Com. v. Weyant, A.

• Court: Superior Court of Pennsylvania
• Decided: July 30, 2024
• Docket: 1199 WDA 2023
• Status: Unpublished

Opinion

J-S18011-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ALLEN WAYNE WEYANT : : Appellant : No. 1199 WDA 2023

Appeal from the Judgment of Sentence Entered September 5, 2023 In the Court of Common Pleas of Cambria County Criminal Division at No(s): CP-11-CR-0000433-2023

BEFORE: PANELLA, P.J.E., McLAUGHLIN, J., and SULLIVAN, J.

MEMORANDUM BY PANELLA, P.J.E.: FILED: July 30, 2024

Allen Wayne Weyant appeals from the judgment of sentence entered in

the Cambria County Court of Common Pleas on September 5, 2023, following

Weyant’s plea to the summary offense of driving while operating privilege is

suspended or revoked. On appeal, Weyant challenges the discretionary

aspects of his sentence. We affirm.

On July 31, 2023, Weyant entered an open guilty plea to the above

summary offense. Sentencing was delayed at defense counsel’s request, in

order to obtain an updated driver’s record due to Weyant informing counsel

that one of his past convictions for the same offense was recently removed

from his record.

On September 5, 2023, the trial court sentenced Weyant to 90 days to

six month’s incarceration, plus costs and fines. Weyant filed a nunc pro tunc J-S18011-24

post-sentence motion for modification of sentence. The court accepted the

motion nunc pro tunc and denied the motion the same day. This timely appeal

followed.

In his sole issue on appeal, Weyant argues the trial court abused its

discretion by sentencing him to imprisonment because that sentence was not

mandatory and is excessive for a summary offense. See Appellant’s Brief, at

4. Weyant concedes this claim raises a challenge to the discretionary aspects

of sentence. “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted).

An appellant challenging the discretionary aspects of his 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. [720]; (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) (citation

omitted; brackets in original).

Here, Weyant filed a timely appeal and included the requisite Rule

2119(f) concise statement in his appellate brief. However, we cannot discern

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from the certified record whether the issue before us was properly preserved

at sentencing or in a motion to reconsider and modify sentence.

We find a disparity between the issue raised in Weyant’s post-sentence

motion, his 1925(b) concise statement, and his appellate brief. A defendant

can only preserve a claim to the discretionary aspects of a court’s sentence if

he notes a specific objection at the sentencing hearing or in a post-sentence

motion. See id.

In his motion for modification of sentence, Weyant simply argued that

his sentence was excessive. See Post-Sentence Motion, 10/2/23, at 1. In his

1925(b) concise statement, Weyant again simply made a bald assertion that

his sentence was excessive. See Appellant’s Brief, at Appendix C.

However, in his Rule 2119(f) statement, Weyant argues the underlying

summary offense does not carry a mandatory sentence of imprisonment and

he is not a habitual offender. See Appellant’s Brief, at 9. As such, Weyant

asserts generally that “[t]he trial court misapplied the sentencing guidelines

and abused its discretion.” Id.

Because Weyant failed to raise the instant discretionary sentencing issue

in his post-sentence motion, the only place he could have preserved this

particular issue was during the sentencing hearing. However, the sentencing

transcript is absent from the certified record. Accordingly, we have no way of

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knowing if Weyant raised any objections to his sentence at the sentencing

hearing.1

It is the responsibility of an appellant to ensure that the record certified on appeal is complete in the sense that it contains all of the materials necessary for the reviewing court to perform its duty. However, if the failure to transmit the entire record is caused by an “extraordinary breakdown in the judicial process,” an appellant is entitled to have his or her claims resolved on the merits.

Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa. Super. 2013) (citations

omitted). We have on occasion remanded matters in order for the record to

be supplemented to include the omitted material. See id. However, we find

such action unnecessary here, because Weyant’s allegation that his sentence

is excessive entitles him to no relief even if properly preserved at the

sentencing hearing.2

A “bald assertion that a sentence is excessive does not by itself raise a

substantial question justifying this Court's review of the merits of the

underlying claim.” Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super.

2012) (citation omitted). Further, even if the separate issue as phrased in

Weyant’s 2119(f) statement could have potentially presented a substantial

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1 Neither party indicates any objection was made by Weyant at the time of

the sentencing hearing.

2 The Superior Court is under no obligation to assist an appellant in securing

that all relevant documents are in the certified record. Nevertheless, our informal efforts to secure the transcript were unsuccessful as it appears no sentencing transcript was filed with the clerk of courts.

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question, he failed to challenge a specific provision of the Sentencing Code or

cite a particular fundamental norm underlying the sentencing process that he

believes was violated. See Commonwealth v. Bartic, 303 A.3d 123, 134

(Pa. Super. 2023) (“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.’”) (citation

omitted).

Finally, even if we had not found Weyant’s issue waived, we discern no

abuse of the court’s discretion in imposing sentence. In its opinion on appeal,

the trial court stated:

Here, the sentence was within the standard range and statutory maximum and the [c]ourt: understood the sentencing guidelines; had the benefit of and considered Weyant’s driving record; explained that it had considered the guidelines and sentencing options; explained it had considered the nature of these particular crimes and the circumstances surrounding them; and considered Weyant's personal circumstances. Viewed as a whole the record reflects that the [c]ourt gave due consideration to all relevant factors and provided adequate reasons for sentencing Weyant in the standard range.

Trial Court Opinion, 12/4/23, at 7. Contrary to Weyant’s assertions, the

sentence imposed was within the court’s discretion to impose.

We find Weyant waived his claim, failed to raise a substantial question

warranting our review, and failed to show the trial court abused its discretion

in sentencing him. We therefore affirm.

Judgment of sentence affirmed.

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DATE: 07/30/2024

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