J-S65011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                           IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

CARLOS MARTINEZ,

                            Appellant                        No. 2381 EDA 2014


         Appeal from the Judgment of Sentence Entered July 15, 2014
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001631-2010


BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.

MEMORANDUM BY BENDER, P.J.E.:                           FILED DECEMBER 08, 2015

       Appellant, Carlos Martinez, appeals from the judgment of sentence of

an aggregate term of 4½ to 9 years’ imprisonment, imposed after the court

revoked his term of probation based on technical violations and a new

conviction in an unrelated case.               Appellant challenges the discretionary

aspects of his sentence. We affirm.

       The trial court summarized the procedural history of this case in its

Pa.R.A.P. 1925(a) opinion, as follows:

             On April 21, 2010, [Appellant] pled guilty to Failure to
       Comply with Registration of Sexual Offenders Requirements (18
       Pa.C.S. § 4915(a)(2))[,] a     felony of the second degree.[1]
       Sentencing was deferred pending completion of a mental health
       evaluation and pre-sentence investigation report. On August 25,
       2010, Judge Karen Shreeves-Johns sentenced [Appellant] to one
____________________________________________


1
    This case was docketed at CP-51-CR-0001631-2010.
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     year to two years[’] incarceration followed by five years[’]
     probation.

           On March 14, 2013, a bench warrant was issued when
     [Appellant] did not appear at a hearing for a probation violation.
     On July 15, 2014, this [c]ourt conducted a … hearing, revoked
     [Appellant’s] probation, and sentenced [Appellant] to two
     years[’] to four years[’] incarceration, credit for time served, and
     four years of consecutive reporting probation. This sentence was
     to run consecutive to CP-51-CR-0006106-2012, where
     [Appellant] was sentenced to two and a half years[’] to five
     years[’] incarceration by Judge Joan A. Brown for Contraband-
     Possession of controlled substance contraband by inmate
     prohibited (18 Pa.C.S. § 5123(a.2))[,] a felony of the second
     degree, and Knowingly or Intentionally Possessing a Controlled
     Substance by a Person not Registered (35 P.S. § 780-
     113(a)(16)), an ungraded misdemeanor. On July 28, 2014,
     [Appellant] filed a Petition to Vacate and Reconsider Sentence
     imposed by this [c]ourt.

Trial Court Opinion (TCO), 1/14/15, at 1-2.

     The trial court did not expressly grant reconsideration or vacate

Appellant’s sentence.   See Commonwealth v. Coleman, 721 A.2d 798,

799 n.2 (Pa. Super. 1998).    On August 12, 2014, Appellant filed a timely

notice of appeal.    After the court granted Appellant’s request for an

extension of time to file a Pa.R.A.P. 1925(b) concise statement, Appellant

timely filed a Rule 1925(b) statement, and the court subsequently filed a

Rule 1925(a) opinion. Herein, Appellant presents the following issues for our

review:

     1. Did not the lower court err when it imposed a significant state
        sentence without ordering a pre-sentence investigation report
        where the judge was meeting [Appellant] for the very first
        time at the revocation hearing, did not gather sufficient
        information about [Appellant] to fashion an individualized
        punishment and failed to state her reasoning to dispense with
        a pre-sentence report on the record?

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      2. Did not the lower court err and violate the tenets of the
         Sentencing Code which mandate individualized sentencing
         when it utterly failed to consider [Appellant’s] background,
         character or rehabilitative needs and imposed an excessive
         sentence of two to four years of consecutive confinement
         during a revocation of probation hearing?

Appellant’s Brief at 4.

      Appellant’s allegations relate to the discretionary aspects of his

sentence.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right.            An appellant
      challenging the discretionary aspects of his sentence must
      invoke this Court’s jurisdiction by satisfying a four-part test:

         We 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).

      Objections to the discretionary aspects of a sentence are
      generally waived if they are not raised at the sentencing hearing
      or in a motion to modify the sentence imposed.

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

omitted).

      Initially, the Commonwealth argues that Appellant’s claims are waived

because he failed to raise his objections at the sentencing hearing and his

post-sentence motion was untimely filed. We are constrained to agree. The

record reflects that Appellant failed to raise any objections regarding the

discretionary aspects of his sentence at the sentencing hearing on July 15,


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2014, and Appellant’s post-sentence motion to reconsider sentence was

untimely filed on July 28, 2014.2 See Pa.R.Crim.P. 708(E) (providing that a

post-sentence motion to modify a sentence imposed after revocation shall be

filed within ten days of the date of imposition); See also Commonwealth

v. Wrecks, 931 A.2d 717 (Pa. Super. 2007) (stating “An untimely post-

sentence motion does not preserve issues for appeal.”).

       Based on our conclusion that Appellant’s claims have been waived, we

are unable to address the merits of these issues.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2015




____________________________________________


2
  The trial court informed Appellant of the 10-day time requirement for filing
a post-sentence motion. See N.T. Revocation Hearing, 7/15/14, at 13.



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