J-A21018-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ALEXANDER DIAZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2137 EDA 2017

Appeal from the Judgment of Sentence May 22, 2017

In the Court of Common Pleas of Delaware County Criminal Division at 

No(s): CP-23-CR-0000992-2011

BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.: FILED OCTOBER 09, 2018

Appellant, Alexander Diaz, appeals from the judgment of sentence 

entered on May 22, 2017, following resentencing on his jury trial convictions 

for possession with intent to deliver a controlled substance (PWID), possession 

of drug paraphernalia, and conspiracy.1 Upon review, we affirm.

We briefly summarize the facts and procedural history of this case as 

follows. A jury found Appellant guilty of the aforementioned crimes on 

December 8, 2011. On April 25, 2012, the trial court sentenced Appellant to 

four to eight years of imprisonment for PWID, 10 years of probation for

conspiracy (consecutive to PWID), and one year of probation for possession 

of drug paraphernalia (consecutive to the other two sentences). On March 

16, 2017, this Court vacated Appellant’s judgment of sentence and remanded 

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1 35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(32), and 18 Pa.C.S.A. 

§ 903, respectively.
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the matter for resentencing. See Commonwealth v. Diaz, 168 A.3d 318 

(Pa. Super. 2017) (unpublished memorandum). In that decision, we 

determined that the trial court erred in imposing a mandatory minimum 

sentence for PWID under 18 Pa.C.S.A. § 6317 (drug-free school zones). Upon 

remand, on May 22, 2017, the trial court sentenced Appellant to 30 to 90 

months of imprisonment for PWID, with a consecutive term of 10 years of 

probation for conspiracy, and one year of probation for possession of drug 

paraphernalia, concurrent to his sentence for conspiracy. This timely appeal 

resulted.2

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2 At the conclusion of his re-sentencing hearing, Appellant signed a statement 

acknowledging he received an explanation of his post-sentence rights. N.T., 

5/22/2017, at 11. Counsel for Appellant did not object to the new sentence 

as excessive at the resentencing hearing and did not file a post-sentence 

motion to reconsider Appellant’s new sentence. Appellant filed a pro se notice 

of appeal while incarcerated, despite his representation by counsel. “While 

hybrid representation is generally not permitted, our Supreme Court has held 

that a pro se notice of appeal from a judgment of sentence filed by a 

represented appellant is not automatically void.” Commonwealth v. 

Johnson, 2018 WL 3197588, at *2 (Pa. Super. 2018) (citation omitted). 

Moreover, pursuant to the prisoner mailbox rule, we deem a pro se

prisoner's document filed on the date he delivers it to prison authorities for 

mailing, in this case, June 19, 2017. See id. Thus, we deem the appeal 

timely. Appellant also filed a pro se concise statement of errors complained 

of on appeal pursuant to Pa.R.A.P. 1925(b) on July 24, 2017. On October 23, 

2017, this Court entered a per curiam order remanding the matter to the trial 

court because court-appointed trial counsel failed to file a timely criminal 

docket statement with this Court and did not respond to this Court’s 

correspondence. We directed the trial court to determine whether trial counsel 

abandoned Appellant and, if so, whether Appellant was eligible for new, 

court-appointed counsel. On November 14, 2017, the trial court appointed 

Tiffany Griffin, Esquire to represent Appellant. Attorney Griffin did not seek 

nunc pro tunc relief to file a post-sentence motion on Appellant’s behalf. 
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On appeal, Appellant raises the following issues for our review:

1. Is it not evident [that] Appellant’s sentence of 30 months to 

90 months is in gross excess of the standard range, which is 

[three] months to 12 months [of] incarceration, that the [trial] 

court erred by applying the school zone enhancement for 

sentencing purposes?

2. Without explanation, did the [trial] court’s sentence of 21⁄2 to 

71⁄2 years’ incarceration for the [PWID] conviction [of] 0.11 

grams of a schedule I controlled substance, wildly deviate from 

the standard range, and its unduly harsh 10-year consecutive 

probation for [Appellant’s] [c]onspiracy conviction prove an 

abuse of the court’s discretion. 

Appellant’s Brief at 4. 

Both of Appellant’s issues involve the discretionary aspects of 

sentencing. The application of a sentencing enhancement for selling drugs 

near a school zone implicates the discretionary aspects of sentencing:

[E]nhancements only direct a sentencing court to consider a 

different range of potential minimum sentences, while 

preserving a trial court's discretion to fashion an individual 

sentence. By their very character, sentencing enhancements do 

not share the attributes of a mandatory minimum sentence that 

the Supreme Court held to be elements of the offense that must 

be submitted to a jury. The enhancements do not bind a trial court 

to any particular sentencing floor, nor do they compel a trial court 

in any given case to impose a sentence higher than the court 

believes is warranted. They require only that a court consider a 

higher range of possible minimum sentences. Even then, the trial 

court need not sentence within that range; the court only must 

consider it.

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Instead, she filed a supplemental concise statement pursuant to Pa.R.A.P. 

1925(b) on January 30, 2018. The trial court issued an opinion pursuant to 

Pa.R.A.P. 1925(a) on April 9, 2018.
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Commonwealth v. Ali, 112 A.3d 1210, 1226 (Pa. Super. 2015) (emphasis 

in original), vacated and remanded on other grounds, 149 A.3d 29 (Pa. 2016)

(examining the admissibility of victim impact testimony at sentencing). 

Moreover, Appellant’s second claim that the trial court imposed an excessive 

sentence, above the standard sentencing guideline range, also implicates the 

discretionary aspects of sentencing. See Commonwealth v. Antidormi, 84 

A.3d 736, 760 (Pa. Super. 2014) (“The sentencing guidelines are not 

mandatory, and sentencing courts retain broad discretion in sentencing

matters, and therefore, may sentence defendants outside the guidelines.”).

This Court has previously determined:

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right. An appellant challenging 

the discretionary aspects of his sentence must invoke this Court's 

jurisdiction by satisfying a 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. 

[720]; (3) whether appellant's brief has a fatal 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).

Commonwealth v. Patterson, 180 A.3d 1217, 1232 (Pa. Super. 2018)

(internal case citation omitted).

Here, Appellant filed a timely notice of appeal and included in his brief 

a concise statement of the reasons relied upon for allowance of appeal 
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pursuant to Pa.R.A.P. 2119(f). However, Appellant failed to raise either the 

school-zone enhancement or excessiveness of sentence claims at the 

resentencing hearing or in a post-sentence motion. “[I]ssues 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. 

Absent such efforts, an objection to a discretionary aspect of a sentence is 

waived.” Commonwealth v. Heaster, 171 A.3d 268, 272 (Pa. Super. 2017). 

Accordingly, Appellant waived his challenges to the trial court’s sentencing 

discretion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/9/18