J-S12021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    IAN DAVID SCOTT,

                             Appellant                 No. 1384 MDA 2017


         Appeal from the Judgment of Sentence entered July 19, 2017,
            in the Court of Common Pleas of Lackawanna County,
            Criminal Division, at No(s): CP-35-CR-0000233-2017.


BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.,

MEMORANDUM BY KUNSELMAN, J.:                           FILED APRIL 16, 2018

        Ian Scott files this appeal challenging the discretionary aspects of his

sentence. Scott entered a guilty plea to burglary, robbery, and unauthorized

use of a motor vehicle.1 The court imposed an aggregate sentence of ten to

twenty years in prison.        The Commonwealth argues that Scott waived his

sentencing claims by failing to address them in the trial court. We agree.

        Before we will grant allowance of appeal under Section 9781(b), the

petitioner “must invoke this Court’s jurisdiction by satisfying a four-part test.”



____________________________________________


1 In exchange for Scott’s guilty plea, the Commonwealth dropped several
other charges it had pending against him. Trial Court Opinion, 7/31/17 at 1.
Thirteen other charges were withdrawn, including another two additional
counts of burglary and robbery.
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Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010).                   First, the

petition for allowance of appeal must have been filed within 30 days of the

judgment of sentence under Pennsylvania Rules of Appellate Procedure 902

and 903. Second, the petitioner must have properly preserved the issues for

appeal by having raised them at the time of sentencing, or in a Pennsylvania

Rule of Criminal Procedure 720 motion to reconsider or to modify the

sentence. Third, Pennsylvania Rule of Appellate Procedure 2119(f) requires a

concise statement in appellant’s brief to justify the allowance of appeal.2 And,

fourth, the Rule 2119(f) statement must present “a substantial question that

the sentence imposed is not appropriate under” Chapter 97, Sentencing. 42

Pa.C.S.A. § 9781(b). “Only if the appeal satisfies these requirements may we

proceed     to   decide     the    substantive   merits   of   Appellant’s   claim.”

Commonwealth v. Luketic, 162 A.3d 1149, 1159-1160 (Pa. Super. 2017).

       The Commonwealth draws our attention to the test’s second prong.

Commonwealth’s Brief at 5. It contends that Scott failed to raise the issues

he argues on appeal in either the sentencing proceeding or in his “Motion for

Reconsideration and Reduction of Sentence.” Id. at 6.

       Scott frames the issues he would raise before this Court as follows:

                I. Whether the Judge abused his discretion regarding
          aspects of the Sentence pursuant to 42 Pa.C.S.A.
          Subsection 9781(c)(2) where the Sentence, although within
          the Sentencing Guidelines, involved circumstances where
          the application of the Guidelines was clearly unreasonable?
____________________________________________


2   See Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987).

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                a) Whether the Judge abused his discretion in failing
                   to consider mitigating circumstances?

                b) Whether the Judge abused his discretion by
                   considering aggravating circumstances?

                c) Whether the Judge abused his discretion by failing
                   to balance mitigating circumstances against any
                   potential aggravating circumstances in crafting the
                   excessive sentence?

Scott’s Brief at 4.

      Scott raised none of these alleged errors at his sentencing hearing, and

they do not match the single issue in his post-sentence motion – i.e., that “the

sentence was excessive.” Here, by contrast, Scott seeks allowance to argue

that the trial court (1) applied the sentencing guidelines in a clearly

unreasonable fashion, (2) failed to consider mitigating circumstances, (3)

considered inappropriate aggravating circumstances, and (4) improperly

balanced any mitigating circumstances against the aggravating ones. Clearly,

none of these four issues is the same one issue that appears in Scott’s post-

sentence motion.

      The only issue that even mentions an excessive sentence is his fourth

one, but this is an afterthought to the main complaint of error: that the trial

court failed “to balance mitigating circumstances against any potential

aggravating circumstances” in fashioning the sentence. Scott’s Brief at 4. His

post-sentence motion did not challenge the trial judge’s discretion in

fashioning his sentence relative to the balancing of circumstances. Instead,

Scott reiterated facts that he believed weighed against the imposition of a



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sentence in the aggravated range, but he did not compare and contrast them

with the factors that the judge found necessitated aggravated sentencing.

