Com. v. Durst, M. ( 2017 )


Menu:
  • J-A24045-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
    :             PENNSYLVANIA
    v.                          :
    :
    MIKE BARLEY DURST,                        :
    :
    Appellant             :            No. 659 WDA 2017
    Appeal from the Judgment of Sentence February 27, 2017
    in the Court of Common Pleas of Somerset County,
    Criminal Division, No(s): CP-56-CR-0000657-2016
    BEFORE: MOULTON, SOLANO and MUSMANNO, JJ.
    MEMORANDUM BY MUSMANNO, J.:                     FILED DECEMBER 12, 2017
    Mike Barley Durst (“Durst”) appeals from the judgment of sentence
    imposed following the entry of his guilty plea to one count of criminal
    trespass.1 We affirm.
    On December 12, 2016, Durst pled guilty to one count of criminal
    trespass. On February 27, 2017, the trial court sentenced Durst to a prison
    term of six to 24 months. On February 28, 2017, Durst filed a timely post-
    sentence Motion. The trial court denied the Motion on April 28, 2017. Durst
    thereafter filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.
    1925(b) Concise Statement of matters raised on appeal.
    On appeal, Durst raises the following issue for our review: “Whether
    the [trial] court abused its discretion in sentencing [Durst], such that the
    [trial] court did not consider [Durst’s] individual circumstances in fashioning
    1
    See 18 Pa.C.S.A. § 3503(a)(1)(ii).
    J-A24045-17
    the sentence[,] and the sentence is unfair[?]”       Brief for Appellant at 19
    (capitalization omitted).
    Durst   challenges    the   discretionary   aspects   of   his   sentence.
    “Challenges to the discretionary aspects of sentencing do not entitle an
    appellant to review as of right.” Commonwealth v. Moury, 
    992 A.2d 162
    ,
    170 (Pa. Super. 2010).      Prior to reaching the merits of a discretionary
    sentencing issue,
    [this Court conducts] a four[-]part analysis to determine: (1)
    whether 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 appellant’s brief
    has a fatal defect, [see] 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, [see] 42
    Pa.C.S.A. § 9781(b).
    Moury, 
    992 A.2d at 170
     (citation omitted).
    When an appellant challenges the discretionary aspects of his
    sentence, we must consider his brief on this issue as a petition for
    permission to appeal. Commonwealth v. Yanoff, 
    690 A.2d 260
    , 267 (Pa.
    Super. 1997); see also Commonwealth v. Tuladziecki, 
    522 A.2d 17
    , 18
    (Pa. 1987); 42 Pa.C.S.A. § 9781(b).
    In the instant case, Durst filed a timely Notice of Appeal, and
    preserved his claim in a timely post-sentence Motion. However, he failed to
    include in his appellate brief a separate Rule 2119(f) statement.           See
    Pa.R.A.P. 2119(f) (providing that “[a]n appellant who challenges the
    -2-
    J-A24045-17
    discretionary aspects of a sentence in a criminal matter shall set forth in his
    brief a concise statement of the reasons relied upon for allowance of appeal
    with respect to the discretionary aspects of a sentence.”). Additionally, the
    Commonwealth has objected to Durst’s non-compliance with Rule 2119(f).
    See Commonwealth v. Griffin, 
    149 A.3d 349
    , 353 (Pa. Super. 2016)
    (holding that “[i]f the Commonwealth objects to the appellant’s failure to
    comply with Pa.R.A.P. 2119(f), the sentencing claim is waived for purposes
    of review”). Because Durst failed to comply with the requirements of Rule
    2119(f), he failed to preserve his discretionary sentencing issue for our
    review.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/12/2017
    -3-
    

Document Info

Docket Number: 659 WDA 2017

Filed Date: 12/12/2017

Precedential Status: Precedential

Modified Date: 12/12/2017