Com. v. Wainwright, C.

Superior Court of Pennsylvania·Decided March 5, 2026·No. 367 MDA 2025·Unpublished·Olson

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

:

CARL ALAN WAINWRIGHT :

:

Appellant : No. 367 MDA 2025

Appeal from the Judgment of Sentence Entered February 10, 2025 In the Court of Common Pleas of Tioga County Criminal Division at No(s): CP-59-CR-0000133-2024

BEFORE: OLSON, J., KING, J., and LANE, J. MEMORANDUM BY OLSON, J.: FILED MARCH 05, 2026 Appellant, Carl Alan Wainwright, appeals from the February 10, 2025 judgment of sentence entered in the Court of Common Pleas of Tioga County after Appellant pleaded guilty to one count of driving under influence of alcohol or controlled substance (“DUI”) – highest rate of alcohol, his second offense.1 The trial court sentenced Appellant to 18 to 60 months’ incarceration.2 We affirm.

1 75 Pa.C.S.A. § 3802(c).

2 The trial court imposed a fine in the amount of $1,500.00 and ordered Appellant to pay the costs of prosecution. The trial court also suspended Appellant’s driver’s license and operating privileges for 18 months. Appellant was ordered to undergo deoxyribonucleic acid (“DNA”) testing, to attend and successfully complete the Pennsylvania Alcohol and Highway Safe Driving School, and was subject to an ignition interlock system for a period of one year. Order of Sentence, 2/11/25.

The record demonstrates that, on January 11, 2024, Appellant was operating his motor vehicle with a blood alcohol content (“BAC”) of 0.242%. On February 15, 2024, Appellant was charged with DUI – general impairment (Count 1), DUI – highest rate of alcohol (Count 2), driving while operating privilege is suspended or revoked – BAC greater than 0.02% (Count 3), driving while operating privilege is suspended or revoked (Count 4), drivers required to be licensed (Count 5), and careless driving (Count 6).3 Initially, Appellant was charged at Counts 1 and 2 as a first time offender. On May 24, 2024, the Commonwealth revised Counts 1 and 2 to reflect the charges as Appellant’s second DUI offenses.

On October 28, 2024, Appellant pleaded guilty to Count 2. This was Appellant’s second DUI offense within a ten year period. In exchange for Appellant agreeing to plead guilty to Count 2, the Commonwealth agreed to nolle prosse Appellant’s remaining criminal charges. On February 10, 2025, the trial court sentenced Appellant, as detailed supra, to a term of 18 to 60 months’ incarceration.

On February 18, 2025, Appellant filed a post-sentence motion that sought reconsideration of his sentence on the ground that his sentence exceeded the aggravated range under the sentencing guidelines for his

3 75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), 1543(b)(1.1)(i), 1543(b)(1)(i), 1501(a), and 3714(a), respectively.

criminal conviction. The trial court denied Appellant’s post-sentence motion on February 20, 2025.4 This appeal followed.5 Appellant raises the following issue for our review: “Whether the [trial]

court abused its discretion in sentencing Appellant to a period of [18 to 60] months, a period of incarceration well above the sentencing guidelines?” Appellant’s Brief at 7 (extraneous capitalization omitted).

Appellant’s issue challenges the discretionary aspects of his sentence on the ground the trial court imposed a sentence that fell outside the sentencing guidelines.

“Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right.” Commonwealth v.

Derry, 150 A.3d 987, 991 (Pa. Super. 2016) (citations omitted).

Before reaching the merits of such claims, we must determine:

(1) whether the appeal is timely; (2) whether [the]

appellant preserved his[ or her] issues; (3) whether [the]

appellant’s brief includes a [Pennsylvania Rule of Appellate Procedure] 2119(f) concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is inappropriate under the sentencing code.

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011)

(citations omitted).

“To preserve an attack on the discretionary aspects of sentence, an appellant must raise his [or her] issues at sentencing or in a

4 Appellant’s judgment of sentence was made final upon denial of his post-sentence motion.

5 Appellant and the trial court complied with Pennsylvania Rule of Appellate Procedure 1925.

post-sentence motion. Issues not presented to the [trial] court are waived and cannot be raised for the first time on appeal.”

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

2006) (citations omitted); see also Pa.R.A.P. 302(a).

“The determination of what constitutes a substantial question must be evaluated on a case-by-case basis.” Commonwealth v.

Battles, 169 A.3d 1086, 1090 (Pa. Super. 2017) (citation omitted).

Commonwealth v. Pisarchuk, 306 A.3d 872, 878 (Pa. Super. 2023) (original brackets and extraneous capitalization omitted), appeal denied, 318 A.3d 95 (Pa. 2024); see also Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).

In determining whether a substantial question exists, this Court “cannot look beyond the statement of questions presented and the prefatory Rule 2119(f) statement[.]” Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013), aff’d, 125 A.3d 394 (Pa. 2015). The Rule 2119(f) statement “must explain where the sentence falls in relation to the sentencing guidelines, identify what specific provision of the [Sentencing] Code [or] what fundamental norm was violated, and explain how and why the [trial] court violated that particular provision [or fundamental] norm.” Commonwealth v. Feucht, 955 A.2d 377, 384 (Pa. Super. 2008), appeal denied, 963 A.2d 467 (Pa. 2008). While it is not necessary that the Rule 2119(f) statement “provide elaborate factual and procedural details,” the statement must provide more than “bald assertions or non-specific claims of error [and] must state the way in which the penalty imposed is inappropriate.” Feucht, 955 A.2d at 384. A substantial question exists when an appellant presents a colorable

argument that the sentence imposed is either (1) inconsistent with a specific provision of the Sentencing Code or (2) is “contrary to the fundamental norms which underlie the sentencing process.” Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010), appeal denied, 14 A.3d 825 (Pa. 2011).

Preliminarily, we must determine whether Appellant has the right to seek permission to appeal the discretionary aspects of his sentence. “Generally, a plea of guilty amounts to a waiver of all defects and defenses except those concerning the jurisdiction of the [trial] court, the legality of the sentence, and the validity of the guilty plea.” Commonwealth v. Morrison, 173 A.3d 286, 290 (Pa. Super. 2017) (citation omitted). It is well-settled that “where a defendant pleads guilty pursuant to a plea agreement specifying particular penalties, the defendant may not seek a discretionary appeal relating to those agreed-upon penalties.” Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa. Super. 2009) (citation omitted) (stating, “[p]ermitting a defendant to petition for such an appeal would undermine the integrity of the plea negotiation process and could ultimately deprive the Commonwealth of sentencing particulars for which it bargained”), appeal denied, 990 A.2d 726 (Pa. 2010); see also Morrison, 173 A.3d at 290. “Where a defendant pleads guilty without any agreement as to sentence, [however,] the defendant retains the right to petition this Court for allowance of appeal with respect to the discretionary aspects of sentencing.” Brown, 982 A.2d at 1019, relying on Commonwealth v. Dalberto, 648 A.2d 16, 21 (Pa. Super. 1994), appeal denied, 655 A.2d 983 (Pa. 1995), cert. denied, 516 U.S. 818 (1995).

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