’s guilty plea, the trial court
sentenced him in the aggravated range of the sentencing guidelines to three
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and one half to ten years in prison. Before imposing the sentence, the trial
court considered the testimony of Giannotto and of witnesses called by the
Commonwealth, and heard argument from each of the attorneys. The court
also reviewed the presentence investigation report. Although Giannotto
suffers from some physical and, perhaps, mental disabilities, the court relied
significantly upon the consequences of Giannotto’s decision to drive while
intoxicated. Accordingly, the court sentenced Giannotto in the aggravated
range.
On January 20, 2015, Giannotto filed a motion to reconsider his
sentence. The trial court denied the motion on January 27, 2015. On
February 10, 2015, Giannotto filed a notice of appeal, which prompted the
trial court to direct Giannotto to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On March 10, 2015,
Giannotto timely complied. On May 11, 2015, the trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a).
Giannotto raises the following issue for our review: “Did the
sentencing judge erroneously sentence [Giannotto] in the aggravated range
when no aggravating factors were presented and no such factors were
alluded to in the judge’s sentencing order?” Brief for Giannotto at 2.
Giannotto’s challenge implicates the discretionary aspects of his sentence.
See Commonwealth v. Shugars, 895 A.2d 1270, 1273 (Pa. Super. 2006).
Before reaching the merits of Giannotto’s discretionary aspects of
sentence claim, we first must determine whether this Court has jurisdiction
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in this case. This Court repeatedly has stated that, in order to invoke this
Court’s jurisdiction when raising a challenge to the discretionary aspects of a
sentence, an appellant must: (1) file a timely appeal; (2) preserve the issue
he or she wishes to present on appeal; (3) include in his or her brief a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence pursuant to Pa.R.A.P.
2119(f); and (4) present a substantial question in his or her concise
statement that the sentence is not appropriate under the sentencing code.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citations
omitted). An appellant must satisfy all four requirements. Commonwealth
v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013).
Giannotto has filed a timely notice of appeal and has preserved his
discretionary challenge by way of a post-sentence motion. However,
Giannotto has not complied with the third and fourth requirements.
Pursuant to the third requirement, Giannotto must include in his brief
a Rule 2119(f) statement. The rule states, in pertinent part, as follows:
An appellant who challenges the discretionary aspects of a
sentence in a criminal matter shall set forth in a separate
section of the brief a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence. The statement shall
immediately precede the argument on the merits with
respect to the discretionary aspects of the sentence.
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Pa.R.A.P. 2119(f). In the statement, an appellant must specify “where the
sentence falls in relation to the sentencing guidelines and what particular
provision of the code it violates.” Commonwealth v. Goggins, 748 A.2d
721, 727 (Pa. Super. 2000). Additionally, the statement must specify “what
fundamental norm the sentence violates and the manner in which it violates
that norm.” Id. If the statement meets these requirements, we then can
proceed to determine whether a substantial question exists. Id.Giannotto did not include a Rule 2119(f) statement in his brief.
“[W]hen the appellant has not included a Rule 2119(f) statement and the
appellee has not objected, this Court may ignore the omission and
determine if there is a substantial question that the sentence imposed was
not appropriate, or enforce the requirements of Pa.R.A.P. 2119(f) sua
sponte, i.e., deny allowance of appeal.” Commonwealth v. Kiesel, 854
A.2d 530, 533 (Pa. Super. 2004) (citations omitted). However, “this option
is lost if the [Commonwealth] objects to a 2119(f) omission. In such
circumstances, this Court is precluded from reviewing the merits of the claim
and the appeal must be denied.” Id. Here, the Commonwealth objects to
Giannotto’s failure to include a Rule 2119(f) statement in his brief. See
Brief for the Commonwealth at 5. Consequently, we deny allowance of
appeal, and we do not review the merits of Giannotto’s challenge to the
discretionary aspects of his sentence. Kiesel, 854 A.2d at 533.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2015
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