J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GERARD GETER

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2585 EDA 2021
Appeal from the Judgment of Sentence Entered November 10, 2021 In the Court of Common Pleas of Chester County Criminal Division at

No(s): CP

- 15

- CR

- 0001136

- 2014

COMMONWEALTH OF PENNSYLVANIA

v.

GERARD GETER

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2586 EDA 2021
Appeal from the Judgment of Sentence Entered November 10, 2021 In the Court of Common Pleas of Chester County Criminal Division at

No(s): CP

- 15

- CR

- 0002925

- 2018

COMMONWEALTH OF PENNSYLVANIA

v.

GERARD GETER

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2587 EDA 2021
Appeal from the Judgment of Sentence Entered November 10, 2021 In the Court of Common Pleas of Chester County Criminal Division at

No(s): CP

- 15

- CR

- 0002951

- 2017J

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- 22

- 2

-

BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E. *

MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 13, 2022

Appellant Gerard Geter appeals from the judgment of sentence imposed

after the trial court found him in violation of his probation . Appellant argues

that the trial court abused its discretion by failing to state the reasons for

declining to order a pre

- sentence investigation ( PSI) report. We affirm.

The underlying facts of this case are well known to the parties. See

Trial Ct. Op., 4/29/22 , at 1

- 6

. Briefly, Appellant was found in violation of his

probation in three separate cases on November 10, 2021. See N.T. Hr’g,

11/10/21, at 13

- 15. That same day, the trial court sentenced Appellant to an

aggregate term of two

- and

- a

- half years’ incarceration

. Id. The trial court did

not order a PSI report and did not state the reason s for why it declined to do

so

. Appellant did not object to the lack of a PSI report at sentencing and did

not file a post

- sentence motion raising that claim.

Appellant subsequently filed timely notice s of appeal and a court

ordered Pa.R.A.P. 1925(b) statement 1 in which he challenged the trial court’s

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 We note that Appellant’s direct appeal counsel initially submitted a s tatement of i ntent to file an Anders / Santiago brief pursuant to Pa.R.A.P. 1925(c)(4 ). See Anders v. California , 386 U.S. 738 (1967); Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). However, counsel subsequently sought leave to file a Rule 1925(b) statement nunc pro tunc , explaining that “ a post

sentence motion for reconsideration of sentence and a merit

- based [Rule 1925(b) statement] should have been filed ” in all three cases and arguing

“ that preventing a finding of ineffective assistance of counsel would constitute (Footnote Continued Next Page)J

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failure to order a PSI report for the first time

. The trial court issued a Rule

1925(a) opinion in which it concluded that Appellant waived his sentencing

clai m by failing to raise the issue at sentencing or in a post

- sentence motion

.

See Trial Ct. Op. at 7

- 8

. However, the trial court also addressed the merits

of Appellant’s claim, concluded that he was not entitled to relief, and

requested that this Court issue a decision addressing the merits of th e issue

in the interest of judicial economy. 2 See id

. at 8

- 10.

On appeal, Appellant raises the following issue for review:

Did the [trial] court abuse its discretion when it did not comply with Pa.R.Crim.P. 702 (a)(2)(a) and C ommonwealth v. F lowers , 950 A .2d 330 ( P a. S uper. 2008) in that it neither ordered nor placed on the record the reasons for declining to order and review a pre

- sentence investigation report when it imposed a sentence greater than one year of incarceration, and the record offered no ef fective substitute for a pre

- sentence investigation report?

Appellant ’ s Brief at 4.

Initially, we must address whether Appellant has preserved his

discretionary sentencing claim for review. See Flowers
, 950 A.2d at 331

_________________ __________ ______ ____ _______ good cause shown and extraordinary circumstances ” pursuant to Pa.R.A.P. 1925(b)(2)(i). See Pet. to File Am

. Rule 1925(b) Statement, 1/24/22, at 2.

