J-S42030-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NEIL ANDREW NEIDIG

Appellant No. 1067 MDA 2016

Appeal from the Judgment of Sentence March 4, 2016

In the Court of Common Pleas of Northumberland County

Criminal Division at No(s): CP-49-CR-0000295-2012 

 CP-49-CR-0000756-2011

BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MOULTON, J.: FILED OCTOBER 31, 2017

Neil Andrew Neidig appeals from the March 4, 2016 judgment of 

sentence entered in the Northampton County Court of Common Pleas 

following this Court’s prior remand for resentencing pursuant to Alleyne v. 

United States, 133 S.Ct. 2151 (2013). We affirm.

This Court summarized the factual and procedural history of this 

matter in our prior memorandum, which we adopt and incorporate herein. 

See Commonwealth v. Neidig, No. 2135 MDA 2012, unpublished mem. at 

2-3 (Pa.Super. filed Feb. 3, 2015); see also Trial Ct. Op., 12/4/14, at 1.

Neidig’s original sentence, imposed on October 16, 2012, included 

mandatory-minimum sentences for drug offenses occurring within a school 

zone under section 6317 of the Crimes Code, 18 Pa.C.S. § 6317. On direct 

appeal, this Court vacated Neidig’s judgment of sentence and remanded for 
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resentencing because the mandatory-minimum sentences were deemed 

unconstitutional in Alleyne.

1

Following remand, on February 26, 2016, the trial court imposed an 

aggregate sentence of 141⁄2 to 29 years’ imprisonment. The trial court did 

not impose any mandatory-minimum sentences, but it did impose a schoolzone enhancement, pursuant to the Sentencing Guidelines, to four of 

Neidig’s convictions.

On March 7, 2016, Neidig timely filed a post-sentence motion, which 

the trial court granted in part and denied in part on March 26, 2016. The 

trial court granted Neidig’s request for a recalculation of his credit for time 

served but denied the motion in all other respects. On June 23, 2016, 

Neidig timely appealed to this Court.2

Neidig presents one question for our review: “Did error occur where 

Mr. Neidig received a sentence no less punitive than that which he had 

received before, and included aggravation and school zone enhancement, 

____________________________________________

1

In Alleyne, the United States Supreme Court held that “[a]ny fact 

that, by law, increases the penalty for a crime is an ‘element’ that must be 

submitted to the jury and found beyond a reasonable doubt.” 133 S.Ct. at 

2155. The Pennsylvania Supreme Court has since held that section 6317 of 

the Crimes Code is constitutionally invalid under Alleyne. See 

Commonwealth v. Hopkins, 117 A.3d 247, 262-63 (Pa. 2015).

2 On June 30, 2016, the trial court amended Neidig’s sentence to give 

him credit for time served prior to resentencing, consistent with the court’s 

March 26, 2016 order.
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despite the fact that this case had been remanded by the Superior Court for 

resentencing?” Neidig’s Br. at 26.

Neidig’s claim regarding the application of the school-zone 

enhancement challenges the discretionary aspects of sentencing. An appeal 

from the discretionary aspects of sentencing is not guaranteed as a matter 

of right. Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa.Super. 

2010). Before addressing such a challenge, we must first determine:

(1) whether the appeal is timely; (2) whether [the] 

[a]ppellant preserved his [or her] issue; (3) whether [the] 

[a]ppellant’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 appropriate under the [S]entencing [C]ode.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting 

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)); 

see Pa.R.A.P. 2119(f).

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

concise statement of reasons for allowance of appeal under Rule 2119(f). 

However, Neidig failed to raise the school-zone enhancement issue either at 

the resentencing hearing or in his post-sentence motion.3 Therefore, we 

____________________________________________

3

In fact, at the hearing, Neidig’s counsel stated: “[T]he defense 

recognizes the caselaw [sic] subsequent to the Alleyne case in Pennsylvania 

says, yes, mandatory minimums are out. We can use sentencing 

enhancements. Specifically school zone enhancements.” N.T., 

2/26/16, at 64 (emphasis added). Defense counsel’s only argument with 

regard to the school-zone enhancement was that the Commonwealth failed 

(Footnote Continued Next Page)
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conclude that Neidig has waived his challenge to the trial court’s application 

of the school-zone enhancement. See Commonwealth v. Cartrette, 83 

A.3d 1030, 1043 (Pa.Super. 2013) (en banc) (finding particular sentencing 

claim waived because it was not included in appellant’s post-sentence 

motion or raised at sentencing); Commonwealth v. Kittrell, 19 A.3d 532, 

538 (Pa.Super. 2011) (“[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.”) 

(quotation omitted).

Because Neidig has waived his only claim on appeal, we affirm the 

judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/31/2017

(Footnote Continued) _______________________

to prove Neidig’s age. Id. at 64-65. However, the defendant’s age is 

irrelevant to the applicability of the school-zone enhancement in the 

Pennsylvania Code. See 204 Pa. Code §§ 303.10(b), 303.9(c).