J-S74044-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF

PENNSYLVANIA

v.

LINDSAY M. DWYER

Appellant No. 1711 EDA 2017

Appeal from the Judgment of Sentence April 17, 2017

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0002001-2016

BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.: FILED FEBRUARY 12, 2018

Appellant, Lindsay M. Dwyer, appeals from the judgment of sentence of 

six to twenty-three months of incarceration, imposed April 17, 2017, following 

an open guilty plea resulting in her conviction for simple assault.1 We affirm.

We adopt the following statement of facts from the trial court opinion, 

which in turn is supported by the record. See Trial Court Opinion (TCO), 

7/31/17, at 1-20. Following an incident where the intoxicated Appellant 

stabbed and shot at her boyfriend, she was arrested and charged with 

aggravated assault, recklessly endangering another person, simple assault, 

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1 See 18 Pa.C.S. § 2701.
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and possession of an instrument of crime.2 Appellant entered an open guilty 

plea to one count of simple assault. All other charges were nolle prossed. 

Although the court entered an order for a pre-sentence investigation 

report (“PSI”), and Appellant scheduled two appointments with the probation 

department, she did not appear for either appointment. Nevertheless, the 

probation department prepared a PSI with the information available. The 

report indicated that Appellant had a prior DUI in Northampton County for 

which she had received Accelerated Rehabilitative Disposition (“ARD”). 

Appellant’s ARD was revoked following her failure to appear for a hearing.

On April 17, 2017, Appellant appeared for sentencing. Counsel did not 

object to the PSI as prepared. Appellant appeared for allocution and spoke 

regarding her mental health issues, her drug addiction, and her abusive 

relationship. She did not submit additional reports regarding her drug and 

alcohol counseling or mental health treatment, though she stated she was in 

recovery. 

The court sentenced Appellant to six to twenty-three months of 

incarceration, at the low end of the standard range, and ordered her to 

complete anger management counseling and continue with drug, alcohol, and 

mental health counseling.3 The court indicated it would reconsider the 

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2 See 18 Pa.C.S. §§ 2702, 2705, 2701, and 907, respectively.

3 Appellant suggests that her sentence is well beyond the standard range of 

zero to two months. However, because Appellant committed her assault with 
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sentence if Appellant provided documentation confirming she was currently in 

treatment and complying with the recommendations of her provider. Although 

Appellant filed a motion seeking reconsideration of her sentence, she did not 

provide the requested documentation. The court denied her post sentence 

motion.

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) 

statement of errors complained of on appeal. The sentencing court issued a 

responsive opinion.

Appellant raises a single issue for our review:

Did the sentencing court abuse its discretion in imposing a 

sentence in the aggravated range contrary to the written plea 

colloquy by the defendant and the Commonwealth, and in further 

denying reconsideration of sentence without affording the 

defendant the opportunity to be heard?

Appellant’s Brief at 6 (unnecessary capitalization and suggested answer 

omitted).

Appellant’s sole issue is a challenge to the discretionary aspects of her 

sentence, which must be considered a petition for permission to appeal. See 

Commonwealth v. Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011); see 

also Pa.R.A.P. 2119(f). This Court conducts a four-part analysis to determine: 

(1) whether Appellant has timely filed a notice of appeal; (2) whether the 

issue was properly preserved at sentencing or in a motion to reconsider and 

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a knife and gun, the trial court applied the Deadly Weapon Used Sentencing 

Matrix pursuant to 204 Pa. Code § 303.10(a)(2). See TCO at 11. Thus, the 

standard range was six to seven months with an aggravated range of ten 

months. See 204 Pa. Code § 303.17(b); TCO at 11.
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modify sentence; (3) whether Appellant’s brief has a fatal defect; and (4) 

whether there is a substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b). 

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation 

omitted). 

Appellant timely filed a notice of appeal and filed a motion for 

reconsideration of her sentence. However, she did not preserve this issue in 

her motion. In the motion, Appellant requested a downward modification of 

her sentence. See Mot. for Recons., 4/26/17, ¶¶ 1-9. She noted that a sixmonth period of incarceration would jeopardize her employment, ability to 

obtain health insurance, and may result in loss of housing. Id. However, her 

motion did not challenge the propriety of the sentence or aver that it was an 

abuse of discretion. Id. Accordingly, Appellant has not preserved her issue 

for purposes of appeal. See Leatherby, 116 A.3d at 83.

Judgment of sentence affirmed. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date:2/12/18