J-S93039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHEILA MIRRER,
Appellant No. 1156 EDA 2016
Appeal from the Judgment of Sentence March 9, 2016
in the Court of Common Pleas of Monroe County
Criminal Division at No.: CP-45-CR-0001332-2015
BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 08, 2017
Appellant, Sheila Mirrer, appeals from the judgment of sentence
imposed on March 9, 2016, following her December 2, 2015 open guilty plea
to one count each of aggravated assault by motor vehicle, driving under the
influence highest rate, and recklessly endangering another person.1 On
appeal, Appellant challenges the discretionary aspects of her sentence. For
the reasons discussed below, we affirm.
We take the underlying facts and procedural history in this matter
from the trial court’s May 25, 2016 opinion.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S.A. §§ 3735.1(a) and 3802(c), and 18 Pa.C.S.A. § 2705,
respectively.
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On September 1, 2014, [Appellant] was driving south on
State Route 191 with her three minor children, ages fourteen,
thirteen, and seven. [Appellant] and her children were leaving a
family party in the Mount Pocono area, where [Appellant] had
consumed several alcoholic beverages. As they traveled home,
[Appellant] observed the victim, later identified as Timothy
Stevens, hitchhiking down the highway. After nearly hitting Mr.
Stevens, [Appellant] stopped and picked him up.
As [Appellant’s] vehicle approached a slight bend in the
highway, she lost control, left the roadway, and collided with a
tree. As a result of the impact, the vehicle spun clockwise and
flipped onto its passenger side.
Upon arriving at the scene, emergency personnel found
Mr. Stevens trapped in the front passenger seat and
unresponsive. After Mr. Stevens was freed from the wreckage,
he was immediately transported via emergency helicopter to
Lehigh Valley Medical Center for life-saving treatment. Mr.
Stevens’ blood tested negative for alcohol or controlled
substances.
As the first responders worked to free Mr. Stevens from
the wreckage, Trooper Shamus Kelleher made contact with
[Appellant], who was walking around the scene. [Appellant] told
Trooper Kelleher that she had been at a family party and that,
after seeing Mr. Stevens hitchhiking down the road, she decided
to pick him up. According to [Appellant], she and Mr. Stevens
had argued over his destination. [Appellant] claimed that Mr.
Stevens then grabbed the steering wheel and pulled it to the
right, causing her to lose control of the vehicle. While
interviewing [Appellant], Trooper Kelleher detected a strong odor
of alcohol and observed that [Appellant’s] eyes were bloodshot
and glassy. [Appellant] denied that she had consumed any
alcohol.
[Appellant] was transported by ambulance to Pocono
Medical Center. While there, [Appellant] consented to a blood
draw and a sample of her blood was taken for chemical testing.
Approximately three days later, Trooper Kelleher received the
results, which indicated that [Appellant’s] blood alcohol content
was [0].22%.
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On October 22, 2014, while in a rehabilitation hospital for
serious spinal cord injuries, Mr. Stevens spoke with Trooper
Kelleher by phone. Mr. Stevens recalled that he was walking
down Route 191 when [Appellant] stopped and picked him up.
After travelling a short distance, Mr. Stevens noticed that
[Appellant] was having difficulty staying on the road and
appeared to be highly intoxicated. Just prior to the crash, Mr.
Stevens saw that the vehicle had travelled onto the shoulder and
was headed directly for a utility pole. Trying to avoid a crash,
Mr. Stevens grabbed the steering wheel, attempting to get the
vehicle back onto the road. Mr. Stevens could not recall any
further details regarding the incident. The injuries Mr. Stevens
suffered were permanent and severe.
