J-S46044-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF 

: PENNSYLVANIA 

Appellee : 

: 

v. : 

: 

CHARLEY RICHARD BACON, : 

: 

Appellant : No. 36 MDA 2014 

Appeal from the Judgment of Sentence entered on November 25, 2013 

in the Court of Common Pleas of Tioga County, 

Criminal Division, No. CP-59-CR-0000378-2013 

BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ. 

MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 20, 2014 

Charley Richard Bacon (“Bacon”) appeals from the judgment of 

sentence entered following his guilty plea to driving under the influence of 

alcohol-general impairment (“DUI”).1

 We affirm. 

 On October 14, 2013, Bacon pled guilty to violating Section 3802(a)(1) 

of the Motor Vehicle Code. Upon the entry of Bacon’s guilty plea, the trial 

court directed the preparation of a pre-sentence investigation report. On 

November 25, 2013, after a hearing, the trial court sentenced Bacon to two 

to five years in prison. Bacon filed a Petition for Modification of Sentence, 

which the trial court denied. Thereafter, Bacon filed the instant timely 

appeal, followed by a court-ordered Pennsylvania Rule of Appellate 

Procedure 1925(b) Concise Statement of Matters Complained of on Appeal. 

 

1

 75 Pa.C.S.A. § 3802(a)(1). 
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 On appeal, Bacon presents the following issues for our review: 

1. Whether the trial court abused its discretion by improperly 

basing the aggravated range sentence[] on the number of 

prior DUI offenses and in denying [Bacon’s Petition] to Modify 

Sentence based on the error? 

2. Whether the trial court abused its discretion by failing to 

state on the record sufficient reasons for imposing aggravated 

range sentence[]? 

Brief of Appellant at 5. 

Bacon’s issues implicate discretionary aspects of his sentence. 

“Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058, 

1064 (Pa. Super. 2011). 

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test: (1) whether [the] 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 [the] 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. Evans, ... 

901 A.2d 528, 533 (Pa. Super. 2006). 

Allen, 24 A.3d at 1064. 

 Here, our review of the record discloses that Bacon timely filed his 

Notice of Appeal. Our review further discloses that Bacon filed a postsentence Petition for Modification of Sentence. In his Petition, however, 

Bacon did not raise the issues he now raises on appeal. 
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Bacon’s Petition for Modification of Sentence averred, in relevant part, 

the following: 

4. [Bacon] is an employee of MedPlast in Knoxville, 

Pennsylvania[,] and his employer really needs him as an 

employee, as they have not trained anyone to take his place. 

5. [Bacon] desires his sentence to be modified so he can 

serve his incarceration at the Tioga County Prison and be 

eligible for work release. 

Petition for Modification of Sentence at ¶¶ 4-5. Bacon’s Petition did not raise 

any of the issues he presently asserts on appeal. Because Bacon failed to 

raise these issues before the trial court, he cannot invoke this Court’s 

jurisdiction to review the discretionary aspects of his sentence.2

 See Allen, 

24 A.3d at 1064 (stating that, to invoke this Court’s jurisdiction to review a 

challenge to the discretionary aspects of sentencing, the appellant must 

preserve the issue(s) in a post-sentence motion); see also Pa.R.A.P. 302(a) 

(providing that an issue cannot be raised for the first time on appeal). 

 Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/20/2014 

 

2

 Even if Bacon had properly preserved his issues, we would affirm based 

upon the reasons stated in the trial court’s Opinion. See Trial Court Opinion, 

3/19/14, at 1-2.