J-A08030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MATTHEW SCOTT STONE

                            Appellant                No. 1438 MDA 2014


     Appeal from the Judgment of Sentence entered on August 18, 2014
                In the Court of Common Pleas of Tioga County
              Criminal Division at No.: CP-59-CR-0000095-2014


BEFORE: SHOGAN, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                              FILED JUNE 12, 2015

       Matthew Scott Stone appeals the judgment of sentence entered

against him on August 18, 2014. On July 8, 2014, Stone pleaded guilty to

cruelty to animals, a misdemeanor of the first degree, see 18 Pa.C.S.

§ 5511(a)(2.1)(i)(a), and disorderly conduct, a summary offense, see

18 Pa.C.S. § 5503. We affirm.

       Stone has provided only a very brief statement of the facts underlying

the charges that led to his conviction and the instant appeal. The trial court,

too, has not provided a factual summary in its opinion pursuant to

Pa.R.A.P. 1925(a).       However, the following undisputed factual summary,

which was read into the record at Stone’s guilty plea hearing and was drawn
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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nearly verbatim from the affidavit of probable cause included with the

underlying criminal complaint, suffices to establish the facts underlying this

matter:

       [O]n January 22, 2014, at approximately 1:00[ ]pm, Trooper
       [Steven] Moyemont of the Pennsylvania State Police was in full
       uniform in a marked patrol unit when he returned to the
       Mansfield State Police Barracks to handle this incident. An
       animal cruelty case was referred to him by the State Dog
       Warden, Warden Tinder,[1] on this date. At that time he was
       advised that he—that there was information of an abandoned
       dog near the Gee’s Historical Family Cemetery in Cummings
       Creek Road in Farmington Township located here in Tioga
       County.

       Tinder went to the location, took the deceased dog into custody
       from the—from that location; stated he received a phone call
       from a Crystal Stone regarding the deceased dog.

       Ms. Stone stated that the dog belonged to her former husband,
       Joshua Stone, located at 624 East Main Street in the Borough of
       Elkland, also in Tioga County.

       Tinder relayed to Trooper Moyemont that Crystal Stone drove to
       Wellsboro, identified the dog as her former husband[’s]. . . .

       On January 24th of this year, 2014, a necropsy exam was
       performed by Doctor Alaire Smith Miller from Troy[,] PA[,] and
       that exam revealed the cause of the death was due to probably
       starvation over a period of time.

       On January 27th at approximately 9:30 pm Trooper Moyemont
       interviewed [Matthew Stone] at the . . . Pennsylvania State
       Police Barracks in Mansfield. At that time Mr. Stone was advised
       of his rights, warning, and waiver and he agreed to answer
       questions. He stated that his brother, Josh Stone, was working
       out of town. Josh did not want the dogs. [Stone] stated that he
       was told to get rid of the dogs. He could not afford to house the

____________________________________________


1
       No first name for Warden Tinder appears in the record.



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        dogs and had to get rid of them.[2] [Stone] stated that on
        October 3rd[,] 2013, at an unknown time he drove to Cummings
        Creek Road . . . and placed the dog approximately twenty feet
        from the roadway in a locked plastic crate. Matt stated that the
        dog was still alive at the time he dropped it off; that he figured
        someone would see the dog and take it after he left. . . .

Notes of Testimony (“N.T.”), 7/7/2014, at 2-4.

        On August 18, 2014, after reviewing a presentence investigation and

considering     the     court’s    sentencing     options,   the   court   imposed   an

intermediate punishment of eleven months’ county incarceration to be

followed by one month of house arrest. Upon release, Stone was to serve

one year of probation.3 As well, the trial court assessed various monetary

sanctions in the form of restitution, fines, fees, and costs.                See N.T.,

8/18/2014, at 11-16.         This sentence substantially exceeded the standard

range    of   the     sentencing    guidelines,    which     recommended    restorative

sanctions to thirty days’ incarceration.          On August 27, 2014, Stone timely

filed a notice of appeal.4
____________________________________________


2
       These are the only plural references in the record to dogs. However, it
is clear from the record that only one dog was killed.
3
      In effect, the trial court imposed a sentence that approached the
statutory maximum sentence.            See 18 Pa.C.S. § 5511(a)(2.1)(ii)
(prescribing a fine of not less than $1000 and incarceration of no more than
two years).
4
     The trial court’s failure to sentence Stone to a minimum and a
maximum sentence of incarceration, with the former to be no longer than
one half the latter, see 42 Pa.C.S. § 9756(b)(1), is not inconsistent with the
Sentencing Code. In Commonwealth v. Pinko, 811 A.2d 576 (Pa. Super.
2002), this Court rejected a challenge to the legality of a sentence on this
(Footnote Continued Next Page)


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      On September 2, 2014, the trial court entered an order directing Stone

to file a concise statement of the errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), allowing Stone twenty-one days to do so.     Thus, Stone

had until September 23, 2014 to comply. However, he did not file a concise

statement by that date. Consequently, on October 17, 2014, the trial court

entered a Rule 1925(a) opinion in which the court noted Stone’s failure to

comply with the trial court’s Rule 1925 order and correctly noted that an

appellant typically waives all issues on appeal when he fails to file his

concise statement in a timely manner. However, the trial court went on in

its opinion briefly to review Stone’s sentence, primarily citing the court’s

comments at sentencing as reflective of its reasoning.      See Trial Court

Opinion, 10/17/2014, at 1-2.

