J-S53013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MIGUEL LAUREANO                            :
                                               :
                       Appellant               :   No. 2867 EDA 2018

         Appeal from the Judgment of Sentence Entered August 30, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0010147-2011


BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                            FILED NOVEMBER 05, 2019

        Appellant, Miguel Laureano, appeals from the judgment of sentence

entered on August 30, 2018, following his non-jury trial convictions for rape

of a child,1 involuntary deviate sexual intercourse with a child,2 aggravated

indecent assault of a child,3 unlawful contact with a minor,4 and related

offenses.     We affirm.

        In a previous appeal, we summarized the facts of this case as follows:

        Complainant, Y.R., resided with [Appellant] and his wife, Luz
        Moralez, from the time she was approximately six to eleven years
        [old]. During this time, Y.R.’s mother was incarcerated. Moralez
        previously had been Y.R.’s babysitter. Y.R. testified that while
____________________________________________


1   18 Pa.C.S.A. § 3121(c).

2   18 Pa.C.S.A. § 3123(b).

3   18 Pa.C.S.A. § 3125(b).

4   18 Pa.C.S.A. § 6318(a)(1).
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      living with [Appellant] and Moralez, [Appellant] sexually assaulted
      her and raped her on a regular basis. At trial, Y.R. testified to
      numerous incidents in which [Appellant] penetrated her vagina
      with his penis or fingers or otherwise inappropriately touched her.
      [Appellant] was convicted of the aforementioned crimes and was
      sentenced on June 17, 2015, to 25 to 50 years’ incarceration, to
      be followed by seven years of probation.

Commonwealth v. Laureano, __A.2d__, 1961 EDA 2015 (Pa. Super. 2016)

(unpublished memorandum), at 1-4 (citation omitted).

      This Court affirmed Appellant’s judgment of sentence on May 4, 2016.

Id.    Our    Supreme    Court   denied    allocatur   on   August   30,    2016.

Commonwealth v. Laureano, 145 A.3d 724 (Pa. 2016). On June 6, 2017,

Appellant filed a pro se petition pursuant to the Post Conviction Relief Act

(PCRA).   Appellant’s Pro Se PCRA Petition, 6/6/17, at 1-3.      Subsequently,

counsel was appointed and, on November 24, 2017, filed an amended PCRA

petition on Appellant’s behalf. Appellant’s Amended PCRA Petition, 11/24/17,

at 1-10. Within his petition, Appellant alleged that he was sentenced to a

“minimum mandatory sentence” deemed unconstitutional by both our

Supreme Court and the United States Supreme Court.                   Id. at *5

(un-paginated).   See Alleyne v. United States, 133 S.Ct. 2151 (2013);

Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016) (holding that the statute

imposing a ten-year minimum mandatory sentence for involuntary deviate

sexual intercourse (IDSI) violated the Sixth Amendment).

      On May 31, 2018, the PCRA court granted Appellant’s petition and

ordered re-sentencing. PCRA Court Order, 5/31/18, at 1. A hearing was held

on August 30, 2018, during which the trial court re-imposed Appellant’s

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original sentence.5 See PCRA Court Opinion, 1/15/19, at 1. Appellant did not

file a post-sentence motion or challenge his sentence at the August 30, 2018

hearing. Appellant timely appealed.6

       Appellant raises the following issues on appeal:

        I.    Did the trial court abuse its discretion when [] it re-imposed
              the same sentence without considering mitigating evidence
              provided at the time of re-sentencing?

       II.    Did the trial court abuse its discretion when it imposed a
              sentence of 25 to 50 years[’] which[ is clearly unreasonable
              when] compared to a normal sentence under similar
              circumstances?


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

       On appeal, Appellant contends that the trial court abused its discretion

in the imposition of his sentence. Specifically, Appellant claims that the court

“ignored the mitigating evidence of Appellant’s prior record score, work

history, and five character witnesses that testified” at the re-sentencing

hearing, and instead, “re-imposed the same punitive sentence.” Appellant’s

Brief at 5. Similarly, Appellant claims that the trial court imposed an “irrational


____________________________________________


5 At the August 30, 2018 hearing, the trial court made clear that, “while [it]
made reference to the mandatories [at Appellant’s original sentencing,] . . .
they were not the basis for [its] decision.” N.T. Sentencing Hearing, 8/30/18,
at 27.

6 Appellant filed a notice of appeal on September 28, 2018. On October 16,
2018, the trial court entered an order directing Appellant to file a concise
statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b)(1). Appellant timely complied. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on January 15, 2019.

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and unreasonable sentence.” Id. Upon review, we conclude that Appellant

has waived both claims.

      Appellant's issues implicate the discretionary aspects of sentencing.

With respect to our standard of review, we have held that “sentencing is a

matter vested in the sound discretion of the sentencing 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. 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. [708(E)];
      (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).

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

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en

banc) (“[I]ssues 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.        Absent such efforts, an objection to a

discretionary aspect of a sentence is waived”).


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     In this case, Appellant did not challenge the discretionary aspects of his

sentence at the August 30, 2018 re-sentencing hearing or file a subsequent

motion to reconsider or modify his sentence. See N.T. Sentencing Hearing,

8/30/18, at 1-36; Pa.R.Crim.P. 708(E).      Therefore, Appellant waived his

claims challenging the discretionary aspects of his sentence. Cartrette, 83

A.3d at 1042.

     Appellant, however, contends that he “preserved the issue through [his]

PCRA petition.” Appellant’s Brief at 10. This claim is meritless. The petition

was filed before Appellant’s re-sentencing; hence, the sentencing issues he

raised within his petition are not the same ones he now raises on appeal.

Thus, Appellant’s PCRA petition was insufficient to preserve his claims

challenging the discretionary aspects of his new sentence. Therefore, we are

prohibited from addressing the merits of Appellant’s claims because he failed

to properly “object[] to [the] discretionary aspects of [his] sentence.”

Cartrette, 83 A.3d at 1042.

     Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/19




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