J-S67045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    TAAJ M. HUNTER                             :
                                               :
                      Appellant                :            No. 22 EDA 2017

            Appeal from the Judgment of Sentence August 26, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0012035-2015


BEFORE:      GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

JUDGMENT ORDER BY GANTMAN, P.J.:                           FILED OCTOBER 30, 2017

        Appellant, Taaj M. Hunter, appeals from the judgment of sentence

entered in the Philadelphia Court of Common Pleas, following his open guilty

plea to firearms not to be carried without a license.1             On April 21, 2016,

Appellant entered an open guilty plea to firearms not to be carried without a

license, which is part of the Pennsylvania Uniform Firearms Act. The court

sentenced Appellant on August 26, 2016, to three and a half to seven years’

imprisonment.       During Appellant’s sentencing hearing, the court stated it

took into consideration the deadly weapons enhancement for sentencing

purposes.     On September 6, 2016, Appellant timely filed a post-sentence

motion,     which    challenged     the    court’s   use    of   the   deadly   weapon
____________________________________________


1   18 Pa.C.S.A. § 6106(a)(1).


____________________________________
* Former Justice specially assigned to the Superior Court.
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enhancement.     The court denied Appellant’s post-sentence motion on

December 15, 2016. That same day, Appellant timely filed a pro se notice of

appeal that stated he was appealing from his judgment of sentence on “April

21, 2016,” which in fact was the date of his guilty plea. The court ordered

Appellant on January 20, 2017, to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).          On February 10,

2017, the court appointed counsel and granted a thirty-day extension for the

Rule 1925(b) statement. Appellant timely complied on March 13, 2017. On

April 12, 2017, this Court issued a rule to show cause why the appeal should

not be quashed as interlocutory where Appellant filed an appeal from his

conviction, and not his judgment of sentence.         Appellant timely responded

on April 21, 2017, stating his appeal is not interlocutory because it stems

from the denial of his post-sentence motion filed after his judgment of

sentence on August 26, 2016. On May 18, 2017, this Court discharged our

rule and referred Appellant’s issue to a merits panel.

      A claim that the sentencing court used an incorrect sentence

enhancement     presents   a   challenge   to   the    discretionary   aspects   of

sentencing, which must be raised in a post-sentence motion or during

sentencing proceedings.        Commonwealth v. Rhoades, 8 A.3d 912

(Pa.Super. 2010), cert. denied, 565 U.S. 1263, 132 S.Ct. 1746, 182 L.Ed.2d

536 (2012).    When appealing the discretionary aspects of a sentence, an

appellant must invoke the appellate court’s jurisdiction by including in his


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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 determination of what constitutes a substantial

question must be evaluated on a case-by-case basis. Commonwealth v.

Anderson, 830 A.2d 1013 (Pa.Super. 2003). A substantial question exists

when the appellant advances a colorable argument that the sentencing

court’s decisions were either: (1) inconsistent with a specific provision of the

Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process.        Commonwealth v. Sierra, 752 A.2d 910

(Pa.Super. 2000).      A substantial question is raised where an appellant

alleges his sentence is excessive due to the sentencing court’s error in

applying the deadly weapon enhancement. Rhoades, supra. A violation of

the Pennsylvania Uniform Firearms Act is specifically exempted from the use

of the deadly weapon enhancement at sentencing.               204 Pa.Code §

303.10(a)(3)(viii).

        Instantly, Appellant properly preserved his sentencing issue involving

the trial court’s use of the deadly weapon enhancement.         See Rhoades,

supra; Mouzon, supra.          The issue as presented raises a substantial

question for review. See Rhoades, supra. The trial court concedes that it

improperly used the deadly weapons enhancement for the sentence imposed

on August 26, 2016, resentencing is necessary, and recommends a remand


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for resentencing. The Commonwealth concurs. Accordingly, we vacate the

judgment of sentence and remand for resentencing.

      Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2017




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