J-S93039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHEILA MIRRER,

                            Appellant                No. 1156 EDA 2016


             Appeal from the Judgment of Sentence March 9, 2016
               in the Court of Common Pleas of Monroe County
              Criminal Division at No.: CP-45-CR-0001332-2015


BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 08, 2017

        Appellant, Sheila Mirrer, appeals from the judgment of sentence

imposed on March 9, 2016, following her December 2, 2015 open guilty plea

to one count each of aggravated assault by motor vehicle, driving under the

influence highest rate, and recklessly endangering another person.1      On

appeal, Appellant challenges the discretionary aspects of her sentence. For

the reasons discussed below, we affirm.

        We take the underlying facts and procedural history in this matter

from the trial court’s May 25, 2016 opinion.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  75 Pa.C.S.A. §§ 3735.1(a) and 3802(c), and 18 Pa.C.S.A. § 2705,
respectively.
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           On September 1, 2014, [Appellant] was driving south on
     State Route 191 with her three minor children, ages fourteen,
     thirteen, and seven. [Appellant] and her children were leaving a
     family party in the Mount Pocono area, where [Appellant] had
     consumed several alcoholic beverages. As they traveled home,
     [Appellant] observed the victim, later identified as Timothy
     Stevens, hitchhiking down the highway. After nearly hitting Mr.
     Stevens, [Appellant] stopped and picked him up.

           As [Appellant’s] vehicle approached a slight bend in the
     highway, she lost control, left the roadway, and collided with a
     tree. As a result of the impact, the vehicle spun clockwise and
     flipped onto its passenger side.

           Upon arriving at the scene, emergency personnel found
     Mr. Stevens trapped in the front passenger seat and
     unresponsive. After Mr. Stevens was freed from the wreckage,
     he was immediately transported via emergency helicopter to
     Lehigh Valley Medical Center for life-saving treatment.  Mr.
     Stevens’ blood tested negative for alcohol or controlled
     substances.

           As the first responders worked to free Mr. Stevens from
     the wreckage, Trooper Shamus Kelleher made contact with
     [Appellant], who was walking around the scene. [Appellant] told
     Trooper Kelleher that she had been at a family party and that,
     after seeing Mr. Stevens hitchhiking down the road, she decided
     to pick him up. According to [Appellant], she and Mr. Stevens
     had argued over his destination. [Appellant] claimed that Mr.
     Stevens then grabbed the steering wheel and pulled it to the
     right, causing her to lose control of the vehicle.          While
     interviewing [Appellant], Trooper Kelleher detected a strong odor
     of alcohol and observed that [Appellant’s] eyes were bloodshot
     and glassy. [Appellant] denied that she had consumed any
     alcohol.

           [Appellant] was transported by ambulance to Pocono
     Medical Center. While there, [Appellant] consented to a blood
     draw and a sample of her blood was taken for chemical testing.
     Approximately three days later, Trooper Kelleher received the
     results, which indicated that [Appellant’s] blood alcohol content
     was [0].22%.




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           On October 22, 2014, while in a rehabilitation hospital for
     serious spinal cord injuries, Mr. Stevens spoke with Trooper
     Kelleher by phone. Mr. Stevens recalled that he was walking
     down Route 191 when [Appellant] stopped and picked him up.
     After travelling a short distance, Mr. Stevens noticed that
     [Appellant] was having difficulty staying on the road and
     appeared to be highly intoxicated. Just prior to the crash, Mr.
     Stevens saw that the vehicle had travelled onto the shoulder and
     was headed directly for a utility pole. Trying to avoid a crash,
     Mr. Stevens grabbed the steering wheel, attempting to get the
     vehicle back onto the road. Mr. Stevens could not recall any
     further details regarding the incident. The injuries Mr. Stevens
     suffered were permanent and severe.

