Com. v. Diaz, J. ( 2014 )

J-S74020-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOEL EMILE DIAZ, :
:
Appellant : No. 256 EDA 2014
Appeal from the Judgment of Sentence November 15, 2013,
Court of Common Pleas, Lehigh County,
Criminal Division at No. CP-39-CR-0002040-2013
BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 23, 2014
Appellant, Joel Emile Diaz (“Diaz”), appeals from the judgment of
sentence entered on November 15, 2013, imposing an aggregate period of
two and a half to seven years of imprisonment after he pled guilty to one
count each of resisting arrest and possession with intent to deliver. 1 We
affirm.
The charges in this case arose when an undercover police operation
resulted in a successful drug purchase from Diaz. Diaz resisted arrest and
injured a police officer’s shoulder during the struggle, requiring the officer to
undergo extensive physical therapy. On October 14, 2013, Diaz entered an
open guilty plea to the crimes set forth above. He subsequently filed a post-
sentence motion, which the trial court denied after a hearing. On appeal,
1
18 Pa.C.S.A. § 5104; 35 P.S. § 780-113(a)(30).
*Retired Senior Judge assigned to the Superior Court.
J-S74020-14
Diaz challenges the discretionary aspects of his sentence.2 He alleges that
the trial court abused its discretion by imposing sentences that were
manifestly unreasonable, and argues that “the [trial] court failed to fully set
forth its reasons for parting [sic] from the sentencing guideline ranges and
imposing sentences at the top of the aggravated range of the sentencing
guidelines[.]” Diaz’s Brief at 7.
Our standard of review in an appeal from the discretionary aspects of
a sentence is well settled:
Sentencing is a matter vested in the sound discretion
of the sentencing judge, and a sentence will not be
disturbed on appeal absent a manifest abuse of
discretion. An abuse of discretion is more than just
an error in judgment and, on appeal, the trial court
will not be found to have abused its discretion unless
the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality,
bias or ill-will.
Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa. Super. 2003). However,
there is no absolute right to appeal the discretionary aspects of a sentence.
Commonwealth v. Reyes, 853 A.2d 1052, 1055 (Pa. Super. 2004). To
reach the merits of a discretionary sentencing issue, we conduct a four-part
analysis to determine: (1) whether appellant filed a timely notice of appeal;
(2) whether the issue was properly preserved at sentencing or in a motion to
2
Diaz’s guilty plea does not preclude him from challenging the discretionary
aspects of his sentence because there was no agreement as to the sentence
he would receive. See Commonwealth v. Hill, 66 A.3d 359, 363
(Pa. Super. 2013) (holding that defendant may challenge discretionary
aspects of sentence on appeal where open guilty plea is entered).
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J-S74020-14
reconsider and modify sentence; (3) whether appellant's brief contains a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence pursuant to 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.
Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010).
Our review of the record reveals that Diaz timely filed his notice of
appeal, and so the first prong of this test is satisfied. With regard to the
second prong, Diaz filed a timely post-sentence motion. Diaz did not,
however, raise the issue he presents on appeal (that the trial court failed to
state adequate reasons for the sentence imposed) at the time of sentencing
or in his post-sentence motion.3 “To preserve an attack on the discretionary
aspects of sentence, an appellant must raise his issues at sentencing or in a
post-sentence motion.” Commonwealth v. Malovich, 903 A.2d 1247,
1251 (Pa. Super. 2006). Diaz’s failure to preserve this issue precludes our
review of it on appeal. See Commonwealth v. Strunk, 953 A.2d 577, 579
(Pa. Super. 2008); Pa.R.A.P. 302(a) (“Issues not raised in the lower court
are waived and cannot be raised for the first time on appeal.”).
3
In both his written motion and at the hearing, Diaz argued only that the
trial court should give greater weight to certain mitigating factors (including
his acceptance of responsibility, showing of remorse and good behavior in
prison) and reduce his sentence. See Post Sentence Motion, 11/22/13, at 2-
3; N.T., 12/23/13, at 3.
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Having found the only issue raised by Diaz waived, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2014
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