J-S17041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

BRANDON MICHAEL CAFEO

                            Appellant               No. 1751 WDA 2014


             Appeal from the Judgment of Sentence June 18, 2013
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0000008-2013


BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                          FILED APRIL 1, 2015

       Appellant, Brandon Michael Cafeo, appeals nunc pro tunc from the

judgment of sentence entered in the Allegheny County Court of Common

Pleas, following his guilty plea to two (2) counts of aggravated assault, four

(4) counts of recklessly endangering another person (“REAP”), one (1) count

each of retail theft, receiving stolen property, resisting arrest or other law

enforcement, and fleeing or attempting to elude police officer, and two (2)

counts of accidents involving damage to attended vehicle or property.1 We

affirm.

       The relevant facts and procedural history of this case are as follows.
____________________________________________


1
 18 Pa.C.S.A. §§ 2702(a)(2), 2705, 3929(a)(1), 3925, 5104; 75 Pa.C.S.A.
§§ 3733, 3743, respectively.


___________________________

*Former Justice specially assigned to the Superior Court.
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On November 19, 2012, Appellant stole a flat-screen television from a

Target store. Store security reported the theft to the police while it was in

progress.   Two nearby police officers in separate marked patrol cars

observed Appellant exit the store with a large box and enter a gray

Chevrolet Cavalier. The officers activated their lights and sirens and pulled

up to Appellant’s vehicle. As the officers exited their vehicles, Appellant put

his vehicle in reverse and rammed one of the patrol cars.            Appellant

continued to move his vehicle forward and backward into the patrol car.

Appellant then drove toward one of the officers.     As he backed up again,

Appellant almost ran over the other officer. Appellant then drove out of the

parking lot with the officers in pursuit.     During the high-speed chase,

Appellant drove on the wrong side of the road into oncoming traffic and

struck several occupied vehicles and a utility pole.     Appellant eventually

disabled his vehicle after striking another car on the Highland Park Bridge. A

foot chase ensued, and the police apprehended Appellant under the bridge.

      On June 18, 2013, Appellant pled guilty to two (2) counts each of

aggravated assault and accidents involving damage to attended vehicle or

property, four (4) counts of REAP, and one (1) count each of retail theft,

receiving stolen property, resisting arrest or other law enforcement, and

fleeing or attempting to elude police officer. That same day, the trial court

sentenced Appellant to a term of seven (7) to fourteen (14) years’

incarceration for the first aggravated assault conviction. Appellant received


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a consecutive term of ten (10) years’ probation for the second aggravated

assault conviction. The court imposed no further penalty for the remaining

convictions.2

       On June 20, 2014, Appellant timely filed a pro se PCRA petition. The

PCRA court appointed counsel, who filed an amended petition, seeking

reinstatement of Appellant’s appeal rights nunc pro tunc.   On October 15,

2014, the PCRA court reinstated Appellant’s appeal rights nunc pro tunc.

Appellant timely filed a notice of appeal nunc pro tunc on October 21, 2014.

The court ordered Appellant to file a concise statement of errors complained

of on appeal, pursuant to Pa.R.A.P. 1925(b); Appellant timely complied.

       Appellant raises a single issue for our review:

          THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
          SENTENCED     [APPELLANT]    TO   A   PERIOD    OF
          INCARCERATION OF SEVEN (7) TO FOURTEEN (14) YEARS
          AT COUNT 1 FOLLOWED BY 10 YEARS[’] PROBATION AT
          COUNT 2 IN THAT THE COURT’S SENTENCE FAILED TO
          ADEQUATELY CONSIDER THE SENTENCE FACTORS SET
          FORTH AT 42 PA.C.S.A. § 9721 AND/OR WAS THE RESULT
          OF BIAS OR ILL WILL AGAINST [APPELLANT] DUE TO THE
          NATURE OF THE CHARGES.

(Appellant’s Brief at 4).

       On appeal, Appellant argues the sentencing court failed to take into

account his need for continued mental health treatment and the role
____________________________________________


2
  At the time of sentencing, Appellant was a participant in the Allegheny
County Mental Health Court program as a result of prior convictions in five
separate cases.      At sentencing, the court also terminated Appellant’s
participation in the Mental Health Court program.



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Appellant’s mental health issues played in his criminal conduct.       Appellant

concedes his sentence falls within the standard range of the sentencing

guidelines. Nevertheless, Appellant concludes he is entitled to resentencing

because the court failed to consider his rehabilitative needs adequately.

