J-S40012-17-J-S40013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
 COMMONWEALTH OF PENNSYLVANIA :   IN THE SUPERIOR COURT OF
                              :         PENNSYLVANIA
                              :
          v.                  :
                              :
                              :
 EMMANUEL RENTERIA            :
                              :
              Appellant       :   No. 2656 EDA 2016

              Appeal from the Judgment of Sentence July 15, 2016
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0003746-2015



    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    EMMANUEL RENTERIA                          :
                                               :
                      Appellant                :   No. 2657 EDA 2016

              Appeal from the Judgment of Sentence July 15, 2016
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0003898-2015


BEFORE:      OTT, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                          FILED AUGUST 02, 2017

        In this consolidated appeal, Appellant, Emmanuel Renteria, appeals at

2657 EDA 2016 from the judgment of sentence entered in the Court of

Common Pleas of Chester County after a jury convicted him of multiple
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S40012-17-J-S40013-17



counts of theft, robbery, aggravated assault, simple assault, recklessly

endangering another person, terroristic threats and conspiracy.        In the

companion case at 2656 EDA 2016, Appellant appeals from the judgment of

sentence entered following his guilty plea to three counts of robbery and one

count of conspiracy.

      The trial court imposed consecutive sentences in both cases, with an

aggregate sentence of 14 ½ to 29-year sentence applying to the case at

2657 EDA 2016, and a 14 to 28-year sentence at 2656 EDA 2016. The total

aggregate sentence for the two cases, therefore, was 28 ½ to 57 years’

incarceration.

      In the present appeals, Appellant challenges the discretionary aspects

of his sentence in both cases. He also contends that his guilty plea at 2657

EDA 2016 was the invalid product of the court’s failure to advise him

beforehand of the possibility of consecutive sentences. We decline to review

these challenges, however, because Appellant has failed to preserve them in

accordance with our rules of criminal procedure and interpretive decisional

law. We, therefore, affirm.

      Pennsylvania law on issue preservation with respect to guilty pleas and

discretionary aspects of sentencing requires an appellant to have first raised

the claim with the trial court:

      A defendant wishing to challenge the voluntariness of a guilty
      plea on direct appeal must either object during the plea colloquy
      or file a motion to withdraw the plea within ten days of
      sentencing. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i).      Failure to
      employ either measure results in waiver. Commonwealth v.

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     Tareila, 895 A.2d 1266, 1270 n. 3 (Pa.Super. 2006).
     Historically, Pennsylvania courts adhere to this waiver principle
     because “[i]t is for the court which accepted the plea to consider
     and correct, in the first instance, any error which may have been
     committed.” Commonwealth v. Roberts, 237 Pa.Super. 336,
     352 A.2d 140, 141 (1975) (holding that common and previously
     condoned mistake of attacking guilty plea on direct appeal
     without first filing petition to withdraw plea with trial court is
     procedural error resulting in waiver; stating, “(t)he swift and
     orderly administration of criminal justice requires that lower
     courts be given the opportunity to rectify their errors before they
     are considered on appeal”; “Strict adherence to this procedure
     could, indeed, preclude an otherwise costly, time consuming,
     and unnecessary appeal to this court”).

     Likewise:

           Normally, issues not preserved in the trial court may
           not be pursued before this Court. Pa.R.A.P. 302(a).
           For example, a request to withdraw a guilty plea on
           the grounds that it was involuntary is one of the
           claims that must be raised by motion in the trial
           court in order to be reviewed on direct appeal.
           Similarly, challenges to a court's sentencing
           discretion must be raised during sentencing or in a
           post-sentence motion in order for this Court to
           consider granting allowance of appeal. Moreover, for
           any claim that was required to be preserved, this
           Court cannot review a legal theory in support of that
           claim unless that particular legal theory was
           presented to the trial court.     Thus, even if an
           appellant did seek to withdraw pleas or to attack the
           discretionary aspects of sentencing in the trial court,
           the appellant cannot support those claims in this
           Court by advancing legal arguments different than
           the ones that were made when the claims were
           preserved.

     Commonwealth v. Rush, 959 A.2d 945, 949 (Pa.Super. 2008),
     appeal denied, 601 Pa. 696, 972 A.2d 521 (2009).

Commonwealth v. Lincoln, 72 A.3d 606, 609–10 (Pa.Super. 2013).




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J-S40012-17-J-S40013-17



      Furthermore, it is well-settled that “[c]hallenges to the discretionary

aspects of sentencing do not entitle a petitioner to review as of right.”

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011).                Before

this Court can address such a discretionary challenge, an appellant must

satisfy the following 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.

Allen, 24 A.3d at 1064.

      Where the appellant’s brief does not include a statement of reasons

relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f), and the

Commonwealth objects in its brief to the omission, the appellant’s technical

noncompliance     represents   a   fatal   defect   within   appellant’s   appeal.

Commonwealth v. Karns, 50 A.3d 158, 166 (Pa.Super. 2012) (“If a

defendant fails to include an issue in his Rule 2119(f) statement, and the

Commonwealth objects, then the issue is waived and this Court may not

review the claim.”); see also Commonwealth v. Brougher, 978 A.2d 373,

375 (Pa.Super. 2009) (“[C]laims relating to the discretionary aspects of a

sentence are waived if an appellant does not include a Pa.R.A.P. 2119(f)

statement in his brief and the opposing party objects to the statement's

absence.”); Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987)



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J-S40012-17-J-S40013-17



(failure to comply with procedural requirements for review of discretionary

aspects of sentence claims is fatal to claim).

      In the case sub judice, the record confirms that Appellant neither

lodged an objection during the guilty plea colloquy nor filed a subsequent

motion with the trial court to withdraw the plea.            In accordance with

established   precedent   cited   above,   therefore,   we   decline   to   review

Appellant’s challenge to the validity of his plea.

      Likewise, we agree with the Commonwealth’s objection raised in each

appeal that Appellant’s discretionary aspects of sentencing claim therein is

waived for his failure to include a Rule 2119(f) statement in his brief.

      For the foregoing reasons, we affirm judgments of sentence entered in

the above-captioned matters.

     Judgments of sentence are AFFIRMED.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/2/2017




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