Com. v. Bacon, C. ( 2014 )

J-S46044-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHARLEY RICHARD BACON, :
:
Appellant : No. 36 MDA 2014
Appeal from the Judgment of Sentence entered on November 25, 2013
in the Court of Common Pleas of Tioga County,
Criminal Division, No. CP-59-CR-0000378-2013
BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 20, 2014
om the judgment of
sentence entered following his guilty plea to driving under the influence of
1
alcohol- We affirm.
On October 14, 2013, Bacon pled guilty to violating Section 3802(a)(1)
of the Motor Vehicle Code. Upon the en
court directed the preparation of a pre-sentence investigation report. On
November 25, 2013, after a hearing, the trial court sentenced Bacon to two
to five years in prison. Bacon filed a Petition for Modification of Sentence,
which the trial court denied. Thereafter, Bacon filed the instant timely
appeal, followed by a court-ordered Pennsylvania Rule of Appellate
Procedure 1925(b) Concise Statement of Matters Complained of on Appeal.
1
75 Pa.C.S.A. § 3802(a)(1).
J-S46044-14
On appeal, Bacon presents the following issues for our review:
1. Whether the trial court abused its discretion by improperly
basing the aggravated range sentence[] on the number of
Sentence based on the error?
2. Whether the trial court abused its discretion by failing to
state on the record sufficient reasons for imposing aggravated
range sentence[]?
Brief of Appellant at 5.
Challenges to the discretionary aspects of sentencing do not entitle an
Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa. Super. 2011).
An appellant challenging the discretionary aspects of his
four-part test: (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 [t
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.A. § 9781(b). Commonwealth v. Evans
901 A.2d 528, 533 (Pa. Super. 2006).
Allen, 24 A.3d at 1064.
Here, our review of the record discloses that Bacon timely filed his
Notice of Appeal. Our review further discloses that Bacon filed a post-
sentence Petition for Modification of Sentence. In his Petition, however,
Bacon did not raise the issues he now raises on appeal.
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J-S46044-14
the following:
4. [Bacon] is an employee of MedPlast in Knoxville,
Pennsylvania[,] and his employer really needs him as an
employee, as they have not trained anyone to take his place.
5. [Bacon] desires his sentence to be modified so he can
serve his incarceration at the Tioga County Prison and be
eligible for work release.
Petition for Modification of Sentence at ¶¶ 4-
any of the issues he presently asserts on appeal. Because Bacon failed to
jurisdiction to review the discretionary aspects of his sentence.2 See Allen,
challenge to the discretionary aspects of sentencing, the appellant must
preserve the issue(s) in a post-sentence motion); see also Pa.R.A.P. 302(a)
(providing that an issue cannot be raised for the first time on appeal).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
2
Even if Bacon had properly preserved his issues, we would affirm based
See Trial Court Opinion,
3/19/14, at 1-2.
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