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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
BRIAN K. BROOKS,                           :
                                           :
                         Appellant         :
                                           :     No. 1108 WDA 2016

               Appeal from the Judgment of Sentence June 24, 2016
              In the Court of Common Pleas of Westmoreland County
                Criminal Division at No(s): CP-65-CR-0000660-2015

BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                               FILED JUNE 23, 2017

        Appellant, Brian K. Brooks, appeals from the June 24, 2016 Judgment

of Sentence entered in the Westmoreland County Court of Common Pleas.

On appeal, Appellant challenges the discretionary aspects of his sentence, as

well as the legality of his sentence under the proportionality requirement of

the Eighth Amendment to the United States Constitution and Article I,

Section 13 of the Pennsylvania Constitution. After careful review, we affirm.

        The trial court summarized the relevant factual and procedural history

as follows:

        On August 25, 2015, [Appellant] entered a general guilty plea
        before [the Honorable Christopher A. Feliciani] to the following
        Counts:

*
    Retired Senior Judge assigned to the Superior Court.
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        1.) Home Improvement Fraud: Receives any Advance
        Payment for Services and Fails to Perform, in violation of 73
        P.S. § 517.8(A)(2);

        2.) Theft by Deception-False Impression, in violation of 18
        Pa.C.S.[] § 3922(A)(1); and

        3.) Deceptive Business Practices-Sale           Less than the
        Represented Quantity, in violation of           18 Pa.C.S.[] §
        4107(A)(2).

      A sentencing hearing was scheduled before [the c]ourt on June
      24, 2016. Prior to sentencing, defense counsel requested that
      the hearing be postponed to allow Tammy Jeffries, the owner of
      Jeffries Paving, to testify on [Appellant’s] behalf. [Appellant]
      relayed that he spoke to Mrs. Jeffries and he was negotiating
      with her to try to get the money back that he owed to the victim,
      Vincent McClure. Despite [Appellant’s] initial statement, he later
      testified that he did not speak with Mrs. Jeffries and that he lied
      under oath. [The court sentenced Appellant] to six (6) months
      to five (5) years [of] incarceration at the Department of
      Corrections at Counts One and Two. At Count Three, [the court
      sentenced Appellant] to eighteen (18) months to five (5) years
      [of] incarceration to run concurrent to Counts One and Two.
      Further, he was also ordered to pay restitution in the amount of
      $10,430.99 to Mr. McClure and to have no contact, directly or
      indirectly, with the victims.

Trial Court Opinion, filed 9/9/16, at 1-2.

      Appellant did not file any post-sentence motions. Appellant did file a

timely Notice of Appeal to this Court.       Both the trial court and Appellant

complied with Pa.R.A.P. 1925.

      On appeal, Appellant raises the following two issues for our review:

      1. Whether the court abused its discretion in imposing a
      sentence of state incarceration[?]

      2. Whether the court violated the Eighth Amendment and Article
      I, Section 13, in imposing a sentence of state incarceration[?]

Appellant’s Brief at 6 (reordered).


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                   Discretionary Aspects of Sentence

     Appellant challenges the discretionary aspects of his sentence.       A

challenge to the discretionary aspects of sentencing is not automatically

reviewable as a matter of right.    Commonwealth v. Hunter, 768 A.2d

1136, 1144 (Pa. Super. 2001).         Prior to reaching 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, 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).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations

omitted).

     In the instant case, our careful review of the record, including the

sentencing transcript, reveals that Appellant failed to properly preserve his

challenge to the discretionary aspects of his sentence. He did not raise the

issue at sentencing, and failed to file a Motion to Reconsider and Modify

Sentence. Therefore, Appellant has waived this claim. Commonwealth v.

Cartrette, 83 A.3d 1030, 1042-43 (Pa. Super. 2013) (finding that, although

the appellant raised a substantial question regarding the discretionary

aspects of his sentence, he waived the issue by failing to preserve it in a

post-sentence motion or at sentencing).



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      Because we conclude that Appellant failed to preserve his challenge to

the discretionary aspects of his sentence we will not address the merits of

this claim.

