Opinion
639 WDA 2023 J-A29036-23
01-09-2024
COMMONWEALTH OF PENNSYLVANIA v. JEFFREY TRYBEND Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered May 4, 2023 In the Court of Common Pleas of Washington County Criminal Division at CP-63-CR-0000580-2017
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM
MURRAY, J.:
Jeffrey Trybend (Appellant) appeals from the judgment of sentence imposed following revocation of his probation. We affirm.
The trial court explained:
The relevant procedural history of this case goes back to October 13, 2017, when [Appellant] appeared before Judge Michael Lucas, for disposition of his charges filed at CP-63-CR-0001535-2016 [(No. 1535-2016)], CP-63-CR-0003302-2016 [(No. 3302-2016)], and the case under appeal, CP-63-CR-0000580-2017 [(No. 580-2017)]. On that date, Judge Lucas accepted [Appellant's] plea of guilty to the charges filed at [No.] …1535-2016 and the instant case, [No.] …580-2017, but deferred sentencing, and transferred the docket at [No.] …3302-2016 to the undersigned[, the Honorable John F. DiSalle,] to determine [Appellant's] eligibility for admission into the DUI Treatment Court program. On November 21, 2017, Judge Lucas sentenced [Appellant] at docket No. …1535-2016, on the charge of Driving Under the Influence[ (DUI), 75 Pa.C.S.A. §] 3802(c) … and Driving While Suspended or Revoked, DUI[-]related, to three to six months [of] incarceration plus a consecutive term of 90 days [of] incarceration. At docket No. …580-2017, on the charges of criminal conspiracy to violate the Controlled Substance, Drug,
Device and Cosmetic Act, possession with intent to deliver a controlled substance, [35 P.S.] § [780-]113(a)(30), and criminal use of communication facility, [18 Pa.C.S.A.] § 7512(a) …, Judge Lucas sentenced [Appellant] to pay the costs of prosecution and to serve consecutive terms of five (5) years of probation under the supervision of the Washington County Adult Probation Office, on each count. In the sentence, Judge Lucas also incorporated as special conditions all of the terms and conditions of treatment court sentence at docket No. …3302-2016.
Also on November 21, 2017, [Judge DiSalle] accepted [Appellant's] plea of guilty at docket No. …3302-2016, and sentenced him on the charge of … [DUI], section 3802(c) of the Vehicle Code, a … third offense, ninth lifetime, … to pay the costs of prosecution, a fine of $2,500.00, and be placed on probation for five years with restrictive conditions that 23 months be served pursuant to the DUI Treatment Court program and 12 months be served on electronic home monitoring, including six months of continuous alcohol monitoring. Throughout [Appellant's] participation in the DUI Treatment Court program, [Appellant] appeared before [Judge DiSalle] at least twice per month, for monitoring of his treatment, his progress in recovery, and his compliance with the program.
Although [Appellant] ultimately completed the DUI treatment program successfully, on February 15, 2023, pursuant to the revocation petition filed at the instant case, docket No. …580-2017, an order was issued by [Judge DiSalle] scheduling a [probation] revocation hearing. At that time, [Appellant's] sentences at the other dockets had expired, but [Appellant] remained on supervision for the felony charge of criminal use of a communication facility at the instant docket. On March 31, 2023, after [a] hearing, the court found [Appellant] in violation of his probation for technical and substantive violations, including failures to report and multiple failed drug tests, and his conviction for driving while suspended or revoked, DUI[-]related, sixth or subsequent offense, … to which [Appellant] ple[]d guilty at docket No. CP-63-CR-0000429-2021. [Appellant] did not contest the violations. As a result, the court revoked [Appellant's] probation but deferred sentencing until May 4, 2023, so that the Commonwealth could present, and the court could review [Appellant's] prior record score. At no time during the proceedings did [Appellant] request a presentence investigation report. After the resentencing proceeding on May 4, 2023, the
court, noting that the felony charge of criminal conspiracy to violate the Drug Act, [35 P.S. §] 780-113(a)(30), had expired according to its terms, resentenced [Appellant] as follows.
On the charge of criminal use of a communication facility, [18 Pa.C.S.A.] § 7512(a) …, a felony of the 3rd degree, [Appellant] shall pay the costs of prosecution as previously ordered and shall be confined to an appropriate state correctional institution for a period of no less than two and a half years to no more than five years. The court recommends [Appellant] be assessed for alcohol and other drug issues and be treated accordingly. The court also recommends [Appellant] be assessed for mental health issues and be treated accordingly…. The court recommends [Appellant's] consideration for the state Drug Treatment Program.
