Com. v. Truss, M. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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