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March 5, 2026 Get Citation Alerts Download PDF Add Note

Com. v. Wainwright, C.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 367 MDA 2025
• Precedential Status: Non-Precedential

• Judges: Olson

• Opinion

• Authorities (17)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Combined Opinion

                        by [Judith Ference Olson](https://www.courtlistener.com/person/8241/judith-ference-olson/)

J-S42010-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARL ALAN WAINWRIGHT :
:
Appellant : No. 367 MDA 2025

Appeal from the Judgment of Sentence Entered February 10, 2025
In the Court of Common Pleas of Tioga County Criminal Division at
No(s): CP-59-CR-0000133-2024

BEFORE: OLSON, J., KING, J., and LANE, J.

MEMORANDUM BY OLSON, J.: FILED MARCH 05, 2026

Appellant, Carl Alan Wainwright, appeals from the February 10, 2025

judgment of sentence entered in the Court of Common Pleas of Tioga County

after Appellant pleaded guilty to one count of driving under influence of alcohol

or controlled substance (“DUI”) – highest rate of alcohol, his second offense.1

The trial court sentenced Appellant to 18 to 60 months’ incarceration.2 We

affirm.

---

1 75 Pa.C.S.A. § 3802(c).

2 The trial court imposed a fine in the amount of $1,500.00 and ordered
Appellant to pay the costs of prosecution. The trial court also suspended
Appellant’s driver’s license and operating privileges for 18 months. Appellant
was ordered to undergo deoxyribonucleic acid (“DNA”) testing, to attend and
successfully complete the Pennsylvania Alcohol and Highway Safe Driving
School, and was subject to an ignition interlock system for a period of one
year. Order of Sentence, 2/11/25.
J-S42010-25

The record demonstrates that, on January 11, 2024, Appellant was

operating his motor vehicle with a blood alcohol content (“BAC”) of 0.242%.

On February 15, 2024, Appellant was charged with DUI – general impairment

(Count 1), DUI – highest rate of alcohol (Count 2), driving while operating

privilege is suspended or revoked – BAC greater than 0.02% (Count 3),

driving while operating privilege is suspended or revoked (Count 4), drivers

required to be licensed (Count 5), and careless driving (Count 6).3 Initially,

Appellant was charged at Counts 1 and 2 as a first time offender. On May 24,

2024, the Commonwealth revised Counts 1 and 2 to reflect the charges as

Appellant’s second DUI offenses.

On October 28, 2024, Appellant pleaded guilty to Count 2. This was

Appellant’s second DUI offense within a ten year period. In exchange for

Appellant agreeing to plead guilty to Count 2, the Commonwealth agreed to

nolle prosse Appellant’s remaining criminal charges. On February 10, 2025,

the trial court sentenced Appellant, as detailed supra, to a term of 18 to 60

months’ incarceration.

On February 18, 2025, Appellant filed a post-sentence motion that

sought reconsideration of his sentence on the ground that his sentence

exceeded the aggravated range under the sentencing guidelines for his

---

3 75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), 1543(b)(1.1)(i), 1543(b)(1)(i),
1501(a), and 3714(a), respectively.

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J-S42010-25

criminal conviction. The trial court denied Appellant’s post-sentence motion

on February 20, 2025.4 This appeal followed.5

Appellant raises the following issue for our review: “Whether the [trial]

court abused its discretion in sentencing Appellant to a period of [18 to 60]

months, a period of incarceration well above the sentencing guidelines?”

Appellant’s Brief at 7 (extraneous capitalization omitted).

Appellant’s issue challenges the discretionary aspects of his sentence on

the ground the trial court imposed a sentence that fell outside the sentencing

guidelines.

“Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right.” Commonwealth v.
Derry, 150 A.3d 987, 991 (Pa. Super. 2016) (citations omitted).
Before reaching the merits of such claims, we must determine:

(1) whether the appeal is timely; (2) whether [the]
appellant preserved his[ or her] issues; (3) whether [the]
appellant’s brief includes a [Pennsylvania Rule of Appellate
Procedure] 2119(f) concise statement of the reasons relied
upon for allowance of appeal with respect to the
discretionary aspects of sentence; and (4) whether the
concise statement raises a substantial question that the
sentence is inappropriate under the sentencing code.

