J-S74044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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Appellant’s ARD was revoked following her failure to appear for a hearing.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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