              Constitutional Challenge to Legality of Sentence

      In his second issue, Appellant purports to challenge the legality of his

sentence under the ban on cruel and unusual punishment codified in the

Eighth Amendment to the United States Constitution and Article I, Section

13 of the Pennsylvania Constitution.         Appellant’s Brief at 10.     In fact,

Appellant’s claim is little more than a restatement of his challenge to the

discretionary aspects of his sentence. He fails to provide a single citation to

either the Pennsylvania Constitution or case law interpreting Article I,

Section 13’s proportional sentencing requirement.            Although his Brief

includes a single paragraph with background on the Eighth Amendment’s

ban on cruel and unusual punishment, the discussion that follows is limited

to a discussion of the Sentencing Guidelines and the mitigating factors in

Appellant’s case. See Appellant’s Brief at 10-12 (listing the three criteria for

analyzing sentence proportionality under the Eighth Amendment outlined in

Commonwealth v. Spells, 612 A.2d 458, 462 (Pa. Super. 1992), but

failing to discuss, analyze, or apply the criteria to the facts of his case)).

      We conclude that Appellant waived this issue for failing to develop it as

required by our rules of appellate procedure.        See Pa.R.A.P. 2101-2119;

Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa. Super. 2016)



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(“Appellate arguments which fail to adhere to these rules may be considered

waived, and arguments which are not appropriately developed are waived.”

(citation and quotation omitted)); Commonwealth v. Kane, 10 A.3d 327,

331 (Pa. Super. 2010) (“This Court will not act as counsel and will not

develop arguments on behalf of an appellant.” (citation and quotation marks

omitted)).

     Even if Appellant’s issues were not waived, we would conclude that

they are without merit. In Commonwealth v. Baker, our Supreme Court

analyzed and applied the three prong test for determining whether a

sentence     violates   constitutional   prohibitions   on    cruel   and   unusual

punishment, which calls on courts to consider “(i) the gravity of the offense

and the harshness of the penalty; (ii) the sentences imposed on other

criminals in the same jurisdiction; and (iii) the sentences imposed for

commission of the same crime in other jurisdictions.” Commonwealth v.

Baker, 78 A.3d 1044, 1047 (Pa. 2013) (citing Commonwealth v. Spells,

612 A.2d 458, 462 (Pa. Super. 1992) (en banc)).              As our Supreme Court

noted, courts should only consider the second and third prong of the analysis

if “a threshold comparison of the crime committed and the sentence imposed

leads to an inference of gross disproportionality.” Id. at 1047-48 (citation

and quotation omitted).      If gross disproportionality is not found, the claim

should be denied, and “successful [proportionality] challenges are extremely

rare.” Id. at 1048.



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      In the instant case, Appellant does not argue that the Sentencing

Guidelines prescribe a punishment that is disproportionate to the offense

committed.     To the contrary, Appellant concedes that the Sentencing

Guidelines “set a consistent standard for sentencing throughout the

Commonwealth” and “result[] in generally proportional sentences for each

defendant.”    Appellant’s Brief at 11.   Nor does Appellant argue that his

sentence fell outside of the standard range of the Sentencing Guidelines.

Instead, Appellant avers that the trial court erred in not imposing a sentence

within the mitigated range of the Sentencing Guidelines, and that this

failure resulted in a disproportionate sentence. We disagree.

      Appellant pled guilty to, inter alia, Deceptive Business Practices for

taking over $10,000 in payments from the victims and then not performing

any of the work for which he was paid. At the sentencing hearing, Appellant

deliberately misled the sentencing court and later in the proceedings,

admitted to lying to the court. Appellant had a prior record score of 3, and

the offense gravity score in the instant case was 7. Appellant and his trial

counsel presented the trial court with evidence about his individual

circumstances, including Appellant’s health and the health of his wife.    As

the sentencing court explained in its 1925(a) Opinion, it imposed a sentence

in the standard range “[d]ue to the nature of the charges, [the victim’s]

testimony and position, and [Appellant’s] fraudulent misrepresentations to

the [sentencing c]ourt during the sentencing hearing[.]” Trial Court Opinion



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at 4.      The aggregate sentence imposed, 18 months to 5 years of

imprisonment,     fails   to   meet    the   threshold   requirement   of   gross

disproportionality to the crime committed.        We, therefore, conclude that

Appellant is not entitled to relief.

        Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/23/2017




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