J-S11020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

MICHAEL DENNIS

                            Appellant             No. 3542 EDA 2014


          Appeal from the Judgment of Sentence November 20, 2014
            In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0004749-2011


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                               FILED MAY 06, 2016

       Michael Dennis appeals from the judgment of sentence imposed on

November 20, 2014, in the Court of Common Pleas of Montgomery County.

On January 10, 2013, a jury convicted him of six counts of possession with

intent to deliver, and simple possession, four counts of criminal use of

communications facility, and one count each of corrupt organizations,

dealing in proceeds of unlawful activities, and criminal conspiracy.1   The

court sentenced Dennis to an aggregate term of 18 to 36 years’

imprisonment. On appeal, Dennis challenges the discretionary aspects of his

sentence. For the reasons below, we affirm.

____________________________________________


1
  35 P.S. § 780-113(a)(30), 18 Pa.C.S. §§ 7512, 911, 5111(a) and 903(a),
respectively.
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       Dennis’s convictions stem from his critical involvement in a large and

complex cocaine distribution organization.       Dennis was tried with two co-

defendants.     As noted supra, the jury convicted him of multiple crimes

related to the drug ring. The trial court originally sentenced Dennis on April

1, 2013, to a term of 21 to 42 years’ imprisonment, which was based, in

part, on a mandatory minimum sentencing scheme.            On direct appeal, a

panel of this Court vacated the judgment of sentence and remanded for re-

sentencing because the imposed mandatory minimum scheme had been held

unconstitutional pursuant to Alleyne v. United States, 133 S.Ct. 2151

(U.S. 2013).     See Commonwealth v. Dennis, 106 A.3d 178 [2961 EDA

2013] (Pa. Super. 2014) (unpublished memorandum).2 The panel affirmed

the judgment in all other aspects.




____________________________________________


2
   In Alleyne, the United States Supreme Court held “[a]ny fact that, by
law, increases the penalty for a crime is an ‘element’ that must be submitted
to the jury and found beyond a reasonable doubt.” Alleyne, 133 S.Ct. at
2155. This Court has held that the mandatory minimum sentencing statute
under which Dennis was sentenced, 18 Pa.C.S.A. § 7508, is constitutionally
invalid pursuant to Alleyne, and that defendants who were sentenced under
Section 7508 and whose cases were pending on direct appeal at the time
Alleyne was decided, are entitled to relief.       See Commonwealth v.
Watley, 81 A.3d 108 (Pa. Super. 2013) (en banc), appeal denied, 95 A.3d
277 (Pa. 2014). See also Dennis, 106 A.3d 178 (Pa. Super. 2014)
(unpublished memorandum at 5-6).




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       Following remand, on November 20, 2014, the trial court imposed an

aggregate sentence of 18 to 36 years’ imprisonment.3 Dennis did not file a

post-sentence motion, but did file an appeal. On December 30, 2014, the

trial court ordered Dennis to file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b).

       During this time, private counsel for Dennis filed an application to

withdraw as counsel with this Court on February 3, 2015.        Counsel also

notified the court of his intent to file an Anders4 brief, and subsequently

filed a statement pursuant to Pa.R.A.P. 1925(c)(4). On February 25, 2015,

this Court, by per curiam order, granted counsel’s application to withdraw,

and directed the trial court to determine Dennis’s eligibility for court-

appointed counsel. Counsel was appointed, and he filed an advocate’s brief,

rather than an Anders brief. The trial court, in reliance of prior counsel’s

Rule 1925(c)(4) statement,5 did not address the merits of Dennis’s appellate

issues. See Memorandum, 3/31/2015, at 1-2.

       Dennis now raises the following discretionary aspects of sentencing

issue for our review:
____________________________________________


3
  A detailed breakdown of the sentencing scheme was set forth by the trial
court at the resentencing hearing. See N.T., 11/20/2014, at 7-10.
4
  See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
5
  Our review of the record also indicates present counsel did not request to
amend the concise statement.



