J-S92012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ERIC THOMAS PUGH,

                            Appellant                   No. 361 WDA 2016


           Appeal from the Judgment of Sentence February 5, 2016
                In the Court of Common Pleas of Blair County
             Criminal Division at No(s): CP-07-CR-0002479-2013


BEFORE: SHOGAN, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED JANUARY 30, 2017

       Appellant, Eric Thomas Pugh, appeals from the judgment of sentence

entered following the revocation of his probation. We affirm.

       The trial court set forth the history of this case as follows:

             [Appellant] was originally sentenced on April 21, 2014
       after pleading guilty to Possession with Intent to Deliver
       (Marijuana). 35 P.S. §780-113(a)(30).          This plea was in
       conjunction with three other charges of Possession with Intent to
       Deliver, to which [Appellant] also pled guilty. He was sentenced
       [to] three (3) to twenty-three (23) months [of] incarceration at
       the Blair County Prison on those charges. On this charge, he
       was sentenced to five (5) years [of] probation to run
       consecutively after his incarceration.

            After sentencing, [Appellant] was charged and convicted
       on two separate occasions in Blair County. On September 19,
       2015[, Appellant] pled guilty to Driving Under the Influence of a
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      Controlled Substance Schedule II or Schedule III, First Offense,
      75 Pa. C.S.A. §3802(d)(1)(ii) and was sentenced to seventy-two
      (72) hours to six (months) incarceration and paroled after
      seventy-two (72) hours.       He also pled guilty to Accidents
      Involving Damage to Attended Vehicle or Property[,] 75 Pa.
      C.S.A. §3743[,] to which he was sentenced to six (6) months
      probation and to the summary offense of Driving while Operating
      Privileges were Suspended or Revoked[,] 75 Pa. C.S.A.
      §1543(a). On September 25, 2015[, Appellant] pled guilty to
      one count of Flight to Avoid Apprehension/Trial/Punishment[,] 18
      Pa. C.S.A. §5126(a). He was sentenced to six (6) to twenty-
      three (23) months incarceration at the Blair County Prison and
      was scheduled for a Gagnon II hearing.

Trial Court Opinion, 5/18/16, at 1-2.

      On February 5, 2016, the trial court revoked Appellant’s probation and

resentenced him to a term of incarceration of two and one-half to five years

minus one day, with credit for time served.       This timely appeal followed.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant presents the following issue for our review:

      Did the Court of Common Please [sic] err by imposing a lengthy
      sentence of total confinement in light of Appellant’s rehabilitative
      needs?

Appellant’s Brief at 5.

      Appellant’s sole issue challenges the discretionary aspects of his

sentence. Appellant’s Brief at 9. Specifically, Appellant contends that the

trial court failed to properly consider Appellant’s rehabilitative needs when it

imposed a sentence of incarceration, which he deems to be excessive.

      As this Court clarified in Commonwealth v. Cartrette, 83 A.3d 1030

(Pa. Super. 2013) (en banc), our scope of review following the revocation of


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probation is not limited solely to determining the validity of the probation

revocation proceedings and the authority of the sentencing court to consider

the same sentencing alternatives that it had at the time of the initial

sentencing. Rather, it also includes challenges to the discretionary aspects

of the sentence imposed.      Specifically, we unequivocally held that “this

Court’s scope of review in an appeal from a revocation sentencing includes

discretionary sentencing challenges.” Cartrette, 83 A.3d at 1034. Further,

as we have long held, the imposition of sentence following the revocation of

probation is vested within the sound discretion of the trial court, which,

absent an abuse of that discretion, will not be disturbed on appeal.

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).

     It is well settled that there is no absolute right to appeal the

discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d

800, 805 (Pa. Super. 2006).     Instead, where an appellant challenges the

discretionary aspects of a sentence, the appeal should be considered a

petition for allowance of appeal.   Commonwealth v. W.H.M., 932 A.2d

155, 163 (Pa. Super. 2007).

     As we observed 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,

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             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.
             [708]; (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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).     The determination of whether there is a substantial question is

made on a case-by-case basis, and this Court will grant the appeal only

when the appellant advances a colorable argument that the sentencing

judge’s actions were either: (1) inconsistent with a specific provision of the

Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process. Sierra, 752 A.2d at 912-913.

      Pennsylvania Rule of Appellate Procedure 302(a) provides that “issues

not raised in the lower court are waived and cannot be raised for the first

time on appeal.” Pa.R.A.P. 302(a). Objections to the discretionary aspects

of a sentence are generally waived if they are not raised at the sentencing

hearing or in a motion to modify the sentence imposed. Moury, 992 A.2d at

170 (citing Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003)). In

addition, Pa.R.Crim.P. 708 provides that a motion to modify sentence must

be filed within ten days of the imposition of sentence following the

revocation of probation. Pa.R.Crim.P. 708(D). As the comment to Rule 708

explains:




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      Issues properly preserved at the sentencing proceeding need
      not, but may, be raised again in a motion to modify sentence in
      order to preserve them for appeal. In deciding whether to move
      to modify sentence, counsel must carefully consider whether the
      record created at the sentencing proceeding is adequate for
      appellate review of the issues, or the issues may be waived.

Pa.R.Crim.P. 708 cmt.     Thus, an objection to a discretionary aspect of a

sentence is waived if not raised in a post-sentence motion or during the

sentencing proceedings.    See Commonwealth v. Parker, 847 A.2d 745

(Pa. Super. 2004) (holding challenge to discretionary aspect of sentence was

waived because appellant did not object at sentencing hearing or file post-

sentence motion).

      Herein, the first requirement of the four-part test is met because

Appellant brought a timely appeal.     However, our review of the certified

record reflects that Appellant waived his challenge to the discretionary

aspects of his sentence by failing to raise the claim either at the sentencing

proceeding or by means of a post-sentence motion. Thus, this issue has not

been properly preserved for appeal, and the record is not adequate to allow

appellate review of Appellant’s claim. Accordingly, we deem this issue to be

waived.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2017




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