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011)
(citations omitted).

“To preserve an attack on the discretionary aspects of sentence,
an appellant must raise his [or her] issues at sentencing or in a

---

4 Appellant’s judgment of sentence was made final upon denial of his
post-sentence motion.

5 Appellant and the trial court complied with Pennsylvania Rule of Appellate

Procedure 1925.

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J-S42010-25

post-sentence motion. Issues not presented to the [trial] court
are waived and cannot be raised for the first time on appeal.”
Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa. Super.
2006) (citations omitted); see also Pa.R.A.P. 302(a).

“The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis.” Commonwealth v.
Battles, 169 A.3d 1086, 1090 (Pa. Super. 2017) (citation
omitted).

Commonwealth v. Pisarchuk, 306 A.3d 872, 878 (Pa. Super. 2023)

(original brackets and extraneous capitalization omitted), appeal denied, 318

A.3d 95 (Pa. 2024); see also Commonwealth v. Dempster, 187 A.3d 266,

272 (Pa. Super. 2018) (en banc).

In determining whether a substantial question exists, this Court “cannot

look beyond the statement of questions presented and the prefatory Rule

2119(f) statement[.]” Commonwealth v. Christine, 78 A.3d 1, 10

(Pa. Super. 2013), aff’d, 125 A.3d 394 (Pa. 2015). The Rule 2119(f)

statement “must explain where the sentence falls in relation to the sentencing

guidelines, identify what specific provision of the [Sentencing] Code [or] what

fundamental norm was violated, and explain how and why the [trial] court

violated that particular provision [or fundamental] norm.” Commonwealth

v. Feucht, 955 A.2d 377, 384 (Pa. Super. 2008), appeal denied, 963 A.2d

467 (Pa. 2008). While it is not necessary that the Rule 2119(f) statement

“provide elaborate factual and procedural details,” the statement must provide

more than “bald assertions or non-specific claims of error [and] must state

the way in which the penalty imposed is inappropriate.” Feucht, 955 A.2d at

384. A substantial question exists when an appellant presents a colorable

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J-S42010-25

argument that the sentence imposed is either (1) inconsistent with a specific

provision of the Sentencing Code or (2) is “contrary to the fundamental norms

which underlie the sentencing process.” Commonwealth v. Mastromarino,

2 A.3d 581, 585 (Pa. Super. 2010), appeal denied, 14 A.3d 825 (Pa. 2011).

Preliminarily, we must determine whether Appellant has the right to

seek permission to appeal the discretionary aspects of his sentence.

“Generally, a plea of guilty amounts to a waiver of all defects and defenses

except those concerning the jurisdiction of the [trial] court, the legality of the

sentence, and the validity of the guilty plea.” Commonwealth v. Morrison,

173 A.3d 286, 290 (Pa. Super. 2017) (citation omitted). It is well-settled that

“where a defendant pleads guilty pursuant to a plea agreement specifying

particular penalties, the defendant may not seek a discretionary appeal

relating to those agreed-upon penalties.” Commonwealth v. Brown, 982

A.2d 1017, 1019 (Pa. Super. 2009) (citation omitted) (stating, “[p]ermitting

a defendant to petition for such an appeal would undermine the integrity of

the plea negotiation process and could ultimately deprive the Commonwealth

of sentencing particulars for which it bargained”), appeal denied, 990 A.2d

726 (Pa. 2010); see also Morrison, 173 A.3d at 290. “Where a defendant

pleads guilty without any agreement as to sentence, [however,] the defendant

retains the right to petition this Court for allowance of appeal with respect to

the discretionary aspects of sentencing.” Brown, 982 A.2d at 1019, relying

on Commonwealth v. Dalberto, 648 A.2d 16, 21 (Pa. Super. 1994), appeal

denied, 655 A.2d 983 (Pa. 1995), cert. denied, 516 U.S. 818 (1995).