2 Specifically, the trial court reason ed that if this Court concluded that Appellant waived his sentencing claim, it would “ give rise to a claim under the [ Post

- Conviction Relief Act, 42 Pa.C.S. §§ 9541

- 9546 , (PCRA) ] for ineffective assistance of counsel ,” which would “ require an examination of whether Appellant was prejudiced by counsel ’ s failure to file [] post

- sentence motions challenging the discretionary aspects of the court ’ s sentences. ” Trial Ct. Op. at 7

- 8. Therefore, the trial court asserted that there was good cause for this Court to address Appellant’s underlying sentencing claim in the interest of judicial economy. See id.J

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( holding that a claim that the court erred in failing to order a PSI report

implicates the discretionary aspects of sentencing ). “ [C]hallenges to the

discretionary aspects of sentencing do not entitle an appellant to review as of

right. ” Commonwealth v. Derry , 150 A.3 d 987, 991 (Pa. Super. 2016)

(citation omitted). Before reaching the merits of such claims, we must

determine:

(1) whether the appeal is timely; (2) whether Appellant preserved his issues; (3) whether Appellant ’ s brief includes a [Pa.R.A.P. 2119(f)] conc ise 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 inappropriate under the sentencing code.

Commo nwealth v. Corley , 31 A.3d 293, 296 (Pa. Super. 2011) (citations

omitted).

“ To preserve an attack on the discretionary aspects of sentence, an

appellant must raise his issues at sentencing or in a post

- sentence motion.

Issues not presented to the sentencing court are waived and cannot be raised

for the first time on appeal. ” Com monwealth v. Malovich , 903 A.2d 1247,

1251 (Pa. Super. 2006) (citations omitted); see also Pa.R.A.P. 302(a)

( stating that “[i] ssues not raised in the trial court are waived and cannot be

raised for the first time on appeal ”).

Here, as noted previously, App ellant did not preserve his instant claim

at the sentencing hearing or raise the issue in a post

- sentence motion.

Therefore, Appellant’s claim is waived

. See Malovich , 903 A.2d at 1251.J

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Further, we decline the trial court’s invitation to address Appellant’s claim in

anticipation of a future PCRA petition. 3 Accordingly , we affirm the judgment

of sentence without prejudice to Appellant’s right to raise ineffectiveness

claims in a timely filed PCRA petition

. Judgment of sentence affirmed.

_________________ __________ ______ ____ _______

3 As noted previously, the trial court has requested that we address the merits

o f Appellant’s sentencing issue in anticipation of a future PCRA claim. See Trial Ct. Op. at 8. However, “i t is not within this Court ’ s province to offer such guidance because any analysis in this regard would amount to nothing more than an advisory opini on. This Court may not provide advisory opinions to address issues that may arise in future cases. ” Commonwealth v. Enix
, 192 A.3d 78 , 84 n. 5 (Pa. Super. 2018) (citation omitted); see also Sedat, Inc. v. Fisher , 617 A.2d 1, 4 ( Pa. 1992) ( stating that “[a] n advisory opinion is one which is unnecessary to decide the issue before the court, and .

. . the courts of this Commonwealth are precluded from issuing such advisory opinions ” (citations omitted)).

Further, even if Appellant’s direct appeal cou nsel was deemed ineffective for failing to file a post

- sentence motion, Appellant did not raise that issue on appeal before the trial court, nor did he raise an ineffectiveness claim in his brief.

In any event, absent certain exceptions, ineffectiveness claims are generally deferred to PCRA review and are not cognizable on direct appeal. See Commonwealth v. Grant , 813 A.2d 726, 738 (Pa. 2002), abrogated on other grounds
, Commonwealth v. Bradley , 26 1 A.3d 381 (Pa. 2021); see also Commonwealth v. Holmes , 79 A.3d 562, 563

- 64 (Pa. 2013) (recognizing exceptions to Grant where (1) there are extraordinary circumstances in which trial counsel’s “ineffectiveness is apparent from the record and meritorious to the extent that immediate consideration best serves the interests of justice” or (2) “there is good cause shown” and the defendant knowingly and expressly waives his entitlement to seek subsequent PCRA review of his conviction and sentence). Based on our review of the record, we find no basis to conclude that extraordinary circumstances exist in this case, as it is not clear that Appellant’s claims are meritorious and entitled to immediate consideration. Further, Appellant has not expressly waived his ri ght to subsequent PCRA review.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/13/2022