Appellant’s challenge is to the discretionary aspects of his sentence.3 See

Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal

denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating claim that sentencing

court failed to consider or did not adequately consider certain factors

challenges discretionary aspects of sentencing).

       Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.            Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000).          Prior to reaching the merits of a discretionary

sentencing issue:

          [W]e 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
____________________________________________


3
  “[W]hile a…plea which includes sentence negotiation ordinarily precludes
a defendant from contesting the validity of his…sentence other than to argue
that the sentence is illegal or that the sentencing court did not have
jurisdiction, open plea agreements are an exception in which a defendant
will not be precluded from appealing the discretionary aspects of the
sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super.
2005) (emphasis in original). “An ‘open’ plea agreement is one in which
there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s plea
was “open” as to sentencing, so a challenge to the discretionary aspects of
his sentence is available.



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          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).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

Objections to the discretionary aspects of a sentence are generally waived if

they are not raised at the sentencing hearing or raised in a motion to modify

the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d

788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

        When appealing the discretionary aspects of a sentence, an appellant

must also invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code.    Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);

Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth

the reasons relied upon for allowance of appeal ‘furthers the purpose evident

in the Sentencing Code as a whole of limiting any challenges to the trial

court’s evaluation of the multitude of factors impinging on the sentencing

decision to exceptional cases.’”     Commonwealth v. Phillips, 946 A.2d

103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450,

174 L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams, 562 A.2d

1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in original)).             The

determination of what constitutes a substantial question must be evaluated

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on a case-by-case basis.      Commonwealth v. Anderson, 830 A.2d 1013

(Pa.Super. 2003).     A substantial question exists “only when the appellant

advances a colorable argument that the sentencing judge’s actions were

either: (1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

process.”    Sierra, supra at 912-13 (quoting Commonwealth v. Brown,

741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755,

790 A.2d 1013 (2001)). Generally, “[a]n allegation that a sentencing court

failed to consider or did not adequately consider certain factors does not

raise a substantial question that the sentence was inappropriate.”        Cruz-

Centeno, supra at 545.

        Instantly, Appellant failed to object to his sentence at imposition or to

file a post-sentence motion.       After the time to file a direct appeal had

expired, the PCRA court reinstated Appellant’s direct appeal rights nunc pro

tunc.    Nevertheless, Appellant did not seek, and the PCRA court did not

grant Appellant, the right to file a post-sentence motion nunc pro tunc.

Appellant failed to file a post-sentence motion at any stage of the

proceedings. Therefore, Appellant’s challenge to the discretionary aspects of

his sentence is waived. See Mann, supra.

        Moreover, Appellant’s bald claim that the sentencing court failed to

consider his rehabilitative needs does not present a substantial question

warranting review.       See Cruz-Centeno, supra.          Additionally, at the


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sentencing hearing, the court stated as follows:

         It was very disappointing, especially for me to see that it
         was you[, Appellant]. You’re a young guy and you have so
         much out there for you, so many things that you could
         accomplish in life. If you would only have accepted the
         help that we offered. We tried to keep you on track, we
         kept telling you that you can’t do this anymore then you
         started doing this kind of stuff not long after I took over
         mental health court.

         I don’t know why it’s hard to ask for help especially where
         there is so much support available in mental health court.
         Everybody asks, do you need something, what can we do
         for you, tell us what’s going on because that’s what we’re
         there for.     We tell you all the time, if you pick up
         something new, it’s going to be a state prison sentence.
         We don’t tell you that just to tell you. We tell you that
         because of what your guidelines are and in your case, your
         guidelines are high.

         [M]y theory is not to go mitigated when somebody has
         [been] bailed out especially from our specialty court. I
         don’t go into a mitigated range, it’s not going to happen.
         You got your breaks on your other cases when you came
         into mental health court. You don’t get another break.
         You were offered the help, it was there for you, we tried to
         work with you and for whatever reason you chose not to
         accept help at that point in time so we won’t give you
         another one. You have to understand that’s my theory of
         it but I think at this point you will get help because you will
         be forced to get help with a state prison sentence as they
         do have a mental health program. They will know what
         your diagnosis is coming in and they will be able to get you
         somewhere. You will have drug and alcohol treatment
         there as well as mental health treatment. I certainly hope
         that you will also take advantage of the programs that help
         you change and think about the criminal side that you’ve
         dealt with.

(N.T. Sentencing Hearing, 6/18/13, at 13-15).            Thus, the record belies

Appellant’s   contention   that   the   court   failed   to   consider   Appellant’s


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rehabilitative needs.   Based on the foregoing, Appellant is not entitled to

relief on his challenge to the discretionary aspects of his sentence.

Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2015




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