J-S34041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

AIMEE BETH HILBISH

                            Appellant                      No. 1830 MDA 2015


          Appeal from the Judgment of Sentence September 3, 2015
                In the Court of Common Pleas of Perry County
             Criminal Division at No(s): CP-50-CR-0000010-2015


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

JUDGMENT ORDER BY JENKINS, J.:                                FILED MAY 24, 2016

        Appellant Aimee Beth Hilbish appeals from the judgment of sentence

entered in the Perry County Court of Common Pleas following her guilty plea

to driving under the influence of a controlled substance (“DUI”).1 We affirm.

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

On July 13, 2015, Appellant pleaded guilty to DUI. On September 3, 2015,

the court sentenced Appellant to one (1) to five (5) years’ incarceration in a

state correctional institution. The court ordered Appellant to pay the costs of

prosecution and a $2,500.00 fine.              The court also imposed eighteen (18)

months of license suspension and twelve (12) months of ignition interlock

and found Appellant eligible for Recidivism Risk Reduction Incentive

____________________________________________


1
    75 Pa.C.S. § 3802(d)(2).
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(“RRRI”).    On September 9, 2015, Appellant filed a post-sentence motion,

which the court denied on October 2, 2015.

       On October 16, 2015, Appellant filed a notice of appeal. On October

19, 2015, the court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-five

(25) days. On December 7, 2015, Appellant filed a motion for leave to file a

Pa.R.A.P. 1925(b) concise statement and a concise statement. The court

granted Appellant’s motion on December 11, 2015.

       Appellant raises the following issue for our review:

          DID THE TRIAL COURT ABUSE ITS DISCRETION IN
          SENTENCING [APPELLANT] TO A ONE YEAR, MAXIMUM
          FIVE  YEAR   STATE   CORRECTIONAL  INSTITUTION
          SENTENCE?

Appellant’s Brief at 6.

       Appellant argues the court abused its discretion by imposing a harsh

sentence at a state correctional institution when it should have allowed her

to serve a local sentence in Cumberland County Prison or sentenced her

under the local county intermediate punishment program (“IPP”). Appellant

challenges the discretionary aspects of her sentence. 2


____________________________________________


2
  Because this was Appellant’s third DUI offense for sentencing purposes,
Appellant was required to “undergo imprisonment of not less than one year.”
75 Pa.C.S. § 3804(c)(3)(i). The court’s imposition of Appellant’s maximum
sentence of five (5) years’ incarceration in a state facility was within the
court’s discretion. See Commonwealth v. Brown, 982 A.2d 1017, 1019
(Footnote Continued Next Page)


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        Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011). Before this Court can address such a discretionary

challenge, an appellant must invoke this Court’s jurisdiction by satisfying the

following four-part test:

        (1) whether appellant has filed a timely notice of appeal, see
        Pa.R.A.P. 902 and 903; (2) whether the issue was properly
        preserved at sentencing or in a motion to reconsider and modify
        sentence, see 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.

Id.

        “[C]laims relating to the discretionary aspects of a sentence are

waived if an appellant does not include a Pa.R.A.P. 2119(f) statement in his

brief   and   the   opposing      party    objects   to   the   statement’s   absence.”

Commonwealth v. Brougher, 978 A.2d 373, 375 (Pa.Super.2009); see

also Commonwealth v. Karns, 50 A.3d 158 (Pa.Super.2012) (“If a

defendant fails to include an issue in his Rule 2119(f) statement, and the




                       _______________________
(Footnote Continued)

(Pa.Super.2009)(”Defendants sentenced to maximum terms of less than two
years are committed to county facilities while defendants with maximum
terms of two years or more are normally housed in state facilities.”); see
also Commonwealth v. Williams, 941 A.2d 14, 24 (Pa.Super.2008)
(Where Appellant is a qualified “eligible offender” and program is a qualified
county IPP program, “the grant or denial of a defendant’s request for IPP is
largely within the sound discretion of the trial court.”).



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Commonwealth objects, then the issue is waived and this Court may not

review the claim.”).

      Instantly, Appellant preserved her issue in a timely post-sentence

motion and filed a timely notice of appeal.        Appellant, however, failed to

include in her brief a Pa.R.A.P. 2119(f) statement, and the Commonwealth

objected to this omission.      Further, Appellant fails to raise a substantial

question that the sentence appealed from is not appropriate under the

Sentencing Code. See Commonwealth v. Maneval, 688 A.2d 1198, 1199-

200 (Pa.Super.1997) (“Generally, if the sentence imposed falls within the

sentencing guidelines, no substantial question exists.”). Thus, Appellant has

failed to invoke this Court’s jurisdiction.   See Allen, supra.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2016




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