J-S64041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA          :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
    MICHAEL G. MEAD                       :
                                          :
                     Appellant            :    No. 2088 MDA 2016

             Appeal from the Judgment of Sentence October 27, 2016
    In the Court of Common Pleas of Susquehanna County Criminal Division at
                        No(s): CP-58-CR-0000152-2011


BEFORE:      PANELLA, J., SHOGAN, J., and FITZGERALD, * J.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 17, 2017

        Appellant, Michael G. Mead, appeals pro se from his judgment of

sentence of eight to eighteen years’ imprisonment for rape,1 involuntary

deviate sexual intercourse (“IDSI”)2 and aggravated indecent assault3

imposed after the trial court granted partial relief under the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.        Appellant argues that the

trial court erred in calculating his prior record score as two at the time of

sentencing. We affirm.



*   Former Justice specially assigned to the Superior Court.
1   18 Pa.C.S. § 3121(a)(1).

2   18 Pa.C.S. § 3123(a)(1).

3   18 Pa.C.S. § 3125(a)(1).
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      On April 4, 2012, a jury found Appellant guilty of the foregoing

offenses. On September 12, 2012, the trial court sentenced Appellant to an

aggregate term of fifteen to thirty years’ imprisonment. On June 24, 2014,

this Court affirmed on direct appeal. Commonwealth v. Mead, 600 MDA

2013 (Pa. Super. filed June 24, 2014) (unpublished memorandum).

      Appellant filed a timely PCRA petition and a counseled amended PCRA

petition claiming, inter alia, that his sentences were illegal under Alleyne v.

United States, 133 S.Ct. 2151 (2013). At a hearing on October 21, 2016,

the PCRA court agreed that Appellant’s sentences were illegal and ordered

resentencing. Appellant’s attorney advised that Appellant was withdrawing

all other claims in his amended PCRA petition, including claims of actual

innocence and ineffective assistance of counsel. N.T., 10/21/16, at 6.

      During resentencing on October 27, 2016, the Commonwealth argued

the following with regard to Appellant’s new sentence:

         It’s the position of the Commonwealth that the original
         sentence, while deemed illegal in light of Alleyne, that
         original sentence of [fifteen] to [thirty] years is, and
         continues to be, an appropriate sentence. There are three
         counts that the [c]ourt is going to sentence on today, the
         IDSI, which carries a standard range of [sixty] to
         [seventy-eight] months; the aggravated sexual
         assault, which carries a standard range of [thirty-
         six] to [forty-eight] months; and the rape charge,
         which also carries a standard range of [sixty] to
         [seventy-eight]      months.[4]        I   believe   prior
         discussions I’ve had with defense counsel we’re in

4These standard ranges apply to individuals with a prior record score of two.
See 204 Pa. Code § 303.16(a).



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           agreement that those are the appropriate guideline
           ranges based on the offense gravity score and the
           prior record score involved in this matter. That gives
           us an aggregate range, Your Honor, of 156 to 204 months,
           meaning [thirteen] to [seventeen] years . . . as a standard
           range . . . . So it’s the Commonwealth’s position that if it
           maintains its sentence, with a consecutive sentence of
           [fifteen] to [thirty] years, that fits in the middle of the
           standard range and remains appropriate.

N.T., 10/27/16, at 9-10 (emphasis added). Appellant did not object to the

Commonwealth’s recitation of the standard range minimum sentences.

     The trial court resentenced Appellant to an aggregate term of eight to

eighteen years’ imprisonment.5         Appellant did not file post-sentence

motions. On November 21, 2016, Appellant mailed a timely pro se notice of

appeal to the trial court.     Without ordering Appellant to file a Pa.R.A.P.

1925(b) statement, the trial court issued a short statement in lieu of

opinion.

     On February 14, 2017, Appellant filed a motion in this Court for leave

to proceed pro se in his direct appeal. On February 27, 2017, we ordered

the trial court to hold a hearing as to whether Appellant knowingly,

voluntarily and intelligently waived his right to counsel. On March 16, 2017,

the trial court held a hearing and determined that Appellant made a




5 The court imposed a sentence of eight to eighteen years’ imprisonment for
IDSI, a concurrent sentence of eight to eighteen years’ imprisonment for
rape and a concurrent sentence of five to ten years’ imprisonment for
aggravated indecent assault.




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knowing,   intelligent    and   voluntary   waiver   of   his   right   to   counsel.

Subsequently, Appellant has represented himself in this appeal.

      Appellant raises two issues in this appeal:

         1. Whether the Court abused [its] discretion or erred as a
         matter of law by accepting and utilizing a prior record
         score of [two] at . . . resentencing when [Appellant’s] prior
         record score was more properly a zero?

         2. Whether the Court abused [its] discretion or erred as a
         matter of law by granting sentencing relief without a
         hearing on the remaining issues of PCRA merit?

Appellant’s Brief at 4.

      Appellant first asserts that the trial court incorrectly computed his prior

record score as two instead of zero. Appellant has waived this argument.

      A claim that the court applied an incorrect prior record score implicates

the discretionary aspects of sentencing. See Commonwealth v. Spenny,

128 A.3d 234, 241 (Pa. Super. 2015). “[S]uch challenges are not subject to

our review as a matter of right.” Id. Instead,

         [a]n appellant must satisfy a four-part test to invoke this
         Court’s jurisdiction when challenging the discretionary
         aspects of a sentence, by (1) preserving the issue in the
         court below, (2) filing a timely notice of appeal, (3)
         including a statement pursuant to Pa.R.A.P. 2119(f) (“Rule
         2119(f) statement”) in his brief on appeal, and (4) raising
         a substantial question for our review.

Id. (citation and internal quotations omitted).

      Here, Appellant failed to raise any objection to his prior record score in

the trial court. He did not object to the Commonwealth’s calculation of the

standard guideline ranges for each offense, which were based on a prior


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record score of two. Indeed, the Commonwealth stated, without objection,

that Appellant’s attorney was “in agreement that [these] are the appropriate

guideline ranges based on the offense gravity score and the prior record

score involved in this matter.” N.T., 10/27/16, at 10. Moreover, Appellant

failed to file post-sentence motions.    Consequently, he waived this issue.

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

(en banc) (absent timely post-sentence motion or claim raised during

sentencing, objection to discretionary aspect of sentence is waived).

      In his second argument, Appellant contends that the trial court erred

by failing to hold a hearing at sentencing “on the remaining issues of PCRA

merit.”   Appellant’s Brief at 14.   Because Appellant’s brief fails to specify

what these issues are, this argument is waived.          See Pa.R.A.P. 2119;

Commonwealth v. Rhoades, 54 A.3d 908, 915 (Pa. Super. 2012)

(appellant’s failure to develop argument in brief constitutes waiver).

Moreover, during the PCRA hearing in which the trial court ordered

resentencing, Appellant agreed to withdraw all other claims in his amended

PCRA petition. N.T., 10/21/16, at 6. Thus, once again, he has waived the

right to litigate any other issues in his amended PCRA petition.




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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/17/2017




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