Commonwealth v. Brewer

Full title: COMMONWEALTH OF PENNSYLVANIA, Appellee v. DEJA VU BREWER, Appellant

Court: SUPERIOR COURT OF PENNSYLVANIA

Date published: Mar 20, 2014

No. J-S09021-14 (Pa. Super. Ct. Mar. 20, 2014)

Opinion

No. J-S09021-14 No. 1011 MDA 2013

03-20-2014

COMMONWEALTH OF PENNSYLVANIA, Appellee v. DEJA VU BREWER, Appellant

PER CURIAM

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence May of 16, 2013

In the Court of Common Pleas of Montour County

Criminal Division at No(s): CP-47-CR-0000006-2013

BEFORE: MUNDY, OLSON and STABILE, JJ. JUDGMENT ORDER PER CURIAM:

Appellant, Déjà Vu Brewer, appeals from the judgment of sentence entered on May 16, 2013. We affirm.

Appellant pleaded guilty to aggravated assault under 18 Pa.C.S.A. § 2702(a)(3) and, on May 16, 2013, the trial court sentenced Appellant to a standard range sentence of 16 to 32 months in prison. Appellant did not object to her sentence during the sentencing hearing and Appellant did not thereafter file a post-sentence motion. Instead, on June 6, 2013, Appellant filed a notice of appeal to this Court. Now on appeal, Appellant raises the following claims:

1. Did the [trial] court err in failing to impose a shorter minimum sentence?
2. Did the [trial] court fail to consider all mitigating factors specific to [Appellant's] case and individualize sentence based upon the characteristics of [Appellant]?

Appellant's Brief at 3.

Both of Appellant's claims challenge the discretionary aspects of her sentence. We note that "sentencing is a matter vested in the sound discretion of the sentencing judge, whose judgment will not be disturbed absent an abuse of discretion." Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001). Moreover, pursuant to statute, Appellant does not have an automatic right to appeal the discretionary aspects of her sentence. See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for permission to appeal the discretionary aspects of her sentence.

As this Court has explained:

[t]o reach the merits of a discretionary sentencing issue, we conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, 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, 42 [Pa.C.S.A.] § 9781(b).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

Here, Appellant failed to raise her discretionary aspects of sentencing claims either during sentencing or in a post-sentence motion. As such, Appellant's current claims are waived. Pa.R.Crim.P. 720; Pa.R.A.P. 302(a) ("[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal").

Judgment of sentence affirmed. Judgment Entered. ______________________
Joseph D. Seletyn, Esq.
Prothonotary