Com. v. Baumgardner, R. ( 2019 )

J-S68020-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RYAN BAUMGARDNER :
:
Appellant : No. 246 WDA 2018
Appeal from the Judgment of Sentence November 16, 2017
In the Court of Common Pleas of Cambria County Criminal Division at
No(s): CP-11-CR-0000808-2016
BEFORE: SHOGAN, J., DUBOW, J., and STEVENS*, P.J.E.
JUDGMENT ORDER BY DUBOW, J.: FILED FEBRUARY 25, 2019
Appellant, Ryan Baumgardner, appeals from the Judgment of Sentence1
entered in the Cambria County Court of Common Pleas after a jury convicted
him of multiple counts of Possession with Intent to Deliver (“PWID”) and
related offenses. After careful review, we find that Appellant has waived his
challenge to the discretionary aspects of sentencing and, thus, affirm.
A detailed recitation of the factual and procedural history is unnecessary
to our disposition. Briefly, on September 22, 2017, a jury convicted Appellant
of two counts of PWID, Criminal Conspiracy, two counts of Corrupt
____________________________________________
1 Appellant
purports to appeal from the January 11, 2018 Order denying his
Post-Sentence Motion to Modify Sentence. We have corrected the caption to
reflect that Appellant's appeal properly lies from the judgment of
sentence entered on November 16, 2017. See Commonwealth v.
Dreves, 839 A.2d 1122, 1125 n. 1 (Pa. Super. 2003) (en banc ) (explaining
appeal properly lies from judgment of sentence).
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S68020-18
Organizations, and Criminal Use of a Communication Facility 2 after hearing
evidence that Appellant was a co-conspirator in a large heroin distribution
operation in the Pittsburgh and Johnston areas of Pennsylvania.
On November 16, 2017, the trial court sentenced Appellant within the
sentencing guidelines to an aggregate sentence of nine to eighteen years’
incarceration. Appellant filed a timely Post-Sentence Motion, which the trial
court denied on January 12, 2018.
Appellant filed a timely Notice of Appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
Appellant raises the following issue on appeal: “Whether [Appellant]’s
sentence was incorrect based upon the alleged amounts in grams of drugs
delivered?” Appellant’s Brief at 4. Appellant avers that the trial court
erroneously based the offense gravity score, and resulting guideline sentence,
on speculative evidence that Appellant possessed between 100 and 1000
grams of heroin when the evidence proved that Appellant possessed only 2
grams of heroin. Id. at 7-8.
Any allegation that the court misapplied the sentencing guidelines by
using an improper calculation of the offense gravity score constitutes a
challenge to the discretionary aspects of sentencing. Commonwealth v.
Sunealitis, 153 A.3d 414, 421 (Pa. Super. 2016). Challenges to the
discretionary aspects of sentencing do not entitle an appellant to an appeal as
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235 P.S. § 780-113 (a)(30); 18 Pa.C.S. § 903(a); 18 Pa.C.S. § 911(b)(3);
and 18 Pa.C.S. § 7512(a), respectively.
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J-S68020-18
of right. Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000).
Rather, an appellant challenging the sentencing court’s discretion must invoke
this Court’s jurisdiction by: (1) filing a timely notice of appeal; (2) properly
preserving the issue at sentencing or in a motion to reconsider and modify the
sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a separate
section of the brief setting forth “a concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary aspects of a
sentence[;]” and (4) presenting a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code.
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation
omitted).
Appellant failed to include a Rule 2119(f) Statement in his Brief and the
Commonwealth objected to its omission. Commonwealth’s Brief at 12-14.
Appellant has, thus, waived his challenge to the discretionary aspects of his
sentence. Pa.R.A.P. 2119(f); Commonwealth v. Sanchez, 848 A.2d 977,
986 (Pa. Super. 2004). See also Commonwealth v. Kiesel, 854 A.2d 530,
533 (Pa. Super. 2004) (holding that this Court is precluded from reviewing
the merits of the claim when the Commonwealth objects to the omission of a
Pa.R.A.P. 2119(f) Statement). Accordingly, we affirm.
Judgment of Sentence affirmed.
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J-S68020-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/25/2019
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