Com. v. Lyons, R. (memorandum)

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J-S09041-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ROBERT WILLIAM LYONS Appellant No. 964 MDA 2013 Appeal from the Judgment of Sentence dated May 15, 2013 In the Court of Common Pleas of Lycoming County Criminal Division at No: CP-41-CR-0001417-2012 BEFORE: MUNDY, OLSON, AND STABILE, JJ. MEMORANDUM BY STABILE, J.: FILED MAY 23, 2014 2013 judgment of sentence imposing an aggregate six to twelve years of incarceration for three counts of aggravated assault by physical menace, 18 Pa.C.S.A. § 2702(a)(6).1 We affirm. stigate a reported domestic dispute. The standoff ended with no shots fired and no ____________________________________________ 1 A violation of § attempts by physical menace to put any [police officer], while in the performance of duty, 2702(a)(6). J-S09041-14 injuries. Nonetheless, Appellant was yelling and pointing a firearm in the direction of the police officers. A jury found Appellant guilty of aggravated assault by physical menace at the conclusion of a March 5, 2013 trial. The trial court imposed sentence on May 15, 2013, and Appellant did not challenge the discretionary aspects at the hearing or in a subsequent post-sentence motion. Appellant filed this timely appeal on May 28, 2013. Appellant raises three issues for our review: 1. Did the lower court err in imposing a deadly weapon enhancement at sentencing, absent a specific finding by the jury that a deadly weapon was possessed during the commission of the offense? 2. Did the lower court err in imposing three consecutive sentences on the charges of aggravated assault with intent to put enumerated officials in fear, insofar as the sentences should have been made to run concurrently because imited in time and space and the number of victims was a function of police calls for backup rather than an escalation by [Appellant], such that the sentence is manifestly excessive in the aggregate? 3. Was sentencing counsel ineffective in failing to preserve issues regarding the excessiveness of sentence? discretion. In order to preserve those issues for appellate review, Appellant needed to file a timely appeal, raise the issues before the trial court either at -2- J-S09041-14 sentencing or in a post-sentence motion, and include in his appellate brief a concise statement of reason relied upon for allowance of appeal in accordance with Pa.R.A.P. 2119(f). Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013). Appellant filed a timely appeal, but failed to raise his sentencing challenges before the trial court or include a Pa.R.A.P. challenging the discretionary aspects of a sentence must be raised in a postsentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discretionary Id. Appellant seeks to avoid waiver by asserting the sentence is illegal, or in the alternative, that sentencing counsel was ineffective. Concerning United States v. Alleyne, 133 S.Ct. 2151 (2013), in which the Court held that any fact that increases a mandatory minimum sentence must be submitted to the jury. Appellant argues Alleyne precluded the trial court 2 to arrive at the pursuant to Alleyne, that the DWE cannot apply absent a finding by the jury that he employed a deadly weapon in the commission of his offense. ____________________________________________ 2 See 204 Pa. Code § 303.10. -3- J-S09041-14 Court decided Alleyne on June 17, 2013, more than one month after the for retroactive application of Alleyne. Furthermore, Alleyne applies to findings of fact that result in a mandatory minimum sentence. The Alleyne Court was careful to distinguish between facts that trigger a mandatory minimum and facts that can influence sentencing discretion. Id. at 2163. discretion taking into consideration various factors relating both to offense and offender in imposing a judgment within the range prescribed by Id. (quoting Apprendi v. New Jersey, 530 U.S. 466, 481 (2000) (emphasis in original). Instantly, the DWE affects the recommended guideline range applicable to an offense, but it does not impose a mandatory minimum sentence. See 204 Pa. Code § 303.9(b). The trial court retains discretion to impose a sentence beneath the guideline range where no eliance on Alleyne is misplaced. Appellant relies on Commonwealth v. Seachrist, 383 A.2d 199 (Pa. 1978), in which the Pennsylvania Supreme Court held that a claim of ineffective assistance of counsel is reviewable on direct appeal if the appellant raises -4- J-S09041-14 the issue ineffectiveness is being challeng Id. at 663. The law in this area has changed considerably since Seachrist. Our Supreme Court has held that claims of ineffective assistance of counsel are reserved for collateral review except in limited circumstances. Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). While the Holmes opinion postupon in Holmes Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). Appellant fails to acknowledged Holmes or Grant, much less argue for the applicability of an exception to the general rule established therein. Accordingly, Appellant . Judgment of sentence affirmed. Judge Olson concurs in the result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/23/2014 -5-

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