Com. v. Leese, B., II ( 2023 )

J-S39018-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN MICHAEL COHEN LEESE, II :
:
Appellant : No. 838 MDA 2022
Appeal from the Judgment of Sentence Entered October 26, 2021
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0000384-2021
BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 17, 2023
Brian Michael Cohen Leese, II (“Appellant) appeals from the judgment
of sentence of an aggregate term of 10 to 20 years’ imprisonment, imposed
after he pled guilty to three counts of delivery of a controlled substance and
two counts of possession with intent to deliver a controlled substance.
Appellant solely challenges the discretionary aspects of his sentence. After
careful review, we affirm.
The Commonwealth entered the following facts on the record at
Appellant’s sentencing hearing, which led to Appellant’s convictions.
Starting on Count 1, on February 10, 2021, a confidential
informant [(“CI”)] working with the Adams County Drug Task
Force set up a controlled buy with [Appellant] in Oxford Township,
Adams County, Pennsylvania. At that time[,] the CI met with
[Appellant,] and [Appellant] provided the CI a powder in a plastic
bag for pre-marked bills. Labs for that particular transaction
showed that the powder was fentanyl and it was in excess of two
grams.
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Moving onto Count 3, [on] February 16, 2021, [Appellant] met
with the CI in York County, Pennsylvania[,] under surveillance of
the State Police, [the] Adams County Drug Task Force[,] and [the]
York County Drug Task Force. There the CI purchased fentanyl
from [Appellant] again in exchange for marked bills. Labs showed
that the fentanyl there was again in excess of two grams.
On February … 24th for Count 6, the CI met with an uncharged
co-defendant, that’ll be [Appellant’s co-defendant], that being in
York County, Pennsylvania[,] again[,] under the watchful eye of
[the] State Police, [the] Adams County Drug Task Force[,] and
[the] York County Drug Task Force. [The] CI purchased fentanyl
from the co-defendant working with [Appellant], again, in
exchange for marked bills. The labs there showed that the
fentanyl purchase was in excess of one gram.
Going back to … Count 2 for PWID[,] on February 26th, 2021, the
search was conducted of [Appellant’s] residence that’s located in
York County, Pennsylvania. There police officers working with the
Adams County and York County Drug Task Force[s] and the State
Police found 75 oxycodone pills. Those were possessed by
[Appellant] for sale.
Additionally, with regard to Count 10 on that same date[,] during
the search of [Appellant’s] residence, buy money was found from
the February 24th, 2021 transaction and two bags of pills. There
were 200 pills total. Those were possessed for distribution. The
pills were fentanyl pills and testing showed that there was in
excess of 20 grams of fentanyl there for those pills. Additionally,
[Appellant] possessed approximately $7,000 in U.S. currency.
[Appellant] also indicated that he buys approximately 1 to 500
fentanyl pills for sale per week and will buy them for
approximately $25 to $30 a pill and $18 a pill for non-fentanyl
pills that he sells.
N.T., 8/17/21, at 5-6. Appellant agreed to the facts as presented by the
Commonwealth. Id. at 6-7.
In its Pa.R.A.P. 1925(a) opinion, the trial court summarized the
procedural history of this matter as follows:
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On August 17, 2021, Appellant entered into a non-negotiated
guilty plea to Count 1, amended Count 2,[1] Count 3, Count 6, and
Count 10. Counts 1, 3, and 6 were each delivery of a controlled
substance, specifically fentanyl, in violation of Section 780-
113(a)(30) of the Controlled Substance, Drug, Device and
Cosmetic Act.[2] Counts 2 and 10 were possession with intent to
deliver a controlled substance, specifically fentanyl, also in
violat[ion] of Section 780-113(a)(30). All counts were felonies
with maximum sentences of 30 years on each count. Appellant
was sentenced on October 26, 2021, as follows:
• Count 1 — 5 to 10 years in a state correctional institution
(“SCI”).
• Count 2 — 30 to 60 months[’] SCI, concurrent with Count
1.
• Count 3 — 5 to 10 years[’] SCI, consecutive to Count 1.
