J-S80018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

DANIEL DAVIS

                         Appellant                     No. 2016 MDA 2015


      Appeal from the Judgment of Sentence Entered October 2, 2015
             In the Court of Common Pleas of Luzerne County
             Criminal Division at No: CP-40-CR-0000560-2015


BEFORE: LAZARUS, STABILE, and RANSOM, JJ.

MEMORANDUM BY STABILE, J.:                        FILED DECEMBER 23, 2016

      Appellant Daniel Davis appeals from the October 2, 2015 judgment of

sentence entered in the Court of Common Pleas of Luzerne County (“trial

court”), following his guilty plea to robbery, terroristic threats, simple

assault, simple assault with a deadly weapon, recklessly endangering

another person and disorderly conduct. Upon review, we affirm.

      The facts and procedural history of this case are not in dispute.

Briefly, upon pleading guilty to the above-referenced offenses, the trial court

sentenced   Appellant    to   an    aggregate   term   of   30   to   60   months’

imprisonment. In fashioning the sentence, the trial court applied the deadly
J-S80018-16



weapon enhancement (“DWE”) under 204 Pa.Code § 303.10.1 On October

9, 2015, Appellant filed a motion for reconsideration of sentence, arguing

that, even though he used a knife during the commission of the crimes, the

trial court’s application of the DWE under Section 303.10 rendered his

sentence excessive. On October 20, 2015, the trial court denied Appellant’s

reconsideration motion. Appellant timely appealed to this Court. The trial

court directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal. Appellant obliged. In his Rule 1925(b) statement,

Appellant argued only that the trial court’s application of the DWE ran afoul

of Alleyne2 and, therefore, was unconstitutional.       In response, the trial

court issued a Pa.R.A.P. 1925(a) opinion.

       On appeal,3 Appellant repeats his argument.

____________________________________________


1
 The sentencing transcript indicates that the trial court did not apply the
DWE to the simple assault with a deadly weapon conviction.             N.T.
Sentencing, 10/2/15, at 12.
2
  Alleyne v. United States, 133 S. Ct. 2151, 2161-63 (2013) (holding that
any fact other than a prior conviction that triggers a mandatory minimum
sentence must be found by a jury beyond a reasonable doubt).
3
  When reviewing a challenge to the trial court’s discretion, our standard of
review 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. An abuse of discretion is
       more than just an error in judgment and, on appeal, the trial
       court will not be found to have abused its discretion unless the
       record discloses that the judgment exercised was manifestly
       unreasonable, or the result of partiality, prejudice, bias, or ill-
       will.

(Footnote Continued Next Page)


                                           -2-
J-S80018-16



      At the outset, we observe that a challenge to the application of DWE

implicates the discretionary aspects of the sentence. See Commonwealth

v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008), appeal denied, 964 A.2d

895 (Pa. 2009).          Thus, because Appellant’s sole issue implicates the

discretionary aspects of his sentence, we note that it is well-settled that

“[t]he right to appeal a discretionary aspect of sentence is not absolute.”

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011).

Rather, where an appellant challenges the discretionary aspects of a

sentence, an appellant’s appeal should be considered a petition for allowance

of appeal.    Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super.

2007).    As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

      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).

                       _______________________
(Footnote Continued)

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012)
(quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super.
2002)), appeal denied, 820 A.2d 703 (Pa. 2003).



                                            -3-
J-S80018-16



Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).     Whether a particular issue constitutes a substantial question

regarding the appropriateness of sentence is a question to be evaluated on a

case-by-case basis.      See Commonwealth v. Kenner, 784 A.2d 808, 811

(Pa. Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).

       Here, although Appellant timely appealed to this Court and raised a

substantial question,4 he has failed to satisfy the second requirement of the

four-part Moury test. Specifically, Appellant failed to preserve the Alleyne

issue on appeal through his post-sentence motions. See Commonwealth

v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008) (“[c]laims relating to the

discretionary aspects of a sentence are waived if not raised either at

sentencing or in a post-sentence motion”), aff'd, 17 A.3d 332 (Pa. 2011).

Accordingly, we conclude that Appellant has waived his discretionary aspects

of sentencing challenge.5




____________________________________________


4
  This Court has found that the application of the DWE presents a substantial
question for review. Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266
(Pa. Super. 2014) (en banc), appeal denied, 104 A.3d 1 (Pa. 2014).
5
  We note that Appellant also failed to meet the third part of Moury test by
not including a Pa.R.A.P. 2119(f) statement in his brief. We, however,
decline to find waiver on this basis because the Commonwealth did not
object to the omission of the Rule 2119(f) statement. See Foster, 960 A.2d
at 163 (noting a challenge to the discretionary aspects of a sentence is
waived if the opposing party objects to the absence of appellant’s Rule
2119(f) statement.



                                           -4-
J-S80018-16



     Even if we were to grant review and address this issue, we would

conclude that Appellant is not entitled to relief.   As acknowledged by

Appellant, the trial court did not impose a mandatory minimum sentence

here, but rather applied the DWE under Section 303.10.   The trial court’s

application of the DWE did not violate Alleyne.      In Buterbaugh, we

specifically concluded that the “deadly weapon enhancement,” found at 204

Pa.Code § 303.10, is not unconstitutional under Alleyne. Buterbaugh, 91

A.3d at 270 n.10.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2016




                                  -5-
