J-S73028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

RICHARD GLENN MITCHELL,

                          Appellant                   No. 691 WDA 2018


       Appeal from the Judgment of Sentence Entered April 19, 2018
            In the Court of Common Pleas of Somerset County
           Criminal Division at No(s): CP-56-CR-0000354-2017

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED JANUARY 24, 2019

      Appellant, Richard Glenn Mitchell, appeals from the judgment of

sentence of 1-2 years’ incarceration imposed after he entered a guilty plea to

one count of retail theft, 18 Pa.C.S. § 3929(a)(1). We affirm.

      We need not provide a lengthy summary of the facts underlying this

case. Instead, we simply note that Appellant was alleged to have stolen items

from a Walmart store on two separate occasions, for which he was charged at

two separate criminal dockets, Case Numbers 353-2017 and 354-2017. See

Appellant’s Brief at 5; N.T. Hearing, 2/6/2018, at 3-4.          Subsequently,

Appellant entered a guilty plea to one count of retail theft at Case Number

354-2017, and Case Number 353-2017 was withdrawn with the stipulation

that Appellant would pay the restitution owed. See N.T. Hearing at 3-4. On

April 19, 2018, the trial court sentenced Appellant to 1-2 years’ incarceration,
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and ordered that Appellant serve that sentence consecutive to a term of

incarceration Appellant was serving in another case at Case Number 286-

2013.    See Video-Sentence of Court, 4/19/2018, at 2.1        Appellant did not

make any objections at his sentencing hearing, and he did not file any post-

sentence motions.

        On May 3, 2018, Appellant filed a timely notice of appeal.      The trial

court directed Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal, and he timely complied. Presently, Appellant raises

a single issue for our review:
        Whether the lower court abused its discretion in sentencing
        [Appellant], such that the lower court did not consider Appellant’s
        individual circumstances in fashioning the sentence and the
        sentence is unfair.

Appellant’s Brief at 5 (unnumbered page; unnecessary capitalization

omitted).2

        Appellant challenges the discretionary aspects of his sentence.

However, before reaching the merits of this issue, we must determine if

Appellant has preserved it for our review. This Court has explained:
____________________________________________


1 We note that Appellant qualified for the Recidivism Risk Reduction Inventive
(“RRRI”) Program, and his alternate minimum sentence is 9 months. See
Video-Sentence of Court at 2-3.

2 Appellant does not number the pages in his brief as required by Pa.R.A.P.
2173, but provides a table of contents and a table of citations pursuant to
Pa.R.A.P. 2174. Upon closer review, we observe that the page numbers listed
in those tables do not conform to the unnumbered pages in his brief. Further,
the matters in Appellant’s brief are not in the order mandated under Pa.R.A.P.
2111(a). We admonish Appellant for his noncompliance with the rules of
appellate procedure.

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       A challenge to the discretionary aspects of sentencing does not
       entitle an appellant to review as of right. In order to invoke this
       Court’s jurisdiction to address such a challenge, the appellant
       must satisfy the following four-part test: the appellant must (1)
       file a timely notice of appeal pursuant to Pa.R.A.P. 902, 903; (2)
       preserve the issues at sentencing or in a timely post-sentence
       motion pursuant to Pa.R.Crim.P. 720; (3) ensure that the
       appellant’s brief does not have a fatal defect as set forth in
       Pa.R.A.P. 2119(f); and (4) set forth a substantial question that
       the sentence appealed from is not appropriate under the
       Sentencing Code under 42 Pa.C.S. § 9781(b).

Commonwealth v. Griffin, 149 A.3d 349, 353 (Pa. Super. 2016) (internal

citations and quotation marks omitted).

       Here, Appellant did not preserve his issue at sentencing or in a timely

post-sentence motion. See Commonwealth v. Cartrette, 83 A.3d 1030,

1042 (Pa. Super. 2013) (“[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.”) (citation and

internal quotation marks omitted).3 Accordingly, we deem Appellant’s issue

waived and affirm his judgment of sentence.

       Judgment of sentence affirmed.
____________________________________________


3 In addition, the Commonwealth objects on the basis that Appellant has not
complied with Pa.R.A.P. 2119(f). See Commonwealth’s Brief at 2. Appellant’s
noncompliance with Rule 2119(f) also requires us to find his claim waived.
Griffin, 149 A.3d at 353 (“When challenging the discretionary aspects of
sentence, an appellant must include in his or her brief a separate concise
statement demonstrating that there is a substantial question as to the
appropriateness of the sentence under the Sentencing Code.           If the
Commonwealth objects to the appellant’s failure to comply with [Rule]
2119(f), the sentencing claim is waived for purposes of review.”) (citations
and quotation marks omitted).

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J-S73028-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/24/2019




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