J-S73043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER ROBERT                         :
    HUSHELPECK,                                :
                  Appellant                    :       No. 334 MDA 2019

        Appeal from the Judgment of Sentence Entered January 16, 2019
                in the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0001100-2018

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER ROBERT HUSHELPECK              :
                                               :
                       Appellant               :      No. 1022 MDA 2019

        Appeal from the Judgment of Sentence Entered January 16, 2019
                in the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0000903-2018

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

MEMORANDUM BY MUSMANNO, J.:                          FILED FEBRUARY 26, 2020

        Christopher Robert Hushelpeck (“Hushelpeck”) appeals from the

judgments of sentence entered following his guilty pleas to burglary, criminal

trespass and theft by unlawful taking,1 at trial court docket number 903-2018


____________________________________________


1   See 18 Pa.C.S.A. §§ 3502(a)(1)(ii), 3503(a)(1)(i), 3921(a).
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(“No. 903”), and possession of controlled substances and possession of drug

paraphernalia2 at trial court docket number 1100-2018 (“No. 1100”).          We

affirm.

        On April 8, 2018, at about 7:30 a.m., Hushelpeck entered a residence

located at 513 Jonestown Road, in Union Township. The home was owned by

Hushelpeck’s father-in-law. Present inside the home were Hushelpeck’s wife

and two nine-year-old daughters.           Two weeks prior, Hushelpeck had been

thrown out of the home and was not permitted inside of the residence. Upon

entering the home, Hushelpeck proceeded to remove $100 from two mason

jars, which contained his daughters’ allowance.         Hushelpeck then left the

residence.     Hushelpeck’s wife reported the incident to police.       Charges

subsequently were filed against Hushelpeck related to the burglary.

        On May 18, 2018, Pennsylvania State Troopers served Hushelpeck with

an arrest warrant at Hushelpeck’s place of employment. Because Hushelpeck

was to be transported in a State Police vehicle, the troopers asked Hushelpeck

whether he possessed any sharp objects on his person.                Hushelpeck

responded in the affirmative, and removed two syringes from his pocket.

Upon searching Hushelpeck, the troopers discovered three wax paper baggies,

which, Hushelpeck indicated, contained heroin. Hushelpeck subsequently was




____________________________________________


2   See 35 P.S. § 780-113(a)(16), (32).

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charged with possession of a controlled substance and possession of drug

paraphernalia.

     In its Opinion, the trial court described what next transpired as follows:

            On December 17, 2018, [Hushelpeck] entered a plea of
     guilty [at No. 903] before the [the trial court]. His plea included
     both a written and a verbal colloquy during which [Hushelpeck]
     indicated that he understood his charges and that he was
     acknowledging that he was guilty of them. On December 4, 2018,
     [Hushelpeck had] entered a separate plea of guilty … [at No.
     1100]. Once again, [Hushelpeck] submitted a written plea form
     and answered questions posed by [the trial court] in an
     appropriate fashion.

           During the guilty plea proceedings, the parties were under
     the mistaken belief that the bottom of [Hushelpeck’s] standard
     sentencing range [for his burglary conviction, with his prior record
     score,] was twenty-one (21) months. Accordingly, the plea
     agreement that called for a sentence at the bottom of the standard
     range was communicated to [Hushelpeck] as requiring a twenty-
     one (21) month minimum sentence.

           Prior to sentencing, the District Attorney and [Hushelpeck’s]
     attorney realized that they had made a mistake regarding the
     sentencing ranges. That mistake was communicated to [the trial
     court] before [Hushelpeck’s] sentence was to be imposed….

                               *      *      *

     During the subsequent Sentencing Hearing … [Hushelpeck’s]
     attorney stated[,] in [Hushelpeck’s] presence[,] the following:

        [Hushelpeck’s counsel]: [At No. 1100], as we discussed,
        there is an issue with the ranges. Originally, the plea was for
        21 months. However, because of a discrepancy with the
        ranges, it was actually 48 to 60 months. I did speak with my
        client prior to sentencing. At that time, he said he wanted to
        go ahead with the 48 months that is now being offered. He
        had some questions today in [c]ourt. Initially, I thought we
        were going to request a continuance to get more time to think
        about it. As I came up here for sentencing and spoke to him,


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         he said he wanted to go ahead with the plea. So that is what
         we are doing.

         We just ask that [the court] accept the plea for the 48
         months, and we ask that you run the drug charge concurrent
         with that.

       Less than thirty (30) seconds later, [Hushelpeck] was offered the
       chance to speak.      He stated[,]     “I have nothing to say.”
       Thereafter, [the court] imposed the exact same four (4) to eight
       (8) year sentence that [Hushelpeck’s] counsel [had] asked [it] to
       impose.

