discretionary challenge in Pennsylvania

2021Rather, before this Court can address such a discretionary challenge, an appellant must comply with the following requirements: An appellant challenging the discretionary aspects of his sentence must invoke the Superior Court’s jurisdiction on appeal by satisfying a four-part test: (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. 2119(f); (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a

2021Rather, before this Court can address such a discretionary challenge, an appellant must comply with the following requirements: An appellant challenging the discretionary aspects of his sentence must invoke the Superior Court’s jurisdiction on appeal by satisfying a four-part test: (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. 2119(f); (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a

2016Before this Court can address a discretionary challenge, we must engage in a four-part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant’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 sentencing code. -4- J-S03041-16 Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super.2013) (quoting Commonwealth v. Malovich, 903 A.2d 124

2016Before we address a discretionary challenge, we must engage in a four-part analysis to determine: “(1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant’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 sentencing code.” ____________________________________________ 9 The trial court issued its final sentencing order on December 7, 2015. -4- J-S75020

2021Rather, before this Court can address such a discretionary challenge, an appellant must comply with the following requirements: An appellant challenging the discretionary aspects of his sentence must invoke the Superior Court’s jurisdiction on appeal by satisfying a four-part test: (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. 2119(f); (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a

2021Rather, before this Court can address such a discretionary challenge, an appellant must comply with the following requirements: An appellant challenging the discretionary aspects of his sentence must invoke the Superior Court’s jurisdiction on appeal by satisfying a four-part test: (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. 2119(f); (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a

2016Before this Court can address a discretionary challenge, we must engage in a four-part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant’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 sentencing code. -4- J-S03041-16 Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super.2013) (quoting Commonwealth v. Malovich, 903 A.2d 124

2016Before we address a discretionary challenge, we must engage in a four-part analysis to determine: “(1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant’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 sentencing code.” ____________________________________________ 9 The trial court issued its final sentencing order on December 7, 2015. -4- J-S75020

2024Id. (citation omitted).

2017Rather, before we can address such a discretionary challenge, an appellant must satisfy a four-part test: (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, 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. -3 J -S07021-17 Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (

2026Commonwealth v. Starr, 234 A.3d 755, 759 (Pa. Super. 2020) (some internal citations and quotations omitted).

2025Commonwealth v. Starr, 234 A.3d 755, 759 (Pa. Super. 2020) (internal citations and quotations omitted).

2019According to the court, decision-making regarding the allocation of credit is “particularly suited to a discretionary framework with guidelines to ensure equitable treatment.” Id. (emphasis added).

2019According to the court, decision-making regarding the allocation of credit is "particularly suited to a discretionary framework with guidelines to ensure equitable treatment ." Id. (emphasis added).

2023See Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa. Super. 2011) (issues raised for the first time in Rule 1925(b) statement are waived); see also Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003) (“a party cannot rectify the failure to preserve an issue by proffering it in” a Rule 1925(b) statement). -3- J-S22029-23 the appropriateness of sentence is a question to be evaluated on a case-by- case basis.

2018See Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa.Super. 2011) (issues raised for the first time in Rule 1925(b) statement are waived); See also Commonwealth v. Watson, 835 A.2d 786, 791 (Pa.Super. 2003) (“a party cannot rectify the failure to preserve an issue by proffering it in” in a Rule 1925(b) statement).

2018Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).

2018Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006).

2023Id. (citation omitted); see also Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (“[R]eview of a discretionary sentencing matter after revocation proceedings is encompassed by the scope of this Court’s review.”); Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008) (“when a court revokes probation and imposes a new sentence, a criminal defendant needs to preserve challenges to the discretionary aspects of that new sentence either by objecting during the revocation sentencing or -9- J-S03024-23 by filing a [motion to modify] sentence”).