      Thereafter, on October 23, 2014, Stone filed what he called a “Nunc

Pro Tunc Defendant’s [Rule] 1925(b) Statement,” in which counsel for Stone

averred that he failed to file a timely Rule 1925(b) statement “[d]ue to an

error in coordinating with” Stone, and asked the court permit Stone to file a

                       _______________________
(Footnote Continued)

basis where the sentence in question expressly was identified as a sentence
of “intermediate punishment,” one of six sentencing alternatives provided to
the sentencing court pursuant to 42 Pa.C.S. § 9721(a). In Pinko we held
that a trial court need not enter a minimum and maximum sentence when
sentencing an offender under the County Intermediate Punishment Act,
42 Pa.C.S. §§ 9801-12. Consequently, the legality of this sentence, which
this Court may review sua sponte, see Commonwealth v. Pastorkovic,
567 A.2d 1089, 1091 (Pa. Super. 1989), is not at issue in this case.




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concise statement nunc pro tunc.         He attached to that document his

proposed concise statement.       In that statement, in so many words, Stone

raised only a challenge to the discretionary aspects of sentence. On October

24, the trial court entered an order denying Stone’s request for nunc pro

tunc relief.

      It is well-settled that the untimely filing of a 1925(b) statement usually

results in waiver of all issues on appeal. See Commonwealth v. Castillo,

888 A.2d 775, 776 (Pa. 2005).       In Commonwealth v. Hill, 16 A.3d 484

(Pa. 2011), our Supreme Court explained as follows:

      Rule 1925(b) sets out a simple bright-line rule, which obligates
      an appellant to file and serve a Rule 1925(b) statement[] when
      so ordered[. This bright-line rule provides that a]ny issues not
      raised in a Rule 1925(b) statement will be deemed waived; the
      courts lack the authority to countenance deviations from the
      Rule’s terms; the Rule’s provisions are not subject to ad hoc
      exceptions or selective enforcement; appellants and their
      counsel are responsible for complying with the Rule’s
      requirements; Rule 1925 violations may be raised by the
      appellate court sua sponte, and the Rule applies notwithstanding
      an appellee’s request not to enforce it; and, if Rule 1925 is not
      clear as to what is required of an appellant, on-the-record
      actions taken by the appellant aimed at compliance may satisfy
      the Rule. We yet again repeat the principle first stated in
      Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), that must
      be applied here:      “[I]n order to preserve their claims for
      appellate review, [a]ppellants must comply whenever the trial
      court orders them to file a Statement of Matters Complained of
      on Appeal pursuant to Pa.R.A.P. 1925. Any issues not raised in
      a Pa.R.A.P. 1925(b) statement will be deemed waived.”
      719 A.2d at 309.

Id. at 494 (citation modified).




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      As set forth, supra, Stone filed no statement until October 23, 2014,

one month after the prescribed September 23, 2014 deadline for filing his

statement, and approximately one week after the trial court filed its

Rule 1925(a) opinion without the benefit of Stone’s statement. Thereafter,

the trial court denied Stone’s request for nunc pro tunc relief from the

consequences of his failure to do so. Now, the trial court cites this failure as

a basis for quashing Stone’s appeal.

      In the context of criminal cases, however, the Castillo rule has been

qualified.   Because defense counsel’s failure timely to file a Rule 1925(b)

statement    constitutes   per   se   ineffective   assistance   of   counsel,   see

Commonwealth v. Thompson, 39 A.3d 335, 340-41 (Pa. Super. 2012),

our Supreme Court formulated Pa.R.A.P. 1925(c)(3), which provides as

follows:

      If an appellant in a criminal case was ordered to file a [concise
      statement] and failed to do so, such that the appellate court is
      convinced that counsel has been per se ineffective, the appellate
      court shall remand for the filing of a [s]tatement nunc pro tunc
      and for the preparation and filing of an opinion by the judge.

This Court also has held that “[w]hen counsel has filed an untimely

Rule 1925(b) statement and the trial court has addressed those issues we

need not remand and may address the merits of the issues presented.”

Thompson, 39 A.3d at 340 (citing Commonwealth v. Burton, 973 A.2d

428, 433 (Pa. Super. 2009)).          Because that is precisely the situation




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presented in the instant matter, we need not remand; instead, in the

interests of judicial economy, we will proceed to address Stone’s appeal.

