J-S68012-17

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CARL FREMAN MOYER, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2064 MDA 2016

Appeal from the Judgment of Sentence March 10, 2015

In the Court of Common Pleas of Lycoming County Criminal Division at 

No(s): CP-41-CR-0001050-2014, 

CP-41-CR-0001387-2014, CP-41-CR-0002061-2014

BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 15, 2017

Carl Moyer, Jr., appeals nunc pro tunc from the judgment of sentence, 

entered in the Court of Common Pleas of Lycoming County, following his 

conviction for three counts of driving under the influence (DUI) – highest rate 

of alcohol. 75 Pa.C.S. § 3802(c).1 Following a hearing, the court accepted 

Moyer’s open guilty pleas, reviewed a presentence report, and sentenced 

Moyer to Intermediate Punishment (IP) for a period of fifteen (15) years, with 

the first seventeen and one-half (171⁄2) months to be served at the Lycoming 

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1 Moyer’s three DUI offenses occurred within a six-month period, on March 

15, 2014, May 3, 2014 and August 30, 2014. Each offense yielded a blood 

alcohol content (BAC) over twice the legal limit, .22%, .21% and .22%, 

respectively. Moyer was not eligible for the Recidivism Risk Reduction 

Incentive (RRRI) program due to a prior conviction in 1990 for attempted 

homicide and aggravated assault. 61 Pa.C.S. § 4501 et seq. 
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County Prison Pre-release facility. That same day, the court vacated the 

sentence and imposed three consecutive sentences of two (2) to five (5) years’ 

incarceration, for an aggregate sentence of six (6) to fifteen (15) years’ 

incarceration. On appeal, Moyer argues the court abused its discretion in 

sentencing him to state incarceration.

2

 After our review, we affirm. 

A challenge to the discretionary aspects of sentencing is not 

automatically reviewable as a matter of right. Commonwealth v. Hunter, 

768 A.2d 1136 (Pa. Super. 2001). Prior to reaching the merits of a 

discretionary sentencing issue:

We 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. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations 

omitted). Here, Moyer’s direct appeal rights were reinstated nunc pro tunc

and a timely notice of appeal was filed. Moyer filed a Pa.R.A.P. 1925(b) 

statement of errors complained of on appeal, and has included in his brief a 

Pa.R.A.P. 2119(f) statement. In his Rule 2119(f) statement, Moyer states that 

his sentence is manifestly excessive in relation to his conduct, the sentencing 

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2 We note the Commonwealth has not filed a brief. 
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factors, and disproportionate to similarly situated offenders. His Rule 2119(f) 

statement reads:

The sentencing proceedings and presentence investigation reports 

establish that [Moyer] had a problem drinking pattern, he met 

criteria for counseling, and his attitude, insight, and willingness to 

follow recommendations were good. Further, the presentence 

report indicated that [Moyer] was receiving outpatient counseling 

through White Deer Run where he was attending individual and 

group sessions on a weekly basis. [Moyer] was also attending 

Alcoholics Anonymous meetings and working through the twelve 

steps and currently had a sponsor. Other important facts 

established at the sentencing proceeding include that [Moyer] 

maintained employment as a welder at ACF Industrial and that a 

big reason for his high prior record score was a 1990 conviction 

for criminal attempt-homicide. 

Appellant’s Brief, at 7-8.3

The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825, 

828 (Pa. Super. 2007). A substantial question exists “only when the appellant 

advances a colorable argument that the sentencing judge's actions were 

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3 We note that there is no indication in the record that Moyer filed a postsentence motion. However, we are not inclined to find waiver on this ground 

because Moyer’s direct appeal rights were reinstated nunc pro tunc by order 

dated December 13, 2016, which required Moyer to file a timely notice of 

appeal within thirty (30) days. See Order, 12/13/16. Moyer filed his notice 

of appeal on December 19, 2016, and, on December 23, 2016, the court 

ordered Moyer to file a Rule 1925(b) statement on June 2, 2017. The appeal 

was dismissed by this Court for failure to comply with Pa.R.A.P. 3517 

(Docketing Statement). That dismissal order was ultimately vacated and this 

Court entered an order on February 15, 2017 reinstating the appeal; Moyer 

filed a Pa.R.A.P. 1925(b) statement by June 2, 2017. The trial court notes 

that it did not receive a copy of this Court’s reinstatement order, which 

breakdown explains the delay in the filing of the Rule 1925(b) statement. See

Trial Court Opinion, 6/19/17, at 6-7.
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either: (1) inconsistent with a specific provision of the Sentencing Code; or 

(2) contrary to the fundamental norms which underlie the sentencing 

process.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)

(citations omitted). We find Moyer has raised a substantial question. See 

Commonwealth v. Dodge, 77 A.3d 1263 (Pa. Super. 2013) (where 

defendant asserted imposition of consecutive sentences was disproportionate 

to crimes and that sentencing court disregarded rehabilitation and nature and 

circumstances of offense in handing down sentence, court found substantial 

question).

Moyer argues that the sentencing court abused its discretion in 

sentencing him to three consecutive sentences of 24 to 60 months’ 

imprisonment, for an aggregate sentence of incarceration of 6-15 years.4 The

parties stipulated that Moyer’s prior record score is RFEL (repeat felony 

offender) and his offense gravity score is a five. The standard range for the 

minimum sentence is 24 to 36 months’ imprisonment for each DUI conviction. 

