J-S82041-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

    COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                             :           PENNSYLVANIA
                   Appellee                  :
                                             :
                      v.                     :
                                             :
    LASEAN RAYMON HARDEN,                    :
                                             :
                   Appellant                 :     No. 1090 WDA 2017

           Appeal from the Judgment of Sentence August 21, 2015
             in the Court of Common Pleas of Somerset County
            Criminal Division, at No(s): CP-56-CR-0000508-2014

BEFORE: BENDER, P.J.E., STEVENS, P.J.E.,* and STRASSBURGER, J.**

MEMORANDUM BY STRASSBURGER, J.:                  FILED FEBRUARY 14, 2018

       Lasean Raymon Harden (Appellant) appeals from the judgment of

sentence entered August 21, 2015, after he pled guilty to one count of

possession with intent to deliver (PWID). We affirm.

       We begin with the tortuous procedural history leading to the instant

appeal. On August 21, 2015, Appellant was sentenced to 27 to 60 months of

incarceration after pleading guilty to PWID. Appellant did not timely file a

post-sentence motion or a direct appeal. On December 4, 2015, Appellant

pro se filed a motion to withdraw his plea. The trial court treated this as a

first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546.1 The trial court appointed counsel and held a PCRA hearing



1 “[A]ll motions filed after a judgment of sentence is final are to be construed
(footnote continued next page)

* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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on August 1, 2016.2 At the conclusion of the hearing, the trial court granted

Appellant’s PCRA petition and reinstated his right to file a post-sentence

motion.

        Appellant timely filed a post-sentence motion on August 5, 2016,

requesting reconsideration of his sentence to the mitigated range of the

sentencing guidelines. On September 2, 2016, following a hearing, the trial

court denied Appellant’s post-sentence motion.

        Appellant did not file an appeal.     Over the next several months,

Appellant pro se filed numerous requests for documents, culminating in a

motion for special relief on March 8, 2017.3 The trial court held a hearing on


(footnote continued)
as PCRA petitions.” Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super.
2013) (citing Commonwealth v. Fowler, 930 A.2d 586 (Pa. Super. 2007)
(collecting cases)). Here, Appellant was sentenced on August 21, 2015.
Pursuant to the PCRA, his judgment of sentence became final on September
21, 2015, when he failed to file a direct appeal. See 42 Pa.C.S. § 9545 (“[A]
judgment becomes final at the conclusion of direct review… or at the expiration
of time for seeking the review.”); Pa.R.Crim.P. 720 (“If the defendant does
not file a timely post-sentence motion, the defendant’s notice of appeal shall
be filed within 30 days of imposition of sentence….”). Accordingly, the trial
court properly treated Appellant’s December 4, 2015 motion as a timely-filed
PCRA petition.
2   Appointed counsel did not file an amended petition.

3 Because Appellant’s first PCRA petition resulted in the reinstatement of his
post-sentencing rights, this motion should have been treated as his first PCRA
petition. See Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa. Super.
2014) (stating that “when a PCRA petitioner’s direct appeal rights are
reinstated nunc pro tunc in his first PCRA petition, a subsequent PCRA petition
will be considered a first PCRA petition”); Commonwealth v. Karanicolas,
836 A.2d 940, 945 (Pa. Super. 2003) (stating that second petition considered
(footnote continued next page)

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April 28, 2017, “to determine what the procedural posture of this case is[.]”

N.T., 4/28/2017, at 2.     At that hearing Appellant vacillated between (1)

requesting that his appellate rights be reinstated to appeal the denial of his

post-sentence motion and filing a PCRA petition alleging ineffective assistance

of counsel, and (2) continuing with appointed counsel from his prior PCRA and

proceeding pro se with standby counsel. At the conclusion of the hearing, the

trial court took no action as it remained unclear which avenue Appellant

wished to pursue.

      Following several more pro se filings, a motion to withdraw as counsel,

and a praecipe to withdraw the motion to withdraw as counsel, the trial court

reinstated Appellant’s right to file a direct appeal on July 13, 2017.

      Appellant filed a notice of appeal on July 17, 2017.4 Appellant presents

the following questions for our review.



(footnote continued)
as first petition because “[Karanicolas’s] initial PCRA petition served only to
reinstate his rights to a direct appeal nunc pro tunc; it did not grant him PCRA
relief per se”). Appellant’s post-sentence motion was denied on September
2, 2016, and Appellant did not file an appeal. Thus, his judgment of sentence
became final again on October 3, 2016. Appellant’s March 8, 2017 motion
was filed within one year of his judgment of sentence becoming final, and thus
it was a timely PCRA petition. Though the trial court did not explicitly treat
this motion as a PCRA petition, it did ensure that Appellant was represented
by counsel (continued from his prior PCRA), and held a hearing on the motion.