-5-
J-S42010-25

Here, pursuant to the plea agreement accepted by the trial court on

October 28, 2024, Appellant agreed to plead guilty to the aforementioned

criminal conviction without an agreement as to the sentence he would receive

for his conviction. Therefore Appellant retained the right to petition this Court

for allowance of appeal with respect to the discretionary aspects of his

sentence. Brown, 982 A.2d at 1019.

In seeking his appeal, Appellant filed a timely notice of appeal and

properly preserved a challenge to the discretionary aspects of his sentence in

a timely post-sentence motion. In his Rule 2119(f) statement, Appellant

contends that his “sentence was outside the aggravated range [for]

sentencing and was unreasonable considering the facts of the case.”

Appellant’s Brief at 10. Appellant’s claim that his sentence was unreasonable

“considering the facts of the case” merely raises a bald assertion of

unreasonableness without defining the specific “facts of the case” that make

his sentence unreasonable. See Commonwealth v. Morris, 319 A.3d 37,

2024 WL 1636602 (Pa. Super. filed Apr. 16, 2024) (unpublished

memorandum), appeal denied, 333 A.3d 306 (Pa. 2025). In his Rule 1925(b)

concise statement, however, Appellant states that his sentence was

“manifestly excessive” because it was seven months longer than the upper

limit of the aggravated sentencing range and upon consideration of the

standard sentencing range for Appellant’s conviction, which was five to eight

months. Appellant’s Rule 1925(b) Concise Statement, 4/7/25. “While a bald

claim of excessiveness does not present a substantial question for review, a

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J-S42010-25

claim that the sentence is manifestly excessive, inflicting too severe a

punishment does present a substantial question.” Commonwealth v.

Haynes, 125 A.3d 800, 807-808 (Pa. Super. 2015), appeal denied, 140 A.3d

12 (Pa. 2016). Because Appellant’s issue, as presented in his Rule 1925(b)

concise statement, arguably presents a claim that his sentence was manifestly

excessive and too severe a punishment, we find Appellant presented a

substantial question. Therefore, we proceed to consider the merits of

Appellant’s discretionary sentencing claim.

In reviewing sentencing matters, we are mindful of our well-settled

standard of review.

Sentencing is a matter vested in the sound discretion of the [trial
court], and a sentence will not be disturbed on appeal absent a
manifest abuse of discretion. In this context, an abuse of
discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
[trial] 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. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009).

Section 9721(b) of the Sentencing Code requires a trial court, in

fashioning its sentence, to, inter alia, “follow the general principle that the

sentence imposed should call for total confinement that is consistent with

[S]ection 9725 (relating to total confinement) and the protection of the public,

the gravity of the offense as it relates to the impact on the life of the victim

and on the community, and the rehabilitative needs of the defendant.” 42

Pa.C.S.A. § 9721(b).

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J-S42010-25

Although a trial court must “consider” the sentencing guidelines in

fashioning its sentence, sentencing is individualized and the range of sentence

offered by the sentencing guidelines is “purely advisory in nature.”

Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007); see also

Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007). A trial court

is required, however, to “provide a written statement setting forth the reasons

for the deviation” when the trial court imposes a sentence that is outside of

the ranges offered by the sentencing guidelines. Walls, 926 A.2d at 963.

Pertinent to the case sub judice, we “shall vacate the sentence and

remand the case to the [trial] court with instructions if [we find that the trial]

court sentenced outside the sentencing guidelines and the sentence is

unreasonable.” 42 Pa.C.S.A. § 9781(c)(3); see also Walls, 926 A.2d at 963

(stating, “under the Sentencing Code[,] an appellate court is to exercise its

judgment in reviewing a sentence outside the sentencing guidelines to assess

whether the [trial] court imposed a sentence that is “unreasonable[”]). In

assessing the reasonableness of a sentence that falls outside the sentencing

guidelines, we shall have regard for:

(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.

(2) The opportunity of the [trial] court to observe the defendant,
including any presentence investigation [report].

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).