             [Hushelpeck] appealed [the court’s] judgment[s] of
       sentence.[3] At this point, the record is clouded with confusion.
       Apparently, the Lebanon County Clerk of Courts sua sponte
       changed the docket number on one of [Hushelpeck’s] filings from
       [No. 1100] to [No. 903]. This created a cascade of events that
       eventually caused [the trial court to] pull and review both files.[4]
       In an effort to clear up confusion and preserve everyone’s ability
       to submit their substantive arguments, [the trial court] issued an
       Order on March 26, 2019. [The court] declared [Hushelpeck’s]
       [a]ppeals on both pending dockets to have been filed in a timely
       fashion. [The trial court] re-appointed the Public Defender with
       additional time to submit [s]tatements of [e]rrors [c]omplained of
       on [a]ppeal. Because the confusion surrounding [Hushelpeck’s]
       appeal efforts was caused[,] in part[,] by the mistake of the
____________________________________________


3In its March 12, 2019 Order, the trial court indicated that the Lebanon County
Clerk of Courts had misplaced Hushelpeck’s Notice of Appeal at No. 903.
Further, the court observed that the Notice of Appeal filed at No. 1100 is also
missing from the certified record. However, the trial court acknowledged the
agreement of the Commonwealth and Hushelpeck’s counsel that the “[a]ppeal
papers were[,] in fact[,] filed.” Trial Court Order, 3/12/19, at 2. Accordingly,
we conclude that the requirements of Commonwealth v. Walker, 185 A.3d
969 (Pa. 2018), have been met. See id. at 977 (holding that quashal is
required where litigants fail to file separate notices of appeal from an order
resolving issues on more than one docket number).

4  In its March 12, 2019, Order, the trial court additionally stated that on
February 22, 2019, Hushelpeck’s counsel filed a Motion to Withdraw his
appearance at both docket numbers, representing that no appeals had been
filed. The trial court initially had granted the Motion.

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      Lebanon County Clerk of Courts, [the trial court asked] the
      Pennsylvania Superior Court to honor [the trial court’s] Order of
      March 26, 2019[,] and substantively address [Hushelpeck’s]
      current arguments….

Trial Court Opinion, 5/1/19, at 1-5 (citations omitted, footnote added).

      Hushelpeck presents the following claims for our review:

      I. Should [Hushelpeck] be allowed to withdraw his guilty plea
      because it was not entered knowingly, intelligently, and
      voluntarily?

      II. Should [Hushelpeck’s] sentence be modified to a lesser period
      of incarceration because the sentence was excessive?

Brief of Appellant at 4.

      Hushelpeck first claims that his guilty plea was not knowingly,

intelligently and voluntarily entered. Id. at 10. Hushelpeck argues that his

negotiated guilty plea at No. 1100 was for a 21-month sentence. Id. at 11.

According to Hushelpeck, “due to different ranges in the presentence

investigation report[,] Hushelpeck was sentenced to a forty-eight (48) month

minimum sentence.” Id.

      In its Opinion, the trial court discussed the relevant law, and concluded

that Hushelpeck’s plea was knowingly, intelligently and voluntarily tendered.

See Trial Court Opinion, 5/1/19, at 5-10. We agree with the sound reasoning

of the trial court, as set forth in its Opinion, and affirm on the basis of the trial

court’s Opinion with regard to this claim. See id.

      In his second claim, Hushelpeck challenges the discretionary aspects of

his sentence. See Brief for Appellant at 9. “A challenge to the discretionary


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aspects of sentencing is not automatically reviewable as a matter of

right.” Commonwealth v. Grays, 167 A.3d 793, 815 (Pa. Super. 2017).

      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a four-part test:

      [W]e conduct a four-part 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.A. § 9781(b).

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

omitted; brackets in original).

      Our review discloses that the trial court sentenced Hushelpeck, at both

docket numbers, on January 16, 2019. The record further reflects that at both

docket numbers, Hushelpeck filed pro se Notices of Appeal on February 14,

2019. Hushelpeck timely filed counseled Notices of Appeal on February 15,

2019. Hushelpeck filed pro se Motions to Modify Sentence, at both docket

numbers, on March 13, 2019. In his pro se Motions, Hushelpeck stated that

his original plea agreement specified a minimum sentence, at No. 1100, of 21

months, and that the agreement was “pulled” less than 24 hours before

sentencing, at the request of the district attorney.     Pro Se Post-Sentence

Motion, 3/13/19. Hushelpeck’s pro se Motion did not claim that the sentence

was excessive. No counseled post-sentence motion was filed, and the trial

court did not address this claim in its Opinion.


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      Thus, it appears that Hushelpeck filed his pro se post-sentence Motion

after filing his Notice of Appeal, and did not raise his challenge to the sentence

as excessive in that Motion. On this basis, we conclude that Hushelpeck failed

invoke this Court’s jurisdiction to review his challenge to the discretionary

aspects of his sentence. See Pa.R.A.P. 302(a) (stating that an issue cannot

be raised for the first time on appeal); Commonwealth v. Wrecks, 931 A.2d

717, 719 (Pa. Super. 2007) (stating that “[a]n untimely post-sentence motion

does not preserve issues for appeal.” (citation omitted)); Commonwealth v.

Reid, 642 A.2d 453 (Pa. 1994) (explaining that hybrid representation is

improper).

      Further, “[w]here the plea agreement contains a negotiated sentence

which is accepted and imposed by the sentencing court, there is no authority

to permit a challenge to the discretionary aspects of that sentence.”

Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991). For

that reason as well, we cannot grant Hushelpeck relief on his claim.

      Judgments of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2020




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