J-A21018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ALEXANDER DIAZ                             :
                                               :
                       Appellant               :   No. 2137 EDA 2017

             Appeal from the Judgment of Sentence May 22, 2017
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0000992-2011


BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.:                              FILED OCTOBER 09, 2018

       Appellant, Alexander Diaz, appeals from the judgment of sentence

entered on May 22, 2017, following resentencing on his jury trial convictions

for possession with intent to deliver a controlled substance (PWID), possession

of drug paraphernalia, and conspiracy.1 Upon review, we affirm.

       We briefly summarize the facts and procedural history of this case as

follows.    A jury found Appellant guilty of the aforementioned crimes on

December 8, 2011. On April 25, 2012, the trial court sentenced Appellant to

four to eight years of imprisonment for PWID, 10 years of probation for

conspiracy (consecutive to PWID), and one year of probation for possession

of drug paraphernalia (consecutive to the other two sentences). On March

16, 2017, this Court vacated Appellant’s judgment of sentence and remanded
____________________________________________


1 35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(32), and 18 Pa.C.S.A.
§ 903, respectively.
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the matter for resentencing. See Commonwealth v. Diaz, 168 A.3d 318

(Pa. Super. 2017) (unpublished memorandum).            In that decision, we

determined that the trial court erred in imposing a mandatory minimum

sentence for PWID under 18 Pa.C.S.A. § 6317 (drug-free school zones). Upon

remand, on May 22, 2017, the trial court sentenced Appellant to 30 to 90

months of imprisonment for PWID, with a consecutive term of 10 years of

probation for conspiracy, and one year of probation for possession of drug

paraphernalia, concurrent to his sentence for conspiracy. This timely appeal

resulted.2

____________________________________________


2 At the conclusion of his re-sentencing hearing, Appellant signed a statement
acknowledging he received an explanation of his post-sentence rights. N.T.,
5/22/2017, at 11. Counsel for Appellant did not object to the new sentence
as excessive at the resentencing hearing and did not file a post-sentence
motion to reconsider Appellant’s new sentence. Appellant filed a pro se notice
of appeal while incarcerated, despite his representation by counsel. “While
hybrid representation is generally not permitted, our Supreme Court has held
that a pro se notice of appeal from a judgment of sentence filed by a
represented appellant is not automatically void.”         Commonwealth v.
Johnson, 2018 WL 3197588, at *2 (Pa. Super. 2018) (citation omitted).
Moreover, pursuant to the prisoner mailbox rule, we deem a pro se
prisoner's document filed on the date he delivers it to prison authorities for
mailing, in this case, June 19, 2017. See id. Thus, we deem the appeal
timely. Appellant also filed a pro se concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b) on July 24, 2017. On October 23,
2017, this Court entered a per curiam order remanding the matter to the trial
court because court-appointed trial counsel failed to file a timely criminal
docket statement with this Court and did not respond to this Court’s
correspondence. We directed the trial court to determine whether trial counsel
abandoned Appellant and, if so, whether Appellant was eligible for new,
court-appointed counsel. On November 14, 2017, the trial court appointed
Tiffany Griffin, Esquire to represent Appellant. Attorney Griffin did not seek
nunc pro tunc relief to file a post-sentence motion on Appellant’s behalf.



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

       1. Is it not evident [that] Appellant’s sentence of 30 months to
          90 months is in gross excess of the standard range, which is
          [three] months to 12 months [of] incarceration, that the [trial]
          court erred by applying the school zone enhancement for
          sentencing purposes?

       2. Without explanation, did the [trial] court’s sentence of 2½ to
          7½ years’ incarceration for the [PWID] conviction [of] 0.11
          grams of a schedule I controlled substance, wildly deviate from
          the standard range, and its unduly harsh 10-year consecutive
          probation for [Appellant’s] [c]onspiracy conviction prove an
          abuse of the court’s discretion.

Appellant’s Brief at 4.

       Both of Appellant’s issues involve the discretionary aspects of

sentencing. The application of a sentencing enhancement for selling drugs

near a school zone implicates the discretionary aspects of sentencing:

       [E]nhancements only direct a sentencing court to consider a
       different    range   of potential minimum       sentences,     while
       preserving a trial court's discretion to fashion an individual
       sentence. By their very character, sentencing enhancements do
       not share the attributes of a mandatory minimum sentence that
       the Supreme Court held to be elements of the offense that must
       be submitted to a jury. The enhancements do not bind a trial court
       to any particular sentencing floor, nor do they compel a trial court
       in any given case to impose a sentence higher than the court
       believes is warranted. They require only that a court consider a
       higher range of possible minimum sentences. Even then, the trial
       court need not sentence within that range; the court only must
       consider it.



____________________________________________


Instead, she filed a supplemental concise statement pursuant to Pa.R.A.P.
1925(b) on January 30, 2018. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on April 9, 2018.

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Commonwealth v. Ali, 112 A.3d 1210, 1226 (Pa. Super. 2015) (emphasis

in original), vacated and remanded on other grounds, 149 A.3d 29 (Pa. 2016)

(examining the admissibility of victim impact testimony at sentencing).

Moreover, Appellant’s second claim that the trial court imposed an excessive

sentence, above the standard sentencing guideline range, also implicates the

discretionary aspects of sentencing. See Commonwealth v. Antidormi, 84

A.3d 736, 760 (Pa. Super. 2014) (“The sentencing guidelines are not

mandatory, and sentencing courts retain broad discretion in sentencing

matters, and therefore, may sentence defendants outside the guidelines.”).

      This Court has previously determined:

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. An appellant challenging
      the discretionary aspects of his sentence must invoke this Court's
      jurisdiction by satisfying a four-part test:

            [W]e 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. Patterson, 180 A.3d 1217, 1232 (Pa. Super. 2018)

(internal case citation omitted).

      Here, Appellant filed a timely notice of appeal and included in his brief

a concise statement of the reasons relied upon for allowance of appeal


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J-A21018-18


pursuant to Pa.R.A.P. 2119(f). However, Appellant failed to raise either the

school-zone enhancement or excessiveness of sentence claims at the

resentencing hearing or in a post-sentence motion. “[I]ssues 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.” Commonwealth v. Heaster, 171 A.3d 268, 272 (Pa. Super. 2017).

Accordingly, Appellant waived his challenges to the trial court’s sentencing

discretion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/18




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