J-S05041-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JULIETTE ANN MARTIN,                       :
                                               :
                       Appellant               :       No. 996 MDA 2019

         Appeal from the Judgment of Sentence Entered May 22, 2019
                in the Court of Common Pleas of Mifflin County
            Criminal Division at No(s): CP-44-SA-0000024-2018

BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                    FILED: APRIL 30, 2020

        Juliette Ann Martin (“Martin”) appeals from the judgment of sentence

imposed following her guilty plea, following a summary appeal, to driving while

operating privilege is suspended, her seventeenth offense.1 We affirm.

        Martin pled guilty, before a magisterial district judge, to driving while

operating privilege is suspended on November 29, 2018.2 The district judge

sentenced Martin to a term of 90 days in county jail, plus a $1,000 fine. Martin



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1   See 75 Pa.C.S.A. § 1543(a).

2 The typewritten traffic citation indicates that Martin was charged under
subsection 1543 (b) (concerning a violation where the license suspension was
the result of a DUI offense). However, the citation under subsection 1543(a)
is handwritten next to it, and signed by Granville Township Police Officer
Thomas Wilson. The traffic docket indicates that Martin pled guilty to the
lesser charge arising out of section 1543(a).
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subsequently filed a summary appeal in the Court of Common Pleas of Mifflin

County.

       On May 22, 2019, the matter proceeded before the trial court. At the

start of the hearing, Martin’s counsel admitted that Martin drove on the day

in question, and asked to proceed with the issue of sentencing. The trial court

found Martin guilty under section 1543(a),3 and sentenced Martin to serve 30

days in county jail, to begin on June 5, 2019, plus a fine of $1,000.4

       On May 29, 2019, Martin, represented by new counsel, filed a post-

sentence Motion to withdraw her guilty plea and extend her surrender date.

Specifically, Martin argued that her plea counsel had entered a guilty plea on

her behalf, and therefore, her plea was not knowing, intelligent, and

voluntary. The trial court scheduled a hearing for June 6, 2019, and stayed

Martin’s surrender date pending the resolution of her Motion.               The

Commonwealth filed an Answer to Martin’s post-sentence Motion.

       Prior to the commencement of the scheduled hearing on the post-

sentence Motion, Martin filed a Petition pursuant to the Post Conviction Relief



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3 In its Order and Sentence, the trial court states that Martin entered a guilty
plea.

4 During the hearing, Martin’s counsel acknowledged that this was Martin’s
seventeenth offense, and the 90-day jail term imposed by the district judge
would have been appropriate for a conviction under section 1543(b). See
N.T. (Summary Appeal), 5/22/19, at 3, 7. However, the parties indicated
their prior agreement that Martin be allowed to plead to the lesser charge
under section 1543(a). See id. at 2, 6-7.

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Act (“PCRA”), see 42 Pa.C.S.A. §§ 9541-9546.          Therein, Martin sought to

withdraw her post-sentence Motion, and again asserted her claim that plea

counsel had entered a guilty plea on her behalf without her agreement. At

the start of the hearing, Martin’s counsel and the trial court discussed Martin’s

intention to withdraw her post-sentence Motion, and instead submit the PCRA

Petition for review. See N.T. (Post-Sentence Motion), 6/6/19, at 2; see also

id. at 3 (wherein counsel explained that the post-sentence Motion was a legal

nullity, because such motions are not permitted in summary appeals);

Pa.R.Crim.P. 720(D) (providing that “[t]here shall be no post-sentence motion

in summary appeals....”). Counsel then clarified that Martin wished to present

mitigation evidence, i.e., that Martin’s autistic son began having an emotional

meltdown while he was at his vocational program; his uncle did not answer

his phone call; and Martin drove to pick up her son.5 N.T. (Post-Sentence

Motion), 6/6/19, at 10.         The trial court granted Martin’s oral Motion to

withdraw both her post-sentence Motion and her PCRA Petition, and denied




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5 The trial court also expressed concerns regarding the procedural propriety
of the PCRA Petition. See N.T. (Post-Sentence Motion), 6/6/19, at 3, 15. The
trial court agreed to consider the exchange as an oral Motion to Reconsider
her sentence based on the court’s inherent authority to amend sentences
within 30 days. Id. at 17; see also 42 Pa.C.S.A. § 5505; Pa.R.Crim.P. 720,
cmt. (stating that “[a]lthough there are no post-sentence motions in summary
appeals …, nothing in this rule is intended to preclude the trial judge from
acting on a defendant’s petition for reconsideration.”).


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Martin’s oral Motion to Reconsider. The trial court additionally directed that

Martin’s sentence would commence on June 21, 2019.

       Martin filed a Motion for Reconsideration on June 19, 2019, requesting

that the trial court modify her sentence to include two separate 15-day terms.

Martin alleged that her son’s medical issues require “constant daily oversight,”

and for his need to maintain a daily routine. The trial court granted Martin’s

Motion for Reconsideration.

       On June 21, 2019, Martin filed a timely Notice of Appeal from the trial

court’s May 22, 2019 judgment of sentence. 6 The trial court subsequently

ordered Martin to file a Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal, and Martin timely complied.

