Com. v. Neidig, N. ( 2017 )

J-S42030-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NEIL ANDREW NEIDIG
Appellant No. 1067 MDA 2016
Appeal from the Judgment of Sentence March 4, 2016
In the Court of Common Pleas of Northumberland County
Criminal Division at No(s): CP-49-CR-0000295-2012
CP-49-CR-0000756-2011
BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MOULTON, J.: FILED OCTOBER 31, 2017
Neil Andrew Neidig appeals from the March 4, 2016 judgment of
sentence entered in the Northampton County Court of Common Pleas
following this Court’s prior remand for resentencing pursuant to Alleyne v.
United States, 133 S.Ct. 2151 (2013). We affirm.
This Court summarized the factual and procedural history of this
matter in our prior memorandum, which we adopt and incorporate herein.
See Commonwealth v. Neidig, No. 2135 MDA 2012, unpublished mem. at
2-3 (Pa.Super. filed Feb. 3, 2015); see also Trial Ct. Op., 12/4/14, at 1.
Neidig’s original sentence, imposed on October 16, 2012, included
mandatory-minimum sentences for drug offenses occurring within a school
zone under section 6317 of the Crimes Code, 18 Pa.C.S. § 6317. On direct
appeal, this Court vacated Neidig’s judgment of sentence and remanded for
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resentencing because the mandatory-minimum sentences were deemed
unconstitutional in Alleyne.1
Following remand, on February 26, 2016, the trial court imposed an
aggregate sentence of 14½ to 29 years’ imprisonment. The trial court did
not impose any mandatory-minimum sentences, but it did impose a school-
zone enhancement, pursuant to the Sentencing Guidelines, to four of
Neidig’s convictions.
On March 7, 2016, Neidig timely filed a post-sentence motion, which
the trial court granted in part and denied in part on March 26, 2016. The
trial court granted Neidig’s request for a recalculation of his credit for time
served but denied the motion in all other respects. On June 23, 2016,
Neidig timely appealed to this Court.2
Neidig presents one question for our review: “Did error occur where
Mr. Neidig received a sentence no less punitive than that which he had
received before, and included aggravation and school zone enhancement,
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1In Alleyne, the United States Supreme Court held that “[a]ny fact
that, by law, increases the penalty for a crime is an ‘element’ that must be
submitted to the jury and found beyond a reasonable doubt.” 133 S.Ct. at
2155. The Pennsylvania Supreme Court has since held that section 6317 of
the Crimes Code is constitutionally invalid under Alleyne. See
Commonwealth v. Hopkins, 117 A.3d 247, 262-63 (Pa. 2015).
On June 30, 2016, the trial court amended Neidig’s sentence to give
2
him credit for time served prior to resentencing, consistent with the court’s
March 26, 2016 order.
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despite the fact that this case had been remanded by the Superior Court for
resentencing?” Neidig’s Br. at 26.
Neidig’s claim regarding the application of the school-zone
enhancement challenges the discretionary aspects of sentencing. An appeal
from the discretionary aspects of sentencing is not guaranteed as a matter
of right. Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa.Super.
2010). Before addressing such a challenge, we must first determine:
(1) whether the appeal is timely; (2) whether [the]
[a]ppellant preserved his [or her] issue; (3) whether [the]
[a]ppellant’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 [S]entencing [C]ode.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006));
see Pa.R.A.P. 2119(f).
Here, Neidig filed a timely notice of appeal and included in his brief a
concise statement of reasons for allowance of appeal under Rule 2119(f).
However, Neidig failed to raise the school-zone enhancement issue either at
the resentencing hearing or in his post-sentence motion.3 Therefore, we
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3In fact, at the hearing, Neidig’s counsel stated: “[T]he defense
recognizes the caselaw [sic] subsequent to the Alleyne case in Pennsylvania
says, yes, mandatory minimums are out. We can use sentencing
enhancements. Specifically school zone enhancements.” N.T.,
2/26/16, at 64 (emphasis added). Defense counsel’s only argument with
regard to the school-zone enhancement was that the Commonwealth failed
(Footnote Continued Next Page)
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conclude that Neidig has waived his challenge to the trial court’s application
of the school-zone enhancement. See Commonwealth v. Cartrette, 83
A.3d 1030, 1043 (Pa.Super. 2013) (en banc) (finding particular sentencing
claim waived because it was not included in appellant’s post-sentence
motion or raised at sentencing); Commonwealth v. Kittrell, 19 A.3d 532,
538 (Pa.Super. 2011) (“[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.”)
(quotation omitted).
Because Neidig has waived his only claim on appeal, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2017
(Footnote Continued) _______________________
to prove Neidig’s age. Id. at 64-65. However, the defendant’s age is
irrelevant to the applicability of the school-zone enhancement in the
Pennsylvania Code. See 204 Pa. Code §§ 303.10(b), 303.9(c).
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