J-S09014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                       v.

STEVEN BELK

                            Appellant                No. 1216 MDA 2015


             Appeal from the Judgment of Sentence June 11, 2015
               In the Court of Common Pleas of Columbia County
              Criminal Division at No(s): CP-19-CR-0000671-2014


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                            FILED APRIL 01, 2016

        Appellant, Steven Belk, appeals from the judgment of sentence

entered by the Honorable Thomas A. James, Jr., Court of Common Pleas of

Columbia County. We affirm.

        The relevant facts and procedural history are as follows. Belk entered

“open” guilty pleas1 to two counts of criminal use of communication facility.2

The trial court subsequently imposed an aggregate sentence of 18 to 60

months’ imprisonment in a state correctional institution, with credit for 318

days already served. The trial court denied Belk’s post-sentence motion for

reconsideration. This timely appeal followed.
____________________________________________


1
 An “open” plea agreement does not include a negotiated sentence. See
Commonwealth v. Vega, 850 A.2d 1277, 1280 (Pa. Super. 2004).
2
    18 Pa.C.S.A. § 7512(a).
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       On appeal, Belk raises three issues challenging the discretionary

aspects of his sentence.3 In his first issue, Belk asserts that the trial court

erred in sentencing him to incarceration in a state correctional facility

instead of the Columbia County Prison, where he already served over 318

days of his sentence. In his second issue, Belk argues that the trial court

erred in sentencing him to incarceration in a state correctional facility

because it failed to adequately consider his rehabilitative needs. In his third

issue, Belk contends that the trial court erred in sentencing him to

incarceration in a state correctional facility because it failed to consider the

fact that he is the sole provider and caretaker for his ill fiancé and would

have been better able to provide for her if he was sentenced to Columbia

County Prison.

       We    start   our   analysis    by      noting   that   “issues   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.” Commonwealth v. Shugars, 895 A.2d 1270, 1273-1274

(Pa. Super. 2006) (citation omitted). Without such efforts, an objection to a

discretionary aspect of a sentence is waived. See id., at 1274.




____________________________________________


3
 Defendants who enter open plea agreements may appeal the discretionary
aspects of their sentence. See Commonwealth v. Tirado, 870 A.2d 362,
365 n. 5 (Pa. Super. 2005).



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J-S09014-16



     Here, Belk timely filed his post-sentence motion for reconsideration;

however, he failed to include the specific arguments asserted in his three

issues on appeal. Because Belk also failed to raise these specific arguments

during his sentencing hearing, all three of his claims on appeal are waived.

See id. Even if Belk had properly preserved these claims, no relief would be

warranted because the trial court had no discretion. Cf. Commonwealth v.

Fullin, 892 A.2d 843, 850 (Pa. Super. 2006). Section 9762 of the

Sentencing    Code   specifically   provides   that   defendants   sentenced   to

maximum terms of five or more years must be committed to a state

correctional institution. See 42 Pa.C.S.A. § 9762(b)(1). To the extent that

Belk is arguing that the trial court did not adequately consider certain

mitigating factors, this claim does not raise a substantial question. See

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)

(en banc).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2016




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