J-S74020-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

JOEL EMILE DIAZ, :

:

Appellant : No. 256 EDA 2014

Appeal from the Judgment of Sentence November 15, 2013,

Court of Common Pleas, Lehigh County,

Criminal Division at No. CP-39-CR-0002040-2013

BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 23, 2014

Appellant, Joel Emile Diaz (“Diaz”), appeals from the judgment of 

sentence entered on November 15, 2013, imposing an aggregate period of 

two and a half to seven years of imprisonment after he pled guilty to one 

count each of resisting arrest and possession with intent to deliver.1 We 

affirm. 

The charges in this case arose when an undercover police operation 

resulted in a successful drug purchase from Diaz. Diaz resisted arrest and 

injured a police officer’s shoulder during the struggle, requiring the officer to 

undergo extensive physical therapy. On October 14, 2013, Diaz entered an 

open guilty plea to the crimes set forth above. He subsequently filed a postsentence motion, which the trial court denied after a hearing. On appeal, 

 

1 18 Pa.C.S.A. § 5104; 35 P.S. § 780-113(a)(30).
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Diaz challenges the discretionary aspects of his sentence.2 He alleges that 

the trial court abused its discretion by imposing sentences that were 

manifestly unreasonable, and argues that “the [trial] court failed to fully set 

forth its reasons for parting [sic] from the sentencing guideline ranges and 

imposing sentences at the top of the aggravated range of the sentencing 

guidelines[.]” Diaz’s Brief at 7. 

Our standard of review in an appeal from the discretionary aspects of 

a sentence is well settled:

Sentencing is a matter vested in the sound discretion 

of the sentencing judge, and a sentence will not be 

disturbed on appeal absent a manifest abuse of 

discretion. An abuse of discretion is more than just 

an error in judgment and, on appeal, the trial court 

will not be found to have abused its discretion unless 

the record discloses that the judgment exercised was 

manifestly unreasonable, or the result of partiality, 

bias or ill-will.

Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa. Super. 2003). However, 

there is no absolute right to appeal the discretionary aspects of a sentence. 

Commonwealth v. Reyes, 853 A.2d 1052, 1055 (Pa. Super. 2004). To 

reach the merits of a discretionary sentencing issue, we conduct a four-part 

analysis to determine: (1) whether appellant filed a timely notice of appeal; 

(2) whether the issue was properly preserved at sentencing or in a motion to 

 

2 Diaz’s guilty plea does not preclude him from challenging the discretionary 

aspects of his sentence because there was no agreement as to the sentence 

he would receive. See Commonwealth v. Hill, 66 A.3d 359, 363 

(Pa. Super. 2013) (holding that defendant may challenge discretionary 

aspects of sentence on appeal where open guilty plea is entered). 
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reconsider and modify sentence; (3) whether appellant's brief contains a 

concise statement of the reasons relied upon for allowance of appeal with 

respect to the discretionary aspects of a sentence pursuant to 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. 

Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010).

Our review of the record reveals that Diaz timely filed his notice of 

appeal, and so the first prong of this test is satisfied. With regard to the 

second prong, Diaz filed a timely post-sentence motion. Diaz did not, 

however, raise the issue he presents on appeal (that the trial court failed to 

state adequate reasons for the sentence imposed) at the time of sentencing 

or in his post-sentence motion.3 “To preserve an attack on the discretionary 

aspects of sentence, an appellant must raise his issues at sentencing or in a 

post-sentence motion.” Commonwealth v. Malovich, 903 A.2d 1247, 

1251 (Pa. Super. 2006). Diaz’s failure to preserve this issue precludes our 

review of it on appeal. See Commonwealth v. Strunk, 953 A.2d 577, 579

(Pa. Super. 2008); Pa.R.A.P. 302(a) (“Issues not raised in the lower court 

are waived and cannot be raised for the first time on appeal.”). 

 

3

In both his written motion and at the hearing, Diaz argued only that the 

trial court should give greater weight to certain mitigating factors (including 

his acceptance of responsibility, showing of remorse and good behavior in 

prison) and reduce his sentence. See Post Sentence Motion, 11/22/13, at 2-

3; N.T., 12/23/13, at 3. 
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Having found the only issue raised by Diaz waived, we affirm the 

judgment of sentence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/23/2014