Com. v. Canongo, G. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GERARDO CANONGO, JR. :
:
Appellant : No. 485 EDA 2022
Appeal from the Judgment of Sentence Entered December 13, 2021
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): 53 CR 2020
BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 22, 2023
Gerardo Canongo, Jr. (“Appellant”) appeals from the judgment of
sentence of 15 to 30 months’ imprisonment, followed by 3 years’ probation,
imposed after he pled guilty to one count of driving under the influence
(“DUI”).1 Appellant solely challenges the discretionary aspects of his
sentence. We affirm.
On November 25, 2019, Appellant was arrested for DUI following a
traffic stop. A criminal information was filed on February 21, 2020, charging
Appellant with DUI and one count each of the following summary offenses:
driving an unregistered vehicle;2 driving while license suspended with blood
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1 75 Pa.C.S. § 3802(a)(1).
2 75 Pa.C.S. § 1301(a).
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alcohol content of .02% or greater;3 careless driving;4 fraudulent use/removal
of plate;5 reckless driving;6 and restrictions on alcoholic beverages.7 On
August 4, 2021, Appellant pled guilty to DUI, his fourth offense within ten
years, with all other charges to be nolle prossed. A sentencing hearing was
held on December 13, 2021, at which the court imposed Appellant’s sentence
of 15 to 30 months’ incarceration, followed by a 3-year consecutive period of
probation. Appellant filed a timely post-sentence motion for reconsideration,
which was denied; however, the court indicated that the sentencing order shall
reflect that Appellant was entitled to a time credit of 21 days. See Trial Court
Order, 1/13/22 (single page).
On February 11, 2022, Appellant filed a timely notice of appeal, followed
by a timely, court-ordered Pa.R.A.P. 1925(b) concise statement of matters
complained of on appeal. The trial court filed its Rule 1925(a) opinion on
March 18, 2022. Herein, Appellant presents the following questions for our
review:
I. Did the trial court abuse its discretion by sentencing …
Appellant to a fifteen (15) to thirty (30) month state
sentence, followed by three (3) years[’] probation, because
of its own concern for treatment, where Appellant may or
____________________________________________
3 74 Pa.C.S. § 1543(b)(1)(1.1).
4 75 Pa.C.S. § 3714(a).
5 75 Pa.C.S. § 7124.
6 75 Pa.C.S. § 3736(a).
7 75 Pa.C.S. § 3908(a).
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may not be accepted into the new [s]tate [d]rug [t]reatment
[p]rogram, and said sentence was given because that length
of sentence was suggested to the [c]ourt as giving …
Appellant a better chance to be placed in the program?
II. Did the trial court abuse its discretion by sentencing …
Appellant to a fifteen (15) to thirty (30) month state
sentence, followed by three (3) years[’] probation, because
[Appellant] had a prior record … score [of] three, two points
of which were DUI[-]related, [and where] Appellant avers
that the intent of the Legislature, when the Legislature has
made the mandatory minimum for said offense ten days,
was that the suggested standard guideline range did not
need to be adhered to because there was specific DUI
sentencing guidelines?
Appellant’s Brief at 6.
Appellant does not contend that his sentence is illegal but, rather, that
it was an abuse of discretion. As such, Appellant’s challenge implicates the
discretionary aspects of his sentence. “The right to appellate review of the
discretionary aspects of a sentence is not absolute and must be considered a
petition for permission to appeal.” Commonwealth v. Buterbaugh, 91 A.3d
1247, 1265 (Pa. Super. 2014) (en banc).
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determined: (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.[] § 9781(b).
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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations
and internal quotation marks omitted). In accordance with Rule 2119(f), “[a]n
appellant who challenges the discretionary aspects of a sentence in a criminal
matter shall set forth in a separate section of the brief a concise statement
of the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence.” Pa.R.A.P. 2119(f) (emphasis added).
While Appellant filed a timely notice of appeal and properly preserved
his claims in his post-sentence motion, he failed to include a concise Rule
2119(f) statement in his appellate brief. It is well-established that when an
appellant fails to include a Rule 2119(f) statement and the appellee has not
objected, we may ignore the omission. Commonwealth v. Kiesel, 854 A.2d
530, 533 (Pa. Super. 2004). “However, this option is lost if the appellee
objects to a [Rule] 2119(f) omission. In such circumstances, this Court is
precluded from reviewing the merits of the claim and the appeal must be
denied.” Id. (citing Commonwealth v. Tuladziecki, 522 A.2d 17, 19 (Pa.
1987)). Here, the Commonwealth has expressly objected to Appellant’s
failure to include a Rule 2119(f) statement in his brief. See Commonwealth’s
Brief at 2, 6.
Because Appellant failed to comply with Rule 2119(f) and the
Commonwealth objected to the omission, this Court may not review the merits
of Appellant’s claims.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2023
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