J-S26030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

WILLIAM JOSEPH MOONEY

                        Appellant                   No. 1468 MDA 2014


        Appeal from the Judgment of Sentence of August 18, 2014
           In the Court of Common Pleas of Schuylkill County
            Criminal Division at No: CP-54-CR-0001769-2013


BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                               FILED MAY 26, 2015

     William Joseph Mooney appeals his August 18, 2014 judgment of

sentence. We affirm.

     The trial court set forth the following factual and procedural history:

     On September 12, 2013, [Mooney] was charged with driving
     under the influence [(“DUI”)], general impairment, 75 Pa.C.S.
     § 3802(a)(1), failing to stop at a red traffic signal, 75 Pa.C.S.
     § 3112(a)(3)(i), and for having an open container of beer in his
     car while operating his vehicle, 75 Pa.C.S. § 3809(a). Mooney
     waived his right to a preliminary hearing and the charges were
     bound over to [the trial court].

     On June 6, 2014, believing that Mooney qualified for the
     Accelerated Rehabilitative Disposition Program (“ARD”), Mooney,
     his counsel and counsel for the Commonwealth signed an ARD
     Program Agreement and Waiver and presented it to the [trial
     court], which [it] was inclined to allow. However, after the
     hearing, the Clerk of Courts office notified [the trial court] that,
     in fact, Mooney did not qualify for the ARD program, and [the
     trial court] rescheduled the matter for [a] non-jury trial for June
     25, 2014.
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     On that date, Mooney appeared with his counsel. Mooney was
     argumentative, and stated that he did not understand why he
     did not qualify for the ARD program. [The trial judge] briefly
     adjourned and vacated the courtroom so that Mooney and his
     counsel could have a private conference.

     When [the trial judge] returned to the courtroom, Mooney stated
     that he had decided to enter a plea. [The trial court] agreed to
     accept his guilty plea, and told Mooney that [the trial court]
     would sentence him that day. [The trial judge] then recessed for
     an additional twenty minutes to give Mooney and his counsel
     time to fill out the paperwork.

     When [the trial judge] returned to the courtroom, Mooney was
     no longer in agreement with pleading guilty, and [the trial court]
     held a non-jury trial. Officer Joshua Pastucka (“Pastucka”) of the
     Shenandoah Borough police department testified that on August
     12, 2013, just after midnight, he observed a car proceed
     through a red light and turn left. Pastucka activated his lights
     and pulled the car over.        Pastucka identified the driver as
     Mooney and immediately smelled alcohol. Mooney’s speech was
     thick and slurred, and his eyes were watery and bloodshot.
     After checking Mooney’s paperwork, Pastucka returned to the car
     and observed a white foam puddle on the floor of the car and a
     bottle rolling around. Pastucka asked Mooney to step out of the
     car. The puddle of white foam was cold, and there was a 32
     ounce cold Miller Lite bottle in a brown bag. Mooney admitted
     that he had a few sips of the beer. Pastucka believed the puddle
     to be beer.

     Mooney agreed to take a field sobriety test, which he failed.
     Pastucka arrested Mooney and had his car towed.             At the
     hospital, Mooney refused to take a blood alcohol test. The
     Commonwealth introduced the DL26 form, which Pastucka read
     to Mooney that night, but which Mooney refused to sign.
     Pastucka testified that he believed Mooney to be under the
     influence of alcohol and unable to safely operate his vehicle.

     Next, Officer Tyler Dissinger (“Dissinger”) testified. He is also a
     patrolman with the Shenandoah police department. He was
     called to assist Pastucka with the traffic stop. Dissinger also
     observed the white foam puddle on the floor of the vehicle,
     between Mooney’s legs on the floor of the driver’s side of the
     vehicle. Dissinger stood with Mooney while Pastucka searched
     the car and located the empty Miller Lite bottle under the driver’s


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     seat. Dissinger observed that Mooney had bloodshot, glossy
     eyes, and observed both field sobriety tests. Dissinger stated
     that when Mooney complained that the test was being conducted
     on an uneven surface, the officers moved the test area to a
     parking lot with a flat, level surface. Dissinger made the same
     observations about Mooney’s performance of the field sobriety
     tests as Pastucka, and confirmed that Mooney was unable to
     satisfactorily perform either test. Dissinger also testified that he
     believed Mooney to be incapable of safely operating a vehicle
     that evening.

     Mooney wished to testify, and [the trial court] informed him of
     his right not to incriminate himself. Mooney denied that his
     counsel had explained this to him. Then, Mooney stated that he
     did not receive any information about a possible plea bargain.
     At this point, [the trial court] found that Mooney was being
     obstructionist. [The trial court] instructed him to either take the
     stand and testify, or he would lose his chance to do so.

     Mooney chose to take the stand. He testified that he did not run
     a red light, and that Pastucka had no reason to pull him over.
     Mooney testified that the field sobriety tests were not performed
     on a flat surface. Mooney questioned the officers’ ability to see
     him perform the tests in a dark lot. Mooney questioned the
     existence of the beer bottle, which was not presented at the trial
     as evidence.     Mooney state[d] that he was not offered a
     breathalyzer test, and believe[d] that the officers were unfairly
     targeting him and running a scam due to prior arrests. Mooney
     acknowledged hearing the blood test refusal instructions and
     that he refused the test.

     [The trial court] found the officers’ testimony to be credible, and
     Mooney’s testimony to be not credible. [The trial court] found
     that the Commonwealth proved its case beyond a reasonable
     doubt, on all three charges. [The trial court] ordered a [pre-
     sentence investigation (“PSI”)] report.