• Count 6 — 5 to 10 years[’] SCI, concurrent with Count 3.
• Count 10 — 5 to 10 years[’] SCI, concurrent with Count
6.
The resulting aggregate sentence for Appellant in this matter is
for 10 to 20 years[’] SCI.
On March 23, 2022, Appellant filed a pro se petition for relief under
the Post-Conviction Relief Act (“PCRA”).[3] Appellant was granted
court-appointed counsel for representation throughout the PCRA
proceedings. Counsel filed an amended PCRA petition on May 10,
2022, raising a claim for ineffective assistance of plea counsel for
failure to file a requested appeal, and requesting the
reinstatement of Appellant’s post-sentence and appeal rights. The
amended petition filed by PCRA counsel withdrew several other
claims originally raised in Appellant’s pro se petition.
A pre-hearing conference on Appellant’s PCRA petition was held
on May 17, 2022. The Commonwealth agreed with Appellant’s
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1Count 2 was amended only to change the date from February 10, 2021, to
February 26, 2021. N.T. at 2.
2 35 P.S. §§ 780-101 – 780-144.
3 42 Pa.C.S. §§ 9541-9546.
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assertion that due to ineffective assistance of plea counsel, his
appellate rights should be reinstated. We declined to reinstate
Appellant’s post-sentence rights with this court because any
motion requesting reconsideration of the sentence imposed would
have been meritless, as there was no basis for relief. However,
we granted the request to reinstate Appellant’s right to file an
appeal to the Pennsylvania Superior Court.[4]
Trial Court Opinion (“TCO”), 6/28/22, at 1-2 (unnecessary capitalization
omitted).
Appellant did not appeal from the PCRA court’s order denying him leave
to file a post-sentence motion nunc pro tunc. Instead, on June 7, 2022, he
filed a direct appeal nunc pro tunc from the underlying judgment of sentence.
The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement
of errors complained of on appeal, and he complied. On June 28, 2022, the
trial court issued its Rule 1925(a) opinion. Appellant now presents the
following sole issue for our review: “Whether the trial court erred as a matter
of law and/or abused its discretion in sentencing Appellant to an aggregate
sentence of 10-20 years, which constituted an excessive sentence?”
Appellant’s Brief at 4.
Appellant’s challenge implicates the discretionary aspects of his
sentence. “The right to appellate review of the discretionary aspects of a
sentence is not absolute and must be considered a petition for permission to
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4 See PCRA Court Order, 5/17/22 (single page) (reinstating Appellant’s right
to file a direct appeal to this Court but declining to reinstate Appellant’s right
to file post-sentence motions).
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appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super.
2014) (en banc).
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determined: (1) whether
[the] 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 [the]
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.[] § 9781(b).
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) (citations
and internal quotation marks omitted).
Here, the record clearly reflects that Appellant was granted permission
to file a direct appeal nunc pro tunc and that he has done so in a timely
manner. However, Appellant failed to preserve his claim before the trial court.
We have reviewed the transcripts and discern that Appellant did not raise any
issue regarding the discretionary aspects of his sentence at the sentencing
hearing, nor does he point us to anywhere in the record where such claim was
preserved. Moreover, no post-sentence motion for reconsideration was ever
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filed.5 Thus, we are precluded from reviewing the merits of Appellant’s claim.
See Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa. Super. 2013) (“Issues
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.”) (citation omitted;
emphasis in original).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/17/2023
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5Appellant elected to file a direct appeal from his judgment of sentence, rather
than appeal the PCRA court’s order denying him permission to file a post-
sentence motion nunc pro tunc. See Commonwealth v. Liston, 977 A.2d
1089, 1090 (Pa. 2009) (holding that when a PCRA court reinstates a
defendant’s direct appeal rights nunc pro tunc, the defendant is not
automatically granted the right to file a post-sentence motion nunc pro tunc,
but that “[i]f a defendant successfully pleads and proves that he was deprived
of the right to file and litigate said motions as a result of the ineffective
assistance of counsel, a PCRA court is free to grant such relief”).
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