J-S46026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellee

                   v.

PALMAS CHRISTOPHER ROBERTS

                          Appellant                No. 3387 EDA 2014


          Appeal from the Judgment of Sentence March 20, 2013
            In the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0003336-2012


BEFORE: MUNDY, OLSON and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                     FILED SEPTEMBER 30, 2015

     Appellant, Palmas Christopher Roberts, appeals from the judgment of

sentence entered on March 20, 2013. We affirm.

     The trial court ably explained the underlying facts of this case. As the

trial court summarized:

        On September 13, 2011, [] Appellant went to a park in
        Upper Darby, Pennsylvania under the guise of arranging the
        sale of a vehicle. Upon arriving [at] the park, [] Appellant
        met with his potential buyer and demanded that the buyer
        give him his cell phone as well as $1,200[.00]. [] Appellant
        was in [] possession of a firearm. The buyer fled and []
        Appellant shot him once in the chest. The victim was later
        interviewed at the hospital by officers of the Upper Darby
        Police Department. Following an investigation, [] Appellant
        was identified as the shooter and his photo was placed in a
        photo array. A witness that was at the scene at the time of
        the incident identified [] Appellant as the shooter and []
        Appellant was placed under arrest and charged with
        [attempted homicide], aggravated assault, robbery[,] and
        related offenses.
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         On March 19, 2013, a jury panel was selected for
         Appellant’s trial. The following day, on March 20, 2013, []
         Appellant instead entered into a negotiated guilty plea
         before the Honorable John P. Capuzzi. [] Appellant pleaded
         guilty to one count of robbery and one count of persons not
         to possess a firearm. Pursuant to the negotiated plea, the
         Commonwealth agreed to dismiss the remaining nine []
         charges. The terms of the plea included a sentence of . . .
         ten [] to 20 years of incarceration . . . on the robbery
         charge and a sentence of five [] to ten [] years of
         incarceration on the firearm charge, with the sentences to
         run consecutively to one another. . . .

         Following a lengthy colloquy by defense counsel and the
         [trial] court, the terms of the negotiated plea were adopted
         by the court and [] Appellant moved for immediate
         sentencing. [On March 20, 2013, the trial court sentenced]
         Appellant in accordance with the terms of the negotiated
         plea as set forth above.

Trial Court Opinion, 3/2/15, at 1-2 (internal citations omitted).

       The docket reflects that, on April 26, 2013, Appellant filed an untimely,

pro se “motion for reconsideration of sentence.”1

       On June 26, 2013, Appellant filed a timely, pro se petition under the

Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546.         The PCRA

court appointed counsel and Appellant’s counsel later filed an amended PCRA

petition, seeking the nunc pro tunc restoration of Appellant’s direct appellate

rights. On November 6, 2014, the PCRA court granted Appellant’s petition

and reinstated Appellant’s direct appellate rights nunc pro tunc; Appellant


____________________________________________


1
  The certified record does not contain Appellant’s pro se “motion for
reconsideration of sentence.”



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filed a timely notice of appeal on December 4, 2014. Appellant raises one

claim on appeal:

        Should [Appellant] be remanded to the sentencing court for
        a new sentencing hearing where the court abused its
        discretion in accepting a negotiated plea which sentenced
        [Appellant] to a manifestly excessive amount of time in
        state prison?

Appellant’s Brief at 3 (some internal capitalization omitted).

      Appellant’s claim challenges the discretionary aspects of his sentence.

We note 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 the discretionary aspects of his sentence.

      As this Court 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).



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J-S46026-15


      Appellant did not raise his discretionary aspects of sentencing claim at

sentencing and Appellant did not file a timely post-sentence motion.       As

such, Appellant’s current claim is waived.      Pa.R.Crim.P. 720; 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”).

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/2015




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