Com. v. Reeves
Decision Date | 05 June 2001 |
Parties | COMMONWEALTH OF PENNSYLVANIA, Appellee v. Joseph Anthony REEVES, Appellant. Commonwealth of Pennsylvania, Appellant v. Joseph Anthony Reeves, Appellee. |
Court | Pennsylvania Superior Court |
John Petorak, Scranton, for Reeves. Jason J. Legg, Assistant District Attorney, Montrose, for Com.
Before: DEL SOLE, P.J., STEVENS, and MONTEMURO1, JJ.
¶ 1 Joseph Anthony Reeves and the Commonwealth have filed separate appeals from the judgment of sentence entered in the Court of Common Pleas of Susquehanna County following Reeves' guilty plea to the charge of criminal conspiracy to commit robbery.2 On appeal, Reeves contends that the sentencing court abused its discretion in failing to state its reasons on the record for sentencing him within the aggravated range. In its cross-appeal, the Commonwealth alleges that the sentencing court erred in failing to impose a mandatory minimum sentence of five years as is prescribed by 42 Pa.C.S.A. § 9712. We vacate Reeves' judgment of sentence and remand for resentencing in accordance with Section 9712.
¶ 2 The relevant facts and procedural history are as follows: Reeves was arrested and charged with various offenses in connection with a robbery at the Pump-N-Pantry3 in Bridgewater Township, Susquehanna County. On September 5, 2000, Reeves pleaded guilty to criminal conspiracy to commit robbery, and, following a hearing held on September 13, 2000, Reeves was sentenced to, inter alia, twenty-five months to fifty months in prison. On September 22, 2000, Reeves filed a post-sentence motion seeking reconsideration of his sentence, and the motion was denied on that same date. The Commonwealth and Reeves both filed an appeal to this Court.
¶ 3 Reeves contends that the sentencing court failed to state its reasons on the record for sentencing Reeves in the aggravated range. Reeves' claim is a challenge to the discretionary aspects of sentencing. See Commonwealth v. Martin, 727 A.2d 1136 (Pa.Super.1999)
. "The right to appeal a discretionary aspect of sentence is not absolute." Martin, 727 A.2d at 1143 (citation omitted). We conclude that Reeves has failed to preserve his sentencing claim.
¶ 4 In Commonwealth v. Jarvis, 444 Pa.Super. 295, 663 A.2d 790 (1995), this Court held that, even though Pa.R.Crim.P. 14104 characterizes a motion to modify sentence as "optional," "the rule plainly states that only issues which were presented to the trial court before or during trial shall be deemed preserved." Id. at 791. The modifications to Rule 1410 have not altered the requirement of Pa.R.A.P. 302 which states that "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal." Id. at 791 (citations omitted). As such, issues challenging the discretionary aspects of sentencing must be raised in a post-sentence motion or by raising the claim during the sentencing proceedings. Commonwealth v. Petaccio, 764 A.2d 582 (Pa.Super.2000). Absent such efforts, an objection to a discretionary aspect of a sentence is waived. Id.
¶ 5 In the case sub judice, Reeves filed a post-sentence motion seeking modification of his sentence. However, Reeves failed to raise the specific claim regarding the sentencing court's alleged failure to state the reasons for Reeves' sentence on the record. In addition, Reeves did not raise this specific reason during the sentencing hearing. As such, Reeves did not give the sentencing judge an opportunity to reconsider or modify Reeves' sentence on this basis, and, therefore, the claim is waived.5See Petaccio, supra.
¶ 6 In its cross-appeal, the Commonwealth argues that the sentencing court erred in failing to impose the mandatory minimum sentence of five years in prison as is prescribed by 42 Pa.C.S.A. § 9712.6 We agree.
¶ 7 42 Pa.C.S.A. § 9712 provides the following:
(emphasis in original).
¶ 8 42 Pa.C.S.A. § 9714(g), to which 42 Pa.C.S.A. § 9712(a) refers, provides that:
528 Pa. 380, 598 A.2d 268 (1991) ( ).
¶ 10 In the case sub judice, Reeves pleaded guilty to criminal conspiracy to commit robbery, which is a crime subject to the mandatory minimum sentencing provision of Section 9712(a). See 42 Pa.C.S.A. § 9714(g). After a careful review of the record, we conclude that the Commonwealth proved that Appellee's co-felon, Joshua...
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