Thus, the type of argument that might have satisfied the second prong of our

allowance-of-appeal test was not raised in Scott’s “Motion for Reconsideration

and Reduction of Sentence.”

       Moreover, even if Scott’s fourth issue appeared in his post-sentence

motion, he did not include it in his Pennsylvania Rule of Appellate Procedure

1925(b) statement.3 The issue’s omission from his Rule 1925(b) statement
____________________________________________


3 We note that Scott’s 1925(b) statement was not a concise statement of
errors. Rather, it made a full re-argument to the trial judge, over the course
of several pages, more like a second motion for reconsideration. Making the
1925(b) statement a verbatim precursor of the “[s]tatement of the questions
involved” page of the appellate brief is the surest way to avoid this waiver
dilemma. Pennsylvania Rule of Appellate Procedure 2111(a)(4).

     As far as which issues Scott raised in this statement, the best we can
surmise is that they appear in paragraphs 6-8, as follows:

             The Court abused its discretion by not following the
          implicit agreement and understanding of the parties with
          regard to a standard sentence and, furthermore, by
          fashioning an excessive and manifestly unreasonable
          sentence under the total circumstances of this case. The
          sentence is clearly unreasonable and disproportionate to
          Defendant/Appellant’s conduct.

             Furthermore, the court also did not adequately state its
          reasons for the egregious sentence and for disregarding the
          implicit   agreement     and    understanding     of    the
          Defendant/Appellant and Commonwealth.

              Additionally, the Court failed to take into consideration
          the mitigating factors of the Defendant/Appellant’s
          circumstances, the cooperation the Defendant/Appellant



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“may be considered by the appellate court as a waiver…” Pa.R.A.P. 1925(b).

As this Court has explained:

          failure to raise a particular issue in the concise statement of
          matters complained of on appeal may result in a waiver of
          that issue.      Gilmore by Gilmore v. Dondero, 399
          Pa.Super. 599, 582 A.2d 1106, 1108 (1990). See also
          Commonwealth v. Forest, 427 Pa.Super. 602, 607, 629
          A.2d 1032, 1035 (1993), allocatur denied, 536 Pa. 642,
          639 A.2d 28 (1994). It is, however, within the appellate
          court's discretion to review the issue unless the failure to
          raise the issue in the Pa.R.App.P. 1925(b) statement hinders
          appellate review. Gilmore by Gilmore v. Dondero, supra
          at 604, 582 A.2d at 1108. The rationale behind this rule is
          that when an appellant fails to raise an issue in the
          Pa.R.App.P. 1925(b) statement, an appellate court may not
          have the benefit of the rationale of the trial court in support
          of its decision. Id. at 604, 582 A.2d at 1108. In the event
          that an issue raised in the Pa.R.App.P. 1925(b) statement is
          analogous to and essentially presents the same legal
          question as a properly raised challenge, this Court will often
          review the entire case. See id. at 604, 582 A.2d at 1108.

Taylor v. Owens-Corning Fiberglas Corp., 666 A.2d 681, 688–89 (Pa.

Super. 1995). None of Scott’s other three issues survive the Commonwealth’s

waiver challenge. Thus, his fourth issue cannot come under our exception to

Pa.R.A.P. 1925(b) waiver, even if he had included it in his post-sentence

motion.
____________________________________________


          gave to the Commonwealth, and the fact that this case
          clearly arose from the contributions and actions of another,
          un-charged, Codefendant, who was the mastermind of the
          incident.

Scott’s 1925(b) Statement at 3. Scott did not mention an improper balancing
of circumstances anywhere in these paragraphs.



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       We therefore conclude that Scott did not afford the trial court proper

opportunity to address any alleged errors regarding the discretionary aspects

of sentencing prior to filing this petition for allowance of appeal. He would,

instead, be raising them “for the first time on appeal.” Commonwealth v.

Foster, 960 A.2d 160, 163 (quoting Pennsylvania Rule of Appellate Procedure

302(a)). This we cannot allow.4 Id.

       Petition for allowance of appeal denied.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/2018




____________________________________________


4Because Scott has failed to satisfy the second prong of the four-part test to
challenge the discretionary aspects of sentence, Moury, supra, we need not
consider the other three prongs.


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