J-S63027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM RONDELL JACKSON                    :
                                               :
                       Appellant               :   No. 482 WDA 2018

            Appeal from the Judgment of Sentence March 23, 2018
     In the Court of Common Pleas of Cambria County Criminal Division at
                       No(s): CP-11-CR-0000828-2017


BEFORE:      OTT, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY MURRAY, J.:                            FILED OCTOBER 18, 2018

       William Jackson (Appellant) appeals from the judgment of sentence

imposed after a jury found him guilty of simple assault.1 We affirm.

       The trial court summarized the underlying facts:

             On December 21, 2016, Detective Daniel Fisher, Johnstown
       Police Department, responded to a call for service at 131 Plainfield
       Ave., Johnstown, Cambria County, Pennsylvania, to investigate a
       reported crime. After interviewing the involved parties, Det.
       Fisher learned that [Appellant] entered 131 Plainfield Ave. and got
       into an argument with [the victim]. Eventually the argument
       turned into a fight and [Appellant] struck [the victim] in the face.
       [Appellant] ran out [of] the house, and [the victim] called 911.

Trial Court Opinion, 5/29/18, at 1-2.

       Appellant was charged with several crimes as a result of the December

21, 2016 incident. A one-day jury trial was held on February 13, 2018, after

____________________________________________


1   18 Pa.C.S.A. § 2701(a)(3).


*Former Justice specially assigned to the Superior Court.
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which the jury Appellant convicted Appellant of a single count of simple

assault.   The trial court deferred sentencing for the preparation of a pre-

sentence investigation report. On March 23, 2018, the trial court sentenced

Appellant to one to two years of incarceration in a state correctional

institution. Appellant did not file a post-sentence motion. On April 2, 2018,

Appellant filed this timely appeal.   Both the trial court and Appellant have

complied with Pennsylvania Rule of Appellate Procedure 1925.

      Appellant presents a single issue for our review:

      Whether the Trial Court abused its discretion by sentencing the
      Appellant to a state sentence as opposed to a county sentence
      despite the fact that the Appellant had been incarcerated for
      nearly a year. In addition, whether the Trial Court entered an
      excessive sentence in light of the fact that the Appellant was
      acquitted of all serious charges, but for a simple assault charge.

Appellant’s Brief at 4.

      Appellant challenges the discretionary aspects of his sentence.          “The

right to appellate review of the discretionary aspects of a sentence is not

absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014),

appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a four-

part test to invoke this Court’s jurisdiction when challenging the discretionary

aspects of a sentence.”    Id.   We conduct this four-part test to determine

whether:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth

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      a concise statement of reasons relied upon for the allowance of
      appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
      a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted), appeal denied, 86 A.3d 231 (Pa. 2014).

      Instantly, Appellant has failed to comply with the first prong of the test

because he failed to raise his sentencing issue at sentencing or in a post-

sentence motion. His issue is therefore waived.

      Pennsylvania Rule of Appellate Procedure 302 mandates that “issues not

raised in the lower court are waived and cannot be raised for the first time on

appeal.” Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003)

(internal citation omitted). This Court has stated:

      [I]ssues challenging the discretionary aspects of a sentence must
      be raised in a post-sentence motion or by presenting the claim to
      the trial court during the sentencing proceedings. Absent such
      efforts, an objection to a discretionary aspect of a sentence is
      waived.

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013)

(internal citations omitted). See also Commonwealth v. Yockey, 158 A.3d

1246, 1259 (Pa. Super. 2017), (citing Pa.R.Crim.P. 720; Pa.R.A.P. 302(a))

(“Appellant did not preserve his discretionary aspects of sentencing claim at

sentencing or in a post-sentence motion. Therefore, the claim is waived.”).

      Our review of the record reveals that in addition to not filing a post-

sentence motion, Appellant did not raise his sentencing issue with the trial

court at sentencing.   See N.T., 3/23/18, at 1-12.       As Appellant has not

properly preserved his sentencing claim, the issue is waived.

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     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2018




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