[Appellant] was subsequently charged with [a]ggravated
[a]ssault by [v]ehicle while [d]riving [u]nder the [i]nfluence
(DUI), two counts of DUI ([g]eneral [i]mpairment and [h]ighest
[r]ate), three counts of [e]ndangering the [w]elfare of a [c]hild,
and several summary traffic offenses. On December [2], 2015,
[Appellant pleaded] guilty to an amended count of [a]ggravated
[a]ssault by [v]ehicle as a felony of the third degree, an
amended count of [r]ecklessly [e]ndangering [a]nother [p]erson,
a misdemeanor of the second degree, and one count of DUI, a
misdemeanor of the first degree. During the hearing, [the trial
court] conducted a full colloquy where [Appellant]
acknowledged, verbally and in writing, the potential maximum
sentences she could receive. After accepting the plea, [the trial
court] entered an order scheduling a sentencing hearing,
directing [the] [p]robation [d]epartment to prepare a [p]re-
[s]entence [i]nvestigation (“PSI”) report, and requiring
[Appellant] to undergo a comprehensive drug and alcohol
assessment.
On March 9, 2016, the sentencing hearing was convened,
as scheduled. At the conclusion of the hearing, [the trial court]
sentenced [Appellant] to an aggregate period of incarceration of
[not less than] ten [nor more than] thirty-six months, less one
day, to be served in the Monroe County Correctional Facility,
followed by a consecutive four year period of probation, over
which [the trial court] retained jurisdiction.[a]
[a]
The breakdown of the sentence is as follows: On
the [a]ggravated [a]ssault by [v]ehicle conviction,
[Appellant] was sentenced to incarceration of [not
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less than] nine [nor more than] twenty-four months,
less one day, a sentence in the standard range. On
the DUI conviction, [Appellant] was sentenced to
[not less than] one [nor more than] twelve months,
also a sentence in the standard range, followed by a
consecutive four year period of probation. The DUI
sentence was run consecutive to the [a]ggravated
[a]ssault by [v]ehicle sentence. Finally, [Appellant]
was sentenced to [not less than] one month [nor
more than] twelve months on the [r]ecklessly
[e]ndangering [a]nother [p]erson conviction, which
sentence was run concurrent to the DUI and
[a]ggravated [a]ssault by [v]ehicle sentences.
At the sentencing hearing, [Appellant] did not contest any
of the information contained in the PSI report. Before sentence
was imposed, [Appellant] and her attorney addressed the [trial
c]ourt. [Appellant] apologized to the victim and to her family for
the burden caused by her actions. She also requested leniency
so that she could return to her children as soon as possible. In
addition, [Appellant’s] mother and brother spoke on
[Appellant’s] behalf. In his argument, counsel for [Appellant]
acknowledged the severity of the victim’s injuries, but requested
leniency based on [Appellant’s] lack of a prior record. He then
asked the [trial c]ourt to “consider splitting the baby in half and
giving her somewhere between [not less than three nor more
than four and one-half] months with a long tail and if she screws
up she goes back to jail.”
The assistant district attorney also addressed the [trial
c]ourt. She asked that [the trial court] impose an aggravated
range sentence of [not less than] twelve [nor more than]
twenty-four months incarceration, pointing out [Appellant’s] high
BAC and the fact that [Appellant’s] three minor children were in
the vehicle at the time of the crash. She also described, by
reference to the [v]ictim [i]mpact [s]tatement, the significant,
permanent, and life-altering injuries sustained by the victim as a
result of [Appellant’s] conduct. Among other things, Mr.
Stevens’ spinal cord injury required numerous laminectomies
and fusions of the C4-C7 vertebrae. At the time of sentencing,
Mr. Stevens had resided in a rehabilitation hospital before being
moved to a nursing home, where he remained. Although his
condition has improved to the point where he can ambulate to
some extent, he is not well enough to complete daily tasks
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without significant help. His prognosis is unclear but it is
unlikely Mr. Steven[]s will []ever be able to work again or live
without significant nursing care.
