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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ERIC THOMAS PUGH,
Appellant No. 361 WDA 2016
Appeal from the Judgment of Sentence February 5, 2016
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0002479-2013
BEFORE: SHOGAN, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 30, 2017
Appellant, Eric Thomas Pugh, appeals from the judgment of sentence
entered following the revocation of his probation. We affirm.
The trial court set forth the history of this case as follows:
[Appellant] was originally sentenced on April 21, 2014
after pleading guilty to Possession with Intent to Deliver
(Marijuana). 35 P.S. §780-113(a)(30). This plea was in
conjunction with three other charges of Possession with Intent to
Deliver, to which [Appellant] also pled guilty. He was sentenced
[to] three (3) to twenty-three (23) months [of] incarceration at
the Blair County Prison on those charges. On this charge, he
was sentenced to five (5) years [of] probation to run
consecutively after his incarceration.
After sentencing, [Appellant] was charged and convicted
on two separate occasions in Blair County. On September 19,
2015[, Appellant] pled guilty to Driving Under the Influence of a
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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Controlled Substance Schedule II or Schedule III, First Offense,
75 Pa. C.S.A. §3802(d)(1)(ii) and was sentenced to seventy-two
(72) hours to six (months) incarceration and paroled after
seventy-two (72) hours. He also pled guilty to Accidents
Involving Damage to Attended Vehicle or Property[,] 75 Pa.
C.S.A. §3743[,] to which he was sentenced to six (6) months
probation and to the summary offense of Driving while Operating
Privileges were Suspended or Revoked[,] 75 Pa. C.S.A.
§1543(a). On September 25, 2015[, Appellant] pled guilty to
one count of Flight to Avoid Apprehension/Trial/Punishment[,] 18
Pa. C.S.A. §5126(a). He was sentenced to six (6) to twenty-
three (23) months incarceration at the Blair County Prison and
was scheduled for a Gagnon II hearing.
Trial Court Opinion, 5/18/16, at 1-2.
On February 5, 2016, the trial court revoked Appellant’s probation and
resentenced him to a term of incarceration of two and one-half to five years
minus one day, with credit for time served. This timely appeal followed.
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
Did the Court of Common Please [sic] err by imposing a lengthy
sentence of total confinement in light of Appellant’s rehabilitative
needs?
Appellant’s Brief at 5.
Appellant’s sole issue challenges the discretionary aspects of his
sentence. Appellant’s Brief at 9. Specifically, Appellant contends that the
trial court failed to properly consider Appellant’s rehabilitative needs when it
imposed a sentence of incarceration, which he deems to be excessive.
As this Court clarified in Commonwealth v. Cartrette, 83 A.3d 1030
(Pa. Super. 2013) (en banc), our scope of review following the revocation of
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probation is not limited solely to determining the validity of the probation
revocation proceedings and the authority of the sentencing court to consider
the same sentencing alternatives that it had at the time of the initial
sentencing. Rather, it also includes challenges to the discretionary aspects
of the sentence imposed. Specifically, we unequivocally held that “this
Court’s scope of review in an appeal from a revocation sentencing includes
discretionary sentencing challenges.” Cartrette, 83 A.3d at 1034. Further,
as we have long held, the imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial court, which,
absent an abuse of that discretion, will not be disturbed on appeal.
Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).
It is well settled that there is no absolute right to appeal the
discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d
800, 805 (Pa. Super. 2006). Instead, where an appellant challenges the
discretionary aspects of a sentence, the appeal should be considered a
petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d
155, 163 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal,
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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.
[708]; (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, 42
Pa.C.S.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)). The determination of whether there is a substantial question is
made on a case-by-case basis, and this Court will grant the appeal only
when the appellant advances a colorable argument that the sentencing
judge’s actions were either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process. Sierra, 752 A.2d at 912-913.
Pennsylvania Rule of Appellate Procedure 302(a) provides that “issues
not raised in the lower court are waived and cannot be raised for the first
time on appeal.” Pa.R.A.P. 302(a). Objections to the discretionary aspects
of a sentence are generally waived if they are not raised at the sentencing
hearing or in a motion to modify the sentence imposed. Moury, 992 A.2d at
170 (citing Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003)). In
addition, Pa.R.Crim.P. 708 provides that a motion to modify sentence must
be filed within ten days of the imposition of sentence following the
revocation of probation. Pa.R.Crim.P. 708(D). As the comment to Rule 708
explains:
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Issues properly preserved at the sentencing proceeding need
not, but may, be raised again in a motion to modify sentence in
order to preserve them for appeal. In deciding whether to move
to modify sentence, counsel must carefully consider whether the
record created at the sentencing proceeding is adequate for
appellate review of the issues, or the issues may be waived.
Pa.R.Crim.P. 708 cmt. Thus, an objection to a discretionary aspect of a
sentence is waived if not raised in a post-sentence motion or during the
sentencing proceedings. See Commonwealth v. Parker, 847 A.2d 745
(Pa. Super. 2004) (holding challenge to discretionary aspect of sentence was
waived because appellant did not object at sentencing hearing or file post-
sentence motion).
Herein, the first requirement of the four-part test is met because
Appellant brought a timely appeal. However, our review of the certified
record reflects that Appellant waived his challenge to the discretionary
aspects of his sentence by failing to raise the claim either at the sentencing
proceeding or by means of a post-sentence motion. Thus, this issue has not
been properly preserved for appeal, and the record is not adequate to allow
appellate review of Appellant’s claim. Accordingly, we deem this issue to be
waived.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2017
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