       Before this Court, Stone states the following issue:

       Did [the] sentencing court err in sentencing [Stone] to
       incarceration of a one[-]year imprisonment [sic] at the Tioga
       County Prison based on factors that constitute elements of the
       offense?

Brief for Stone at 2.

       A claim that a sentence is excessive presents a challenge to the

discretionary aspects of sentence.             Commonwealth v. Ahmad, 961 A.2d

884, 886 (Pa. Super 2008). “A challenge to the discretionary aspects of a

sentence must be considered a petition for permission to appeal, as the right

to pursue such a claim is not absolute.” Commonwealth v. McAfee, 849

A.2d 270, 274 (Pa. Super. 2004).                To obtain review of the merits of a

challenge to the discretionary aspects of a particular sentence, an appellant

must include a Pa.R.A.P. 2119(f) statement in his or her brief.5           Therein,

____________________________________________


5
       In pertinent part, Rule 2119 provides the following:

       (f) Discretionary aspects of sentence. An appellant who
       challenges the discretionary aspects of a sentence in a criminal
       matter shall set forth in his brief a concise statement of the
       reasons relied upon for allowance of appeal with respect to the
       discretionary aspects of a sentence.       The statement shall
       immediately precede the argument on the merits with respect to
       the discretionary aspects of sentence.

Pa.R.A.P. 2119(f).




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“the appellant must show that there is a substantial question that the

sentence imposed is not appropriate under the Sentencing Code.” McAfee,

849 A.2d at 274. A substantial question requires a demonstration that “the

sentence violates either a specific provision of the sentencing scheme set

forth in the Sentencing Code or a particular fundamental norm underlying

the sentencing process.”   Commonwealth v. Tirado, 870 A.2d 362, 365

(Pa. Super. 2005) (quoting Commonwealth v. Mouzon, 812 A.2d 617, 627

(Pa. 2002)). “Our inquiry must focus on the reasons for which the appeal is

sought, in contrast to the facts underlying the appeal, which are necessary

only to decide the appeal on the merits.” Id. (quoting Commonwealth v.

Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc)) (emphasis in

Goggins).

     In order to properly present a discretionary sentencing claim, a

defendant is required to preserve the issue in either a post-sentence motion

or at sentencing and in a court-ordered Pa.R.A.P. 1925(b) concise

statement.    Further, on appeal, a defendant “must provide a separate

statement specifying where the sentence falls in the sentencing guidelines,

what provision of the sentencing code has been violated, what fundamental

norm the sentence violates, and the manner in which it violates the norm.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010).

     Stone’s Rule 2119(f) statement is perfunctory. Therein, Stone argues

that “[t]he record clearly demonstrates a substantial question that the

sentence[] was unfair and 12 times beyond [the] standard range, based on

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18 Pa.C.S. § 5511(a)(2.1)(i)(a), this sentencing range could have sentenced

[sic] [Stone] to [Restorative Sanctions], Probation to a maximum of 30 days

in County Prison.”        This statement does little more than allude to the

applicable sentencing guidelines and does not specify what provision of the

sentencing code or sentencing norm has been violated.            However, if the

Commonwealth raises no objection to a violation of Rule 2119(f), this Court

may ignore the violation.      Commonwealth v. Kiesel, 854 A.2d 530, 533

(Pa. Super. 2004); Commonwealth v. Raybuck, 915 A.2d 125, 127 n.3

(Pa. Super. 2006). Thus, were this the only flaw in Stone’s submission to

this Court, we would be free to consider his argument on the merits.

Unfortunately for Stone, it is not the only flaw.

      In addition to the insufficiency of Stone’s Rule 2119(f) statement,

which is not necessarily fatal to his appeal, Stone also failed to raise any

objection to the discretionary aspects of his sentence during sentencing or in

a post-sentence motion. This Court has held that “[i]ssues challenging the

discretionary aspects of sentencing must be raised in a post-sentence

motion or by raising the claim during the sentencing proceedings.         Absent

such efforts, an objection to a discretionary aspect of a sentence is waived.”

Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003) (quoting

Commonwealth         v.    Mann,   820    A.2d   788,   794   (Pa. Super. 2003)).

Furthermore, “[t]his failure is not cured by submitting the challenge in a

Rule 1925(b) statement.” Id. (citing Commonwealth v. Kohan, 825 A.2d

702, 706 (Pa. Super. 2003)).

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         The sentencing transcript in this matter reveals nothing that might be

construed as a satisfactory objection to the trial court’s exercise of its

discretion in sentencing.    Furthermore, the docket and the certified record

contain no reference to any post-sentence motion or to an order denying

same.      Finally, in his brief, Stone does not indicate that he filed such a

motion. Consequently, Stone’s sentencing challenge is waived, and we may

consider it no further.

         Judgment of sentence affirmed.

         Judge Shogan joins the memorandum.

         Judge Strassburger files a concurring statement in which Judge Wecht

joins.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/2015




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