       Martin now raises the following issue for our review: “Did not the [trial]

court abuse its discretion when it denied [Martin’s] request for a new

sentencing hearing at which she would present relevant evidence of mitigation

that prior counsel failed to present?” Brief for Appellant at 3.

       Martin contends that the trial court abused its discretion in denying her

request for a new sentencing hearing. Id. at 9. Specifically, Martin claims

that

       [s]he requested to call witnesses who would have established her
       motivation for getting behind the wheel despite having a
       suspended license. As an offer of proof, [Martin] represented
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6Martin also filed a Motion for stay of sentence pending appeal, which the trial
court granted.


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       through counsel that her autistic adult son was having an
       emotional meltdown while at an adult education center.
       Testimony in support would have included confirmation that he
       was there, that he was in emotional crisis, the danger his
       meltdowns pose to himself and others, and whether anyone but
       [] Martin is capable of calming him in those times.

Id. Additionally, Martin asserts that the trial court improperly referenced an

unsworn representation, which was not made part of the record. Id. at 10.

According to Martin, the trial court failed to consider that she had acted under

strong provocation.7 Id.

       Trial courts are generally granted broad discretion in sentencing

matters.    See Commonwealth v. Hoch, 936 A.2d 515, 519 (Pa. Super.

2007). Therefore, we will review Martin’s sentence for an abuse of discretion.

See id.       “An abuse of discretion … requires a result of manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support as to be clearly erroneous.” Id.

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7 We observe that Martin’s argument includes a statement of the law regarding
a trial court’s discretion in imposing a sentence, and the statutory factors a
trial court must consider in sentencing a defendant. See Brief for Appellant
at 8-9. To the extent that Martin’s argument could be construed as an
allegation that the trial court failed to appropriately consider these sentencing
factors, Martin has waived a specific challenge to the discretionary aspects of
her sentence, because such claim was not adequately preserved or developed.
See Pa.R.A.P. 2119(a) (providing that an appellant’s argument shall include
“such discussion and citation of authorities as are deemed pertinent.”), (f)
(stating that “[a]n appellant who challenges the discretionary aspects of a
sentence in a criminal matter shall set forth in a separate section of the brief
a concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence.”).




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       Initially, as motions for reconsideration do not properly lie from

summary appeals, Pa.R.Crim.P. 720(D), the trial court was not required to

consider any additional arguments related to sentencing. Our review of the

transcripts of the summary appeal hearing reveals that Martin did not

specifically request a new sentencing hearing, nor did she request to present

additional witnesses. Rather, Martin’s counsel pointed to the court’s inherent

authority to amend its sentence8 and explained that Martin wished to exercise

her right to allocution and explain her actions. N.T. (Post-Sentence Motion),

6/6/19, at 9. Martin’s counsel then stated as follows:

              As an offer of proof, the shortest version is that [Martin’s]
       son …, who is Autistic, was at a vocation program when he began
       experiencing an emotional meltdown while there; that [Martin’s
       son] called his Uncle David[,] who was his ride and when David
       did not answer, he called [Martin,] and [Martin], you know, her
       child is in extreme emotional distress, knowing that she is not
       allowed to drive, got into the car to go get [her son] and take him
       home.

               You know, [Martin] didn’t try calling David herself, which is
       a reason why we’re here saying … [w]e just want to present this
       at sentencing. And, you know, it was basically the next shuttle
       that would have been able to take [Martin’s son] home from the
       facility was hours away. So it was just a matter of, you know, a
       mother going to her suffering child.

             Again, I’m not trying to do the sentencing right now[,]
       but an offer of proof. …

Id. at 9-10 (emphasis added).


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8 Relevantly, “a court upon notice to the parties may modify or rescind any
order within 30 days after its entry … if no appeal from such order has been
taken or allowed.” 42 Pa.C.S.A. § 5505.

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      Further, as a repeat offender, Martin was subject to a mandatory

minimum sentence of 30 days in jail. See 75 Pa.C.S.A. § 6503(a.1) (providing

that “[a] person convicted of a sixth or subsequent offender under section

1543(a) shall be sentenced to pay a fine of not less than $1,000 and to

imprisonment for not less than 30 days but not more than six months.”); see

also N.T., 6/6/19, at 9 (wherein Martin’s counsel stated that Martin

understood that there is a 30-day mandatory minimum, “but also understands

that [the court] does have discretion to order that the time be served through

electronic monitoring.”).

      Moreover, to the extent the trial court could exercise discretion in this

matter, our review confirms that the court considered several mitigating

factors in imposing Martin’s sentence. Prior to imposing sentence during the

summary appeal hearing, the trial court acknowledged its awareness, based

on personal knowledge that Martin’s son had medical needs.            See N.T.

(Summary Appeal), 5/22/19, at 5 (wherein the trial court stated, “I’ll just take

judicial notice that I know there are some issues….”). The trial court also

noted the fact that seven years had elapsed since Martin’s last violation of

section 1543(a). See id. at 8, 9. The court ultimately decided that electronic

monitoring would be insufficient in light of the high number of offenses in

Martin’s history.   See id. at 9-10.    Additionally, the court reiterated its

consideration of such potentially mitigating circumstances during the hearing

on Martin’s post-sentence Motion. See N.T. (Post-Sentence Motion), 6/6/19,

at 14-15. Thus, we cannot grant Martin relief on this claim.

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     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/30/2020




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