J-S61030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                             Appellee

                       v.

JONATHAN M. GIANNOTTO

                             Appellant                      No. 270 MDA 2015


          Appeal from the Judgment of Sentence of January 12, 2015
               In the Court of Common Pleas of Adams County
              Criminal Division at No.: CP-01-CR-0001115-2013


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                                FILED NOVEMBER 09, 2015

       Jonathan M. Giannotto appeals his January 12, 2015 judgment of

sentence.    Giannotto challenges the discretionary aspects of his sentence.

However,     because        Giannotto    failed   to   comply   with   the   procedural

requirements necessary to invoke our jurisdiction, his claim must fail. We

affirm.

       On October 6, 2014, Giannotto pleaded guilty to homicide by a vehicle

while driving under the influence of alcohol and a controlled substance, 75

Pa.C.S. § 3735(a), and driving under the influence, 75 Pa.C.S. § 3802(d)(2).

       The record supports the following summary of facts underlying

Giannotto’s convictions. On August 14, 2013, after having consumed alcohol

____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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and controlled substances, Giannotto drove his pick-up truck on Forest

Drive, in New Oxford, Pennsylvania, a road that Giannotto travels daily.

While exceeding the speed limit, Giannotto failed to notice Charles Ankney

riding his lawn mower on the right side of the road.          Giannotto struck

Ankney with his pick-up truck, sending Ankney airborne for over two

hundred feet and killing him. Ankney’s wife observed the accident from her

window. She immediately went to assist her husband, to no avail.

      When police and emergency personnel arrived at the scene, Giannotto

entered his vehicle and attempted to flee. The police were able to remove

Giannotto from his vehicle and confiscate his keys. A strong odor of alcohol

emanated from Giannotto’s person. There was also a strong odor of alcohol

coming from the passenger compartment of the vehicle.                  Giannotto

submitted to a preliminary breath test, and tested positive for the presence

of alcohol. Giannotto refused to submit to field sobriety testing.

      Giannotto also refused to submit voluntarily to a blood draw.        Thus,

the police secured search warrant for Giannotto’s blood, which was drawn at

Gettysburg    Hospital   hours   later.     Giannotto   had   a   blood   alcohol

concentration of .134%. The blood draw also revealed that Giannotto had

concentrations of marijuana and diazepam in his system.              An accident

reconstructionist determined that Giannotto was traveling between 59-64

miles per hour in a posted 35 miles per hour zone.

      On January 12, 2015, following Giannotto’s guilty plea, the trial court

sentenced him in the aggravated range of the sentencing guidelines to three

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and one half to ten years in prison. Before imposing the sentence, the trial

court considered the testimony of Giannotto and of witnesses called by the

Commonwealth, and heard argument from each of the attorneys. The court

also reviewed the presentence investigation report.      Although Giannotto

suffers from some physical and, perhaps, mental disabilities, the court relied

significantly upon the consequences of Giannotto’s decision to drive while

intoxicated.    Accordingly, the court sentenced Giannotto in the aggravated

range.

      On January 20, 2015, Giannotto filed a motion to reconsider his

sentence.      The trial court denied the motion on January 27, 2015.      On

February 10, 2015, Giannotto filed a notice of appeal, which prompted the

trial court to direct Giannotto to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On March 10, 2015,

Giannotto timely complied.     On May 11, 2015, the trial court issued an

opinion pursuant to Pa.R.A.P. 1925(a).

      Giannotto raises the following issue for our review:          “Did the

sentencing judge erroneously sentence [Giannotto] in the aggravated range

when no aggravating factors were presented and no such factors were

alluded to in the judge’s sentencing order?”       Brief for Giannotto at 2.

Giannotto’s challenge implicates the discretionary aspects of his sentence.

See Commonwealth v. Shugars, 895 A.2d 1270, 1273 (Pa. Super. 2006).

      Before reaching the merits of Giannotto’s discretionary aspects of

sentence claim, we first must determine whether this Court has jurisdiction

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in this case. This Court repeatedly has stated that, in order to invoke this

Court’s jurisdiction when raising a challenge to the discretionary aspects of a

sentence, an appellant must: (1) file a timely appeal; (2) preserve the issue

he or she wishes to present on appeal; (3) include in his or her brief a

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

respect to the discretionary aspects of sentence pursuant to Pa.R.A.P.

2119(f); and (4) present a substantial question in his or her concise

statement that the sentence is not appropriate under the sentencing code.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citations

omitted). An appellant must satisfy all four requirements. Commonwealth

v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013).

      Giannotto has filed a timely notice of appeal and has preserved his

discretionary challenge by way of a post-sentence motion.            However,

Giannotto has not complied with the third and fourth requirements.

      Pursuant to the third requirement, Giannotto must include in his brief

a Rule 2119(f) statement. The rule states, in pertinent part, as follows:

         An appellant who challenges the discretionary aspects of a
         sentence in a criminal matter shall set forth in a separate
         section of the brief a concise statement of the reasons
         relied upon for allowance of appeal with respect to the
         discretionary aspects of a sentence. The statement shall
         immediately precede the argument on the merits with
         respect to the discretionary aspects of the sentence.




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Pa.R.A.P. 2119(f). In the statement, an appellant must specify “where the

sentence falls in relation to the sentencing guidelines and what particular

provision of the code it violates.” Commonwealth v. Goggins, 748 A.2d

721, 727 (Pa. Super. 2000). Additionally, the statement must specify “what

fundamental norm the sentence violates and the manner in which it violates

that norm.” Id. If the statement meets these requirements, we then can

proceed to determine whether a substantial question exists. Id.

     Giannotto did not include a Rule 2119(f) statement in his brief.

“[W]hen the appellant has not included a Rule 2119(f) statement and the

appellee has not objected, this Court may ignore the omission and

determine if there is a substantial question that the sentence imposed was

not appropriate, or enforce the requirements of Pa.R.A.P. 2119(f) sua

sponte, i.e., deny allowance of appeal.”   Commonwealth v. Kiesel, 854

A.2d 530, 533 (Pa. Super. 2004) (citations omitted). However, “this option

is lost if the [Commonwealth] objects to a 2119(f) omission.        In such

circumstances, this Court is precluded from reviewing the merits of the claim

and the appeal must be denied.” Id. Here, the Commonwealth objects to

Giannotto’s failure to include a Rule 2119(f) statement in his brief.    See

Brief for the Commonwealth at 5.      Consequently, we deny allowance of

appeal, and we do not review the merits of Giannotto’s challenge to the

discretionary aspects of his sentence. Kiesel, 854 A.2d at 533.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2015




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