Opinion
J-S52012-17 No. 2047 MDA 2016
08-23-2017
COMMONWEALTH OF PENNSYLVANIA v. ROBERT WAYNE BROWN, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence November 16, 2016 in the Court of Common Pleas of Cumberland County, Criminal Division, No(s): CP-21-CR-0000029-2011; CP-21-CR-0003516-2010 BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Robert Wayne Brown ("Brown") appeals from the judgment of sentence imposed following his conviction of 41 counts of various sexual offenses committed against his four minor step-grandchildren over the course of several years. We affirm.
In its Opinion, the trial court set forth the relevant factual and procedural history, which we adopt for the purpose of this appeal. See Trial Court Opinion, 2/13/17, at 1-4 (unnumbered).
On appeal, Brown raises the following issue for our review: "Did the sentencing court abuse its discretion by failing to justify on the record the imposition of aggravated range and consecutive sentences?" Brief for Appellant at 6 (capitalization omitted).
The trial court sentenced Brown to an aggregate term of 40 to 120 years in prison.
Brown 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. Tuladziecki , 522 A.2d 17, 18 (Pa. 1987); 42 Pa.C.S.A. § 9781(b); see also Commonwealth v. Yanoff , 690 A.2d 260, 267 (Pa. Super. 1997).
In the instant case, Brown filed a timely Notice of Appeal, and included in his appellate brief a separate Rule 2119(f) Statement. However, our review of the record reflects that Brown failed to preserve his claim either at resentencing or in a timely post-sentence motion. See Commonwealth v. Mann , 820 A.2d 788, 794 (Pa. Super. 2003) (holding that objections to the discretionary aspects of sentence are generally waived if they are not raised at the sentencing hearing or in a motion to modify the sentence imposed at that hearing). Thus, we are unable to address his issue on appeal.
Even if Brown had preserved his issue for our review, we would have found that it lacked merit, given that the trial court, at the time of resentencing, had the benefit of a pre-sentence investigation report ("PSI"). See Commonwealth v. Ventura , 975 A.2d 1128, 1135 (Pa. Super. 2009) (holding that, where a sentencing court is informed by a PSI, "it is presumed that the court is aware of all appropriate sentencing factors and considerations, and that where the court has been so informed, its discretion should not be disturbed."). Moreover, "[t]he sentencing judge can satisfy the requirement that reasons for imposing sentence be placed on the record by indicating that he or she has been informed by the [PSI]; thus properly considering and weighing all relevant factors." Id. (citation omitted); see also N.T., 11/15/16, at 3. --------
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/23/2017
Image materials not available for display.