J-S21010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CLAIR WOODSON BATES

                            Appellant                 No. 879 WDA 2016


              Appeal from the Judgment of Sentence June 2, 2016
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000677-2016

BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*

JUDGMENT ORDER BY LAZARUS, J.:                             FILED MAY 09, 2017

        Clair Woodson Bates appeals from the judgment of sentence, entered

in the Court of Common Pleas of Erie County, after he pled guilty to one

count of driving under the influence (DUI) – highest rate (second offense).1

Upon careful review, we affirm.

        On April 29, 2016, Bates entered a plea of guilty 2 to the above charge,

stemming from an incident that occurred on August 28, 2015, in which he

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. § 3802(c).
2
  That same day, Bates entered a second guilty plea at another docket
number to accidents involving death or personal injury, 75 Pa.C.S.A. §
3742(a), and reckless driving, 75 Pa.C.S.A. § 3736(a). These charges
stemmed from an incident that occurred on November 4, 2015 and resulted
in serious injury to the victim. On these charges, Bates was sentenced to 12
(Footnote Continued Next Page)
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drove his 2003 Chevrolet Cavalier in Erie County with a blood-alcohol

content of .160. On June 2, 2016, the court sentenced Bates to 24 to 48

months’ incarceration, plus a fine of $1,500.     On June 8, 2016, the court

amended the sentence, reducing it to 12 to 24 months’ incarceration.

      On June 17, 2016, Bates filed a timely notice of appeal, followed by a

court-ordered statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).

      On appeal, Bates challenges the discretionary aspects of his sentence.

Such a claim does not entitle an appellant to review as a matter of right.

Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015). Rather,

before this Court can address such a challenge, an appellant must comply

with the following requirements:

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test: (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.

Id., quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011).


                       _______________________
(Footnote Continued)

to 24 months of incarceration, which was imposed concurrently to his
sentence in the instant case.



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        Here, Bates failed to preserve his claim either by raising it at

sentencing or filing a post-sentence motion challenging his sentence.

Moreover, he has failed to raise a substantial question for our review.3 See

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)

(allegation that sentencing court failed to consider certain mitigating factors

generally does not raise substantial question).       Because Bates has not

satisfied two of the four requirements necessary to invoke this Court’s

jurisdiction to review the discretionary aspects of his sentence, we are

unable to review the merits of his claim.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/2017
____________________________________________


3
    Bates Pa.R.A.P. 2119(f) statement characterized his claim as follows:

        The fundamental norm violated was that the sentence was
        manifestly excessive in that it was not individualized.       The
        specific portion of the [Sentencing] Code violated was 42 Pa.C.S.
        § 9781, which requires that a sentence not be clearly
        unreasonable. Specifically, the [c]ourt’s sentence did not take
        into account the fact that [Bates] apologized for his actions and
        apologized to the victim.

Brief of Appellant, at 3.



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