Opinion
J-S67024-17 No. 639 EDA 2016
12-29-2017
COMMONWEALTH OF PENNSYLVANIA v. GREGORY WOODS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence June 28, 2013 in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0508941-2005 BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS, P.J.E. MEMORANDUM BY MUSMANNO, J.:
Former Justice specially assigned to the Superior Court. --------
Gregory Woods ("Woods") appeals from the judgment of sentence imposed following the revocation of his probation. We affirm.
In its Opinion, the trial court set forth the relevant factual and procedural background, which we adopt for the purpose of this appeal. See Trial Court Opinion, 11/03/16, at 1-3.
On appeal, Woods raises the following issue for our review: "Must a sentencing court place on the record the reasons it failed to order a pre[-]sentence investigation report [("PSI")] pursuant to Pa.R.Crim.P. 702?" Brief for Appellant at 7.
Although Woods framed his issue somewhat differently in his Pa.R.A.P. 1925(b) Concise Statement, we decline to find waiver on this basis. See Pa.R.A.P. 1925(b)(3)(vii) (providing that "[i]ssues not included in the Statement ... are waived.").
Woods challenges the discretionary aspects of his sentence. See Commonwealth v. Flowers , 950 A.2d 330, 331 (Pa. Super. 2008) (holding that "a claim that the court erred in failing to order a PSI report raises a discretionary aspect of sentencing of which a defendant's right to appellate review is exceptionally limited."). "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). Rather, we must consider an appellant's brief on this issue as a petition for permission to appeal. See Commonwealth v. Yanoff , 690 A.2d 260, 267 (Pa. Super. 1997). 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).
In the instant case, Woods filed a timely Notice of Appeal, and included in his appellate brief a separate Rule 2119(f) statement. However, Woods failed to properly preserve his discretionary sentencing issue at sentencing or in a motion to reconsider and modify sentence, in compliance with Pa.R.Crim.P. 720. Our review of the transcript of the June 28, 2013 sentencing hearing reflects that the issue was not raised at any time during the sentencing hearing. See N.T., 6/28/13, at 1-37. Further, our review of the docket reflects no filing of a motion to reconsider and modify sentence. Because Woods failed to comply with the requirements to challenge the discretionary aspects of his sentence, he failed to preserve the issue for our review. See Moury , supra.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/29/17
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