J-S65007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

ARTHUR F. GUPTON

                            Appellant                    No. 2097 EDA 2013


             Appeal from the Judgment of Sentence May 31, 2013
             In the Court of Common Pleas of Philadelphia County
               Civil Division at No(s): CP-51-CR-0004847-2012


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                            FILED DECEMBER 15, 2014

        Appellant, Arthur F. Gupton, appeals from the judgment of sentence

entered May 31, 2013, by the Honorable Diana Anhalt, Court of Common

Pleas of Philadelphia County. Gupton challenges the discretionary aspects of

his sentence. No relief is due.

        On October 5, 2012, a jury convicted Gupton of Rape, 1 Kidnapping for

Ransom,2 Sexual Assault,3 Carrying a Firearm Without a License,4 Corruption

of Minors,5 and Indecent Assault.6             On May 31, 2013, the trial court

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3121(1).
2
    18 Pa.C.S.A. § 2901(a)(1).
3
    18 Pa.C.S.A. § 3124.1.
4
    18 Pa.C.S.A. § 6106(a).
5
    18 Pa.C.S.A. § 6301(a)(1).
6
    18 Pa.C.S.A. § 3126(a)(8).
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classified Gupton    as a sexually violent predator       (“SVP”) under      the

Registration of Sexual Offenders Act (commonly known as “Megan’s Law”),

42 PA.CONS.STAT.ANN. §§ 9791-9799.7, and sentenced Gupton to an

aggregate term of 23½ to 52 years’ imprisonment.         Gupton filed a timely

post-sentence motion challenging the weight of the evidence, which the trial

court denied. This timely appeal followed.

      On appeal, Gupton raises the following issue for our review:

      Did not the lower court err and abuse its discretion by
      sentencing Mr. Gupton to an unreasonable sentence that was
      higher than the standard range of the Sentencing Guidelines,
      (even with application of the deadly weapon enhancement)
      without giving adequate reasons, on the basis of considerations,
      including the nature of his offense, his prior criminal history, and
      the use of a deadly weapon, that were already factored into the
      Sentencing Guidelines and did not the lower court further err by
      failing to give proper consideration of Mr. Gupton’s personal
      needs and mitigating factors?

Appellant’s Brief at 3.

      Our standard when reviewing sentencing matters is as follows.

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, 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. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)

(en banc) (citation omitted).




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       Gupton challenges the discretionary aspects of his sentence.        “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) (citation omitted).

       An appellant challenging the discretionary aspects of his
       sentence must invoke this Court’s jurisdiction by satisfying a
       four-part test:

       [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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

       Gupton has failed to satisfy the procedural prerequisites for appellate

review of his challenge to the discretionary aspects of his sentence.

Although Gupton filed a timely notice of appeal and has included in his brief

a Rule 2119(f) statement, he did not preserve his discretionary sentencing

claim at sentencing or in a timely motion for reconsideration of sentence.7
____________________________________________


7
  Gupton filed a timely post-sentence motion on June 10, 2013, in which he
raised a single claim that “the verdict was against the weight of the evidence
and the complainant’s testimony was not credible.” Post-Sentence Motion,
6/10/13 at ¶ 2. The trial court denied Gupton’s motion without a hearing on
June 25, 2013. Although the docketing statement indicates that Gupton
(Footnote Continued Next Page)


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Consequently, we are constrained to find that Gupton has failed to invoke

our jurisdiction over his challenge to the discretionary aspects of his

sentence. See Moury; Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa.

Super. 2005) (citation omitted) (“Issues challenging the discretionary

aspects of a sentence must be raised in a post-sentence motion or by

presenting the claim to the trial court during the sentencing proceedings.

Absent such efforts, an objection to a discretionary aspect of a sentence is

waived.”).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2014




                       _______________________
(Footnote Continued)

filed a second post-sentence motion on June 26, 2013, a copy of this motion
is not contained in the certified record. Nonetheless, this motion, filed 26
days after the imposition of sentence, would be considered untimely. See
Pa.R.Crim.P. 720(A)(1) (“[A] written post-sentence motion shall be filed no
later than 10 days after imposition of sentence.”); Commonwealth v.
Wreck, 931 A.2d 717, 719-720 (Pa. Super. 2007) (citation omitted) (“An
untimely post-sentence motion does not preserve issues for appeal.”).



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