Com. v. Truss, M.

• Court: Superior Court of Pennsylvania
• Decided: April 3, 2020
• Docket: 1678 EDA 2019
• Status: Unpublished

Opinion

J-S01026-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MAZELL TRUSS : : Appellant : No. 1678 EDA 2019

Appeal from the PCRA Order Entered May 17, 2019, in the Court of Common Pleas of Northampton County, Criminal Division at No(s): CP-48-CR-0002705-2017.

BEFORE: BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 03, 2020

Mazell Truss appeals nunc pro tunc from the judgment of sentence

entered following her guilty plea. On appeal, Truss challenges the

discretionary aspects of her sentence. Upon review, we affirm.

On June 2, 2017, Truss was driving in Easton, Pennsylvania. Truss

sideswiped another vehicle causing an accident; she did not stop and

continued driving. While fleeing from that accident, and driving at a high rate

of speed, Truss caused another accident just minutes later, involving her

vehicle and two other vehicles. The driver of one vehicle was killed. Two

other individuals in the third vehicle were injured. The front seat passenger

in Truss’ vehicle also sustained serious injuries. At the time of these accidents,

Truss was under the influence of amphetamine and methamphetamine. ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S01026-20

On January 19, 2018, Truss pled guilty to homicide by vehicle while

driving under the influence, aggravated assault by vehicle while driving under

the influence, accident involving death—not properly licensed, and driving

under the influence (controlled substance).1 In exchange for her plea, the

Commonwealth dropped twenty-two related charges. On April 20, 2018, the

court sentenced Truss to six years and three days to twenty years and six

months of incarceration.2 Truss did not file a post-sentence motion or a direct

appeal.

Thereafter, Truss filed a pro se PCRA petition. Appointed counsel then

filed an amended Post Conviction Relief Act petition requesting reinstatement

of her direct appeal rights and the opportunity to withdraw her guilty plea

based upon counsel’s ineffectiveness. At the PCRA hearing, after some

discussion, Truss withdrew her request to withdraw her guilty plea. The

Commonwealth agreed to reinstate her direct appeal rights, and the trial court

granted that relief.

Truss timely appealed. Both the trial court and Truss complied with

Pennsylvania Rule of Appellate Procedure 1925.

On appeal, Truss raises the following single issue:

Whether the [t]rial [c]ourt erred as a matter of law or abused its discretion in that the sentence imposed . . . is manifestly excessive and unreasonable; and is not supported by any facts ____________________________________________

1 75 Pa.C.S.A. §§ 3735(a), 3735.1(a), 3742.1(a), and 3802(d)(1).

2 Truss was sentenced at two other dockets, however, Truss did not appeal those orders.

-2- J-S01026-20

which may properly have been considered by the [c]ourt; and is based only upon the perceived seriousness of the offense to the exclusion of all other relevant facts; and is inconsistent with the Sentencing Code and/or contrary to the fundamental norms underlying the sentencing process.

Truss’ Brief at 6.

Truss challenges the discretionary aspects of her sentence. This Court

has explained that, to reach the merits of a discretionary sentencing issue, we

must conduct a four-part analysis to determine:

(1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence [in accordance with 2119(f)]; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code. . . . [I]f the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.

Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014)

(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)).

Here, although Truss claimed that her sentence was excessive in her

Pa.R.A.P. 2119(f) statement and Pa.R.A.P. 1925(b) concise statement, she

did not raise this issue in a post-sentence motion or during the sentencing

proceedings. 3 Commonwealth v. Kittrell, 19 A.3d 532, 538 (Pa. Super.

____________________________________________

3We note that when a PCRA court reinstates a defendant’s direct appeal rights nunc pro tunc, the defendant is not automatically granted the right to file a post-sentence motion nunc pro tunc. Commonwealth v. Liston, 977 A.2d 1089 (Pa. 2009). Nevertheless, a PCRA court can reinstate a defendant’s post-sentence rights nunc pro tunc if the defendant successfully pleads and

-3- J-S01026-20

2011). As such, she failed to preserve this issue. Therefore, she did not meet

the second element of the four-part test in Colon, and we cannot address the

merits of here claim.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/3/20

proves he was deprived of the right to file and litigate post-sentence motions as a result of ineffective assistance of counsel. Id. at 1094 n. 9 (Pa. 2009). Here, Truss did not ask for restoration of her right to file a post-sentence motion in either her pro se PCRA petition or her counseled amended PCRA petition.

-4-