2023Id. (citation omitted); see also Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (“[R]eview of a discretionary sentencing matter after revocation proceedings is encompassed by the scope of this Court’s review.”); Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008) (“when a court revokes probation and imposes a new sentence, a criminal defendant needs to preserve challenges to the discretionary aspects of that new sentence either by objecting during the revocation sentencing or by filing a [motion to modify] sentence”).

2023See Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa. Super. 2011) (issues raised for the first time in Rule 1925(b) statement are waived); see also Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003) (“a party cannot rectify the failure to preserve an issue by proffering it in” a Rule 1925(b) statement). -3- J-S22029-23 the appropriateness of sentence is a question to be evaluated on a case-by- case basis.

2018See Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa.Super. 2011) (issues raised for the first time in Rule 1925(b) statement are waived); See also Commonwealth v. Watson, 835 A.2d 786, 791 (Pa.Super. 2003) (“a party cannot rectify the failure to preserve an issue by proffering it in” in a Rule 1925(b) statement).

2023Id. (citation omitted); see also Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (“[R]eview of a discretionary sentencing matter after revocation proceedings is encompassed by the scope of this Court’s review.”); Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008) (“when a court revokes probation and imposes a new sentence, a criminal defendant needs to preserve challenges to the discretionary aspects of that new sentence either by objecting during the revocation sentencing or -9- J-S03024-23 by filing a [motion to modify] sentence”).

2023Id. (citation omitted); see also Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (“[R]eview of a discretionary sentencing matter after revocation proceedings is encompassed by the scope of this Court’s review.”); Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008) (“when a court revokes probation and imposes a new sentence, a criminal defendant needs to preserve challenges to the discretionary aspects of that new sentence either by objecting during the revocation sentencing or by filing a [motion to modify] sentence”).

2020See Griffin, 65 A.3d at 935 .

2020See Griffin, 65 A.3d at 935 .

2019Id. at 264 (rejecting an invitation to “artificially . . . create a discretionary standard that our legislature did not intend” under the UEFJA).

2019Id. at 264 (rejecting an invitation to “artificially . . . create a discretionary standard that our legislature did not intend” under the UEFJA).

2016See Commonwealth v. Hill, 609 Pa. 410, 422 , 16 A.3d 484, 491 (2011) (quoting Commonwealth v. Lord, 553 Pa. 415, 420 , 719 A.2d 306, 309 (1998), for the proposition that “[a]ny issues not raised in a [statement of matters complained of on appeal] will be deemed waived” (emphasis adjusted)).

2016See Commonwealth v. Hill, 609 Pa. 410, 422 , 16 A.3d 484, 491 (2011) (quoting Commonwealth v. Lord, 553 Pa. 415, 420 , 719 A.2d 306, 309 (1998), for the proposition that “[a]ny issues not raised in a [statement of matters complained of on appeal] will be deemed waived” (emphasis adjusted)).

2016Where the trial court has slated a "reason for its decision, the scope of review is limited to an examination of the stated reason." Commonwealth v. O'Brien, 2003 PA Super 425 , 836 A.2d 966, 968 (2003) (quoting Commonwealth v. Horvath, 2001 PA Super 227 , 781 A.2d 1243, 1246 (200 I)). ''A discretionary rule cannot be overturned simply because a reviewing court disagrees with the trial court's conclusion." Id. (quoting Commonwealth v. Cohen, 529 Pa. 552 , 605 A.2d 1212, 1218 ( 1992)).

2016Where the trial court has slated a "reason for its decision, the scope of review is limited to an examination of the stated reason." Commonwealth v. O'Brien, 2003 PA Super 425 , 836 A.2d 966, 968 (2003) (quoting Commonwealth v. Horvath, 2001 PA Super 227 , 781 A.2d 1243, 1246 (200 I)). ''A discretionary rule cannot be overturned simply because a reviewing court disagrees with the trial court's conclusion." Id. (quoting Commonwealth v. Cohen, 529 Pa. 552 , 605 A.2d 1212, 1218 ( 1992)).

