Com. v. Strawser, A. (memorandum)
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J-S09037-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. AUSTIN JAMES STRAWSER Appellant No. 1023 MDA 2013 Appeal from the Judgment of Sentence dated May 2, 2013 In the Court of Common Pleas of the 41st Judicial District of Pennsylvania, Perry County Branch Criminal Division at No: CP-50-CR-0000507-2012 BEFORE: MUNDY, OLSON, and STABILE, JJ. MEMORANDUM BY STABILE, J.: Appellant Austin James Strawser FILED MAY 15, 2014 appeals from a judgment of sentence, which the Court of Common Pleas of the 41st Judicial District of Pennsylvania, Perry County Branch (trial court), imposed following his guilty plea to indecent assault.1 Upon review, we affirm. The only issue Appellant advances on appeal is whether the trial court abused its discretion in resentencing him to a lengthier prison term.2 ____________________________________________ 1 18 Pa.C.S. § 3126(a)(7). 2 As the trial court found: was informed that Appellant caused a significant disruption while talking to a county probation officer. Shortly thereafter, at the direction of [the trial court], a second hearing was convened. [At the hearing,] Appellant was present, as was his counsel, the District Attorney, and Probation Officer Lisa Finkenbinder. (Footnote Continued Next Page) J-S09037-14 Specifically, Appellant argues that the trial court abused its discretion when it resentenced him to six to twentythree hours of sentencing him to fortyimprisonment. Commonwealth v. Martin, 727 A.2d 1136, 1143 (Pa. Super. 1999). Rather, where an appellant challenges the discretionary aspects of considered as a petition for allowance of appeal. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). Commonwealth v. As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010): An appellant challenging the discretionary aspects of his four-part test: [W]e 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. 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). Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 2006)). Objections to the discretionary aspects of a sentence are waived if they are not raised at the sentencing hearing or in a motion to modify the (Footnote Continued) _______________________ Trial Court Opinion, 8/26/13, at 1. -2- J-S09037-14 sentence imposed. Id. (citing Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003)). out that Appellant is unable to meet the four-part test because his brief does not contain a section implicating the discretionary aspects of his sentence as required under Pa.R.A.P. 2119(f).3 thus, we consider his challenge to the discretionary aspect of his sentence waived.4 See Commonwealth. v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008) (noting even if properly preserved, a challenge to the discretionary ____________________________________________ 3 Rule 2119(f) provides: An appellant who challenges the 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. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence. (Emphasis added.) 4 Appellant appears to argue in his brief that the trial court lacked authority to reconvene the hearing for purposes of modifying his sentence. We, however, decline to address this argument, because Appellant failed to develop it in his brief. Specifically, Appellant failed to cite to any legal authority for the proposition that a trial court may not modify its sentencing order sua sponte after providing notice to the parties. Nonetheless, we observe that under Section 5505 of the Judicial Code, Act of July 9, 1976, P.L. 586, as amended notice to the parties may modify or rescind any order within 30 days after its entry . . . if See also Commonwealth v. Postell, 693 A.2d 612, 616 n.6 (Pa. Super. 1997), appeal denied, 706 A.2d 1212 (Pa. 1998). Here, the record reveals that Appellant, his counsel, the district attorney and the complaining probation officer were present during the resentencing hearing, which occurred about three hours after the trial court imposed the initial sentence on Appellant. -3- J-S09037-14 aspect of sentence is waived if an appellant does not include a Pa.R.A.P. 2119(f) statement in his brief and the opposing party objects to the statement's absence), aff'd, 17 A.3d 332 (Pa. 2011). Judgment of sentence affirmed. Judge Mundy concurs in the result. .Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/15/2014 -4-
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