Com. v. Jancewicz, T.

J-S18007-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS P. JANCEWICZ :
:
Appellant : No. 1416 MDA 2019
Appeal from the Judgment of Sentence Entered August 6, 2019,
in the Court of Common Pleas of Sullivan County,
Criminal Division at No(s): CP-57-SA-0000002-2018.
BEFORE: KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 05, 2020
Thomas P. Jancewicz appeals from the judgment of sentence imposed
following his summary conviction for driving while his operating privileges
were suspended or revoked.1 Upon review, affirm.
The facts, as summarized by the trial court and adopted by this Court
in Jancewicz’ prior appeal, are as follows:
This matter came before the [c]ourt on a summary appeal on July
3, 2018. [Appellant] was charged with four offenses from an
incident, which occurred on October 21, 2017. More specifically,
[Appellant] was charged with [o]peration of a vehicle while
operating privilege is suspended or revoked, 7[5] Pa.C.S. [§]
1543(b)(1), carrying and exhibiting driver’s license on demand,
7[5] Pa.C.S. [§] 1511(a), registration card to be signed and
exhibited on demand, 75 Pa.C.S. [§] 1311(b) and operating motor
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S.A. § 1543(a).
J-S18007-20
vehicle without the required financial responsibility, 75 Pa.C.S. [§]
1786(f).
Magisterial District Judge Jennifer Vandine found [Appellant]
guilty of all four charges on January 2, 2018 and [Appellant] was
sentenced to sixty (60) days incarceration and was fined
approximately Three Hundred Fifty Dollars ($350.00). [Appellant]
filed an appeal to [the trial court] and a hearing was held thereon
on July 3, 2018.
***
Following the hearing, the [trial court] found that [Appellant’s]
operating privilege had been suspended, DUI related, for a period
of June 30, 2016 until June 30, 2017 and that [Appellant’s] license
was also revoked on June 30, 2017 for a period of one year for a
subsequent § 1543(a) violation and the current violation occurred
during the suspension for the § 1543(a), the [c]ourt found that
[Appellant] violated 75 Pa.C.S.A. § 1543(b). [Appellant] was
sentenced by this [c]ourt to pay a fine in the amount of Eight
Hundred Dollars ($800.00) and to a period of imprisonment not
less than ninety (90) days.
Commonwealth v. Jancewicz, 1410 MDA 2018, unpublished memorandum
at 1-2 (May 24, 2019) (footnotes and citations omitted). As a point of
clarification, the trial court convicted Jancewicz of violating 75 Pa.C.S.A. §
1543(a), driving while operating privilege is suspended or revoked, unrelated
to DUI, instead of 75 Pa.C.S.A. § 1543(b), since the suspension under which
he was cited was not DUI related.
In his initial appeal to this Court, Jancewicz challenged both the legality
and the discretionary aspects of his sentence. In addressing the legality of
Jancewicz’ sentence, we concluded that the trial court’s sentence was illegal
because it failed to provide a minimum and maximum term of confinement as
required under 42 Pa.C.S.A. § 9756(b)(1). Consequently, we vacated
-2-
J-S18007-20
Jancewicz’ sentence and remanded to the trial court for resentencing. Given
this disposition, we did not address Jancewicz’ issue pertaining to the
discretionary aspects of sentencing. Id. at 8.
Upon remand, the trial court sentenced Jancewicz to not less than ninety
(90) days of incarceration nor more than one-hundred eighty (180) days and
an $800 fine. Jancewicz filed the instant timely appeal. Both the trial court
and Jancewicz complied with Pennsylvania Rule of Appellate Procedure 1925.
In this appeal, Jancewicz raises the following issue:
1. Did the Trial Court issue a Sentencing Order that was cruel and
excessive in sentencing the Defendant to not less than 90 days
incarceration nor more than 180 days incarceration for a third
violation of 75 Pa. C.S. § 1543(a) when the [magisterial district
judge] had sentenced the Defendant to not less than 60 days
incarceration?
Jancewicz’ Brief at 4.
Jancewicz’ again seeks to challenge the discretionary aspects of his
sentence imposed following remand from this Court. “It is well settled that,
with regard to the discretionary aspects of sentencing, there is no automatic
right to appeal.” Commonwealth v. Austin, 66 A.3d 798, 807–08 (Pa.
Super. 2013) (citation omitted).
Before [this Court may] reach the merits of [a challenge to the
discretionary aspects of a sentence], we must engage in 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 [see Pa.R.A.P. 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
-3-
J-S18007-20
satisfies each of these four requirements, we will then proceed to
decide the substantive merits of the case.
Id. (citation omitted).
Our review of the record reveals that Jancewicz filed a timely appeal and
specified the reasons for his challenge to the discretionary aspects of sentence
in a separate statement as required under Pa.R.A.P 2119(f). However,
Jancewicz failed to preserve his issue for appellate review.
Pa.R.A.P. 302 provides that “issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.” Commonwealth
v. Jarvis, 663 A.2d 790, 791 (Pa. Super. 1995). “Issues challenging the
discretionary aspects of sentence must be raised in a post-sentence motion or
by presenting the claim to the trial court during the sentencing proceedings.”
Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003) (quoting
Commonwealth v. Mann, 820 A.2d 788 794 (Pa. Super. 2003). While
Pa.R.Crim.P. 720(D) bars post-sentence motions in summary case appeals
following a trial de novo, Rule 720(D) has not eliminated the duty to preserve
issues that can properly be preserved without a post-sentence motion. See
Commonwealth v. Dougherty, 679 A.2d 779, 784 n.3 (Pa. Super. 1996).
A defendant can preserve challenges to his/her sentence by objecting at the
end of the sentencing hearing. Commonwealth v. Malovich, 903 A.2d
1247, 1251 (Pa. Super. 2006).
-4-
J-S18007-20
Here, Jancewicz did not object to the sentence imposed at his
sentencing before the trial court.2 Because he failed to object, Jancewicz did
not preserve this issue, and his claim is waived. Therefore, we cannot address
the merits of this issue.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/05/2020
____________________________________________
2We note that Jancewicz did not even attend his sentencing hearing, but he
was represented by counsel, who appeared on his behalf.
-5-