J-S16021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

BENJAMIN HOOVER,

                            Appellant                 No. 1485 MDA 2014


             Appeal from the Judgment of Sentence of July 17, 2014
              In the Court of Common Pleas of Huntingdon County
              Criminal Division at No(s): CP-31-CR-0000501-2013


BEFORE: PANELLA, OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.:                              FILED APRIL 23, 2015

        Appellant, Benjamin Hoover, appeals from the judgment of sentence

entered on July 17, 2014, as made final by the denial of Appellant’s post-

sentence motion on August 15, 2014. We affirm.

        On May 5, 2014, Appellant pleaded guilty to the criminal charge of

homicide by vehicle and the summary charge of passing on the left

unsafely.1    A pre-sentence investigation report was prepared and, on July

17, 2014, a sentencing hearing was held.2 During the sentencing hearing,
____________________________________________


1
    75 Pa.C.S.A. §§ 3732(a) and 3305, respectively.
2
  With respect to the date of Appellant’s sentencing hearing, we note that
there is a discrepancy between the docket entry and the transcript from the
sentencing hearing.     Whereas the docket states that Appellant was
sentenced on July 17, 2014, the transcript from Appellant’s sentencing
hearing declares that the sentencing hearing occurred on July 16, 2014.
Nevertheless, the written sentencing order declares that the order was
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the trial court noted that the standard sentencing range for Appellant’s

homicide by vehicle conviction was three to 12 months in jail. However, the

trial court concluded that the “protection of the public, the gravity of the

offense, and [the] rehabilitative needs of [Appellant]” required that it

sentence Appellant to a term of imprisonment that was outside of the

sentencing guidelines. Sentencing Hearing, 7/17/14, at 13. The trial court

then sentenced Appellant to a term of three to six years in prison for the

homicide by vehicle conviction.

      On July 22, 2014, Appellant filed a timely post-trial motion, wherein

Appellant requested that the trial court “reconsider its sentence and fashion

a sentence consistent with the sentencing guidelines” because:         1) “the

Commonwealth did not place any aggravating factors on the record;” 2)

Appellant “did not contest the charges or any search requests by the

[Pennsylvania] State Police;” 3) there was “no level of criminal sophistication

regarding this offense;” 4) Appellant maintained his employment prior to

sentencing; and, 5) “[t]he conduct of [Appellant] as alleged [did] not rise to

a level beyond the elements of the offense as the conduct complained of is

contemplated by the elements of the offense and the sentencing guidelines.”

Appellant’s Post-Sentence Motion, 7/22/14, at 2.
                       _______________________
(Footnote Continued)

signed on July 17, 2014 and Appellant’s original trial counsel stated that the
sentencing hearing occurred on July 17, 2014. See Sentencing Order,
7/17/14, at 1; Appellant’s Post-Trial Motion, 7/22/14, at 1. Therefore, it
appears as though Appellant was sentenced on July 17, 2014.



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      On July 31, 2014, the trial court permitted Appellant’s trial counsel to

withdraw and the trial court appointed new counsel to represent Appellant.

The trial court then denied Appellant’s post-sentence motion on August 15,

2014. Trial Court Order, 8/15/14, at 1.

      After Appellant filed a timely notice of appeal, the trial court ordered

Appellant to file and serve a concise statement of errors complained of on

appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).

Appellant     complied      and,   within   Appellant’s   Rule    1925(b)    statement,

Appellant raised the following claim:

        Is the sentence of [three to six years’ imprisonment]
        imposed by [the trial] court after [Appellant] pled guilty to
        homicide by vehicle manifestly excessive and unreasonable
        in light of a 300% deviation from the sentencing guideline
        range of [three to] 12 months?

Appellant’s    Rule    1925(b)     Statement,     9/22/14,   at    1   (some       internal

capitalization omitted).

      Appellant       now    raises   the   above-quoted     claim     to   this    Court.

Specifically, Appellant claims on appeal:

        Is the sentence of [three to six years’ imprisonment]
        imposed by [the trial] court after [Appellant] pled guilty to
        homicide by vehicle . . . manifestly excessive and
        unreasonable in light of a 300% deviation from the
        sentencing guideline range of [three to] 12 months[?]

Appellant’s Brief at 5 (some internal capitalization omitted).

      Appellant’s challenge is to the discretionary aspects of his sentence.

“[S]entencing is a matter vested in the sound discretion of the sentencing



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judge, whose judgment will not be disturbed absent an abuse of discretion.”

Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001).

Moreover, pursuant to statute, Appellant does not have an automatic right to

appeal the discretionary aspects of his sentence.         See 42 Pa.C.S.A.

§ 9781(b).    Instead, Appellant must petition this Court for permission to

appeal the discretionary aspects of his sentence. Id.

      As this Court has explained:

        [t]o reach the merits of a discretionary sentencing issue, we
        conduct a four-part analysis to determine: (1) whether
        appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
        903; (2) whether the issue was properly preserved at
        sentencing or in a motion to reconsider and modify
        sentence, 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.A.]
        § 9781(b).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

      In the case at bar, while Appellant filed a timely post-sentence motion,

Appellant’s post-sentence motion did not claim that his sentence was

“manifestly excessive and unreasonable in light of [it being a] 300%

deviation from the sentencing guideline range of [three to] 12 months.”

See Appellant’s Post-Sentence Motion, 7/22/14, at 2; Appellant’s Brief at 5.

Rather, Appellant’s post-sentence motion requested relief based upon the

presence of mitigating factors and the absence of aggravating factors –

including that Appellant “did not contest the charges,” there was “no level of

criminal sophistication regarding this offense,” and Appellant maintained his


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employment    prior   to    sentencing.     Appellant’s     Post-Sentence   Motion,

7/22/14, at 2.   Appellant never claimed that his sentence was “manifestly

unreasonable” simply because it constituted a “300% deviation from the

sentencing guideline range.” Appellant’s Brief at 5. As such, Appellant “did

not give the sentencing judge an opportunity to reconsider or modify

[Appellant’s] sentence on [the] basis” raised on appeal. Commonwealth v.

Reeves,   778    A.2d      691,   692-693   (Pa.   Super.    2001).    Appellant’s

discretionary aspect of sentencing claim is thus waived on appeal. Pa.R.A.P.

302(a) (“[i]ssues not raised in the lower court are waived and cannot be

raised for the first time on appeal”); Cook, 941 A.2d at 11 (“[t]o reach the

merits of a discretionary sentencing issue, we [must] determine: . . . (2)

whether the issue was properly preserved at sentencing or in a motion to

reconsider and modify sentence, Pa.R.Crim.P. 720”); Commonwealth v.

Tejada, 107 A.3d 788, 798-799 and 798 n.9 (Pa. Super. 2015) (holding

that, where the defendant “challeng[ed] only the purported excessiveness of

his sentence” at the post-sentence motion stage, the defendant did not

preserve the following four discretionary aspects of sentencing claims on

appeal:   “(1) the sentencing court erroneously applied the sentencing

guidelines; (2) the sentencing court was ‘dismissive’ of his apology given at

sentencing; (3) the trial court did not properly weigh the mitigating evidence

and [the defendant’s] rehabilitative needs in fashioning the sentence; and

(4) the trial court erred by applying the deadly weapon enhancement to his

sentence”).

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     Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/2015




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