Com. v. Quinones, S.

• Court: Superior Court of Pennsylvania
• Decided: April 24, 2024
• Docket: 755 MDA 2023
• Status: Unpublished

Opinion

J-A07033-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SARAH L QUINONES : : Appellant : No. 755 MDA 2023

Appeal from the Judgment of Sentence Entered April 23, 2023 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0002260-2016

BEFORE: STABILE, J., SULLIVAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: APRIL 24, 2024

Appellant, Sarah L. Quinones, appeals from the judgment of sentence

entered on April 24, 2023, in the Schuylkill County Court of Common Pleas.

We affirm.

The relevant facts and procedural history are as follows:

On September 26, 2018, the Honorable William Baldwin, former President Judge of the Schuylkill County Court of Common Pleas, now retired, accepted Appellant's guilty plea to Count 2, Driving Under the Influence of Drugs, in the case Commonwealth v. Quinones, CR-2260-2016 (Schuylkill County). Judge Baldwin sentenced Appellant to 30 days confinement in the Schuylkill County Prison followed by 4 years, 11 months Intermediate Punishment with the first 90 days to be served on house arrest with electronic surveillance, plus related costs and fines. The sentence was effective October 5, 2018. The Order also awarded credit for time served for inpatient treatment totaling 29 days. Judge Baldwin granted immediate parole after 24 hours of the date of the sentencing Order. ____________________________________________

* Former Justice specially assigned to the Superior Court. J-A07033-24

On January 27, 2023, Appellant was charged with Possession with Intent to Deliver Methamphetamine and Possession with Intent to Deliver Fentanyl by the Pennsylvania Office of Attorney General in the case of Commonwealth v. Quinones, CR-23-2023 (Luzerne County). On April 6, 2023, the Commonwealth filed a Motion to Revoke Probation in case CR- 2260-2016. [The trial court] conducted a probation revocation hearing on April 24, 2023. [The trial court] revoked probation and imposed the above noted sentence, of which, Appellant appealed.

Tr. Ct. Op. at 1-2.

Appellant raises three issues for our review:

I. Did the Court below err when it imposed a sentence of incarceration of not less than 9 months nor more than 5 years in a State Correctional Institution that was manifestly excessive in violation of 42 Pa. C.S. §9721(b) when it failed to consider the rehabilitative needs of the Appellant and failed to consider the time spent serving the probation order in violation of 42 Pa. C.S. § 9771(b)?

II. Did the Sentencing Court impose a manifestly unreasonable sentence of 9 months to 5 years for a probation violation in violation of 42 Pa. C.S. § 9771(c)?

III. Did the Sentencing Court exhibit bias and partiality when it relied on the seriousness of the charges in sentencing Appellant rather than the lesser offense of a probation violation?

Appellant’s Br. at 3.

In an appeal from a sentence imposed after the court has revoked

probation, we can review “the validity of the revocation proceedings, the

legality of the sentence imposed following revocation, and any challenge to

the discretionary aspects of the sentence imposed.” Commonwealth v.

Wright, 116 A.3d 133, 136 (Pa. Super. 2015). Each of Appellant’s issues

challenges the discretionary aspects of her sentence following her probation

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revocation. We are mindful that “[t]he right to appeal a discretionary aspect

of sentence is not absolute.” Commonwealth v. Martin, 727 A.2d 1136,

1143 (Pa. Super. 1999). Rather, 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).

An appellant challenging the discretionary aspects of a 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, 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).

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

Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 2006)).

Appellant was sentenced on April 24, 2023.1 When a court revokes

probation and imposes a new sentence, the defendant must preserve

challenges to the discretionary aspects of that new sentence either by

objecting during the revocation sentencing or by filing a post-sentence motion.

____________________________________________

1 We note that at the conclusion of the probation revocation hearing when the

sentence was imposed, the trial court instructed Appellant on her right to appeal, her ability to file a motion within ten days or an appeal within thirty days, and that the consequence of her failing to do so is the loss of appellate rights. N.T., 4/24/23, at 17-18; see Pa.R.Crim.P. 708(D)(3).

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Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa. Super. 2006). “A

motion to modify a sentence imposed after a revocation shall be filed within

10 days of the date of imposition.” Pa.R.Crim.P. 708(E).

Here, a review of the record reveals that Appellant failed to preserve

her claims at sentencing. See N.T., 4/24/23, at 18. After the trial court

imposed the sentence and advised Appellant of her appellate rights, the

transcript indicates that the trial court asked the attorneys if they had any

other matters to raise. Id. When neither attorney objected nor raised any

other matter, the proceeding concluded. Id. Because counsel did not place an

objection to the sentence on the record, Appellant did not properly preserve

the claim at the sentencing proceedings and thus Appellant was required to

file a post-sentence motion to modify her sentence. See Pa.R.Crim.P. 708

cmt. (“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.”). The record reflects that Appellant failed to properly preserve this

issue in a motion to reconsider or modify sentence because Appellant did not

file any post-sentence motions. Accordingly, Appellant is unable to satisfy the

four-part test necessary to invoke this court's jurisdiction.

Judgment of sentence affirmed.

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Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 04/24/2024

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