J-S46036-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    Appellee              :
                                          :
                    v.                    :
                                          :
CARLOS IVAN MARQUEZ,                      :
                                          :
                     Appellant            :    No. 2800 EDA 2015

          Appeal from the Judgment of Sentence August 18, 2015
              in the Court of Common Pleas of Lehigh County,
           Criminal Division, at No(s): CP-39-CR-0001364-2015

BEFORE:     BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED AUGUST 02, 2016

      Carlos Ivan Marquez (Appellant) appeals from the judgment of

sentence imposed following his conviction for delivery of a controlled

substance. We affirm.

      On July 8, 2015, Appellant entered into a guilty plea to one count of

delivery of a controlled substance (cocaine). In exchange for his guilty plea,

the Commonwealth agreed that Appellant’s minimum sentence would not

exceed 21 months, which was the bottom of the standard range of the

applicable sentencing guidelines. N.T., 7/8/2015, at 2-4. Under the terms of

the agreement, calculation of the maximum sentence was left to the court’s

discretion. The Commonwealth also agreed to withdraw any remaining

charges. After accepting the agreement, the trial court ordered a pre-

sentence investigation report (PSI) and agreed to consider whether



*Retired Senior Judge assigned to the Superior Court.
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Appellant   was   eligible   for   Lehigh   County’s   intermediate    punishment

Treatment Continuum Alternative Program (T.C.A.P.). Id. at 9, 14.

      On August 18, 2015, following a hearing, Appellant was sentenced to a

period of 21 to 60 months’ imprisonment. N.T., 8/18/2015, at 12. The court

determined that Appellant was ineligible for RRRI, and declined the

probation   department’s     T.C.A.P.   recommendation      on   the   basis   that

Appellant’s extensive prior record suggested that he was not an appropriate

candidate for the program. Id. at 11-12.         Appellant did not file a post-

sentence motion, but timely filed a notice of appeal. Both Appellant and the

trial court complied with Pa.R.A.P. 1925.

      On appeal, Appellant asks this Court to consider whether “the lower

court abused its discretion by imposing sentences which were manifestly

unreasonable as the court failed to fully state its reasons for the imposition

of the sentences or otherwise failed to review all appropriate factors as

required by law.” Appellant’s Brief at 7.

      An appellant challenging the discretionary aspects of his sentence

must invoke this Court’s jurisdiction by satisfying a four-part test:

      (1) whether appellant has filed a timely notice of appeal, see
      Pa.R.A.P. 902 and 903; (2) whether the issue was properly
      preserved at sentencing or in a motion to reconsider and modify
      sentence, see 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.[] § 9781(b).




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Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citation

omitted). Objections to the discretionary aspects of sentence are generally

waived if they are not raised at the sentencing hearing or in a motion to

modify the sentence imposed at that hearing. Commonwealth v. Mann,

820 A.2d 788, 794 (Pa. Super. 2003).

     Instantly, Appellant has satisfied the first requirement by filing timely

a notice of appeal.   However, the record reflects that he failed to file a

motion to reconsider and modify his sentence.1 Additionally, Appellant did

not raise this issue at his sentencing hearing. See N.T., 8/18/2015.

Therefore, Appellant has not preserved this issue, and it is waived.

Accordingly, we affirm Appellant’s judgment of sentence.

     Judgment of sentence affirmed.




1
 In its brief, the Commonwealth indicates that Appellant filed post-sentence
motions which were denied. Commonwealth’s Brief at 4. However, the
docket and certified record do not bear out this contention. Additionally,
neither Appellant’s brief nor the trial court’s Pa.R.A.P. 1925(a) opinion
mentions post-sentence motions.


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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 8/2/2016




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