Com. v. Puhac, M.

• Court: Superior Court of Pennsylvania
• Decided: January 29, 2025
• Docket: 669 WDA 2024
• Status: Unpublished

Opinion

J-S46028-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARISSA LYNN PUHAC : : Appellant : No. 669 WDA 2024

Appeal from the Judgment of Sentence Entered November 20, 2023 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0000441-2023

BEFORE: LAZARUS, P.J., BOWES, J., and KING, J.

MEMORANDUM BY BOWES, J.: FILED: January 29, 2025

Marissa Lynn Puhac appeals from the judgment of sentence of eighteen

to thirty-six months of imprisonment imposed after she entered a no-contest

plea to endangering the welfare of a child (“EWOC”). We affirm.

By way of background, Appellant was charged with EWOC, corruption of

minors, and simple assault based upon her abuse of her eight-year-old child

between May 2022 and December 2022. Specifically, Appellant pinched the

child’s legs, leaving marks, and choked the child on multiple occasions. The

child also witnessed Appellant snorting white substances and falling into deep

sleeps, and because of the effects of Appellant’s substance abuse, believed

that Appellant had a flesh-eating disease.

At the plea hearing, Appellant pled no contest to EWOC, and in exchange

the Commonwealth nol prossed the remaining charges. The court postponed J-S46028-24

sentencing to conduct a pre-sentence investigation and a drug and alcohol

evaluation. Before concluding the plea hearing, the trial court warned

Appellant that even though the Commonwealth recommended a five-year

probationary sentence, the court could still sentence her to imprisonment and

advised her to pass her drug test.

At sentencing, the trial court was informed that Appellant tested positive

for cocaine, fentanyl, amphetamines, and methamphetamines. Appellant

presented two witnesses, her parents, who testified to Appellant’s good

character. They also discussed the reason Appellant had recently been

hospitalized, which they claimed was because Appellant “pick[ed] at” her arm,

but the court believed it was because of drug use. See N.T. Sentencing

Hearing, 11/20/23, at 14-15. After considering Appellant’s criminal history,

drug addiction, and failure to seek rehabilitation on her own, the court

sentenced her to eighteen to thirty-six months of incarceration and placement

in the state drug treatment program.

Appellant did not file a post-sentence motion or direct appeal, but filed

with the trial court a hand-written letter, which the court interpreted as a pro

se petition pursuant to the Post Conviction Relief Act, stating that her counsel

was ineffective for failing to file an appeal. The court appointed counsel, who

filed an amended petition to reinstate Appellant’s direct appeal rights nunc pro

tunc, which the court granted. The amended petition did not seek to reinstate

Appellant’s post-sentence rights, and the court did not grant relief in this

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regard. Appellant timely appealed, and she and the trial court complied with

Pa.R.A.P. 1925.

In her brief, Appellant presents the following issue for our

determination: “Whether the trial court abused its discretion and erred in

sentencing Appellant to incarceration, rather than probation, resulting in an

unreasonable and excessive sentence?” Appellant’s brief at i.

Appellant’s argument implicates the discretionary aspects of her

sentence. It is well-settled that “[c]hallenges to the discretionary aspects of

sentencing do not entitle an appellant to review as of right.” Commonwealth

v. Lawrence, 313 A.3d 265, 284 (Pa.Super. 2024). To invoke this Court’s

jurisdiction, an appellant must satisfy the following four-part test by

demonstrating that she: “(1) timely appealed; (2) properly preserved [her]

objection in a post-sentence motion; (3) included in [her] brief a Pa.R.A.P.

2119(f) concise statement of the reasons relied upon for allowance of appeal;

and (4) raised a substantial question that the sentence is inappropriate under

the Sentencing Code.” Commonwealth v. Strouse, 308 A.3d 879, 882

(Pa.Super. 2024).

Appellant has met the first and third prongs of the above test, as she

timely appealed her judgment of sentence nunc pro tunc and included in her

brief a concise statement of reasons relied upon for appeal. However,

Appellant did not meet the second prong of the test because she did not

preserve her issue either by objecting at the sentencing hearing or by filing a

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post-sentence motion, despite being advised of her post-sentence rights. See

N.T. Plea Hearing, 9/4/23, at 2-3; N.T. Sentencing Hearing, 11/20/23, at 2-3

(advising Appellant that “if you are going to challenge the discretionary

aspects of sentencing, then you must come before this [c]ourt first with a

post-sentence motion”). Consequently, this issue is waived. See

Commonwealth v. Heaster, 171 A.3d 268, 272 (Pa.Super. 2017)

(“Appellant did not file a post-sentence motion. Moreover, Appellant did not

present an objection on this basis during his sentencing hearing. Accordingly,

we deem this issue to be waived.”).

Therefore, because Appellant has not preserved her challenge to her

judgment of sentence, we have no basis to disturb it.

Judgment of sentence affirmed.

DATE: 1/29/2025

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