Although Moyer acknowledges that each of the three sentences falls within the 

range of the standard sentencing guidelines, he claims the sentencing court’s 

application of the guidelines resulted in an unreasonable sentence, and the 

circumstances here warranted a sentence in the mitigated range. See

Appellant’s Brief, at 11

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4 We note that the heading of the Argument portion of Moyer’s brief 

misidentifies both Moyer’s crimes and sentences. See Appellant’s Brief, at 10. 
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This Court reviews sentencing determinations as follows:

[S]entencing is vested in the discretion of the trial court, and will 

not be disturbed absent a manifest abuse of that discretion. An 

abuse of discretion involves a sentence which was manifestly 

unreasonable, or which resulted from partiality, prejudice, bias or 

ill will. It is more than just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252–53 (Pa. Super. 2006) 

(citations omitted). Moreover, an appellant “must establish, by reference to 

the record, that the sentencing court ignored or misapplied the law, exercised 

its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a 

manifestly unreasonable decision.” Commonwealth v. Kitchen, 162 A.3d 

1140, 1146 (Pa. Super. 2017). Further, when imposing sentence, a court is 

required to consider “the particular circumstances of the offense and the 

character of the defendant. In considering these factors, the court should 

refer to the defendant's prior criminal record, age, personal characteristics 

and potential for rehabilitation.” Commonwealth v. Antidormi, 84 A.3d 

736, 760–61 (Pa. Super. 2014) (internal citations and quotation marks 

omitted).

Our review of the two March 10, 2015 sentencing transcripts indicates

that the court acted within its discretion. At the hearing, the court stated that 

it had struggled over this case, noting Moyer’s danger to the public and 

recurrent misconduct, but also noting his rehabilitation efforts, his work 

history, his church attendance, his home support and the fact that were it not 

for his conviction 25 years ago, his risk/needs assessment “would be minimal.” 
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N.T. Sentencing Transcript I, 3/10/15, at 17. The court questioned the 

Commonwealth’s attorney, asking, “What good do we accomplish by 

sentencing this man to state prison?” Id. at 18. The court, after considerable 

and dispassionate reflection, sentenced Moyer to an aggregate term of 15 

years of IP with the first seventeen and one-half (171⁄2) months to be served 

in the Lycoming County’s Pre-release Program. The court noted that it was 

“acutely aware” that the sentence was well below the standard sentencing 

guideline range, but justified the sentence as follows: 

First, defendant’s criminal record and prior record score of a RFEL 

is based solely on convictions which are twenty-five years old. 

Accordingly, the Court is of the opinion that defendant’s prior 

record score overstates his criminal culpability. Furthermore, 

defendant has taken extraordinary steps in addressing his alcohol 

abuse as set forth in the presentence report, as well as the White 

Deer Run notification of defendant’s completion of treatment. The 

defendant regularly attends AA meetings, he has a sponsor, he is 

working The Big Book, he is steadily employed, he has a church 

support group, he has a home group, and he still attends 

individual and family group counseling. The Court is also

considering defendant’s age of sixty (60) years old. The court is 

of the opinion that defendant’s age caused him to be less likely of 

a risk going forward. Finally, the court has extensively reviewed

the risk needs assessment as set forth in the presentence report. 

Of 28 points, 23 of them are attributed solely to defendant’s

conviction of 25 years ago. But for those points, defendant’s 

supervision status would be a risk of 5, which is close to the 

administrative risk, and his need would fit into the administrative 

category.

Sentencing Order I, 3/10/15. 

Thereafter, the court learned that Moyer had made several 

misrepresentations. Contrary to Moyer’s assertions that he has been 
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attempting to address his behavior to ensure that he is not a danger to the 

community, the court learned that Moyer had, despite his representations 

otherwise, attended only one AA meeting and admitted to drinking as recently 

as the Friday before his sentencing hearing. See Sentencing Transcript II, 

3/10/15, at 2. As a result, the court vacated the IP sentence and imposed 

the current sentence of six to fifteen years’ incarceration. The court stated in 

its order:

[B]ecause it is apparent to the court that the defendant continues 

to drink and has not accepted responsibility for his extremely 

dangerous conduct, and has, in fact, made misrepresentations to 

the court regarding his steps at recovery, and while the court was 

willing to give the defendant more of a break than perhaps he has 

given any other defendant in the past six (6) years, the Court is 

of the opinion that a sentence of state prison is warranted. 

Sentencing Order II, 3/10/15. 

Moyer did not address his drinking problem after his first or second 

offenses, resulting in a third conviction where his BAC was again over twice 

the legal limit, and his misleading statements to the court indicated that he 

was unwilling or incapable of addressing his behavior. The sentencing court 

properly considered Moyer’s characteristics as well as the nature and 

circumstances of his offenses. Additionally, there is no question that the 

sentencing court observed Moyer and considered his presentence report. See 

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (“[w]here presentence reports exist, we shall continue to presume that the sentencing judge 
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was aware of the relevant information regarding the defendant's character 

and weighed those considerations along with mitigating statutory factors.”). 

We conclude, therefore, that the sentencing court imposed a sentence 

that was consistent with the protection of the public, taking into account the 

gravity of the offenses as it related to community. See 42 Pa.C.S. § 9721(b); 

42 Pa.C.S. § 9781(d)(1). See also Commonwealth v. Moury, 992 A.2d

162, 171 (Pa. Super. 2010) (“[W]here a sentence is within the standard range 

of the guidelines, Pennsylvania law views the sentence as appropriate under 

the Sentencing Code.”). We find no abuse of discretion. Malovich, supra.

Judgment of sentence affirmed.

Judge Dubow joins the Memorandum.

Judge Strassburger concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/15/2017