4 Appellant complied with Pa.R.A.P. 1925(b). In lieu of an opinion, the trial
court submitted a statement stating it believed the sentencing transcript, N.T.,
8/21/2015, and post-sentence hearing transcript, N.T., 9/2/2016, sufficiently
addressed the issues raised by Appellant. See Statement of the Court,
9/11/2017.

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      1. Whether the [trial] court abused its discretion in sentencing
         [Appellant], such that the lower court did not consider
         Appellant’s individual circumstances in fashioning the
         sentence.

      2. Whether the [trial] court is permitted to sentence [Appellant]
         outside of the sentencing guidelines when mitigating
         circumstances are present.

Appellant’s Brief at 6 (unnecessary capitalization omitted).

      Appellant’s issues on appeal challenge the discretionary aspects of his

sentence.

      It is well settled that, with regard to the discretionary aspects of
      sentencing, there is no automatic right to appeal.

         Before [this Court may] reach the merits of [a challenge to
         the discretionary aspects of a sentence], we must engage in
         a four part analysis to determine: (1) whether the appeal
         is timely [filed]; (2) whether Appellant preserved his issue;
         (3) whether Appellant’s brief includes a concise statement
         of the reasons relied upon for allowance of appeal with
         respect to the discretionary aspects of sentence; and (4)
         whether the concise statement raises a substantial question
         that the sentence is appropriate under the sentencing
         code....    [I]f the appeal satisfies each of these four
         requirements, we will then proceed to decide the
         substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

      The record reflects that, following reinstatement of his rights by the trial

court, Appellant timely filed both a post-sentence motion for reconsideration

of his sentence and a notice of appeal.        However, to satisfy the second

requirement regarding preservation, we point out that “[o]bjections to the



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discretionary aspects of a sentence are generally waived if they are not raised

at the sentencing hearing or in a motion to modify the sentence imposed.”

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013). “[F]or any

claim that was required to be preserved, this Court cannot review a legal

theory in support of that claim unless that particular legal theory was

presented to the trial court.” Commonwealth v. Rush, 959 A.2d 945, 949

(Pa. Super. 2008). Appellant failed to raise his specific appellate claims in his

post-sentence motion: that the trial court “did not consider Appellant’s

individual circumstances in fashioning the sentence” and that a trial court may

not “sentence [Appellant] outside of the sentencing guidelines when

mitigating circumstances are present.” See Appellant’s Brief at 6. Rather,

Appellant simply stated that he was “entitled to a mitigated sentence” for

various listed reasons.5 Post-Sentence Motion, 8/5/2016, at ¶ 7. Accordingly,

Appellant has failed to preserve his discretionary sentencing claims.       See

Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (“Issues

challenging the discretionary aspects of a sentence must be raised in a post-

sentence motion or by presenting the claim to the trial court during the

sentencing proceedings. Absent such efforts, an objection to a discretionary

aspect of a sentence is waived.”) (citations and quotation marks omitted).



5Specifically, that Appellant “is suffering from a variety of health problems[;]
… has taken responsibility for his actions[; and] … has cooperated with law
enforcement regarding the investigation.” Post-Sentence Motion, 8/5/2016,
at ¶7.

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      Moreover, Appellant has failed to include in his brief a statement

pursuant to Pa.R.A.P. 2119(f),6 and the Commonwealth has objected to this

omission. Commonwealth’s Brief at 2-3. See Commonwealth v. Roser,

914 A.2d 447, 457 (Pa. Super. 2006) (“A failure to include the Rule 2119(f)

statement does not automatically waive an appellant’s [discretionary aspects

of sentencing] argument; however, we are precluded from reaching the merits

of the claim when the Commonwealth lodges an objection to the omission of

the statement.”) (quoting Commonwealth v. Love, 896 A.2d 1276, 1287

(Pa. Super. 2006)).

      Accordingly, Appellant is not entitled to relief from this Court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2018




6 Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (quoting
Commonwealth v. Mouzon, 571 Pa. 419, 435, 812 A.2d 617, 627 (Pa.
2002)) (“An appellant must, pursuant to Pennsylvania Rule of Appellate
Procedure 2119(f), articulate ‘the manner in which the sentence violates either
a specific provision of the sentencing scheme set forth in the Sentencing Code
or a particular fundamental norm underlying the sentencing process.’”).


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