Com. v. Tresselt, J. ( 2016 )

J-S69042-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEREMY ALLEN TRESSELT,
Appellant No. 432 MDA 2016
Appeal from the Judgment of Sentence February 16, 2016
in the Court of Common Pleas of Schuylkill County
Criminal Division at No.: CP-54-CR-0001224-2013
BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*
JUDGMENT ORDER BY PLATT, J.: FILED OCTOBER 05, 2016
Appellant, Jeremy Allen Tresselt, appeals from the judgment of
sentence imposed following his open guilty plea to burglary, criminal
conspiracy, criminal trespass, theft by unlawful taking, receiving stolen
property, and criminal mischief.1 We affirm.
We take the following facts and procedural background from the trial
court’s opinion and our independent review of the certified record. As
explained by the trial court, on October 20, 2014,
[Appellant pleaded] guilty to conspiring with a juvenile and
another adult to burglarize the [Vraj] Temple in Wayne
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3502(a)(4), 903(a)(1), 3503(a)(1)(i), 3921(a), 3925(a),
and 3304(a)(5), respectively.
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Township, Schuylkill County, illegally entering the Temple on
June 19, 2013[,] and prying open and stealing money contained
in donation boxes. [Appellant] and the juvenile entered the
Temple to commit the substantive crimes while the other adult
served as a look-out. The trio split the stolen money which
police had calculated to be $13,050.00.
(Trial Court Opinion, 5/16/16, at 3).
The court scheduled a sentencing hearing for November 14, 2014, and
directed the preparation of a presentence investigation report (PSI).
Appellant did not appear on November 14, 2014, and his counsel requested
a continuance because Appellant’s mother was in the hospital. The court
continued the hearing until December 5, 2014, and ordered that the PSI be
supplemented with information about a sentence that was imposed on
Appellant in Lebanon County on October 15, 2014.
Appellant failed to appear at the December 5, 2014 hearing, and a
bench warrant was issued. Subsequently, the trial court became aware that
Appellant had been apprehended and was incarcerated in Lebanon County
for two burglary cases against him there. On January 22, 2016, the trial
court scheduled Appellant’s sentencing hearing for February 16, 2016.
At the February 16, 2016 hearing, the court sentenced Appellant to an
aggregate term of not less than two nor more than four years’ incarceration,
plus one year of probation, to be served consecutively to the sentence he
was then-serving in Lebanon County of not less than two nor more than six
years’ imprisonment. (See N.T. Sentencing Hearing, 2/16/16, at 23-24).
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Appellant did not file a post-sentence motion. He timely appealed on March
16, 2016.2
Appellant raises one question for our review: “Whether the sentence
imposed was excessive to the degree that it amounted to an abuse of
discretion?” (Appellant’s Brief, at 4). Appellant’s issue implicates the
discretionary aspects of his sentence. See Commonwealth v. Bonner,
135 A.3d 592, 603 (Pa. Super. 2016).
Challenges to the discretionary aspects of sentencing do
not entitle an appellant to appellate review as of right. Prior to
reaching the merits of a discretionary sentencing issue:
[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, [see] 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, [see] 42
Pa.C.S.A. § 9781(b).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
or raised in a motion to modify the sentence imposed at that
hearing.
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2
Pursuant to the court’s order, Appellant filed a timely concise statement of
errors complained of on appeal on April 12, 2016. The trial court filed an
opinion on May 16, 2016. See Pa.R.A.P. 1925.
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Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006),
appeal denied, 909 A.2d 303 (Pa. 2006) (case citations and quotation marks
omitted).
Here, Appellant has satisfied the first prong of the four-factor test
because he filed a timely notice of appeal. (See Notice of Appeal, 3/16/16).
However, he failed to satisfy the second prong because he did not raise his
claim either at the sentencing hearing or in a post-sentence motion. (See
Sentencing Hearing, at 21-27; Docket No. 1224-2013, at 12).
Consequently, Appellant has waived his discretionary aspects of sentence
issue for our review. See Evans, supra at 534 (finding appellant waived
issue by failing to raise it at hearing or in post-sentence motion). Therefore,
because Appellant has waived his only issue on appeal, we affirm his
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/5/2016
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