J-S25006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

MICHAEL RHODY,

                         Appellant                   No. 419 WDA 2015


         Appeal from the Judgment of Sentence February 11, 2015
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0011813-2011


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.

DISSENTING MEMORANDUM BY JENKINS, J.:                  FILED MAY 12, 2016

      I respectfully dissent. Because Appellant did not properly preserve his

challenge to the discretionary aspects of his sentence, I would affirm the

judgment of sentence.

      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.
J-S25006-16


Id.

      Here, Appellant failed to invoke this Court’s jurisdiction because he did

not properly preserve his issue. Appellant was sentenced on February 11,

2015, and he did not raise any challenge to the discretionary aspects of his

sentence during his sentencing hearing. Because February 21, 2015 fell on

a Saturday, he had until Monday, February 23, 2015 to timely file a post-

sentence motion. See Pa.R.Crim.P. 708(E) (“A motion to modify a sentence

imposed after a revocation shall be filed within 10 days of the date of

imposition”); 1 Pa.C.S. § 1908 (when computing the 30-day filing period,

“[if] the last day of any such period shall fall on Saturday or Sunday… such

day shall be omitted from the computation.”).           Although Appellant’s

certificate of service claims he effectuated service on February 18, 2015, the

certified record and docket reflect he did not file the post-sentence motion

until February 24, 2015.

      I do not believe Appellant has invoked our jurisdiction over his

challenge to the discretionary aspects of his sentence.         Accordingly, I

dissent.




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