Com. v. Keiner, M. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MICHAEL ALLEN KEINER :
:
Appellant : No. 1238 EDA 2022
Appeal from the Judgment of Sentence Entered April 1, 2022
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0000607-2020
BEFORE: KUNSELMAN, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED MARCH 28, 2023
Michael Allen Keiner (“Keiner”) appeals from the judgment of sentence
imposed following the revocation of his probation. We affirm.
Given our disposition, a detailed factual and procedural recitation is
unnecessary. Briefly, on May 21, 2021, Keiner entered an open guilty plea to
theft by deception, graded as a felony of the third degree, in connection with
multiple charges filed against him in relation to an incidence of home
improvement fraud.1 The Commonwealth agreed to dismiss the remaining
charges. The matter proceeded to a sentencing hearing at which the trial
court noted that the maximum sentence for the offense is seven years in
prison. However, despite Keiner’s lengthy prior record, including an extensive
history of home improvement fraud, the trial court imposed a sentence of
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1 See 18 Pa.C.S.A. § 3922(a)(1).
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three years of probation, which was below the mitigated range of the
sentencing guidelines. The trial court’s sentencing decision was based solely
on Keiner’s representation that he had the money to reimburse the victim.
See Trial Court Opinion, 7/26/22, at 2-3. Accordingly, the court imposed the
condition that Keiner fully reimburse the victim by paying $500 every thirty
days until the amount of $4,000 in restitution had been paid in full. The court
imposed the additional condition that Keiner was precluded from working in
the home improvement field in any capacity while under supervision.
On April 1, 2022, the trial court conducted a probation violation hearing
based on allegations that Keiner had committed technical violations of his
probation by failing to pay restitution and working in the home improvement
field. At the hearing, it was undisputed that Keiner had failed to make any
restitution payments to the victim, advertised home improvement services in
a Facebook post, and had been working for a landscaping company. At the
conclusion of the hearing, the court revoked Keiner’s probation and sentenced
him to three and one-half to seven years in prison, and ordered him to pay
restitution in the amount of $4,000. Keiner filed a post-sentence motion
challenging the discretionary aspects of his sentence which the revocation
court denied. Keiner thereafter filed a timely notice of appeal, and both he
and the revocation court complied with Pa.R.A.P. 1925.
Keiner raises the following issue for our review: “In revoking . . . Keiner’s
probation solely on technical violations and resentencing him to 3½ - 7 years
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[of] total state confinement, whether the trial court abused its discretion by
failing to consider . . . Keiner’s rehabilitative needs and the needs of the
community, as required by 42 Pa.C.S.A. § 9721(b)?” Keiner’s Brief at 4.
Initially, we must determine if Keiner preserved his discretionary
sentencing issue for our review. “Challenges to the discretionary aspects of
sentencing do not entitle an appellant to review as of right.” Commonwealth
v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). Prior to reaching the merits
of a discretionary sentencing issue,
[this Court conducts] a four[-]part analysis to determine: (1)
whether 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 appellant’s brief
has a fatal defect, [see] 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, [see] 42 Pa.C.S.A. §
9781(b).
Id. (citation omitted). When an appellant challenges the discretionary aspects
of his sentence, we must consider his brief on this issue as a petition for
permission to appeal. See Commonwealth v. Yanoff, 690 A.2d 260, 267
(Pa. Super. 1997); see also Commonwealth v. Tuladziecki, 522 A.2d 17,
18 (Pa. 1987); 42 Pa.C.S.A. § 9781(b).
In the instant case, Keiner filed a timely notice of appeal and preserved
a discretionary sentencing claim in a timely post-sentence motion. However,
Keiner failed to include in his appellate brief a separate Rule 2119(f)
statement. It is well-established that when an appellant fails to include a Rule
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2119(f) statement and the appellee has not objected, we may ignore the
omission. See 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 Tuladziecki,
522 A.2d at 19). Here, the Commonwealth has expressly objected to Keiner’s
failure to include a Rule 2119(f) statement in his brief. See Commonwealth’s
Brief at 6, 8.2 Accordingly, because Keiner failed to comply with Rule 2119(f)
and the Commonwealth has objected to the omission, this Court may not
review the merits of Keiner’s claims.
Judgment of sentence affirmed.
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2 The Commonwealth additionally asserts that the particular discretionary
sentencing issue that Keiner raised in his statement of questions involved was
not preserved for our review in either Keiner’s post-sentence motion or in his
Rule 1925(b) concise statement. See Pa.R.A.P. 302(a) (providing that issues
not raised in the lower court are waived and may not be raised for the first
time on appeal); see also Commonwealth v. Foster, 960 A.2d 160, 163
(Pa. Super. 2008) (providing that claims relating to the discretionary aspects
of a sentence are waived if not raised either at sentencing or in a post-
sentence motion); Pa.R.A.P. 1925(b)(4)(vii) (providing that issues not
included in the concise statement are waived). However, given our
determination that all of Keiner’s discretionary sentencing issues are waived,
we need not address this additional waiver concern.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2023
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