J-S07024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 RENEE AUSTERBERRY                         :
                                           :
                    Appellant              :    No. 1479 MDA 2018

      Appeal from the Judgment of Sentence Entered August 24, 2018
   In the Court of Common Pleas of Schuylkill County Criminal Division at
                     No(s): CP-54-CR-0000377-2018

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 RENEE AUSTERBERRY                         :
                                           :
                    Appellant              :    No. 1480 MDA 2018

      Appeal from the Judgment of Sentence Entered August 24, 2018
   In the Court of Common Pleas of Schuylkill County Criminal Division at
                     No(s): CP-54-CR-0000043-2018


BEFORE:    OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.:                            FILED MAY 14, 2019

      Renee Austerberry appeals from the judgment of sentence entered on

August 24, 2018. She challenges discretionary aspects of her sentence.

Because she failed to preserve this issue with the trial court, we affirm.

      Austerberry pled guilty to possession of a controlled substance, two

counts of possession of drug paraphernalia, retail theft, and false identification



____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S07024-19



to law enforcement authorities.1 At sentencing, defense counsel admitted that

Austerberry had a substance abuse problem and requested that “she be

sentenced to something where she can be [sic], serve her minimum six

months in an inpatient facility as opposed to go to state prison and start the

process there.” N.T., Sentencing, 8/24/18, at 3-4. The Commonwealth

suggested that “a state sentence is appropriate in this case considering it’s

her [12th] retail theft.” Id. at 4. The trial court imposed a sentence of “six to

[12]   months’     confinement      at   a     State   Correctional   Facility,   to   run

concurrently.” Trial Court Pa.R.A.P. 1925(a) Opinion (TCO), filed 11/5/18, at

1. Austerberry did not object to the sentence at the sentencing hearing. She

also did not file a post-sentence motion. This timely appeal followed.

       On appeal, Austerberry raises one issue: “Did the sentencing Judge

abuse his discretion in refusing to permit [Austerberry] serve [sic] her

sentence in a secure drug rehabilitation facility and instead sentence her to

state prison?” Austerberry’s Br. at 4. Austerberry’s claim challenges the

discretionary aspects of her sentence. However, we do not address the merits

of her claim because she failed to preserve this claim.

       When reviewing a challenge to discretionary sentencing we must first

determine whether: 1) the appeal is timely; 2) the issue was preserved; 3)

the brief includes a Pa.R.A.P. 2119(f) statement; and 4) the issue raises a

substantial question. See Commonwealth v. Moury, 992 A.2d 162, 170
____________________________________________


1 35 P.S. §§ 780-113(a)(16), (32), and 18 Pa.C.S.A. §§ 3929(a)(1), 4914,
respectively.

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J-S07024-19



(Pa.Super. 2010). Claims not raised at the sentencing hearing or in a post-

sentence motion are waived for appellate review. See Commonwealth v.

Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (stating failure to raise

challenge to discretionary sentencing in post-sentence motion or at sentencing

hearing results in waiver of claim). Here, Austerberry waived appellate review

of her claim because she did not object to the imposed sentence at the

sentencing hearing and did not file a post-sentence motion. Accordingly, we

do not address her claim and affirm the judgment of sentence. See

Commonwealth v. Tejada, 107 A.3d 788, 799 (Pa.Super. 2015) (rejecting

review of claim challenging discretionary sentence where issue was not

preserved at sentencing or in a post-sentence motion).

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/14/2019




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