J-S28037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ADAM BASTIAN,                              :
                                               :
                       Appellant               :        No. 1873 MDA 2017

           Appeal from the Judgment of Sentence November 2, 2017
               in the Court of Common Pleas of Sullivan County,
             Criminal Division at No(s): CP-57-CR-0000007-2017

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                                 FILED JULY 20, 2018

        Adam Bastian (“Bastian”) appeals from the judgment of sentence

imposed following his guilty plea to one count each of theft by unlawful taking

and criminal mischief.1 We dismiss the appeal.

        On January 25, 2017, Pennsylvania State Police (“PSP”) were on patrol

on Whiskey Run Road, in Davidson Township, when they observed a vehicle

parked on the roadway near a cabin.                PSP approached the vehicle and

observed Bastian walking toward the vehicle from the cabin. PSP then noticed

footprints in the snow from the cabin to the neighboring residence, and around

the residence, that matched Bastian’s shoes. PSP noted that the door of a

storage room near the residence had pry marks on it and appeared to have




____________________________________________


1   18 Pa.C.S.A. §§ 3921(a), 3304(a)(5).
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been forced open. PSP subsequently determined that Bastian had stolen an

ATV from the owner of the residence, Charles Speese (“Speese”).

     Further, PSP observed that the vehicle contained a digital scale, a metal

grinder, a container of suspected marijuana concentrate, a plastic straw, a

pack of rolling papers, and a glass pipe. The vehicle also contained plastic

gloves and metal pry tools, as well as an open box of pistol ammunition.

     Bastian was charged with burglary, criminal trespass, possession of a

small amount of marijuana (distribute not sell), possession of drug

paraphernalia, criminal mischief, and theft by unlawful taking. On April 6,

2017, in accordance with an open plea agreement, Bastian pled guilty to

criminal mischief and theft by unlawful taking.      All other charges were

dismissed.

     On November 2, 2017, regarding theft by unlawful taking, the trial court

sentenced Bastian to 19-60 months in prison, and ordered him to pay the

costs of prosecution, a fine of $500.00, and restitution in the amount of

$476.50 to Speese.    Regarding criminal mischief, the trial court sentenced

Bastian to 6-12 months in prison, and ordered him to pay the costs of

prosecution, and a fine of $500.00. The trial court ordered that the sentences

be served consecutively.

     Bastian filed a timely Notice of Appeal, followed by a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.




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       Bastian raises the following question for our review: “Did the trial court

commit error in sentencing [Bastian] in the aggravated range[,] despite the

fact that the court’s sentencing order contained no legal rationalization for the

same?” Brief for Appellant at 4 (some capitalization omitted).

       Bastian    challenges     the   discretionary   aspects   of   his   sentence.2

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

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010).

       An appellant challenging the discretionary aspects of his sentence
       must invoke this Court’s jurisdiction by satisfying a four-part test:

              [W]e conduct a four-part analysis to determine: (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, 42
              Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).

       Here, Bastian filed a timely Notice of Appeal. However, he did not raise

his sentencing claim in a post-sentence motion to modify sentence or at

sentencing. See Trial Court Opinion, 1/19/18 at 5; see also Pa.R.Crim.P.



____________________________________________


2 Bastian entered an open plea, so he was not precluded from raising a
discretionary aspects of sentence claim. See Commonwealth v. Tirado,
870 A.2d 362, 365 n.5 (Pa. Super. 2005).

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720(A)(1) (stating that “a written post-sentence motion shall be filed no later

than 10 days after imposition of sentence[.]”). Thus, the issue is waived, and

we cannot review it on appeal. See Commonwealth v. Evans, 901 A.2d

528, 534 (Pa. Super. 2006) (holding that the defendant’s challenges to the

discretionary aspects of sentencing were waived because he failed to raise the

claims at the sentencing hearing or file a post-sentence motion as required by

Pa.R.Crim.P. 720).

      Appeal dismissed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/20/2018




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