J-S51014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

THOMAS L. GARDNER

                            Appellant                    No. 754 EDA 2015


           Appeal from the Judgment of Sentence February 26, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0006750-2014


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

JUDGMENT ORDER BY GANTMAN, P.J.:                   FILED SEPTEMBER 09, 2015

        Appellant, Thomas L. Gardner, appeals from the judgment of sentence

entered in the Montgomery County Court of Common Pleas, following his

guilty plea to two counts each of rape of a child and endangering the welfare

of children.1 On November 25, 2014, Appellant entered an open guilty plea

following the rape of his two stepdaughters on an almost daily basis for

three years.     The court sentenced Appellant on February 26, 2015, to an

aggregate term of 19 to 38 years’ imprisonment, and deemed Appellant to

be a sexually violent predator.          Appellant did not file any post-sentence

motions. Appellant timely filed a notice of appeal on March 16, 2015. The

____________________________________________


1
    18 Pa.C.S.A. §§ 3121(c), and 4304(a)(1), respectively.


_________________________

*Retired Senior Judge assigned to the Superior Court.
J-S51014-15


court ordered Appellant to file a Rule 1925(b) statement, and Appellant’s

public defender responded with an intent to file an Anders brief. Appellant

subsequently obtained private counsel, who filed a motion to amend the

Rule 1925(b) statement.          The court granted new counsel’s request, and

Appellant timely filed a Rule 1925(b) statement that challenged the

discretionary aspects of his sentence as manifestly excessive.2

       Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.            Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000).          Prior to reaching the merits of a discretionary

sentencing issue:

          [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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
____________________________________________


2
  “[W]hile a…plea which includes sentence negotiation ordinarily precludes
a defendant from contesting the validity of his…sentence other than to argue
that the sentence is illegal or that the sentencing court did not have
jurisdiction, open plea agreements are an exception in which a defendant
will not be precluded from appealing the discretionary aspects of the
sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super.
2005) (emphasis in original). “An ‘open’ plea agreement is one in which
there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s plea
was “open” as to sentencing, so a challenge to the discretionary aspects of
his sentence is available.



                                           -2-
J-S51014-15


denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

     Instantly, Appellant failed to raise his discretionary aspects of

sentencing claim at sentencing, or in a post-sentence motion.            See

Commonwealth v. Mann, 820 A.2d 788 (Pa.Super. 2003) (stating

challenges to discretionary aspects of sentencing are generally waived if

they are not raised during sentencing proceedings or in timely post-sentence

motion). Appellant’s pre-sentence request for a standard range sentence at

the bottom of the guidelines did not preserve his specific claim of excessive

sentence.   Thus, Appellant waived his sentencing issue.    Accordingly, we

affirm the judgment of sentence. See generally In re K.L.S., 594 Pa. 194,

197 n.3, 934 A.2d 1244, 1246 n.3 (2007) (stating where issues are waived

on appeal, we should affirm rather than quash appeal).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2015




                                    -3-
