J-S40033-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
             v.                           :
                                          :
BRIAN THOMAS,                             :
                                          :
                   Appellant              :          No. 1302 EDA 2015

              Appeal from the Judgment of Sentence May 1, 2015
             in the Court of Common Pleas of Philadelphia County,
              Criminal Division, No(s): CP-51-CR-0011987-2014

BEFORE: BOWES, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED JULY 22, 2016

        Brian Thomas (“Thomas”) appeals from the judgment of sentence

imposed following his conviction of Attempted Theft by Taking of Movable

Property.1 We dismiss the appeal.

        On April 25, 2014, the store owner of Produce City Flowers at 6600

Frankford Avenue in Philadelphia, witnessed Thomas attempting to remove

the cash register from the counter. Thomas asserted that he believed the

cash register was for sale and wished to use it for his hot dog stand. The

owner called the police, who subsequently arrested Thomas.

        On October 10, 2014, the Municipal Court of Philadelphia found

Thomas guilty of attempted theft.    The court sentenced Thomas to one to

two years in prison.   Thomas filed an appeal de novo.    Following a bench

trial, the trial court found Thomas guilty of the above-mentioned crime. The



1
    See 18 Pa.C.S.A. § 901.
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trial court sentenced Thomas to two to four years in prison, after which

Thomas filed a Post-Sentence Motion.       On May 1, 2015, the trial court

granted Thomas’s Motion, and reduced the sentence to twenty-one to forty-

two months in prison.

      Thomas filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.

1925(b) Concise Statement.

      On appeal, Thomas raises the following question for our review:

      Did not the trial court err and abuse its discretion by imposing a
      sentence that was manifestly excessive and was based, in part,
      on an impermissible factor, namely the court’s unfounded
      speculation that [Thomas], charged with and convicted of
      attempted theft, would have assaulted the complainant had
      police not quickly arrived on the scene?

Brief for Appellant at 3.

      Thomas contends that the sentencing judge abused his discretion in

imposing a manifestly excessive sentence of twenty-one to forty-two months

in prison for attempted theft. Id. at 11. Thomas argues that his sentence,

which is the maximum sentence within the aggravated range of the

sentencing guidelines, is excessive because the court relied upon an

impermissible sentencing factor. Id. at 11-14.

      Thomas challenges the discretionary aspects of his sentence.

      Prior to reaching the merits of a discretionary sentencing issue,
      an appellate court conducts 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


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     substantial question that the sentence appealed from is not
     appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008) (citation

omitted).

     Here, Thomas was resentenced on May 1, 2015, and he did not raise

any new sentencing claim at the sentencing hearing, or file a post-sentence

motion challenging his new sentence.2 See Commonwealth v. Evans, 901

A.2d 528, 534 (Pa. Super. 2006) (holding the defendant’s challenges to the

discretionary aspects of sentencing were waived because he failed to raise

the claims at the sentencing hearing or file a post-sentence motion as

required by Pa.R.Crim.P. 720).3    Thus, his sole claim is waived and we

cannot review it on appeal.4

     Appeal dismissed.




2
  Thomas did not raise a claim regarding the trial court’s reliance on an
impermissible factor in the Post-Sentence Motion filed following his initial
sentence.
3
   We note that, after resentencing, Thomas’s counsel informed Thomas that
he had 30 days to file an appeal, and ten days to seek reconsideration.
N.T., 5/1/15, at 10. Thomas’s counsel further observed that “we just sought
reconsideration, [s]o there’s no point in doing that.” Id. Thomas is free to
file a Petition for relief pursuant to the Post Conviction Relief Act, 42
Pa.C.S.A. §§ 9541-9546, and raise an ineffective assistance of counsel claim
regarding sentencing.
4
  We note that the trial court provided numerous explanations, including
Thomas’s vast criminal record, for imposing the sentence. See Trial Court
Opinion, 8/13/15, at 3-4.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/22/2016




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