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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LINDSAY M. DWYER
Appellant No. 1711 EDA 2017
Appeal from the Judgment of Sentence April 17, 2017
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0002001-2016
BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED FEBRUARY 12, 2018
Appellant, Lindsay M. Dwyer, appeals from the judgment of sentence of
six to twenty-three months of incarceration, imposed April 17, 2017, following
an open guilty plea resulting in her conviction for simple assault.1 We affirm.
We adopt the following statement of facts from the trial court opinion,
which in turn is supported by the record. See Trial Court Opinion (TCO),
7/31/17, at 1-20. Following an incident where the intoxicated Appellant
stabbed and shot at her boyfriend, she was arrested and charged with
aggravated assault, recklessly endangering another person, simple assault,
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1 See 18 Pa.C.S. § 2701.
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and possession of an instrument of crime.2 Appellant entered an open guilty
plea to one count of simple assault. All other charges were nolle prossed.
Although the court entered an order for a pre-sentence investigation
report (“PSI”), and Appellant scheduled two appointments with the probation
department, she did not appear for either appointment. Nevertheless, the
probation department prepared a PSI with the information available. The
report indicated that Appellant had a prior DUI in Northampton County for
which she had received Accelerated Rehabilitative Disposition (“ARD”).
Appellant’s ARD was revoked following her failure to appear for a hearing.
On April 17, 2017, Appellant appeared for sentencing. Counsel did not
object to the PSI as prepared. Appellant appeared for allocution and spoke
regarding her mental health issues, her drug addiction, and her abusive
relationship. She did not submit additional reports regarding her drug and
alcohol counseling or mental health treatment, though she stated she was in
recovery.
The court sentenced Appellant to six to twenty-three months of
incarceration, at the low end of the standard range, and ordered her to
complete anger management counseling and continue with drug, alcohol, and
mental health counseling.3 The court indicated it would reconsider the
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2 See 18 Pa.C.S. §§ 2702, 2705, 2701, and 907, respectively.
3 Appellant suggests that her sentence is well beyond the standard range of
zero to two months. However, because Appellant committed her assault with
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sentence if Appellant provided documentation confirming she was currently in
treatment and complying with the recommendations of her provider. Although
Appellant filed a motion seeking reconsideration of her sentence, she did not
provide the requested documentation. The court denied her post sentence
motion.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. The sentencing court issued a
responsive opinion.
Appellant raises a single issue for our review:
Did the sentencing court abuse its discretion in imposing a
sentence in the aggravated range contrary to the written plea
colloquy by the defendant and the Commonwealth, and in further
denying reconsideration of sentence without affording the
defendant the opportunity to be heard?
Appellant’s Brief at 6 (unnecessary capitalization and suggested answer
omitted).
Appellant’s sole issue is a challenge to the discretionary aspects of her
sentence, which must be considered a petition for permission to appeal. See
Commonwealth v. Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011); see
also Pa.R.A.P. 2119(f). This Court conducts a four-part analysis to determine:
(1) whether Appellant has timely filed a notice of appeal; (2) whether the
issue was properly preserved at sentencing or in a motion to reconsider and
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a knife and gun, the trial court applied the Deadly Weapon Used Sentencing
Matrix pursuant to 204 Pa. Code § 303.10(a)(2). See TCO at 11. Thus, the
standard range was six to seven months with an aggravated range of ten
months. See 204 Pa. Code § 303.17(b); TCO at 11.
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modify sentence; (3) whether Appellant’s brief has a fatal defect; 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).
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation
omitted).
Appellant timely filed a notice of appeal and filed a motion for
reconsideration of her sentence. However, she did not preserve this issue in
her motion. In the motion, Appellant requested a downward modification of
her sentence. See Mot. for Recons., 4/26/17, ¶¶ 1-9. She noted that a six-
month period of incarceration would jeopardize her employment, ability to
obtain health insurance, and may result in loss of housing. Id. However, her
motion did not challenge the propriety of the sentence or aver that it was an
abuse of discretion. Id. Accordingly, Appellant has not preserved her issue
for purposes of appeal. See Leatherby, 116 A.3d at 83.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:2/12/18
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