Com. v. Nimmons, M.

• Court: Superior Court of Pennsylvania
• Decided: December 19, 2025
• Docket: 575 MDA 2025
• Status: Unpublished

Opinion

J-S42033-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL ANTHONY NIMMONS : : Appellant : No. 575 MDA 2025

Appeal from the Judgment of Sentence Entered March 31, 2025 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000732-2024

BEFORE: OLSON, J., KING, J., and LANE, J.

MEMORANDUM BY LANE, J.: FILED: DECEMBER 19, 2025

Michael Anthony Nimmons (“Nimmons”) appeals from the judgment of

sentence imposed following his conviction for driving under the influence

(“DUI”) – highest rate of alcohol.1 We affirm.

Given our disposition, a detailed factual history is unnecessary. Briefly,

on April 20, 2024, Athens Township police officers responded to a call

regarding an unconscious male behind the driver’s seat of a vehicle. Upon

their arrival, officers located Nimmons, who matched the description provided

in the call. The officers detected a strong odor of alcohol emanating from

Nimmons’ person and saw a bottle of alcohol in plain view on the driver’s side

of the vehicle. Nimmons agreed to participate in standard field sobriety

testing and subsequently submitted to a blood draw, which resulted in a blood

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1 See 75 Pa.C.S.A. § 3802(C). J-S42033-25

alcohol content of 0.206. Police charged Nimmons with DUI – highest rate of

alcohol.

Nimmons elected to proceed pro se, and the trial court conducted an

oral colloquy regarding his right to counsel at his formal arraignment. See

N.T., 1/6/25, at 1-10. Nimmons informed the trial court that he had sought

representation from the public defender’s office, but he was informed that he

was ineligible because his income was too high to qualify for assistance. See

id. at 1.

On March 6, 2025, pursuant to a negotiated plea agreement, Nimmons

pleaded guilty to DUI - highest rate of alcohol, his second offense in ten years,

which was graded as a first-degree misdemeanor. The plea agreement

reached between Nimmons and the Commonwealth provided for a minimum

period of incarceration at the bottom of the standard range of the sentencing

guidelines. On March 31, 2025, the trial court sentenced Nimmons to five to

twenty-four months in prison and sixty months of concurrent probation. The

trial court also directed Nimmons to pay a fine of $1,500. Nimmons did not

raise any challenge to his sentence at the sentencing hearing. See N.T.,

3/31/25, at 5-10. Nor did he file a post-sentence motion. However, after the

period in which to file a post-sentence motion had expired, Nimmons once

again sought representation from the public defender’s office, and a public

defender filed a timely notice of appeal on his behalf. Both Nimmons and the

trial court thereafter complied with Pa.R.A.P. 1925.

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Nimmons raises the following issue for our review: “Did the trial court

abuse its discretion when it sentenced [Nimmons] to an aggregate sentence

of imprisonment the minimum of which shall be five (5) months and the

maximum of which shall be twenty-four (24) months and sixty (60) months

of probation, to be served concurrently.” Nimmons’ Brief at 3.

Nimmons’ sole issue on appeal implicates the discretionary aspects of

his sentence. An appellant may not challenge discretionary aspects of a

sentence as of right. See Commonwealth v. Dempster, 187 A.3d 266, 272

(Pa. Super. 2018) (en banc). Rather, this Court treats an appellant’s

challenge to the discretionary aspects of a sentence as a petition seeking

permission to appeal. See Commonwealth v. Heaster, 171 A.3d 268, 271

(Pa. Super. 2017). To invoke this Court’s jurisdiction to review a challenge to

the discretionary aspects of a sentence, the appellant must satisfy the

following four-part test: (1) whether the 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 the 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. See

Commonwealth v. Moury, 992 A.2d 162, 169-70 (Pa. Super. 2010).

Here, Nimmons filed a timely notice of appeal. However, the record

reflects that he did not preserve his discretionary sentencing claim by raising

it at his sentencing hearing or in a timely post-sentence motion. Accordingly,

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we are constrained to deem Nimmons’ discretionary sentencing issue waived

for purposes of appellate review. See Commonwealth v. Cartrette, 83 A.3d

1030, 1042 (Pa. Super. 2013) (en banc) (holding that “issues 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”); see also Dempster, 187 A.3d at 272 (holding that 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).

Here, as Nimmons failed to preserve his discretionary sentencing issue

by raising it at his sentencing hearing or in a timely post-sentence motion, he

has failed to invoke this Court’s jurisdiction to review it.2 Thus, we affirm the

judgment of sentence.

2 We note that, in his brief, Nimmons additionally presents a vague and undeveloped claim that his sentence is illegal. Although Nimmons did not raise this issue in his concise statement or in his statement of questions involved, a challenge to the legality of a sentence can never be waived and may be raised for the first time on appeal. See Commonwealth v. Muhammed, 219 A.3d 1207, 1211 (Pa. Super. 2019). However, in advancing this argument, Nimmons concedes that the sentence in question, as imposed herein by the trial court, is legal. However, he posits that if he violates his probation and if his probation is thereafter revoked, the trial court might subsequently impose a revocation sentence that could potentially be illegal. In this regard, Nimmons asserts that “[h]ypotehtically, if [he] serves twenty- three months of his twenty-four months incarcerated and happens to be revoked on his concurrent probation, the court could then resentence him to (Footnote Continued Next Page)

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Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 12/19/2025

the entire sixty (60) months of probation and run it consecutive to his parole.” Nimmons’ Brief at 11. Nimmons speculates that, if this were to occur, it “could lead to a lengthier sentence than allowed by law” for a misdemeanor of the first degree. Id. Presently, the sentence imposed by the trial court is not illegal. We decline to speculate that Nimmons might violate this probation and might receive a revocation sentence that might be illegal at some point in the future. Thus, Nimmons’ challenge to the legality of his sentence merits no relief.

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