J

- S17027

- 19

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

v.

DANIEL CANCEL

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3171 EDA 2017 Appeal from the Judgment of Sentence September 11, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP

- 51

- CR

- 0002545

- 2016, CP

- 51

- CR

- 0003457

- 2013

BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY OLSON, J.: FILED APRIL 11 , 2019 Appellant, Daniel Cancel, appeals from the judgment of sentence entered on September 11, 2017, as made final by the denial of his post

- sentence motion by order dated September 21, 2017

. We affirm. As our resolution of this appeal is based o n the procedural posture of
the case, we need not set forth the factual ba ckground at length. In short,

w hile on probation for possession with intent to deliver (“PWID”) and conspiracy at docket nu mber 3457

- 2 013 , 1 Appellant violently attacked and
robbed a young woman after she refused to have sex with him. On June 8, 2017, Appellant , at docket number 2545

- 2016, pled guilty to attempted

_________________ __________ ______ ____ _______ 1 18 Pa.C.S.A. § 780

- 113(a)(30) and 18 Pa.C.S.A. § 903, respectively.J

- S17027

- 19

- 2

-

murder, 2 aggravated assault, 3 robbery, 4 theft by unlawful taking, 5 receiving stolen property, 6 possession of an instrument of crime (“PIC ”), 7 simple assault, 8 and recklessly endangering another person. 9 On September 11, 2017, the trial court sentenced Appellant to ten to 20 years of confinemen t
each for attempted murder and aggravated assault, to run concurrently, ten to 20 years of confinement for robbery, to run consecutively, and two and

one - half to fi ve years of confinement for PIC , to run consecutively. The trial court also found Appellan t to be in violation of his probation at docket number
3457

- 2013, and revoked his probationary sentence. In addition, the court imposed a new sentence of five to ten years’ incarceration for both offenses
at docket number 3457

- 2013 , to run consecutively t o one another and consecutively to the sentence impos ed at docket number 2545

- 2016.

_________________ __________ ______ ____ _______ 2 18 Pa.C.S.A. § 901(a)

.
3 18 Pa.C.S.A. § 2702(a)

.
4 18 Pa.C.S.A. § 3701(a)(1)(ii)

.
5 18 Pa.C.S.A. § 3921(a).

6 18 Pa.C.S.A. § 3925(a).

7 18 Pa.C.S.A. § 907(a).

8 18 Pa.C.S.A. § 2701(a).

9 18 Pa.C.S.A. § 2705.J

- S17027

- 19

- 3

-

Appellant filed a post

- sentence motion for reconsideration of sentence, which
the court denied on September 21 , 2017. This appeal followed. 10 Appellant presents one issue for our review: Whether the trial court abused its discretion in ordering an aggregate sentence of 22 1⁄2 to 45 years’ incarceration following a guilty plea where Appellant showed genuine remorse, was heavily under the influence of alcohol at the time of t he crime, presented character witnesses, and did not have a significant criminal record[?] Appellant’s Brief at 5.
In his single issue, Appellant argues that he received an excessive
sentence because the trial court did not adequately consider certain mitigating
factors . This issue challenges the discretionary aspects of his sentence. Pursuant to statute, Appellant does not have an automatic right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for permission to appeal the discretionary aspects of his sentence. Id.
I n order to reach the merits of a discretionary aspects claim, we must engage in a four part analysis to dete rmine: (1) whether the appeal is timely; (2) whether Appellant preserved his or her issue; (3) whether Appellant’s brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is approp riate under the Sentencing C ode.

_________________ __________ ______ ____ _______ 10 On October 18, 2017, the trial court issued an order requiring Appellant to file a concise statement of matters complained of on appeal within 21 days pursuant to Pa.R.A.P. 1925(b). Appellant timely compl ied. The trial court filed its 1925(a) opinion on February 12, 2018.J

- S17027

- 19

- 4

-

Commonwealth v. Foust , 180 A. 3d 416, 438

- 439 (Pa. Super. 201 8 ) ( cleaned up ). Appellant filed a timely notice of appeal and preserved his issue
in a post

- sentence motion. He failed, however, to include a Pennsylvania Rule of Appellate Procedure 2119(f) statement in his appellate brief and the Commonwealth objected to this omission in its brief. Thus, Appellant waived
the challenge to the discretionary aspects of his sentence. See
Commonwealth v. Heaster , 171 A.3d 268, 272 n.3 (Pa. Super. 2017), appeal denied , 181 A.3d 1078 (Pa. 2018) (citation omitted). As Appellant failed to preserve any discretionary challenge to his j udgment of sentence, we
affirm. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/11/19