J-S40038-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

ROBERT DEAN CHAPMAN

                          Appellant                 No. 190 MDA 2014


            Appeal from the Judgment of Sentence July 19, 2012
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0001528-2010


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY PANELLA, J.:                        FILED AUGUST 21, 2014

      Appellant, Robert Dean Chapman, appeals from the judgment of

sentence entered July 19, 2012, by the Honorable John H. Chronister, Court

of Common Pleas of York County. We affirm.

      The trial court previously recounted the facts and lengthy procedural

history of this case as follows.

            In March 2010, Appellant was charged with Burglary,
      Criminal Conspiracy to Commit Burglary, Criminal Trespass,
      Theft by Unlawful Taking, Recklessly Endangering Another
      Person, and Driving While Driving Privilege Suspended.

            According to the Affidavit of Probable Cause filed by State
      Trooper Justin Dembowski, on October 20, 2009 at
      approximately 10:10 a.m., a black pickup truck was fleeing from
      a residence located at 1287 Paper Mill Road in Peach Bottom
      Township in York County, Pennsylvania.        The owner of the

      premises. According to the owner, as he was approaching his
      house he observed an unknown black pickup truck in his
      driveway. As he was pulling into the driveway, the owner
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     the unknown truck and that two unknown white males were
     running from his house. The Owner stated that he observed
     Appellant

     accelerated towards the owner, forcing him to swerve into his
     yard to avoid a collision with the fleeing vehicle.

           According to the owner, he caught up to the black truck
     and provided police with the registration plate.       After an
     extensive search, one hour later the police located Appellant
     approximately 300 yards from the vehicle from which he had
     fled. The other male, the codefendant, was also located.

Trial Court Opinion, 9/27/11 at 2-3.


     following charges: burglary pursuant to 18 Pa.C.S. § 3502(a)
     and criminal conspiracy to commit burglary pursuant to 18
                                 s plea was accepted by [the trial
     court], and as a result, Appellant was given a sentence of 48-96
     months in a state penitentiary. On January 7, 2011, [the trial
                                      -
     Petition. On [a]ppeal, the Sup

     in its Opinion that the trial court should have treated a pro se
     motion, filed by Appellant on October 8, 2010, as a timely-filed
     pro se post-sentence motion. Also, [this] Court found the record
     to be devoid of any evidence that the trial court sought to
     determine that Appellant was informed of his post-sentence and

     system. The matter was remanded for further proceedings.
     [See Commonwealth v. Chapman, No. 227 MDA 2011 (Pa.
     Super., filed May 9, 2012).]

           On remand, during the June 12, 2012 Post-Sentence
     Motion Hearing, [the trial] [c]ourt granted in part and denied in
                               -senten
     determined that the subject burglarized structure was not
     occupied at the time of the burglary, and therefore, the Offense
     Gravity Score should be a seven (7) rather than a nine (9).

          Appellant was resentenced on July 19, 2012 for the
     aforementioned charges upon the acceptance of his nolo
     contendere plea. Further, the burglary conviction was graded as

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       a felony of the first degree pursuant to 18 Pa.C.S. § 3502(c)(1).
       Finally, the [c]ourt sentenced Appellant within the guideline
       range for burglary with an offense gravity score of 7.

             On November 7, 2012, Appellant was scheduled for
       another PCRA Hearing. During this PCRA Hearing, Appellant
       made an oral post-sentence motion, which requested the [trial]
       [c]ourt to allow him to withdraw his PCRA petition, and to
       reinstate his appellate rights nunc pro tunc
       was granted.

             Appellant filed a Notice of Appeal on December 6, 2012[,]
       from the Sentencing Order of July 19, 2012.           Pursuant to
       Pennsylvania Rule of Appellate Procedure 1925(b), [the trial]
       [c]ourt ordered Appellant to file a Concise Statement of Matters
       Complained of on Appeal within twenty-one (21) days from the
       date of the Order.       The Appellant filed his statement on
       December 26, 2012. [The trial] [c]ourt filed its opinion pursuant
       to Pa.R.A.P. 1925(a) on February 6, 2013. [This] Court affirmed
                                                                [1]
                                                                     [On
       January 10, 2014, by agreement with the Commonwealth,]
                                                     tated.

Trial Court Opinion, 3/11/14 at 1-3.             This timely appeal followed.   Both

Chapman and the trial court have complied with Pa.R.A.P. 1925.

       On appeal, Chapman raises the following issue for our review:

       The lower court erred in determining sentencing guideline
       calculations when sentencing Appellant by applying the gravity
       score for an unoccupied structure adapted for overnight
       accom[m]odations (OGS 7) when the structure was not adapted
       for overnight accom[m]odations (OGS 5).


____________________________________________


1
  In that appeal, Chapman raised the same challenge to the discretionary
aspects of his sentence as in the instant appeal, but failed to include a
Pa.R.A.P. 2119(f) statement with his appellate brief, and the Commonwealth
objected. Due to this omission, a panel of this Court determined that
Chapman had waived his challenge on appeal. See Commonwealth v.
Chapman, 82 A.3d 1080 (Pa. Super., filed July 26, 2013) (mem. op.).



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sentence.    See Commonwealth v. Jackson, 585 A.2d 533, 428 (Pa.

Super. 1991) (assertion that trial court applied wrong offense gravity score

in applying the sentencing guidelines challenges discretionary aspects of

sentence). A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

                         Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted).

     An     appellant   challenging   the   discretionary   aspects   of   his

     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,

     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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

     Initially, we must address whether Chapman adequately preserved this

issue at sentencing. The transcript from the resentencing hearing conducted

July 19, 2012 reveals that Chapman acknowledged that the trial court had

previously dropped the offense gravity score from a nine to a seven. See

N.T., Resentencing Hearing, 7/19/12 at 4.           After Chapman finished his




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remarks to the court, the following exchange occurred between defense

counsel and the trial court:

      THE COURT:           Anything else?

      [DEFENSE COUNSEL]: No.           As to the offense gravity score, I

      the PCRA hearing testimony.

      THE COURT:           He agreed to it as I recall.

      [DEFENSE COUNSEL]: He agreed to it.             It was a home being

      the issue. And the guidelines are the guidelines, 35 to 45 for the
      most serious offense.

Id. at 7 (emphasis added). Later, in imposing the sentence, the trial court



being burglary, is a 7. The Defendant has agreed that that is the OGS for

               Id. at 8.

      Based on the foregoing, it is clear that, at the very least, Chapman

failed to contest the application of an offense gravity score of seven to the

charge of Burglary at sentencing, and, at most, he acquiesced to that

calculation. As such, we are constrained to find that Chapman has failed to

invoke our jurisdiction over his challenge to the discretionary aspects of his

sentence.   See Moury, supra.         We note that even if we were to address



offense gravity score for burglary of a structure adapted for overnight

accommodations in this instance. See Trial Court Opinion, 2/6/13 at 7-10.

Therefore, we would still find this claim to be without merit.


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     Judgment of sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2014




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