J-S45006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRADLEY RYAN GRIM,                         :
                                               :
                       Appellant               :       No. 65 MDA 2018

           Appeal from the Judgment of Sentence December 6, 2017
                in the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0005646-2002

BEFORE:      OTT, J., MUSMANNO, J., and PLATT*, J.

MEMORANDUM BY MUSMANNO, J.:                         FILED DECEMBER 03, 2018

       Bradley Ryan Grim (“Grim”) appeals from the judgment of sentence

imposed after he was resentenced pursuant to Miller v. Alabama, 567 U.S.

460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).1 We

affirm.

       On July 19, 2002, sixteen-year-old Grim and three other individuals

conspired to rob the residence of a local drug dealer. Under the pretense of

purchasing marijuana, Grim and one co-conspirator entered the residence



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1 In Miller, the United States Supreme Court held that sentencing schemes
which mandate life in prison without parole for defendants who committed their
crimes while under the age of eighteen violate the Eighth Amendment’s
prohibition on “cruel and unusual punishments.” Miller, 567 U.S. at 465. In
Montgomery, the United States Supreme Court has held that Miller’s
decision applies retroactively. Montgomery, 136 S. Ct. at 736.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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unarmed.      The other two co-conspirators emerged from the bushes with

sawed-off shotguns and robbed the residence.        During the robbery, a co-

conspirator shot and killed an individual in the residence.

        On November 26, 2003, the a jury found Grim guilty of second-degree

murder, recklessly endangering another person, robbery, conspiracy to commit

burglary, and conspiracy to commit robbery.2 For his conviction of second-

degree murder, the trial court sentenced Grim to a mandatory term of life in

prison.3 This Court affirmed the judgment of sentence, and the Supreme Court

denied allowance of appeal. See Commonwealth v. Grim, 863 A.2d 1223

(Pa. Super. 2004), appeal denied, 868 A.2d 451 (Pa. 2005).           Grim filed

numerous Post Conviction Relief Act (“PCRA”) petitions, all of which were

denied. However, following the decisions in Miller and Montgomery, Grim

obtained PCRA relief, and a resentencing hearing was scheduled.

        On December 6, 2017, Grim was resentenced to 30 years to life on the

murder charge. The trial court also granted Grim 5,551 days for time served.4

No post-sentence motions were filed. On January 9, 2018, Grim filed a pro se

Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

Errors complained of on appeal. On March 6, 2018, this Court remanded to


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2   See 18 Pa.C.S.A. §§ 2502(b), 2705, 3701(a)(1)(i),(ii), 903(a)(1),(2).

3   The sentences for the remaining convictions were imposed concurrently.

4 According to the trial court, Grim would have to serve less than 15 years to
reach his minimum release date. See Trial Court Opinion, 2/21/18, at 2.

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the trial court to determine whether counsel had abandoned Grim. Following

a hearing, the trial court determined that Grim preferred to have court-

appointed counsel for the direct appeal, and appointed Grim counsel. Grim,

through counsel, filed a Motion to Vacate to allow for the filing of a new concise

statement. On May 14, 2018, this Court denied Grim’s counsel’s Motion to

Vacate.

      On appeal, Grim raises the following questions for our review:

      1.    The [trial court] did not afford [Grim] a proper resentencing
            hearing under the Juvenile Lifer [statutes] established in
            Miller [because]

             a. The [trial court] did not utilize the opinion of [a] Mitigating
                Expert [t]hat he [o]rdered that [Grim] be evaluated by[.]
                However[,] the evaluation never took place [d]epriving
                [Grim] of a fair informed decision by the [trial court] as
                established in Miller.

             b. The [trial court] limited how many [c]haracter witnesses
                that [Grim] was allowed to speak on [Grim’s] behalf at
                [his] resentencing hearing.

             c. The [trial court] did not use diligence in reviewing other
                resentencing hearings for Juvenile Lifers nor did the [trial
                court] resentence [Grim] as an individual based on [his]
                rehabilitation but on [ ] the actions of [his] codefendant.

      2. [Grim’s] Attorney prejudiced [the] defense [w]hen she did not
      utilize the Mitigating Expert [t]hat [Grim] was granted [in] order
      to be evaluated by 9 months prior to [the] [r]esentencing
      [h]earing.

Brief for Appellant at 4 (emphasis, quotation marks, and some capitalization

omitted).




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      In his first claim, Grim 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,

      [we] conduct 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, 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, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008) (quotation

marks and citations omitted).

      Here, Grim has filed a timely Notice of Appeal, but he did not preserve

the issue at sentencing or in a motion to reconsider or modify the sentence.

Id.   Thus, the issue is waived and cannot be reviewed on appeal.          See

Commonwealth v. Evans, 901 A.2d 528, 534 (Pa. Super. 2006) (holding that

the defendant’s challenges to the discretionary aspects of sentencing were

waived because he failed to raise the claims at the sentencing hearing or file a




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post-sentence motion as mandated by Pa.R.Crim.P. 720).5

       In his second claim, Grim argues counsel was ineffective at resentencing,

and that Grim’s direct appeal rights should be reinstated. Brief for Appellant

at 13. However, ineffectiveness claims should be raised in a timely petition for

relief filed pursuant to the PCRA. See Commonwealth v. Grant, 813 A.2d

726, 730 (Pa. 2002).         Accordingly, this Court cannot review the claim on

appeal.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/03/2018




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5 In its Opinion, the trial court set forth its reasons for the sentence. See Trial
Court Opinion, 2/21/18, at 4-7, 9-10; see also N.T., 12/6/17, at 33-38, 40-
41. To the extent that Grim raises a legality of sentence claim, we conclude
that Grim waived the claim for failing to develop it. See Pa.R.A.P. 2119(a).

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