J-S69023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL SERRANO                            :
                                               :   No. 564 WDA 2017
                       Appellant

             Appeal from the Judgment of Sentence March 10, 2017
    In the Court of Common Pleas of Blair County Criminal Division at No(s):
                           CP-07-CR-0000099-2011


BEFORE:      BOWES, J., RANSOM, J., and STEVENS, P.J.E. *

MEMORANDUM BY RANSOM, J.:                            FILED NOVEMBER 28, 2017

       Appellant, Michael Serrano, appeals from the judgment of sentence of

an aggregate term of eight years nine months to seventeen and one-half years

of incarceration, followed by twenty years of probation imposed March 10,

2017, following remand from this Court for resentencing. We affirm.

       In October 2011, following a jury trial, Appellant was convicted of

delivery of a controlled substance,1 possession with intent to deliver a

controlled    substance     (“PWID”),2     conspiracy,3   and   criminal   use   of   a

communication facility.4,    5   In March 2012, the Honorable Thomas G. Peoples

____________________________________________


1 35 P.S. § 780-113 (a)(30)
2 35 P.S. § 780-113 (a)(30)
3 18 Pa.C.S.A. § 903
4 18 Pa. C.S.A. § 7512
5 We derive these facts from this Court’s opinion in Commonwealth v.

Serrano, 150 A.3d 470 (Pa. Super. 2016).


*    Former Justice specially assigned to the Superior Court.
J-S69023-17



Jr., imposed an aggregate sentence of thirty-one to eighty-two years of

incarceration.   Appellant appealed to this Court, which, in February 2013,

vacated his conviction for delivery of a controlled substance because the

verdict slip incorrectly indicated “cocaine” rather than “heroin.” The matter

was remanded for resentencing. Commonwealth v. Serrano, 61 A.3d 279

(Pa. Super. 2013).

      In April 2013, Judge Peoples resentenced Appellant to an aggregate

term of twenty-six to fifty-two years of incarceration, which included a

mandatory minimum sentence for PWID pursuant to 18 Pa.C.S. § 7508. On

appeal to this Court, Appellant’s sentence was vacated as illegal in light of the

decision in Alleyne v. United States, 133 S. Ct. 2151 (2013). The matter

was again remanded for resentencing.        Commonwealth v. Serrano, 122

A.3d 1124 (Pa. Super. 2015) (unpublished memorandum).

      In the interim, Judge Peoples passed away, and the case was reassigned

to the Honorable Timothy M. Sullivan for resentencing. Judge Sullivan ordered

an updated presentence investigation (“PSI”) and thereafter imposed the

same sentence as Judge Peoples but found Appellant to be Recidivism Risk

Reduction Incentive (“RRRI”) eligible.      In January 2016, Appellant’s post-

sentence motions were denied and dismissed without a hearing. Appellant

timely appealed his sentence, and in March 2017, this Court remanded for re-

sentencing. Serrano, 150 A.3d at 475 (concluding that the presiding judge

had abused its discretion by failing to independently evaluate the case).




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      In March 2017, a resentencing hearing was held, and Appellant was

sentenced as aforementioned. Appellant did not file a post-sentence motion.

Appellant timely appealed and filed a court-ordered statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court issued

a responsive statement.

      Appellant raises the following issue for review:

      A. Whether sentencing court erred and abused its discretion by
         failing to consider evidence of Appellant’s rehabilitation while
         incarcerated, his rehabilitative needs and protection of the
         public, as set forth in 42 Pa.C.S.A. [§] 9721(b), which resulted
         in a manifestly excessive sentence of probation, supervision,
         and constituted too severe of a punishment?

Appellant’s Brief at 4.

      Appellant challenges the discretionary aspects of his sentence, arguing

that his probationary sentence was “excessive when considered with the

record   regarding    [Appellant’s]   rehabilitation   while   incarcerated,   his

rehabilitative needs and protection of the public.” Appellant’s Brief at 9.

      It is well settled that, with regard to the discretionary aspects of
      sentencing, there        is no     automatic right      to   appeal.
      Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa. Super.
      2010) (citation omitted).

         Before we reach the merits of this [issue], we must engage
         in a four[-]part analysis to determine: (1) whether the
         appeal is timely; (2) whether Appellant preserved his issue;
         (3) whether Appellant’s brief includes a concise statement
         of the reasons relied upon for allowance of appeal with
         respect to the discretionary aspects of sentence; and (4)
         whether the concise statement raises a substantial question
         that the sentence is appropriate under the sentencing code.
         The third and fourth of these requirements arise because
         Appellant’s attack on his sentence is not an appeal as of

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         right. Rather, he must petition this Court, in his concise
         statement of reasons, to grant consideration of his appeal
         on the grounds that there is a substantial question. Finally,
         if the appeal satisfies each of these four requirements, we
         will then proceed to decide the substantive merits of the
         case.

      Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa. Super.
      2006) (citation omitted).

Commonwealth v. Austin, 66 A.3d 798, 807-808 (Pa. Super. 2013)

(alteration in original).

      Appellant failed to preserve this issue for our review. The sentencing

hearing transcript contains no objection from Appellant that the probationary

sentence was unreasonable.        Furthermore, following his resentencing

Appellant failed to file a post-sentence motion to reconsider his sentence.

Accordingly, Appellant’s challenge to the discretionary aspects of his sentence

is waived. See Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super.

2013) (noting Appellant must preserve a challenge to the discretionary

aspects of his sentence in a timely, post-sentence motion).

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2017




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