J-A24045-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
              v.                          :
                                          :
MIKE BARLEY DURST,                        :
                                          :
                    Appellant             :            No. 659 WDA 2017

            Appeal from the Judgment of Sentence February 27, 2017
               in the Court of Common Pleas of Somerset County,
               Criminal Division, No(s): CP-56-CR-0000657-2016

BEFORE: MOULTON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED DECEMBER 12, 2017

        Mike Barley Durst (“Durst”) appeals from the judgment of sentence

imposed following the entry of his guilty plea to one count of criminal

trespass.1 We affirm.

        On December 12, 2016, Durst pled guilty to one count of criminal

trespass. On February 27, 2017, the trial court sentenced Durst to a prison

term of six to 24 months. On February 28, 2017, Durst filed a timely post-

sentence Motion. The trial court denied the Motion on April 28, 2017. Durst

thereafter filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.

1925(b) Concise Statement of matters raised on appeal.

        On appeal, Durst raises the following issue for our review: “Whether

the [trial] court abused its discretion in sentencing [Durst], such that the

[trial] court did not consider [Durst’s] individual circumstances in fashioning



1
    See 18 Pa.C.S.A. § 3503(a)(1)(ii).
J-A24045-17


the sentence[,] and the sentence is unfair[?]”       Brief for Appellant at 19

(capitalization omitted).

      Durst   challenges    the   discretionary   aspects   of   his   sentence.

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010).      Prior to reaching the merits of a discretionary

sentencing issue,

      [this Court conducts] 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 appellant’s brief
      has a fatal defect, [see] 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, [see] 42
      Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).

      When an appellant challenges the discretionary aspects of his

sentence, we must consider his brief on this issue as a petition for

permission to appeal. Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa.

Super. 1997); see also Commonwealth v. Tuladziecki, 522 A.2d 17, 18

(Pa. 1987); 42 Pa.C.S.A. § 9781(b).

      In the instant case, Durst filed a timely Notice of Appeal, and

preserved his claim in a timely post-sentence Motion. However, he failed to

include in his appellate brief a separate Rule 2119(f) statement.           See

Pa.R.A.P. 2119(f) (providing that “[a]n appellant who challenges the



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discretionary aspects of a sentence in a criminal matter shall set forth in his

brief a concise statement of the reasons relied upon for allowance of appeal

with respect to the discretionary aspects of a sentence.”). Additionally, the

Commonwealth has objected to Durst’s non-compliance with Rule 2119(f).

See Commonwealth v. Griffin, 149 A.3d 349, 353 (Pa. Super. 2016)

(holding that “[i]f the Commonwealth objects to the appellant’s failure to

comply with Pa.R.A.P. 2119(f), the sentencing claim is waived for purposes

of review”). Because Durst failed to comply with the requirements of Rule

2119(f), he failed to preserve his discretionary sentencing issue for our

review.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 12/12/2017




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