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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                         :
OLEKSANDER V. OLIYNYK,                   :         No. 1325 EDA 2014
                                         :
                         Appellant       :


           Appeal from the Judgment of Sentence, February 25, 2014,
                in the Court of Common Pleas of Bucks County
               Criminal Division at No. CP-09-CR-0004068-2013


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED JANUARY 30, 2015

      Oleksander V. Oliynyk appeals from the judgment of sentence of

February 25, 2014, following his conviction of theft. We affirm.

      The trial court has summarized the underlying facts of this case as

follows:

                   The     victims,      Irina    Faymleyb     and
             Boris Ovrutsky, owned a number of real properties
             that they leased to multiple tenants. [Appellant] was
             employed by the victims. At various times during
             the course of that employment, [appellant] was
             responsible for collecting, logging and depositing the
             rent checks.      The evidence presented at trial
             established that [appellant] stole $431,796.36 from
             his employers, by diverting rent payments into his
             private bank account. Testimony of the tenants
             established that [appellant] altered the rent checks.
             Bank records demonstrated that those checks were
             deposited    into    [appellant]’s    bank   account.
             [Appellant] used the stolen funds for his own private
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            use. He used some of the funds to purchase luxury
            items including three high-priced vehicles.

Trial court opinion, 5/14/14 at 1 (footnotes omitted).

      On February 25, 2014, following a jury trial, appellant was found guilty

of one count of theft by deception, a felony of the third degree. Appellant

was sentenced to the statutory maximum sentence of 3½ to 7 years’

imprisonment.    No post-sentence motions were filed.      This timely pro se

appeal followed.1      Appellant complied with Pa.R.A.P., Rule 1925(b),

42 Pa.C.S.A., and the trial court has filed an opinion.

      Appellant has raised the following issue for this court’s review:

            A.    Did the trial court impose an unreasonable and
                  illegal sentence upon appellant where (1) the
                  court sentenced him to the maximum sentence
                  allowable by law which greatly exceeded the
                  aggravated range of the sentencing guidelines
                  for a defendant with no criminal record
                  convicted of a non-violent offense and (2) the
                  trial court improperly took into account
                  appellant’s immigration status and nationality
                  in imposing a maximum sentence?

Appellant’s brief at 4 (capitalization omitted).

      In his first issue on appeal, appellant challenges the discretionary

aspects of sentencing.     Appellant argues that imposition of the statutory

maximum sentence of 3½ to 7 years was unreasonable where the guidelines

called for a standard range sentence of 9 to 16 months. (Appellant’s brief at


1
  Despite having privately retained counsel, appellant filed his appeal notice
and Rule 1925(b) statement pro se. Subsequently, counsel was permitted
to withdraw, and new counsel was appointed.


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13.)     According to appellant, the trial court focused exclusively on his

unlawful immigration status. (Id. at 18.)2

        “Challenges to the discretionary aspects of a sentence must be raised

first in the trial court, either in a post-sentence motion or by presenting

them during the sentencing proceedings. The failure to do so results in a

waiver of all such claims.”      Commonwealth v. Felder, 75 A.3d 513, 515

(Pa.Super. 2013), appeal denied, 85 A.3d 482 (Pa. 2014) (citations

omitted). As stated above, appellant did not file any post-sentence motions,

nor did he raise any claims related to the discretionary aspects of his

sentence at the sentencing hearing.                  Accordingly, appellant has not

preserved any challenges to the discretionary aspects of his sentence for

appellate review. Id.

        Appellant   claims    counsel    was   ineffective       for   failing   to   file   a

post-sentence       motion.      However,      the     general     rule    as    stated      in

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), is that defendants

should wait until the collateral review phase to raise claims of ineffective

assistance of counsel.        Appellant argues trial counsel’s ineffectiveness is

clear from the existing record; however, the trial court disagreed.                    (Trial

court opinion, 5/14/14 at 2.) Therefore, the “extraordinary circumstances”

exception to the Grant rule, as outlined in Commonwealth v. Holmes, 79

A.3d 562 (Pa. 2013), where a claim of ineffective assistance of trial counsel


2
    Appellant is a Ukrainian national.


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is apparent from the record and meritorious to the extent that immediate

consideration of the claim best serves the interest of justice, does not apply.

      Appellant also argues that his sentence is “illegal” because the trial

court focused on his status as an illegal alien. According to appellant, the

trial court made his immigration status the centerpiece of the sentencing

decision.   (Appellant’s brief at 20.)    Appellant claims that this violated his

constitutional right to due process and equal protection. (Id. at 18-19.)

      First, we disagree with appellant’s argument that the claim implicates

the legality of his sentence. Appellant’s sentence was within the statutory

limits and it is well settled that even issues of a constitutional dimension are

subject to waiver.    As this court stated in Commonwealth v. Robinson,

931 A.2d 15, 21 (Pa.Super. 2007) (en banc):

             [W]e have established the principle that “the term
             ‘illegal sentence’ is a term of art that our Courts
             apply narrowly, to a relatively small class of cases.”
             [Commonwealth v.] Berry, 877 A.2d [479,] at 483
             [(Pa.Super. 2005) (en banc), appeal denied, 917
             A.2d 844 (Pa. 2007)]. This class of cases includes:
             (1) claims that the sentence fell “outside of the legal
             parameters prescribed by the applicable statute”;
             (2) claims involving merger/double jeopardy; and
             (3) claims implicating the rule in Apprendi v. New
             Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d
             435 (2000). See [Commonwealth v.] Jacobs, 900
             A.2d [368] at 372-373 [(Pa.Super. 2006) (en banc),
             appeal denied, 917 A.2d 313 (Pa. 2007)] (citations
             omitted). These claims implicate the fundamental
             legal authority of the court to impose the sentence
             that it did. Id.

             Most other challenges to a sentence implicate the
             discretionary   aspects    of    the   sentence.


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             [Commonwealth v.] Archer, 722 A.2d [203,] at
             209-210 [(Pa.Super. 1998) (en banc)]. This is true
             even though the claim may involve a legal question,
             a patently obvious mathematical error, or an issue of
             constitutional dimension. Id.; Jacobs, 900 A.2d at
             373-374.[Footnote 5]

                    [Footnote 5] Even ten years before
                    Archer, this Court issued an en banc
                    opinion advising that “if a sentencing
                    court considers improper factors in
                    imposing sentence upon a defendant, the
                    court thereby abuses its discretion, but
                    the sentence imposed is not rendered
                    illegal.   Otherwise, every erroneous
                    consideration by a sentencing court will
                    render the sentence illegal in a manner
                    which cannot be waived by a defendant.
                    This is not the law. Indeed, even issues
                    of constitutional dimensions can be
                    waived.”     Commonwealth v. Krum,
                    367 Pa.Super. 511, 533 A.2d 134, 136
                    (1987) (en banc) (citations omitted).

      Therefore, appellant’s claim must be viewed as one implicating the

discretionary aspects of the sentence.          As such, it is deemed waived for

failure to raise it in the trial court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/30/2015




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