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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
JAMES CHARLES COLE,                     :         No. 615 WDA 2016
                                        :
                       Appellant        :


           Appeal from the Judgment of Sentence, March 24, 2014,
             in the Court of Common Pleas of Allegheny County
              Criminal Division at No. CP-02-CR-0015767-2012


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND SOLANO, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MAY 26, 2017

      James Charles Cole appeals nunc pro tunc from the March 24, 2014

aggregate judgment of sentence of 2 to 6 years’ imprisonment, to be

followed by 11 years’ probation, imposed following the revocation of his

probation. After careful review, we affirm the judgment of sentence.

      The trial court summarized the early procedural history of this case as

follows:

                   On March 18, 2013, [appellant] pled guilty to
            two counts of Indecent Assault Person Less than
            13 Years of Age, one count of Corruption of Minors,
            one count of Unlawful Contact with a Minor, and one
            count of Sale of Tobacco. [On October 3, 2013, the
            trial c]ourt sentenced [appellant] to six to twelve
            months [of] incarceration, paroled forthwith and
            placed him on five years [of] probation with one year
            of that probation to be served on intermediate
            punishment. On March 24, 2014, after a hearing,
            th[e trial c]ourt revoked [a]ppellant’s probation
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              based on technical violations and lack of housing to
              serve his intermediate punishment sentence, and
              resentenced him to 24 to 72 months [of]
              incarceration and 11 years of probation consecutive
              [to the term of incarceration]. On November 14,
              2014, th[e trial c]ourt filed its Opinion in support of
              the March 24, 2014 Order. [(See trial court opinion,
              11/14/14.)] The Superior Court of Pennsylvania, in
              a Non-precedential decision issued on April 10, 2015,
              found that [a]ppellant’s issue was waived on appeal
              because his counsel had failed to comply with
              Pa.R.A.P. 2119(f). [See Commonwealth v. Cole,
              121 A.3d 1127 (Pa.Super. 2015) (unpublished
              memorandum at *2).]

Trial court opinion, 8/22/16 at 2-3 (footnotes omitted; citations added).

        On May 12, 2015, appellant filed a timely pro se PCRA1 petition and

Robert J. Perkins, Esq. (“Attorney Perkins”), was appointed to represent him.

Attorney Perkins filed an amended PCRA petition on appellant’s behalf on

February 2, 2016, requesting that both appellant’s post-sentence motion and

direct-appeal rights be reinstated. (See amended PCRA petition, 2/2/16 at

17, ¶ 125.)        In his amended PCRA petition, appellant argued, inter alia,

that (i) his hearing counsel, Kelli Kleeb, Esq.               (“Attorney Kleeb”) was

ineffective   in    failing   to   file   a   post-sentence   motion   preserving   his

discretionary aspects of sentencing claim; and (ii) his appellate counsel,

Daniel Eichinger, Esq. (“Attorney Eichinger”), was ineffective in failing to

include a Rule 2119(f) statement in his appellate brief.               (Id. at 10-11,

15-17.)



1
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.


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      On March 2, 2016, the Commonwealth filed its motion to dismiss

appellant’s amended PCRA petition.       On March 7, 2016, the PCRA court

provided appellant with notice, pursuant to Pa.R.Crim.P. 907(1), of its

intention to dismiss his petition without a hearing.      On March 24, 2016,

Attorney Perkins filed a response to the PCRA court’s Rule 907 notice, which

only sought the reinstatement of appellant’s direct-appeal rights or,

alternatively, a hearing. (See response to Rule 907 notice, 3/24/16 at 5.)

Thereafter, on March 31, 2016, the PCRA court granted appellant’s request

and reinstated his direct-appeal rights nunc pro tunc. This timely appeal

followed on April 28, 2016.2

      Appellant raises the following issue for our review:

            After finding that [appellant] committed technical
            violations of his probation, did the trial court err and
            abuse its discretion when it imposed a sentence of
            two to six years of incarceration and total
            confinement based on reasons inconsistent with the
            provisions of 42 Pa.C.S.[A.] § 9771(c)?

