J-S61044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CARL CHESTER,                              :
                                               :
                       Appellant               :   No. 3521 EDA 2017

              Appeal from the Judgment of Sentence July 19, 2011
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0016213-2008


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY PANELLA, J.                                FILED APRIL 09, 2019

        Carl Chester appeals, nunc pro tunc, from the judgment of sentence

imposed following the revocation of his probation. Appellant contends the trial

court erred by denying him his right to allocution and by abusing its discretion

in fashioning his sentence. As we conclude Appellant has failed to preserve

any of these challenges on appeal, we affirm.

        In late 2009, Appellant pled guilty to one count of possession with intent

to deliver1 (“PWID”) marijuana. The trial court sentenced him to three years’

probation. Shortly thereafter, Appellant was charged, and eventually

convicted, of PWID and related offenses. These convictions triggered a

probation violation hearing for his underlying PWID conviction. On July 19,




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1   35 Pa.C.S.A. § 780-113(a)(30).
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2011, the sentencing court revoked Appellant’s probation and sentenced him

to three to six years’ imprisonment.

       On August 2, 2011, Appellant filed an untimely motion to reconsider

sentence, arguing only that the excessiveness of the sentence imposed after

revocation required a new sentencing hearing. The trial court denied this

motion;2 however, Appellant alleged he was not informed of the trial court’s

decision on his motion until July 25, 2013. Therefore, on September 16, 2013,

he filed a petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§

9541-9546 (“PCRA”) seeking to have his appellate rights reinstated. Following

an appeal to this Court,3 the trial court reinstated his direct appeal rights nunc

pro tunc. This timely appeal follows.

       On appeal, Appellant presents the following issues for our review.

       1. Whether the court was in error in that Appellant was not
          properly advised of his right of allocution[.]



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2 It is likely the post-sentence motion is not in the certified record. The record
only contains an order, which included separate signature lines for the
sentencing judge to approve or disapprove the motion. The sentencing judge
signed the disapproval line on August 8, 2011. However, the denial of this
motion was never noted on the docket. It is an Appellant’s duty to ensure that
the certified record contains the information necessary to allow a complete
assessment of the issues raised. See Commonwealth v. Manley, 985 A.2d
256, 263 (Pa. Super. 2009). Any issue that required preservation through the
filing of a post-sentence motion is therefore waived. See id.

3 See Commonwealth v. Chester, 163 A.3d 470, 475 (Pa. Super. 2017)
(remanding for PCRA court to determine if Appellant properly invoked the
newly-discovered fact exception to the PCRA; if so, ordering the PCRA court
to reinstate Appellant’s right to file a direct appeal, nunc pro tunc).

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      2. Whether the sentence        imposed     was   unreasonable    and
         manifestly excessive[.]

      3. Whether the court erred by failing to order a presentence
         investigation prior to sentencing Appellant[.]

      4. Whether the court was in error in not adequately considering
         Appellant’s background, character, and rehabilitative needs
         and stating sufficient reasons on the record for imposing a new
         sentence[.]

Appellant’s Brief, at 8 (issues reordered for ease of disposition).

      First, Appellant contends the trial court erred by failing to properly

advise him of his right of allocution. See id., at 17-18. While the trial court

argues that Appellant did not preserve this issue, Appellant contends that the

denial of the right of allocution creates a non-waivable challenge to the legality

of sentence. See id. We disagree.

      While “the right of allocution is of paramount importance,” our courts

have unequivocally held “that a denial of the right of allocution does not create

a non-waivable challenge to the legality of sentence.” Commonwealth v.

Jacobs, 900 A.2d 368, 375-377 (Pa. Super. 2006) (en banc) (citations

omitted). Instead, “like most legal errors, it is … waivable under Pennsylvania

law.” Id., at 377. Therefore, as the record reflects Appellant’s failure to raise

this issue with the trial court, this claim is not preserved for our review. See

Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived and cannot

be raised for the first time on appeal”).

      Appellant’s final three issues challenge the discretionary aspects of his

sentence. “To preserve issues concerning the discretionary aspects of



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sentencing, a defendant must raise them during sentencing or in a timely

post-sentence motion.” Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa.

Super. 2008) (citations omitted). Appellant did not raise any challenges to the

discretionary aspects of his sentence at his sentencing hearing. While he did

file a post-sentence motion, it was untimely.4 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.”) “An untimely post-sentence motion does not

preserve issues on appeal.” Commonwealth v. Wrecks, 931 A.2d 717, 719-

720 (Pa. Super. 2007) (citation omitted). Appellant has therefore waived his

challenges to the discretionary aspects of sentencing. As Appellant has failed

to preserve any issues for our review, we affirm the revocation court’s

sentence.

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/9/19


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4 Even if Appellant had timely filed his post-sentence motion, his failure to
ensure the inclusion of the motion in the certified record would preclude us
from finding this issue to be preserved for review.


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