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      The trial court abused its discretion by imposing an aggregate
      sentence of not less than 18 years, nor more than 36 years, of
      incarceration upon the 37 year-old [Dennis] who had never been
      convicted of a felony offense where:

            the trial court imposed sentences which were consecutive
             and unreasonable under the circumstances of the case in
             that the trial court sentenced [Dennis] to the same
             sentence he received when it was thought the mandatory
             sentencing provisions of the [D]rug [A]ct applied; and,

            the trial court imposed sentences which were within the
             sentencing guidelines but the application of the guidelines
             was clearly unreasonable under the circumstances of the
             case; and,

            the trial court erred in sentencing [Dennis] and other
             defendants who opted for jury trials, to a more severe
             sentence than those similarly situated that pled guilty or
             engaged in less onerous litigation.

Dennis’s Brief at 8.

      We begin with the well-settled standard of review for a claim

challenging a discretionary aspect of sentencing:

            Sentencing is a matter vested in the sound discretion of
      the judge, and will not be disturbed on appeal absent a manifest
      abuse of discretion. An abuse of discretion is not shown merely
      by an error in judgment. Rather, the appellant must establish,
      by reference to the record, that the sentencing court ignored or
      misapplied the law, exercised its judgment for reasons of
      partiality, prejudice, bias or ill will, or arrived at a manifestly
      unreasonable decision.

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted), appeal denied, 980 A.2d 607 (Pa. 2009).

      “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


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claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.

Super. 2007) (citations and quotation marks omitted). To reach the merits

of a discretionary issue, this Court must determine:

     (1) whether appellant has filed a timely notice of appeal; (2)
     whether the issue was properly preserved at sentencing or in a
     motion to reconsider and modify sentence; (3) whether
     appellant’s brief has a fatal defect; and (4) whether there is a
     substantial question that the sentence appealed from is not
     appropriate under the Sentencing Code.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)

(footnotes omitted).

     Here, while Dennis filed a timely notice of appeal and included the

requisite statement pursuant to Pa.R.A.P. 2119(f) in his appellate brief, a

review of the record reveals he did not raise his sentencing claim in a post-

sentence motion or at sentencing.    See Commonwealth v. Reaves, 923

A.2d 1119, 1125 (Pa. 2007) (stating that “failure to file a motion for

reconsideration after failing to object at sentencing [] operates to waive

issues   relating   to   the    discretionary   aspects   of   sentencing”);

Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa. Super. 2006) (“To

preserve an attack on the discretionary aspects of sentence, an appellant

must raise his issues at sentencing or in a post-sentence motion. Issues not

presented to the sentencing court are waived and cannot be raised for the

first time on appeal.”) (citations omitted); see also Pa.R.A.P. 302(a).

Therefore, Dennis’s failure to preserve his sentencing claim constitutes




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waiver of the sole claim on appeal.6 Accordingly, we affirm the judgment of

sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2016




____________________________________________


6
   The Commonwealth points out that Dennis also waived his claims when he
failed to raise them in a concise statement. See Commonwealth’s Brief at 7.
While we need not address this issue based on our analysis above, we would
agree. See Commonwealth v. Oliver, 946 A.2d 1111, 1115 (Pa. Super.
2008) (“In Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005),
the Supreme Court affirmed the bright-line rule established in
Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), which
requires a finding of waiver whenever an appellant fails to raise an issue in a
court-ordered Pa.R.A.P. 1925(b) statement.”), appeal denied, 960 A.2d 838
(Pa. 2008); see also Commonwealth v. Kitchen, 814 A.2d 209, 214 (Pa.
Super. 2002) (“Just as an appellant can waive a challenge to the
discretionary aspect of sentence by failing to include a separate concise
statement of the reasons relied upon for allowance of appeal in his appellate
brief under Pa.R.A.P. 2119(f), Commonwealth v. Eck, 439 Pa. Super. 530,
654 A.2d 1104 (Pa. Super. 1995), waiver will be found where the issue is
not raised in the 1925(b) statement.”).



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