Before imposing sentence, [the trial court] explained [its]
reasoning and informed [Appellant] of the facts, information,
and documents on which the sentence was based. Specifically,
[the trial court] advised [Appellant] that the sentence was based
on the record and file in this case, the facts surrounding her plea
that [it] accepted, the comprehensive PSI report that had been
prepared by [the p]robation [o]ffice, the victim impact
statement, the statements made by [Appellant], her attorney,
and family members, the argument made by the assistant
district [attorney], and the applicable sentencing laws, rules, and
guidelines. [The trial court] then stated [its] reasons on the
record. . . .
Subsequently, [Appellant] filed a post-sentence motion
and an amended motion[b] seeking reconsideration of the
sentence. In these filings, [Appellant] expressed her belief that,
given her prior record score of zero and the somewhat shorter
sentence recommended by [the p]robation [o]ffice, “the total
aggregate maximum sentence of [seven] years [was]
excessive.”
[b]
In her first [m]otion to [r]econsider [s]entence,
[Appellant’s] counsel mistakenly believed that
[Appellant] had entered a guilty plea to DUI as an
ungraded misdemeanor.
On March 18, 2016, [the trial court] issued an order
denying [Appellant’s] motion. [Appellant] then filed this
appeal.[2]
(Trial Court Opinion, 5/25/16, at 1-5) (record citations omitted).
On appeal, Appellant raises the following question for our review:
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2
On April 11, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b).
Appellant filed a timely Rule 1925(b) statement on April 26, 2016. See id.
On May 25, 2016, the trial court issued an opinion. See Pa.R.A.P. 1925(a).
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Whether the four year consecutive sentence of probation for the
offense of [d]riving [u]nder the [i]nfluence [m]inor [o]ccupants
was outside the aggravated range of the sentence without
specifying sufficient reason for the same as well as whether the
consecutive sentence of four years consecutive probation
imposed is contrary to 75 Pa.C.S.A. [§] 3804(d) in that the
assessment required under 75 Pa.C.S.A. [§] 3814(1) did not
indicate that Appellant needed additional treatment pursuant to
75 Pa.C.S.A. [§] 3814(2)(a)[?]
(Appellant’s Brief, at 8).
Appellant challenges the discretionary aspects of her sentence. Our
standard of review is settled.
Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this context, an
abuse of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015),
appeal denied, 125 A.3d 1198 (Pa. 2015) (citation omitted).
On appeal, Appellant argues that the trial court “failed to
[substantially] articulate” and did not file a contemporaneous written
statement setting forth the reasons for the imposition of the probationary
tail. (Appellant’s Brief, at 10). However, Appellant waived this claim.
Preliminarily, we note, “[i]ssues challenging the discretionary aspects
of sentence must be raised in a post-sentence motion or by presenting the
claim to the trial court during the sentencing proceedings. Absent such
efforts, an objection to a discretionary aspect of a sentence is waived.”
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Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004), appeal
denied, 860 A.2d 122 (Pa. 2004) (citations and internal quotations marks
omitted).
Here, while Appellant did file a post-sentence motion and an amended
motion to reconsider sentence, the only issue she raised was that “[t]he
total aggregate maximum sentence of [seven] years is excessive under the
circumstances.” (Amended Motion to Reconsider Sentence, 3/16/16, at
unnumbered page 1 ¶ 3(c)). It is settled that an appellant waives any
discretionary aspects of sentence issue not raised in a post-sentence motion;
also, an appellant cannot raise matters for the first time in a Rule 1925(b)
statement; lastly, an appellant cannot raise an issue for the first time on
appeal. See Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa. Super.
2011) (issues raised for first time in Rule 1925(b) statement are waived);
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003), appeal
denied, 831 A.2d 599 (Pa. 2003) (finding claim sentencing court did not put
sufficient reasons to justify sentence on record waived where issue was not
raised in post-sentence motion); see also Pa.R.A.P. 302(a). Thus,
Appellant waived her discretionary aspects of sentence claim.
Accordingly, for the reasons discussed above, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2017
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