J-S58021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PATRICK L. BURKETT,

                            Appellant                 No. 144 WDA 2014


           Appeal from the Judgment of Sentence November 7, 2013
              In the Court of Common Pleas of Cambria County
             Criminal Division at No(s): CP-11-CR-0001998-2012


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 03, 2014

        Appellant, Patrick Burkett, appeals from the judgment of sentence of

13 to 30 years’ incarceration, imposed after he pled guilty to third degree

murder. Appellant argues that the court abused its discretion in fashioning

his sentence. We affirm.

        Appellant’s conviction stemmed from his murdering the 22-month old

daughter of his live-in paramour. An autopsy showed that child’s death was

caused by blunt force trauma to her head, consistent with her being violently

shaken.     Appellant pled guilty to third degree murder on September 18,

2013, and was sentenced to the above-stated term of incarceration on

November 7, 2013. He filed a timely notice of appeal on December 6, 2013,

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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as well as a timely concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Herein, Appellant presents one issue for our

review: “Whether the Court of Common Pleas of Cambria County was in

error in failing to take into consideration mitigating factors at the Sentencing

Hearing?” Appellant’s Brief at 4.

      Appellant’s claim constitutes a challenge to the discretionary aspects of

his sentence and, accordingly, he “is not entitled as of right to a review of

such a challenge.” Commonwealth v. Levy, 83 A.2d 457, 467 (Pa. Super.

2013).

           Our jurisdiction over a claim regarding the discretionary
      aspects of sentence must be established as follows:

         We conduct a four-part analysis to determine: (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).

Id. (quoting Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.

2010) (internal quotation marks, citations, and modifications omitted)).

      Here, Appellant has failed to meet the second prerequisite for

obtaining review of his discretionary aspect of sentencing claim.           Our

examination of the record confirms that he did not raise this issue during the

sentencing hearing or in a post-sentence motion. Accordingly, it is waived.

Id.; see also Commonwealth v. Bullock, 948 A.2d 818, 825 (Pa. Super.


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2008) (stating that the right to appeal the discretionary aspects of a

sentence “is not absolute and is waived if the appellant does not challenge it

in post-sentence motions or by raising the claim during sentencing

proceedings”).

      Nevertheless, we note that even if Appellant had properly raised this

issue before the trial court, we would conclude that it is meritless. Appellant

complains that the court failed to take into account

      that Appellant is 26 years old, never married, and is the father of
      a daughter, age 18 months[,] who he loving[ly] and diligently
      cared for; Appellant had no prior criminal record as a juvenile or
      adult offender prior to the filing of these charges; Appellant has
      always held a job and has a history of constant employment
      since he has been a teenager; Appellant has elderly parents who
      he helps take care of and who have been supporting him
      throughout [the] court proceedings; Appellant’s actions were
      grossly reckless and negligent, and he never possessed a formed
      intent to do harm. This incident resulted from a single act of
      criminal conduct, and there was no history of abuse against the
      victim present; Appellant has a low risk of reoffending; and
      Appellant continually expressed deep sorrow for the loss of life
      sustained by the victim and subsequent heart ache [sic] he has
      caused to the victim’s mother and family.

Appellant’s Brief at 6-7.

      In its Pa.R.A.P. 1925(a) opinion, the trial court stated that it

considered the following pertinent factors in fashioning Appellant’s sentence:

      1). [Appellant’s] counseled Presentence Memorandum submitted
      prior to sentencing on October 31, 2013 which offered:

         •   the family situations of the persons involved and medical
             facts of the case;

         •   that [Appellant’s] conduct was a one-time incident;



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         •   [Appellant’s] age, marital status, and fatherhood status;

         •   [Appellant’s] employment history;

         •   that his parents are life-long Cambria County residents
             who though elderly have attended [c]ourt as their health
             permits and remain supportive of their son[;]

         •   [Appellant’s] complete lack of [a] criminal record;

         •   the suggestion that [Appellant’s] risk of re-offending is
             low;

         •   [Appellant’s] love for the child-victim.

      2). Presentence investigation report setting forth [Appellant’s]
      age, background, education, lack of addiction to drugs and
      alcohol, and other factors;

      3). Arguments of counsel and testimony at the sentencing
      hearing including [Appellant’s] allocution, in which he advised
      the court that he has joint custody of his own young daughter.

            Thereafter, the [c]ourt noted specifically [Appellant’s] lack
      of propensity [for] violence and absence of ill motives.

Trial Court Opinion (TCO), 1/21/14, at 1-2 (unnumbered pages).

      The record of the sentencing hearing confirms that the court

considered the mitigating factors described in its opinion, belying Appellant’s

contention to the contrary. See N.T. Sentencing Hearing, 11/7/13, at 4-5

(court’s stating it considered the presentence investigation report and

presentence memorandum submitted by Appellant’s counsel); id. at 11-13

(Appellant’s statement to the court); id. at 26 (Appellant’s counsel’s

argument); id. at 27 (court’s stating the reasons for its sentence, and noting

that it did not believe Appellant had a propensity for violence, or ill motives

when the murder occurred).         Thus, we would conclude that Appellant’s

sentencing challenge is meritless had he preserved this claim for our review.

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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/3/2014




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