J-S64030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ZEPPELIN JOSHUA ZEIGLER

                            Appellant                 No. 175 MDA 2015


        Appeal from the Judgment of Sentence of December 24, 2014
             In the Court of Common Pleas of Lycoming County
             Criminal Division at No.: CP-41-CR-0000769-2009


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                        FILED NOVEMBER 19, 2015

       Zeppelin Zeigler appeals the December 24, 2014 judgment of

sentence, which the trial court imposed following the revocation of his

probation. We affirm.

       The trial court summarized the relevant factual and procedural history

of this case as follows:

       On March 31, 2009, police were dispatched to the Village Park in
       Antes Fort, because someone was “doing donuts” (driving in
       circles) on the ball fields. As police headed to the ball fields,
       they were advised by County Communications that the vehicle, a
       light-colored Ford Explorer, was now traveling on Front Street
       towards Route 44.

       The police came up behind the Ford Explorer on Route 44, and
       immediately observed signs that the driver may be driving under
       the influence of alcohol. The vehicle was drifting over the double
____________________________________________


*
       Former Justice specially assigned to the Superior Court.
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       center-line and the white fog-line, and came close to striking the
       guiderail on at least one occasion.

       When police activated their lights and sirens to conduct a traffic
       stop, it appeared that the driver of the vehicle was going to pull
       over and stop, but the driver suddenly pulled the vehicle back
       onto the roadway and sped away. A high-speed chase ensued
       on country roads, and then went “off road” onto farm roads and
       fields. While traveling on the farm fields, the driver turned the
       vehicle and drove towards the police vehicle. The police vehicle
       struck the passenger side of the Ford Explorer, but the driver
       continued his flight in the fields. To get the driver to stop, the
       police used the front of their vehicle to strike the rear of the Ford
       Explorer numerous times until the Ford Explorer spun to a stop.

       Zeigler was the driver of the Ford Explorer. One of the police
       officers experienced pain in his back and neck. An ambulance
       was requested for the female passenger in Zeigler’s vehicle who
       was also experiencing neck pain.

       Zeigler was transported for chemical testing of his blood to the
       Jersey Shore Hospital emergency room, where he was loud,
       belligerent, and caused a disturbance.

       Zeigler was charged with possession of drug paraphernalia,
       fleeing or attempting to elude a police officer, accidents involving
       death or personal injury, driving under the influence of alcohol
       (“DUI”), two counts of aggravated assault, three counts of
       recklessly endangering another person, disorderly conduct,
       criminal mischief,[1] and numerous other summary offenses.

       On December 22, 2009, Zeigler pleaded guilty to count one,
       fleeing or attempting to elude a police officer, counts four and
       six, recklessly endangering another person, count nineteen, DUI,
       count eleven, criminal mischief, and count eighteen, driving
       while suspended.      Zeigler was sentenced to an aggregate
       sentence of one year and thirty days to two years and six
       months’ incarceration in a state correctional institution, followed
       by a five-year term of probation.

____________________________________________


1
     35 P.S. § 780-113(a)(32); 75 Pa.C.S. §§ 3733, 3742.1, 3802(a)(1);
18 Pa.C.S. §§ 2702, 2705, 5503, and 3304(a)(5), respectively.



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      Zeigler subsequently violated the conditions of his probation. On
      February 20, 2013, the trial court revoked Zeigler’s probation on
      count one only, and re-sentenced him to one to two years’
      incarceration in a state correctional institution.         Zeigler,
      however, sought reconsideration of this sentence. In his motion,
      he claimed that his employment, drug rehabilitation through
      AA/NA while incarcerated, and the birth of his child would
      prevent him from committing further offenses. Furthermore, he
      alleged that Lycoming County had alternative resources to treat
      his drug problems. Therefore, a state sentence, as opposed to a
      county sentence, was excessive.        The trial court granted
      Zeigler’s motion for reconsideration on March 18, 2013, and, on
      count one, sentenced Zeigler to a split sentence of incarceration
      of one year less one day to two years less one day in the
      Lycoming County Prison, and an additional two years’ probation.
      Zeigler’s other probation sentences continued to run consecutive
      to his sentence on count one, per the original sentencing order.

      On December 24, 2014, the trial court, again, found that Zeigler
      violated the conditions of his probation by committing a new
      criminal offense and smoking “spice” (synthetic marijuana). The
      trial court re-sentenced Zeigler on count six, recklessly
      endangering another person, to one to two years’ imprisonment
      in a state correctional institution.

Trial Court Opinion, 7/7/2015, at 1-3 (minor modifications for clarity).

      On January 22, 2015, Zeigler timely filed a notice of appeal. On April

23, 2015, the trial court ordered Zeigler to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).          Zeigler timely

complied. On July 7, 2015, the trial court filed a Pa.R.A.P. 1925(a) opinion.

      Zeigler presents one issue for our consideration: “Whether the [trial]

court abused its discretion at [Zeigler’s] probation revocation hearing by

imposing a manifestly excessive and unduly harsh sentence.”           Brief for

Zeigler at 4 (capitalization modified for clarity).




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      Zeigler’s issue raises a challenge to the discretionary aspects of his

sentence. An appellant is not entitled to review of such a challenge as of

right. Instead, we conduct a four-part jurisdictional 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, 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. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (internal

quotation marks, citations, and modifications omitted).

      Instantly, Zeigler timely filed a notice of appeal and his brief contains

the required Rule 2119(f) statement. However, our review of the certified

record and the transcript of Zeigler’s probation revocation hearing reveals

that Zeigler did not challenge the discretionary aspects of his sentence either

in open court or in a post-sentence motion.          Consequently, we must

conclude that Zeigler has waived his challenge to the discretionary aspects

of his sentence, and has failed to invoke our jurisdiction over his claim. See

id.; Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)

(citation omitted) (“Issues challenging the discretionary aspects of a

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 aspects of a sentence is waived.”).




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2015




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