J-S66010-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                          Appellee

                     v.

SHAWN BRENT CREAGER,

                          Appellant                       No. 421 MDA 2014


    Appeal from the Judgment of Sentence Entered December 27, 2013
              In the Court of Common Pleas of York County
           Criminal Division at No(s): CP-67-CR-0002788-2013


COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                          Appellee

                     v.

SHAWN BRENT CREAGER,

                          Appellant                       No. 425 MDA 2014


    Appeal from the Judgment of Sentence Entered December 27, 2013
              In the Court of Common Pleas of York County
           Criminal Division at No(s): CP-67-CR-0002462-2013

BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                           FILED OCTOBER 22, 2014

      Appellant, Shawn Brent Creager, appeals from the judgment of

sentence of an aggregate term of 5 years’ and 180 days’ incarceration to 10

years’   incarceration,   imposed     following   his   convictions   at   CP-67-CR-

0002462-2013 and CP-67-CR-0002788-2013.                  Appellant challenges the

discretionary aspects of his sentence. After careful review, we affirm.
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      On December 27, 2012, at 2788-2013, Appellant was charged with the

following offenses: three counts of recklessly endangering another person

(counts 1-3), 18 Pa.C.S. § 2705; aggravated assault by vehicle (count 4), 75

Pa.C.S. § 3732.1; reckless driving (count 5), 75 Pa.C.S. § 3736; driving

while operating privilege is suspended or revoked (count 6), 75 Pa.C.S. §

1543(a); accidents involving death or personal injury (count 7), 75 Pa.C.S. §

3742; accidents involving death or personal injury while not properly

licensed (count 8), 75 Pa.C.S. § 3742.1; and aggravated assault (count 9),

18 Pa.C.S. § 2702.    On February 14, 2013, at 2462-2013, Appellant was

charged with two counts of theft by deception, 18 Pa.C.S. § 3922(a)(1) and

(a)(3).

      Appellant entered an open guilty plea on November 27, 2013, to all

the offenses listed at 2788-2013, except for counts 4 and 9, which were

nolle prossed by the Commonwealth. At 2462-2013, he also pled guilty to

one count of theft by deception, 18 Pa.C.S. § 3922(a)(1), while the

Commonwealth nolle prossed the other theft charge.

      A consolidated sentencing hearing was held on December 27, 2013.

At that time, the trial court received testimony from Appellant, his mother,

his wife, and the victim.    The trial court also reviewed a pre-sentence

investigation report. The court then sentenced Appellant as follows:

                          CP-67-CR-0002788-2013

      Count 1: 1-2 years’ incarceration

      Count 2: 1-2 years’ incarceration; concurrent to count 1.


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     Count 3: 1-2 years’ incarceration; concurrent to count 1.

     Count 5: 90 days’ incarceration; consecutive to counts 1-3.

     Count 6: 90 days’ incarceration; consecutive to count 5.

     Count 7: 2-4 years’ incarceration; consecutive to count 6.

     Count 8: 2-4 years’ incarceration; consecutive to count 7.

                         CP-67-CR-0002462-2013

     Count 1: 3-12 months’ incarceration; concurrent to the sentence
     imposed at CP-67-CR-0002788-2013.

     Appellant filed a timely post-sentence motion seeking reconsideration

of his sentence on January 2, 2014. A reconsideration hearing was held on

February 28, 2014, but the trial court ultimately denied Appellant’s post-

sentence motion at the conclusion of that hearing.     Appellant filed timely

notices of appeal from the sentences imposed at 2788-2013 and 2462-2013

on March 7, 2014, which were docketed by this court as 421 MDA 2014 and

425 MDA 2014, respectively.     On April 3, 2014, Appellant filed identical

Pa.R.A.P. 1925(b) statements for both appeals, and the trial court issued

identical Rule 1925(a) opinions on April 24, 2014.    This court sua sponte

consolidated the appeals listed at 421 MDA 2014 and 425 MDA 2014 on April

25, 2014.

     Appellant now presents the following question for our review:

“Whether the [t]rial [c]ourt abused its discretion by sentencing Appellant to




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an aggregate sentence of 5 years [and] 6 months to 10 years in a State

Correctional Institute.” Appellant’s Brief at 4.1

       “When the discretionary aspects of a judgment of sentence are

questioned, an appeal is not guaranteed as of right.”     Commonwealth v.

Koren, 646 A.2d 1205, 1207 (Pa. Super. 1994).              As this Court has

explained:

       To 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];
       (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).

       As noted above, Appellant filed timely notices of appeal from the

sentences imposed at 2788-2013 and 2462-2013.            Appellant also filed a

timely post-sentence motion for reconsideration of his sentence(s).        In his

brief, Appellant purports to present a 2119(f) statement.      However, in his

2119(f) statement, Appellant only presents his prior record score, the

guideline sentences for each offense for which he was convicted, and the

sentences he received for those offenses.        Appellant’s 2119(f) statement
____________________________________________


1
  Appellant, the Commonwealth, and the trial court all incorrectly state
Appellant’s aggregate sentence as 5½-10 years’ incarceration. Appellant’s
minimum sentence is, in fact, 2½ days shorter than 5½ years, at 5 years
and 180 days.



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does not address the nature of his discretionary aspects of sentencing issue,

nor whether it presents a substantial question for review. Pa.R.A.P. 2119(f)

(“An appellant who challenges the discretionary aspects of a sentence in a

criminal matter shall set forth in a separate section of the brief a

concise statement of the reasons relied upon for allowance of appeal

with respect to the discretionary aspects of a sentence.”) (emphasis

added). As this Court has stated, “the ‘2119(f) statement must specify what

fundamental norm the sentence violates and the manner in which it violates

the norm….’” Commonwealth v. Simpson, 829 A.2d 334, 337 (Pa. Super.

2003) (quoting Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.

Super. 2000)). Thus, Appellant’s brief contains a fatal defect and, on this

basis, we may not reach the merits of his claim. Cook, supra.

     Moreover, in the argument section of his brief, after Appellant cites

some relevant standards of review, his entire argument is as follows:

           While the [c]ourt did impose sentences for each count in
     the guideline ranges, the [t]rial [c]ourt did improperly base its
     convictions on his prior offenses. During the sentence and the
     reconsideration of sentence the [t]rial [c]ourt multiple times
     referenced the victims in Appellant’s prior cases. Relying on this
     information to run the sentences consecutive to each other was
     inappropriate. While the offenses in the various counts have
     separate elements that do not require merger, the charges stem
     from one action of Appellant. Aggregating the sentence to 5
     years 6 months to 10 years is excessive. Thus, Appellant
     requests that this matter be remanded for re-sentencing.

Appellant’s Brief at 8-9.   This is not the same issue raised in Appellant’s

post-sentence motion, wherein Appellant asked the trial “[c]ourt to



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reconsider the sentence imposed in light of [Appellant’s] apparent need for

[drug] treatment.” Motion for Reconsideration of Sentence, 1/2/14, at 1 ¶

3. Therefore, even if Appellant’s 2119(f) statement were not defective, we

could not address Appellant’s discretionary aspects of sentencing claim,

because “[i]ssues not raised in the lower court are waived and cannot be

raised for the first time on appeal.” Pa.R.A.P. 302(a).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2014




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