            [Appellant] was subsequently charged with [a]ggravated
     [a]ssault by [v]ehicle while [d]riving [u]nder the [i]nfluence
     (DUI), two counts of DUI ([g]eneral [i]mpairment and [h]ighest
     [r]ate), three counts of [e]ndangering the [w]elfare of a [c]hild,
     and several summary traffic offenses. On December [2], 2015,
     [Appellant pleaded] guilty to an amended count of [a]ggravated
     [a]ssault by [v]ehicle as a felony of the third degree, an
     amended count of [r]ecklessly [e]ndangering [a]nother [p]erson,
     a misdemeanor of the second degree, and one count of DUI, a
     misdemeanor of the first degree. During the hearing, [the trial
     court]    conducted    a    full colloquy   where     [Appellant]
     acknowledged, verbally and in writing, the potential maximum
     sentences she could receive. After accepting the plea, [the trial
     court] entered an order scheduling a sentencing hearing,
     directing [the] [p]robation [d]epartment to prepare a [p]re-
     [s]entence [i]nvestigation (“PSI”) report, and requiring
     [Appellant] to undergo a comprehensive drug and alcohol
     assessment.

           On March 9, 2016, the sentencing hearing was convened,
     as scheduled. At the conclusion of the hearing, [the trial court]
     sentenced [Appellant] to an aggregate period of incarceration of
     [not less than] ten [nor more than] thirty-six months, less one
     day, to be served in the Monroe County Correctional Facility,
     followed by a consecutive four year period of probation, over
     which [the trial court] retained jurisdiction.[a]
          [a]
             The breakdown of the sentence is as follows: On
          the [a]ggravated [a]ssault by [v]ehicle conviction,
          [Appellant] was sentenced to incarceration of [not

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           less than] nine [nor more than] twenty-four months,
           less one day, a sentence in the standard range. On
           the DUI conviction, [Appellant] was sentenced to
           [not less than] one [nor more than] twelve months,
           also a sentence in the standard range, followed by a
           consecutive four year period of probation. The DUI
           sentence was run consecutive to the [a]ggravated
           [a]ssault by [v]ehicle sentence. Finally, [Appellant]
           was sentenced to [not less than] one month [nor
           more than] twelve months on the [r]ecklessly
           [e]ndangering [a]nother [p]erson conviction, which
           sentence was run concurrent to the DUI and
           [a]ggravated [a]ssault by [v]ehicle sentences.

           At the sentencing hearing, [Appellant] did not contest any
     of the information contained in the PSI report. Before sentence
     was imposed, [Appellant] and her attorney addressed the [trial
     c]ourt. [Appellant] apologized to the victim and to her family for
     the burden caused by her actions. She also requested leniency
     so that she could return to her children as soon as possible. In
     addition, [Appellant’s] mother and brother spoke on
     [Appellant’s] behalf. In his argument, counsel for [Appellant]
     acknowledged the severity of the victim’s injuries, but requested
     leniency based on [Appellant’s] lack of a prior record. He then
     asked the [trial c]ourt to “consider splitting the baby in half and
     giving her somewhere between [not less than three nor more
     than four and one-half] months with a long tail and if she screws
     up she goes back to jail.”

           The assistant district attorney also addressed the [trial
     c]ourt. She asked that [the trial court] impose an aggravated
     range sentence of [not less than] twelve [nor more than]
     twenty-four months incarceration, pointing out [Appellant’s] high
     BAC and the fact that [Appellant’s] three minor children were in
     the vehicle at the time of the crash. She also described, by
     reference to the [v]ictim [i]mpact [s]tatement, the significant,
     permanent, and life-altering injuries sustained by the victim as a
     result of [Appellant’s] conduct.       Among other things, Mr.
     Stevens’ spinal cord injury required numerous laminectomies
     and fusions of the C4-C7 vertebrae. At the time of sentencing,
     Mr. Stevens had resided in a rehabilitation hospital before being
     moved to a nursing home, where he remained. Although his
     condition has improved to the point where he can ambulate to
     some extent, he is not well enough to complete daily tasks

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       without significant help.    His prognosis is unclear but it is
       unlikely Mr. Steven[]s will []ever be able to work again or live
       without significant nursing care.

