J-S01008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 RICHARD KEVIN BEITZ                       :
                                           :
                    Appellant              :    No. 1246 MDA 2018

       Appeal from the Judgment of Sentence Entered June 11, 2018
              In the Court of Common Pleas of Union County
           Criminal Division at No(s): CP-60-CR-0000373-2016


BEFORE:    PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.

JUDGMENT ORDER BY PANELLA, P.J.:                         FILED JULY 03, 2019

      Appellant, Richard Kevin Beitz, appeals from the judgment of sentence

entered in the Union County Court of Common Pleas, pursuant to his

conviction for terroristic threats. Appellant challenges the discretionary

aspects of his sentence. We find Appellant has failed to preserve this issue for

our review, and therefore we affirm.

      The relevant facts and procedural history of this case are as follows.

Appellant previously initiated a civil suit against a store owner. During a recess

in that case, Appellant became agitated and verbally abusive toward the store

owner and other testifying witnesses. Appellant graphically motioned toward

himself to indicate the size of his genitalia, and directed the witnesses to “suck

his cock.” Affidavit of Probable Cause, filed 8/10/16, at 1. He called one of the

witnesses a whore, and told her that he knew where she lived. Appellant then

threatened to rape another witness.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S01008-19



      Appellant was thereafter charged with terroristic threats, harassment,

disorderly conduct, and retaliation. He entered a no-contest plea to terroristic

threats. The negotiated plea called for a sentence with a minimum of no more

than one year of imprisonment, and left the maximum term to the court’s

discretion. The agreement permitted Appellant to argue for a mitigated

sentence. The court accepted Appellant’s plea, and deferred sentencing

pending receipt of a pre-sentence investigation report. Meanwhile, Appellant

filed a motion to withdraw his plea, which the court denied.

      At sentencing, Appellant read a lengthy statement in which he requested

a county sentence with work release because he cared for many dependents,

including his mother, his fiancée, and a friend. He stated he had sought

counseling since the incident, and apologized to the victims of his diatribe.

The sentencing court noted with displeasure the offense had taken place in a

courtroom, and that Appellant had an extensive criminal history with some

lengthy stints in state prison. The court also acknowledged the Sentencing

Guidelines, which proffered a standard range sentence of twelve to eighteen

months’ incarceration. The court then imposed a sentence of one to four years’

incarceration in state prison.

      Appellant reviewed and signed a colloquy acknowledging his post-

sentence rights. Appellant did not, however, file a post-sentence motion, or

otherwise challenge his sentence at that time. Instead, he later filed a timely

notice of appeal, and complied with the dictates of Pa.R.A.P. 1925(b). This

appeal is now before us.

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      Appellant challenges the discretionary aspects of his sentence.

Specifically, he believes he presented evidence to indicate he had taken steps

toward reform prior to sentencing, and that the sentencing court failed to

consider more lenient alternatives.

      “Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Griffin, 65 A.3d 932,

935 (Pa. Super. 2013) (citation omitted). Before reaching the merits of a

discretionary aspects issue, this Court conducts a four-part test to determine:

      (1) whether the appeal is timely; (2) whether Appellant preserved
      his or her issue; (3) whether Appellant's brief includes a concise
      statement of the reasons relied upon for allowance of appeal with
      respect to the discretionary aspects of sentence; and (4) whether
      the concise statement raises a substantial question that the
      sentence is appropriate under the Sentencing Code.

Commonwealth v. Williams, 198 A.3d 1181, 1186 (Pa. Super. 2018)

(citation omitted).

      To preserve a discretionary aspects issue, an appellant must either raise

it at sentencing or in a post-sentence motion. See Griffin, 65 A.3d at 935.

“Absent such efforts, an objection to a discretionary aspect of a sentence is

waived.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super.

2013) (en banc) (citation omitted).

      Here, Appellant did not challenge the sentence the court imposed at his

sentencing hearing. See N.T. Sentencing, 6/11/18, at 21-24. He also failed to

file a post-sentence motion. Appellant does not acknowledge this omission in

his brief, though it is fatal to his case. See Appellant’s Brief, at 10-11 (arguing


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J-S01008-19



that Appellant raises a substantial question for review). Because Appellant

failed to preserve this issue, we are constrained to find his discretionary

aspects of sentencing challenge waived. See Cartrette, 83 A.3d at 1042.

     Appellant has not raised any additional issues for our review.

Accordingly, we affirm his judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/3/2019




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