2016See Commonwealth v. Hill, 609 Pa. 410, 422 , 16 A.3d 484, 491 (2011) (quoting Commonwealth v. Lord, 553 Pa. 415, 420 , 719 A.2d 306, 309 (1998), for the proposition that “[a]ny issues not raised in a [statement of matters complained of on appeal] will be deemed waived” (emphasis adjusted)).

2016See Commonwealth v. Hill, 609 Pa. 410, 422 , 16 A.3d 484, 491 (2011) (quoting Commonwealth v. Lord, 553 Pa. 415, 420 , 719 A.2d 306, 309 (1998), for the proposition that “[a]ny issues not raised in a [statement of matters complained of on appeal] will be deemed waived” (emphasis adjusted)).

2021See Izurieta, 171 A.3d 803 at 809 (holding that the successor judge’s opinion should not be afforded the level of discretion given to a judge who presided at the trial in question).

2018Therefore, instead of applying a discretionary standard of review as an appellate court usually does when reviewing a challenge to a weight of the evidence decision, "our role ... is to review the entire record and determine whether the successor judge correctly determined that the jury's verdict was not against the weight of the evidence." Id. at 809 .

2015Id. at 913 . -6- J-S72020-14 We first note that Appellant has met the four-prong test required prior to our review of the merits of a discretionary challenge to a sentence: Appellant’s appeal was timely filed, Appellant preserved the issue in her post-sentence motion, Appellant included a statement pursuant to Pa.R.A.P. 2119(f) in her brief, and Appellant has raised a substantial question.

2014“Challenges to the discretionary aspects of sentencing do not entitle a petitioner to review as of right.” Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011) (citing Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.Super.2000)).

1991See Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 66 , 515 A.2d 1350, 1353 (1986) (suspending prior delay damage rule due in part to due process violations and setting forth criteria to be used by fact finder in determining fault under new rule).

1987Therefore, the court suspended all provisions of Rule 238 delay damages “which as sess delay damages against defendants without regard to faultid. 65, 515 A.2d at 1353 , and instituted the practice of a petition for Rule 238 delay damages and a discretionary hearing to resolve any factual disputes.

2025However, we are “mindful that sentencing is vested in the sound - 11 - J-S32007-24 discretion of the sentencing court, and we shall not disturb a sentence absent a manifest abuse of discretion.” Commonwealth v. Schroat, 272 A.3d 523, 527 (Pa. Super. 2022).

2024See, e.g., Commonwealth v. Rivera, 238 A.3d 482, 499 (Pa. Super. 2020) (finding appellant waived discretionary aspects of sentence claim because, while he filed a post-sentence motion raising a discretionary claim, that claim differed from the claim he presented on appeal).

2024See, e.g., Commonwealth v. Rivera, 238 A.3d 482 , 499 (Pa. Super. 2020) (finding appellant waived discretionary aspects of sentence claim because, while he filed a post-sentence motion raising a discretionary claim, that claim differed from the claim he presented on appeal).

2023To invoke this Court’s jurisdiction over such a discretionary challenge, the Appellant must (1) have timely filed a notice of appeal; (2) have preserved ____________________________________________ 8 In Commonwealth v. Gordon, 477 A.2d 1342, 1346 (Pa. Super. 1984), in a similarly convoluted case, this Court vacated an untimely amended judgment of sentence and “reinstate[d] the original sentence[.]” We draw guidance from Gordon in our disposition of this issue. -9- J-A22025-22 the issue at sentencing or in a motion to reconsider and modify sentence; (3) include in his brief a concise statement

2022Commonwealth v. Moye, 266 A.3d 666, 676 (Pa.Super. 2021).

2021According to the Court, decision-making regarding the allocation of credit is “particularly suited to a discretionary framework with guidelines to ensure equitable treatment.” Id.

2021Therefore, the Court held that “where an offender is incarcerated on both a Board detainer and new criminal charges, all time spent in confinement must be credited to either the new sentence or the original sentence.” Id. at 309 (emphasis added).