     [The trial court] reviewed the PSI and sentenced Mooney on
     August 18, 2014 on the DUI charge. At the sentencing hearing,
     the Commonwealth observed that this was Mooney’s third DUI,
     and that the current DUI was committed while Mooney was
     awaiting disposition on the second DUI. The Commonwealth
     asked for a sentence of two weeks to six months confinement.
     Defense counsel acknowledged that, at an earlier point in time,
     Mooney had rejected a plea bargain of 72 hours to six months’


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       time, and that Mooney should not be punished for exercising his
       right to go to trial. After hearing from Mooney and his counsel,
       [the trial court] decided to treat this DUI as Mooney’s second
       offense, because the record did not clearly show that this was a
       third offense. [The trial court] sentenced Mooney to serve no
       less than one week, and not more than six months, confinement,
       and pay a $1,000 fine, costs and fees.

       On August 19, 2014, [the trial court] sentenced Mooney on the
       two summary charges, which [the trial court] had neglected to
       do the day prior.[1]

Trial Court Opinion (“T.C.O.”), 9/29/2014, at 1-4.

       On September 2, 2014, Mooney filed a notice of appeal.                 The trial

court ordered, and Mooney timely filed, a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).            In his only issue

presented for our review, Mooney challenges the discretionary aspects of his

sentence. Mooney’s Brief at 4.

       Our standard of review for a challenge to the discretionary aspects of

sentence is as follows:

          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. Hoch, 936 A.2d 515, 517–18 (Pa. Super.
       2007) (citation omitted).
____________________________________________


1
    Mooney was sentenced to pay a $25 fine and costs for each of the
summary convictions.


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      The right to appellate review of the discretionary aspects of a
      sentence is not absolute, and must be considered a petition for
      permission to appeal. See Hoch, 936 A.2d at 518 (citation
      omitted). An appellant must satisfy a four-part test to invoke
      this Court’s jurisdiction when challenging the discretionary
      aspects of a sentence.

         [W]e conduct a four-part analysis to determine: (1)
         whether appellant has filed a timely notice of appeal; (2)
         whether the issue was properly preserved at sentencing or
         in a motion to reconsider and modify sentence; (3)
         whether appellant’s brief has a fatal defect; and (4)
         whether there is a substantial question that the sentence
         appealed from is not appropriate under the Sentencing
         Code.

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

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265-66 (Pa. Super. 2014)

(citations modified).

      We first note that Mooney filed a timely notice of appeal. He also filed

a timely concise statement and included a brief statement “of the reasons

relied upon for allowance of appeal with respect to the discretionary aspects

of sentence” pursuant to Pa.R.A.P. 2119(f). However, although Mooney has

technically complied with the first three requirements of Moury, supra, we

cannot reach the merits of his challenge.

      Although Mooney has listed only one issue in his statement of

questions presented, he essentially has raised two issues in his brief. The

first is that the trial court failed to offer specific reasons for the sentence on

the record.   Mooney’s Brief at 7.     However, Mooney did not include this

challenge in a post-sentence motion or at sentencing.        “Issues challenging



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the discretionary aspects of a 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.” Commonwealth v. Rhoades, 8 A.3d 912, 915 (Pa.

Super. 2010) (citation and quotation marks omitted); see Buterbaugh, 91

A.3d at 1266. Therefore, the issue has not been preserved and is waived.

      Mooney’s second issue is his contention that he was “given a harsher

sentence because he exercised his right to go to trial.” Mooney’s Brief at 4.

Mooney properly preserved this issue by raising it orally at sentencing. See

Notes of Testimony (“N.T.”), 8/18/2014, at 3; T.C.O. at 4.       Mooney also

included the issue in his Rule 1925(b) concise statement. However, Mooney

provides nothing in his Rule 2119(f) statement that demonstrates why this

raises a substantial question.

      [A]n appellant “must set forth in his brief a concise statement of
      the reasons relied upon for allowance of appeal with respect to
      the discretionary aspects of a sentence.” Commonwealth v.
      L.N., 787 A.2d 1064, 1071 (Pa. Super. 2001) (citing Pa.R.A.P.
      2119(f)). [A]n appellant must demonstrate that there is a
      substantial question that the sentence imposed is inappropriate
      under the Sentencing Guidelines. Id.

      A substantial question exists where an appellant “advances a
      colorable argument that the trial court’s actions were
      inconsistent with a specific provision of the sentencing code, or
      contrary to the fundamental norms underlying the sentencing
      process.” Id. In determining whether a substantial question
      exists, “[o]ur inquiry must focus on the reasons for which the
      appeal is sought in contrast to the facts underlying the appeal,
      which are necessary only to decide the appeal on the merits.”
      Commonwealth v. McNabb, 819 A.2d 54, 56 (Pa. Super.
      2003) (citation omitted) (emphasis in original). Additionally, we
      cannot look beyond the statement of questions presented and

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       the prefatory 2119(f) statement           to   determine   whether   a
       substantial question exists.

Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012)

(citations modified; emphasis in original). Because Mooney has advanced no

argument in his Rule 2119(f) statement that a sentence imposed because of

the decision to go to trial is contrary to the fundamental norms of sentencing

or inconsistent with the sentencing code, he has provided nothing in his

2119(f) statement from which we can determine that a substantial question

exists. Therefore, we must find that this argument also is waived.2 Finding

Mooney’s issues waived, we affirm the judgment of sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2015




____________________________________________


2
      The failure to include a Rule 2119(f) statement can be excused if the
Commonwealth does not object to the exclusion. See Commonwealth v.
Brougher, 978 A.2d 373, 375 (Pa. Super. 2009); Commonwealth v.
Montgomery, 861 A.2d 304, 308 (Pa. Super. 2004).                Here, the
Commonwealth has objected to Mooney’s failure to include this issue in his
Rule 2119(f) statement. See Commonwealth’s Brief at 4-6.


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