J-S47020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT
                                                                 OF
                                                            PENNSYLVANIA
                             Appellee

                        v.

 JUAN MELENDEZ

                             Appellant                      No. 2843 EDA 2016


               Appeal from the Judgment of Sentence August 9, 2016
                  In the Court of Common Pleas of Lehigh County
                Criminal Division at No(s): CP-39-CR-0004853-2014
                                            CP-39-CR-0004857-2014


BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MOULTON, J.:                            FILED NOVEMBER 15, 2017

       Juan Melendez appeals from the August 9, 2016 judgment of sentence

entered in the Lehigh County Court of Common Pleas following his convictions

for firearms not to be carried without a license, possession with intent to

deliver    a   controlled    substance    (“PWID”),   and   solicitation   to   commit

kidnapping.1 We affirm.

       The trial court set forth the relevant facts as follows:

           Between August 27, 2014, and October 2, 2014, [Melendez]
           met with a confidential informant (CI) and an undercover
           Pennsylvania State Trooper in order to obtain a gun and to
           arrange for the kidnapping of [Melendez]’s wife’s boyfriend.
           [Melendez] furnished the CI with keys to victim’s residence,
           and requested that a van be obtained in order to take the
____________________________________________


       18 Pa.C.S. § 6106(a)(1), 35 P.S. § 780-113(a)(30), and 18 Pa.C.S. §§
       1

902(a), respectively.
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           victim to an undisclosed location. Also during this time,
           [Melendez] sold quantities of cocaine to the CI. When
           [Melendez] was arrested for these events, police found a
           bundle of heroin and a loaded .32 caliber pistol concealed
           on his person. [Melendez] did not have a license to carry a
           concealed weapon.

Pa.R.A.P. 1925(a) Opinion, 11/15/16, at 1-2.

       On June 20, 2016, Melendez pled nolo contendere at two docket

numbers. At CP-39-CR-0004853-2014 (“Docket No. 4853”), Melendez pled

nolo contendere to PWID and solicitation to commit kidnapping. At CP-39-

CR-0004857-2014 (“Docket No. 4857”), Melendez pled nolo contendere to

firearms not to be carried without a license. On August 9, 2016, the trial court

sentenced Melendez to an aggregate term of 5 to 15 years’ incarceration. 2

Melendez did not file a post-sentence motion.         On September 6, 2016,

Melendez filed a timely notice of appeal.

       On appeal, Melendez raises the following issue:

           Whether the lower court abused its discretion in imposing
           manifestly excessive and unreasonable sentences when the
           court failed to consider any significant mitigating factors,
           failed to apply and review all the necessary factors as set
           forth in 42 Pa.C.S.A. § 9721(b) and 42 Pa.C.S.A. § 9781(c)
           and (d) or otherwise failed to set forth appropriate reasons
           for its decision that a consecutive sentence was the only
           appropriate sentences[.]

Melendez’s Br. at 8.

____________________________________________


       2At Docket No. 4853, the trial court sentenced Melendez to 18 months
to 5 years’ incarceration for the PWID conviction and a concurrent term of 30
months to 10 years’ incarceration for the conviction for solicitation to commit
kidnapping. At Docket No. 4857, the trial court sentenced him to 30 months
to 5 years’ incarceration for the conviction for carrying firearms without a
license, to run consecutively to the sentence at Docket No. 4853.

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      Melendez is challenging 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. Allen, 24 A.3d 1058,

1064 (Pa.Super. 2011).      Before we address such a challenge, we first

determine:

         (1) whether the appeal is timely; (2) whether [a]ppellant
         preserved his issue; (3) whether [a]ppellant’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 [S]entencing [C]ode.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).

      Melendez filed a timely notice of appeal and included in his brief a

concise statement of reasons relied upon for allowance of appeal pursuant to

Pennsylvania Rule of Appellate Procedure 2119(f). Melendez, however, did

not preserve his sentencing claim in a post-sentence motion or at the time of

sentencing. 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.”) (quoting Commonwealth v. Shugars,

895 A.2d 1270, 1273-74 (Pa.Super. 2006)). Melendez has, therefore, waived

his claim.




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       Further, in his sole issue on appeal, Melendez claims that the trial court

failed to consider mitigating factors and failed to apply the factors set forth in

sections 9721 and 9781 of the Sentencing Code.          Melendez waived these

specific claims because he failed to include them in his Pennsylvania Rule of

Appellate Procedure 1925(b) statement.3 See Commonwealth v. Lord, 719

A.2d 306, 309 (Pa. 1998) (“Any issues not raised in a [Rule] 1925(b)

statement will be deemed waived.”).

       Judgment of sentence affirmed.


____________________________________________


       3In Melendez’s Rule 1925(b) statement, he claimed: “The Court
imposed a harsh and excessive sentence and failed to set forth any legal or
factual reasons for the length of sentences and them being imposed
consecutively.”  Concise Statement of Matters Relied upon on Appeal,
10/27/16.

       Even had Melendez not waived his claims, we would conclude he has
failed to raise a substantial question for our review. A substantial question
exists where a defendant raises a “plausible argument that the sentence
violates a provision of the [S]entencing [C]ode or is contrary to the
fundamental norms of the sentencing process.” Commonwealth v. Dodge,
77 A.3d 1263, 1268 (Pa.Super. 2013) (quotation Commonwealth v.
Naranjo, 53 A.3d 66, 72 (Pa.Super. 2012)). In his Rule 2119(f) statement,
Melendez does not claim that the sentence imposed violates a provision of the
Sentencing Code or is contrary to the fundamental norms of the sentencing
process. See id. Moreover, although in his statement of issues involved and
his argument section of his brief, he claims that the trial court erred in
imposing consecutive sentences, he did not include this claim in his Rule
2119(f) statement. Finally, even if he had included this claim in his Rule
2119(f) statement, this Court has held on multiple occasions that a bald
assertion that the trial court abused its discretion in imposing consecutive
sentences does not raise a substantial question. See Commonwealth v.
Swope, 123 A.3d 333, 338-39 (Pa.Super. 2015); Commonwealth v.
Caldwell, 117 A.3d 763, 769 (Pa.Super. 2015); Dodge, 77 A.3d at 1270;
Commonwealth v. Moury, 992 A.2d 162, 171-72 (Pa.Super. 2010).


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J-S47020-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2017




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