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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                         :
ADAM WADE BARAN,                         :          No. 523 WDA 2019
                                         :
                        Appellant        :


      Appeal from the Judgment of Sentence Entered March 15, 2019,
              in the Court of Common Pleas of Warren County
             Criminal Division at No. CP-62-CR-0000458-2018


BEFORE: SHOGAN, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED FEBRUARY 04, 2020

      Adam Wade Baran appeals from the March 15, 2019 judgment of

sentence of an aggregate 12 months to 5 years’ imprisonment entered in the

Court of Common Pleas of Warren County after appellant pleaded guilty to

driving under the influence (“DUI”) – Schedule I controlled substance, second

offense; driving while under DUI-related suspension; operating a vehicle

without required financial responsibility; careless driving; violating hazard

regulations; failure to use a seat belt; and violations of use of certificate of

inspection.1 We affirm.




175 Pa.C.S.A. §§ 3802(d)(1)(i), 1543(b)(1.1)(i), 1786(f), 3714(a), 4305(a),
4581(a)(2)(ii), and 4730(a)(2), respectively.
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      The record reveals that on March 15, 2019,2 appellant was advised of

his post-sentence rights and then sentenced by the trial court to an aggregate

12 months to 5 years’ imprisonment. Appellant did not object to the sentence

after it was imposed.    Appellant did not file a post-sentence motion.       On

March 29, 2019, appellant filed a timely notice of appeal.        The trial court

ordered appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. The trial court

subsequently filed its Rule 1925(a) opinion.3

      Appellant raises the following issue for our review:

            Whether the [trial c]ourt abused its discretion in its
            imposition of a sentence for [appellant] to serve at
            Count 3, Driving Under the Influence, a Tier 3, Second
            Offense, graded as an M1, a State Correctional
            Institution sentence for a minimum of twelve (12)
            months to a maximum of five (5) years[?]




2 We note that the sentencing order was entered on March 15, 2019. The trial
court, however, filed an amended sentencing order that was entered on
May 3, 2019, in which the trial court corrected a patent defect in the
sentencing order; namely, its mistaken reference to “Count 1” in the original
sentencing order when it meant “Count 3” as reflected in the amended
sentencing order. Although a trial court is divested of jurisdiction to modify
any sentencing order once a notice of appeal has been filed, under limited
circumstances, as is the case here, the trial court still has the power to correct
patent and obvious mistakes in the record. See Commonwealth v. Klein,
781 A.2d. 1133, 1135 (Pa. 2001) (holding that once the trial court is divested
of jurisdiction upon the filing of a notice of appeal, the trial court has limited
power to correct only a patent defect or mistake in the record).

3We note the trial court referred to its memorandum opinion as being filed
pursuant to Rule 1925(b).


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Appellant’s brief at 5.4

      Appellant challenges the discretionary aspects of his sentence arguing

that the trial court abused its discretion by sentencing appellant to

incarceration at a state correctional institution instead of imposing a county

intermediate punishment sentence. (Id. at 14-17.)

            It is well-settled that “[t]he right to appeal a
            discretionary aspect of sentence is not absolute.”
            Commonwealth v. Dunphy, 20 A.3d 1215, 1220
            (Pa.Super. 2011).       Rather, where an appellant
            challenges the discretionary aspects of a sentence, we
            should regard his appeal as a petition for allowance of
            appeal. Commonwealth v. W.H.M., 932 A.2d 155,
            162 (Pa.Super. 2007).           As we stated in
            Commonwealth v. Moury, 992 A.2d 162 (Pa.Super.
            2010):

                   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).


4 We note that the Commonwealth filed a letter in lieu of a brief stating it was
in agreement with the trial court’s Rule 1925(a) opinion.                  (See
Commonwealth’s letter, 6/24/19.)


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              Id. at 170. We evaluate on a case-by-case basis
              whether a particular issue constitutes a substantial
              question about the appropriateness of sentence.
              Commonwealth v. Kenner, 784 A.2d 808, 811
              (Pa.Super. 2001).

Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa.Super. 2019) (brackets in

original text).   If appellant fails to raise a challenge to the discretionary

aspects of a sentence either by presenting a claim to the trial court at the time

of sentencing or in a post-sentence motion, then appellant’s challenge is

considered waived.      Commonwealth v. Lamonda, 52 A.3d 365, 371

(Pa.Super. 2012) (en banc) (citation omitted), appeal denied, 75 A.3d 1281

(Pa. 2013).    A substantial question exists when appellant has presented a

colorful argument that the sentence imposed is either (1) inconsistent with a

specific provision of the Sentencing Code; or (2) is “contrary to the

fundamental norms which underlie the sentencing process.” Commonwealth

v. Mastromarino, 2 A.3d 581, 585 (Pa.Super. 2010), appeal denied, 14

A.3d 825 (Pa. 2011).

      Here, the record reflects that appellant filed a timely notice of appeal

and included a Pa.R.A.P. 2119(f) statement in his brief. (Appellant’s brief at

11-13.) Appellant, in presenting mitigating factors and an argument in favor

of intermediate punishment prior to the trial court’s imposing its sentence,

stated, “[m]y hope would be that the [trial c]ourt would consider an

[i]ntermediate [p]unishment sentence that would keep a focus on the

mandatory minimum and the required minimum on the driving on [a]



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DUI suspended license . . . .” (Sentencing hearing transcript, 3/15/19 at 9.)

However, after the trial court imposed its sentence, which included

incarceration in a state facility, appellant did not object to the sentence. (Id.

at 15.)   The record demonstrates that appellant did not file post-sentence

motions. Appellant, having failed to properly preserve his challenge to the

discretionary aspect of his sentence, has waived his challenge. Consequently,

appellant failed to invoke this court’s jurisdiction.5

      Judgment of sentence affirmed.




5 Even if appellant had properly preserved his discretionary sentencing
challenge, appellant also failed to present a substantial question that the
sentence imposed was not appropriate under the Sentencing Code. The
record reveals that appellant had a Sentencing Level Score of 3. (See
guideline sentencing form, 3/18/19 at 1.) Under Section 303.11 of the
Pennsylvania Sentencing Guidelines, an offender with a Sentencing Level
Score of 3 must be incarcerated and one of the incarceration options is “[t]otal
confinement in a state facility.” See 204 Pa.Code § 303.11. Therefore,
appellant’s sentence involving incarceration in a state facility was consistent
with the provisions of the Sentencing Code. Moreover, because incarceration
at a state facility was one of the options available to the trial court under the
Sentencing Code, appellant has failed to demonstrate how his sentence was
“contrary to the fundamental norms which underlie the sentencing process.”
We note that the trial court in its Rule 1925(a) opinion stated that appellant
had a Sentencing Level Score of 4. This is incorrect based upon the guideline
sentencing form that is part of the certified record.             However, total
confinement in a state facility is also an option for an offender with a Level 4
score.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 2/4/2020




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