During the resentencing hearing, [Appellant] did [not] contest or challenge the court's recitation of its reasons for departure from the sentencing guidelines and did not lodge any objections to the discretionary aspects of the sentencing. [Appellant] offered no mitigation evidence during the sentencing hearing. As stated, [Appellant] did not request a presentence investigation report at the revocation proceeding on March 31, 2023, and did not request a presentence investigation during his sentencing hearing.Trial Court Opinion, 8/21/23, at 1-4 (footnotes omitted; some capitalization modified).
Pertinently, Appellant did not file post-sentence motions. Appellant timely filed a notice of appeal on June 2, 2023. Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents eight issues for review:
I. Did the trial court err as a matter of law and abuse its discretion by sentencing [Appellant] to 2½ to 5 years of incarceration in an appropriate State Correctional Facility at the sentencing hearing on May 4, 2023?
II. Did the trial court err as a matter of law and abuse its discretion by not placing on the record, or in the sentencing order, aggravating factors that led to a sentence in excess of the standard range of 9 to 16 months of incarceration?
III. Did the trial court err as a matter of law and abuse its discretion by failing to order and require a presentence investigation pursuant to Pa.R.Crim.P. 702(A)(2)(a) and by failing to place on the record why no presentence investigation was ordered?
IV. Did [t]he trial court err as a matter of law and abuse its discretion by sentencing [Appellant] in excess of the standard range of 9-16 months?
V. Did the trial court err as a matter of law and abuse its discretion by not considering mitigating factors when sentencing [Appellant] in excess of the standard range of 9 to 16 months of incarceration?
VI. Did the trial court err as a matter of law and abuse its discretion by accepting the Adult Probation Office's recommendation of a sentence of 2½ to 5 years of incarceration when the trial court acknowledged that the standard range of sentencing is 9 to 16 months of incarceration?
VII. Did the trial court err as a matter of law and abuse its discretion by not sentencing [Appellant] in the standard range of sentencing of 9 to 16 months of incarceration?
VIII. Did the trial court err as a matter of law and abuse its discretion by not considering alternative sentences to include electronic home monitoring or a sentence of less than a state sentence?Appellant's Brief at 6 (some capitalization modified).
[O]ur scope of review in an appeal following a sentence imposed after probation revocation is limited to the validity of the revocation proceedings and the legality of the judgment of sentence. We further note that 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. Finnecy, 135 A.3d 1028, 1031 (Pa. Super. 2016) (citations, quotation marks, and brackets omitted).
In his eight issues, Appellant claims the trial court abused its sentencing discretion by imposing an excessive probation revocation sentence. See Appellant's Brief at 11-25. The Commonwealth counters that Appellant waived the eight issues because he never raised them at sentencing or in a post-sentence motion. Commonwealth Brief at 6-7. We agree.
Appellant challenges the discretionary aspects of his sentence, from which there is no absolute right of appeal. Commonwealth v. Sierra, 752 A.2d 912, 913 (Pa. Super. 2000) (stating a challenge to a probation revocation sentence of total confinement "presents a challenge to the discretionary aspects of sentence rather than its legality and, thus, is not an appeal of right." (footnote omitted)). This Court applies a four-part test to determine:
(1) whether the appellant 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 the appellant's brief has a fatal defect, see 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. Bartic, 303 A.3d 124, 134 (Pa. Super. 2023) (brackets and citations omitted).
"[I]ssues challenging 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. Gibbs, 981 A.2d 274, 282-83 (Pa. Super. 2009) (emphasis added; citation omitted); Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008) (same).
The record belies Appellant's claim that "the issues were persevered [sic] based upon the sentencing hearing…." Appellant's Brief at 11. Appellant never challenged his sentence at sentencing or in a post-sentence motion. Accordingly, he waived the issues he raises on appeal. Commonwealth v. Barnhart, 933 A.2d 1061, 1066-67 (Pa. Super. 2007) (holding that appellant waived discretionary sentencing claim because he never raised the claim at sentencing or in a post-sentence motion).
Contrary to Appellant's claim, our disposition is not impacted by the fact that the "sentencing court did not file the sentencing order until May 17, 2023, which is thirteen (13) days after the sentencing hearing." Appellant's Brief at 11 (emphasis omitted). Appellant had notice of the sentencing order.
The fact that Appellant raised the issues in his Pa.R.A.P. 1925(b) statement does not overcome waiver. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.").
Judgment of sentence affirmed.
Judgment Entered.