Appellant’s brief at 6.    Appellant maintains that the problem with his

sentence is “its severity . . . is disproportionate to its triggering factor --

[appellant’s] inability to find suitable housing (as opposed to, for example a

conviction for a new crime, or a violation of a no-contact Order with the




2
  Appellant complied with the PCRA court’s directive and filed a timely
concise statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b), on May 20, 2016. The PCRA court, in turn, filed its
Rule 1925(a) opinion on August 22, 2016.


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victim of a violent crime).” (Id. at 20-21.) This implicates the discretionary

aspects of appellant’s sentence.

        Where an appellant challenges the discretionary aspects of his

sentence, as is the case here, the right to appellate review is not absolute.

See Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011).

Rather, an appellant challenging the discretionary aspects of his sentence

must invoke this court’s jurisdiction by satisfying the following four-part

test:

             (1) whether the appeal is timely; (2) whether
             Appellant preserved his issue; (3) whether
             Appellant’s brief includes a concise statement of the
             reasons relied upon for allowance of appeal with
             respect to the discretionary aspects of sentence; and
             (4) whether the concise statement raises a
             substantial question that the sentence is appropriate
             under the sentencing code.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)

(citations omitted).

        Instantly, the record reveals that appellant filed his nunc pro tunc

notice of appeal in a timely manner.       However, at the March 24, 2014

hearing, appellant failed to object to the sentence imposed or file a post-

sentence motion preserving his discretionary aspects of sentencing claim.

Accordingly, we are constrained to deem appellant’s claim waived.        See

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013)

(stating, “issues challenging the discretionary aspects of a sentence must be

raised in a post-sentence motion or by presenting the claim to the trial court


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during the sentencing proceedings.     Absent such efforts, an objection to a

discretionary aspect of a sentence is waived.” (citation omitted)); see also

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.Super. 2008)

(stating, “when a court revokes probation and imposes a new sentence, a

criminal defendant needs to preserve challenges to the discretionary aspects

of that new sentence either by objecting during the revocation sentencing or

by filing a post-sentence motion.” (citation omitted)).

      In reaching this decision, we recognize that in Commonwealth v.

Liston, 977 A.2d 1089 (Pa. 2009), our supreme court expressly noted that a

PCRA court may reinstate a defendant’s post-sentence rights nunc pro tunc

“[i]f a defendant successfully pleads and proves that he was deprived of the

right to file and litigate said motions as a result of the ineffective assistance

of counsel[,]” as appellant claimed herein.       Id. at 1095 n.9; see also

amended PCRA petition, 2/2/16 at 10, 17, ¶¶ 80, 117. The PCRA court in

the instant matter, however, failed to do so and merely reinstated

appellant’s direct appeal rights nunc pro tunc. Accordingly, we decline to




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conduct a merits-based review of appellant’s waived discretionary aspects of

sentencing claim.3

      Based on the foregoing, we affirm appellant’s March 24, 2014

judgment of sentence.

      Judgment of sentence affirmed.

      Solano, J. joins this Memorandum.

      Gantman, P.J. files a Concurring Statement.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/26/2017




3
  While we might agree with President Judge Gantman’s concerns regarding
the waiver trap presented by the PCRA court’s failure to allow for post-trial
motions nunc pro tunc, we cannot agree that appellant has specifically
presented this issue in either his Rule 1925(b) statement or in his brief. This
author writing for the court en banc attempted to require the filing of
post-trial motions nunc pro tunc whenever a nunc pro tunc appeal was
granted to protect full appellate rights. See Commonwealth v. Liston,
941 A.2d 1279 (Pa.Super. 2008), affirmed in part and vacated in part,
977 A.2d 1089 (Pa. 2009). However, our supreme court in Liston, supra,
overruled this court on that specific issue. Liston, 977 A.2d at 1093-1094.
Even if, as presented by the dissent, appellant had plead and proved
ineffective assistance of counsel on this issue below, appellant is required to
at least raise the PCRA court’s error before this court either on motion or on


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appeal, which would allow us to remand for the filing of post-trial motions
nunc pro tunc.


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