              Before imposing sentence, [the trial court] explained [its]
       reasoning and informed [Appellant] of the facts, information,
       and documents on which the sentence was based. Specifically,
       [the trial court] advised [Appellant] that the sentence was based
       on the record and file in this case, the facts surrounding her plea
       that [it] accepted, the comprehensive PSI report that had been
       prepared by [the p]robation [o]ffice, the victim impact
       statement, the statements made by [Appellant], her attorney,
       and family members, the argument made by the assistant
       district [attorney], and the applicable sentencing laws, rules, and
       guidelines. [The trial court] then stated [its] reasons on the
       record. . . .

             Subsequently, [Appellant] filed a post-sentence motion
       and an amended motion[b] seeking reconsideration of the
       sentence. In these filings, [Appellant] expressed her belief that,
       given her prior record score of zero and the somewhat shorter
       sentence recommended by [the p]robation [o]ffice, “the total
       aggregate maximum sentence of [seven] years [was]
       excessive.”
              [b]
                 In her first [m]otion to [r]econsider [s]entence,
              [Appellant’s] counsel mistakenly believed that
              [Appellant] had entered a guilty plea to DUI as an
              ungraded misdemeanor.

            On March 18, 2016, [the trial court] issued an order
       denying [Appellant’s] motion. [Appellant] then filed this
       appeal.[2]

(Trial Court Opinion, 5/25/16, at 1-5) (record citations omitted).

       On appeal, Appellant raises the following question for our review:
____________________________________________


2
  On April 11, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b).
Appellant filed a timely Rule 1925(b) statement on April 26, 2016. See id.
On May 25, 2016, the trial court issued an opinion. See Pa.R.A.P. 1925(a).



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      Whether the four year consecutive sentence of probation for the
      offense of [d]riving [u]nder the [i]nfluence [m]inor [o]ccupants
      was outside the aggravated range of the sentence without
      specifying sufficient reason for the same as well as whether the
      consecutive sentence of four years consecutive probation
      imposed is contrary to 75 Pa.C.S.A. [§] 3804(d) in that the
      assessment required under 75 Pa.C.S.A. [§] 3814(1) did not
      indicate that Appellant needed additional treatment pursuant to
      75 Pa.C.S.A. [§] 3814(2)(a)[?]

(Appellant’s Brief, at 8).

      Appellant challenges the discretionary aspects of her sentence.              Our

standard of review is settled.

              Sentencing is a matter vested in the sound discretion of
      the sentencing judge, and a sentence will not be disturbed on
      appeal absent a manifest abuse of discretion. In this context, an
      abuse of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015),

appeal denied, 125 A.3d 1198 (Pa. 2015) (citation omitted).

      On   appeal,    Appellant   argues   that   the   trial   court    “failed    to

[substantially] articulate” and did not file a contemporaneous written

statement setting forth the reasons for the imposition of the probationary

tail. (Appellant’s Brief, at 10). However, Appellant waived this claim.

      Preliminarily, we note, “[i]ssues challenging the discretionary aspects

of 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 aspect of a sentence is waived.”

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Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004), appeal

denied, 860 A.2d 122 (Pa. 2004) (citations and internal quotations marks

omitted).

     Here, while Appellant did file a post-sentence motion and an amended

motion to reconsider sentence, the only issue she raised was that “[t]he

total aggregate maximum sentence of [seven] years is excessive under the

circumstances.”   (Amended Motion to Reconsider Sentence, 3/16/16, at

unnumbered page 1 ¶ 3(c)).      It is settled that an appellant waives any

discretionary aspects of sentence issue not raised in a post-sentence motion;

also, an appellant cannot raise matters for the first time in a Rule 1925(b)

statement; lastly, an appellant cannot raise an issue for the first time on

appeal. See Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa. Super.

2011) (issues raised for first time in Rule 1925(b) statement are waived);

Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003), appeal

denied, 831 A.2d 599 (Pa. 2003) (finding claim sentencing court did not put

sufficient reasons to justify sentence on record waived where issue was not

raised in post-sentence motion); see also Pa.R.A.P. 302(a).            Thus,

Appellant waived her discretionary aspects of sentence claim.

     Accordingly, for the reasons discussed above, we affirm the judgment

of sentence.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/8/2017




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