Com. v. Mader, K. ( 2019 )

J-S68021-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KRISTA MADER :
:
Appellant : No. 248 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-0000909-2016
BEFORE: SHOGAN, J., DUBOW, J., and STEVENS*, P.J.E.
JUDGMENT ORDER BY DUBOW, J.: FILED FEBRUARY 25, 2019
Appellant, Krista Mader, appeals from the Judgment of Sentence 1
entered in the Cambria County Court of Common Pleas after a jury convicted
her of eleven counts of Delivery of a Controlled Substance, one count of
Possession with Intent to Deliver (“PWID”), and related offenses after hearing
evidence that Appellant was a co-conspirator in a large heroin distribution
operation. After careful review, we find that Appellant has waived her
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
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1 Appellant purports to appeal from the January 11, 2018 Order granting in
part and denying in part her 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-S68021-18
of the aforementioned offenses. On November 16, 2017, the trial court
sentenced Appellant to an aggregate sentence of eighteen to forty years’
incarceration. Appellant filed a timely Post-Sentence Motion to Modify
Sentence, which the trial court granted in part. On January 11, 2018, the trial
court reduced Appellant’s sentence for PWID and sentenced Appellant within
the sentencing guidelines to a new aggregate sentence of fourteen to forty
years’ incarceration.
Appellant filed a timely Notice of Appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.2
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 based
the offense gravity score, and resulting guideline sentences, on speculative
evidence that Appellant delivered over 1000 grams of heroin when
the evidence proved that Appellant delivered less than 100 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
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2 The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) Statement of
Errors Complained of on Appeal and, in its 1925(b) Opinion, states that it
received Appellant’s 1925(b) Statement. However, Appellant’s 1925(b)
Statement does not appear in the certified record.
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discretionary aspects of sentencing do not entitle an appellant to an appeal as
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 her Brief and the
Commonwealth objected to its omission. Commonwealth’s Brief at 10-12.
Appellant has, thus, waived her challenge to the discretionary aspects of her
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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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/25/2019
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