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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

ROBERT LEE SHAFFER, JR.

                            Appellant                  No. 1548 MDA 2015


             Appeal from the Judgment of Sentence August 10, 2015
        in the Court of Common Pleas of Clinton County Criminal Division
                        at No(s): CP-18-CR-0000461-2014

BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED JULY 20, 2016

        Appellant, Robert Lee Shaffer, Jr., appeals from the judgment of

sentence entered in the Clinton County Court of Common Pleas following his

guilty plea to seven counts of possession of child pornography. 1 He claims

that the trial court erred by imposing an excessive sentence and failing to

consider mitigating factors. We affirm.

        The trial court summarized the pertinent procedural history as follows:

               Appellant was charged pursuant to a Criminal Complaint
           filed on September 30, 2014 by Brittney J. Baughman of
           the Office of Attorney General with . . . fifteen (15) counts
           of Sexual Abuse of Children (Possession of Child
           Pornography), a felony of the third degree; . . . Appellant
           waived Appellant’s right to a Preliminary Hearing on



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 6312(d).
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         October 21, 2014 and pled guilty[2] before this Court on
         May 8, 2015 to seven (7) counts of Sexual Abuse of
         Children (Possession of Child Pornography), all graded as
         felonies of the third degree. This Court on August 10,
         2015 sentenced Appellant to a term of imprisonment of six
         (6) months to thirty-six (36) months on each of the counts
         and ordered that these sentences run consecutive.
         Therefore, Appellant had an aggregate minimum sentence
         of forty-two (42) months and an aggregate maximum
         sentence of two hundred fifty-two (252) months.
         Appellant filed a Motion to Modify Sentence on August 19,
         2015,[3] which this Court denied by Order of August 20,
         2015. Defendant filed a timely appeal on September 8,
         2015 and pursuant to this Court’s Order of September 9,
         2015, filed a Statement of Matters Complained of Pursuant
         to Rule 1925(b) of the Pennsylvania Rules of Appellate
         Procedure on September 25, 2015.

Trial Ct. Op., 9/30/15, at 1-2.

      On appeal, Appellant argues that his sentence is excessive and that

the trial court erred in not considering mitigating factors.4 Appellant’s Brief


2
  Appellant and the Commonwealth agreed that he would be sentenced
within the standard range for each count. However, the trial court would
determine whether each sentence would run concurrently or consecutively.
Appellant’s Guilty Plea Statement, 5/7/15, at 7; N.T., 5/8/15, at 2.
3
 Appellant filed a post-sentence motion to reduce and modify his sentence.
He noted mitigating factors that should have been considered. Appellant’s
Post-Sentence Mot., 8/19/15, at 1-2 (unnumbered).
4
  Appellant raises the following four issues in his statement of the questions
involved:

         A. Whether the trial court committed an abuse of
         discretion in failing to adequately consider that the
         Appellant was cooperative throughout the investigation of
         the matter and waived his Preliminary Hearing and right to
         trial and ultimately pled guilty?




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at 8-9. Appellant claims that the trial court abused its discretion. Id. at 7.

We hold that Appellant is not entitled to relief.

      Claiming   that   a   sentence   is   excessive   is   a   challenge   to   the

discretionary aspects of sentencing. Commonwealth v. Pennington, 751

A.2d 212, 215 (Pa. Super. 2000). Appellants do not have an absolute right

to appeal the discretionary aspects. Commonwealth v. Evans, 901 A.2d

528, 533 (Pa. Super. 2006).       In order to obtain review, Appellant must

satisfy a four-prong test. Id.

      As a prefatory matter, however, we determine if Appellant is entitled

to seek permission to appeal.      Ordinarily, when a guilty plea includes a

sentence agreement, and the agreed upon sentence is imposed, the plea


         B. Whether the trial court committed an abuse of
         discretion in failing to adequately consider Appellant’s life
         history which includes only a single criminal conviction
         from 1994?

         C. Whether the trial court committed an abuse of
         discretion in failing to adequately consider Appellant’s
         cooperation and compliance with the officials and policies
         of the Clinton County Correctional Facility during his pre-
         trial incarceration for over ten (10) months?

         D. Whether the trial court committed an abuse of
         discretion in failing to adequately consider Appellant’s
         close connection with his family, especially his eight-year-
         old [sic] Mother and two children who reside locally in
         Clinton County?

Appellant’s Brief at 5. However, because Appellant discusses all of the
issues in a single argument section of his brief, we address them as such.
Id. at 7.




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results in a waiver of a challenge to the discretionary aspects of the

sentence. Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super.

1991). After a guilty plea with a negotiated agreement is made, challenges

may only be brought to review the court’s jurisdiction, the legality of the

sentence, and the validity of the plea. Id. However, where a guilty plea is

open and made without a sentence agreement, the defendant has the right

to challenge the discretionary aspects of sentencing.      Commonwealth v.

Brown, 982 A.2d 1017, 1019 (Pa. Super. 2009). Where the guilty plea is a

hybrid, i.e., negotiated as to certain aspects of the sentence, but not all, this

Court can review the non-negotiated aspects of the sentence.         See id. at

1019-20.

      Instantly, Appellant pleaded guilty to seven counts of possession of

child pornography on May 8, 2015.           Appellant and the Commonwealth

agreed that he would be sentenced within the standard range, but the

consecutive nature of the sentence would be left to the trial court.

Appellant’s Guilty Plea Statement, 5/7/15, at 7; N.T., 5/8/15, at 2. Because

this was a hybrid plea agreement, we conclude that he has not waived his

right to seek permission for appellate review of the discretionary aspects of

the non-negotiated portions of his sentence.        See Brown, 982 A.2d at

1019-20.

      Accordingly, we may proceed to determine if Appellant satisfies the

following four requirements for review:



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        (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).

Evans 901 A.2d at 533. (citation omitted).

        [T]he Rule 2119(f) statement must specify where the
        sentence falls in relation to the sentencing guidelines and
        what particular provision of the Code is violated (e.g., the
        sentence is outside the guidelines and the court did not
        offer any reasons either on the record or in writing, or
        double-counted factors already considered). Similarly, the
        Rule 2119(f) statement must specify what fundamental
        norm the sentence violates and the manner in which it
        violates that norm. . . . If the Rule 2119(f) statement
        meets these requirements, we can decide whether a
        substantial question exists.

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000). If an

appellant fails to include a 2119(f) statement in his brief, and the

Commonwealth objects to the lack of the statement, this Court cannot

review the merits of the appellant’s claim. See Commonwealth v. Bruce,

916 A.2d 657, 666 (Pa. Super. 2007).

     In this case, Appellant filed a timely appeal and preserved the issues

by filing a post-sentence motion. However, Appellant failed to comply with

the 2119(f) statement requirement because he did not include a 2119(f)

statement in his brief.   See Appellant’s Brief at 1-10; accord Pa.R.A.P.

2119(f); Goggins, 748 A.2d at 727.        The Commonwealth objected to

Appellant’s lack of a 2119(f) statement. See Commonwealth’s Brief at 8-9


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(“This Court should not review the merits of [Appellant’s] discretionary

aspects of sentencing claim because he has failed to comply with the

requirements to obtain review” including his omission of a 2119(f)

statement). Therefore, this Court cannot review Appellant’s challenge to the

discretionary aspects of his sentence. See Bruce, 916 A.2d at 666.

      Accordingly, Appellant failed to comply with the requirements for

review. See Evans, 901 A.2d at 533. Therefore, we decline to examine the

merits of Appellant’s challenge to the discretionary aspects of his sentencing,

deny permission to appeal, and affirm the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/20/2016




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