-8-
J-S42010-25

The term “unreasonable” is not defined by the Sentencing Code. Walls,

926 A.2d at 963; see also 42 Pa.C.S.A. § 9702. Our Supreme Court has held,

however, that “the General Assembly [] intended the concept of

unreasonableness to be a fluid one, as exemplified by the four factors set forth

in Section 9781(d) to be considered in making this determination[, and] to be

inherently a circumstance-dependent concept that is flexible in understanding

and lacking precise definition.” Walls, 926 A.2d at 963. As such, the Walls

Court declined “to fashion any concrete rules as to the unreasonableness

inquiry for a sentence that falls outside of applicable guidelines under Section

9781(c)(3).” Id. at 964. The Walls Court instructed, however, that “while a

sentence may be found to be unreasonable after review of Section 9781(d)’s

four statutory factors, [] a sentence may also be unreasonable if the appellate

court finds that the sentence was imposed without express or implicit

consideration by the [trial] court of the general standards applicable to

sentencing found in Section 9721, i.e., the protection of the public; the gravity

of the offense in relation to the impact on the victim and the community; and

the rehabilitative needs of the defendant.” Id., citing 42 Pa.C.S.A. § 9721(b).

Appellant asserts that, “based upon the specific facts of his

crime” – namely that his DUI did not result in an accident – his sentence was

unreasonable. Appellant’s Brief at 14. Appellant further argues that, prior to

the trial court fashioning its sentence, Appellant explained to the trial court

“how he is on medically assisted treatment now and that he had enough of

the negative things alcohol was doing to him.” Id. Appellant reiterated that

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J-S42010-25

“[n]o one was hurt in the commission of this crime” and, therefore, his

sentence was unreasonable. Id.

In fashioning its sentence, the trial court stated,

I’m gonna impose a sentence here today that reflects really the
very serious nature of what’s transpired here. I want to believe
that you are a person who has changed and has seen the light,
but candidly speaking, your – your prior record indicates that this
is a pattern that is likely to repeat. I’m gonna impose a sentence
here today. When recognizing the terms of the plea agreement
and the Commonwealth’s agreement that there would be
electronic monitoring, I do not believe you are a good candidate
for electronic monitoring, and I am not willing to impose a
sentence of electronic monitoring. And the fact that no one was
seriously injured or killed in the nine DUIs you have accumulated
is surprising. And this is a very high BAC; this is three times the
legal rate, so I am taking that into consideration, and I’m gonna
fashion and impose a sentence that will, I hope, force you to
address and deal with the circumstances of your alcohol abuse but
also will do the most it can to protect society from your urge to
drink and the – and the consequences of drinking and driving,
which are very serious and very real.

N.T., 2/10/25, at 7 (extraneous capitalization omitted). After sentencing

Appellant to term of 18 to 60 months’ incarceration, the trial court stated,

The [trial] court recognizes that this sentence falls outside the
[sentencing] guidelines, and notes as justification that the
continued – the extensive and continuing history of [Appellant’s]
driving impaired, and frankly, the absolute failure of the new
sentencing guidelines to take into consideration the serious
history of drinking and driving reflected in this case.

Id. at 8 (extraneous capitalization omitted).

The record demonstrates that, prior to imposing its sentence, the trial

court received, and reviewed, a pre-sentence investigation (“PSI”) report. Id.

at 2. The trial court informed Appellant that the standard sentencing range

• 10 - J-S42010-25

for his conviction was five to eight months of restrictive conditions, that the

minimum, mitigated range was 90 days (the statutory minimum), and the

aggravated range was 11 months of restrictive conditions. Id. These

calculations, the trial court explained, were based upon Appellant’s prior

record score of two, and his offense gravity score of nine. Id. The trial court

also stated that “[t]he statutory maximum sentence for this [conviction], the

most you could receive today, could be two and a half to five years[’

incarceration], and that’s based upon the grading of the offense.” Id.

Appellant responded that he did not have any challenges to the sentencing

guideline calculations. Id. Appellant provided the trial court “medical

documentation.” Id. at 4. Appellant also made a statement to the trial court

as follows:

I’m taking medication right now that was prescribed to me – I
agreed to take [the medication.] The drinking is done. [The
medication when combined with alcohol] makes me sick and ill. I
chose to do this because I don’t want to drink. I do have urges to
drink once in a while, but that’s why I agreed to the medicine, and
I got it down to the – it originally was through a psychiatrist [] in
Sayre[, Pennsylvania,] where I was at for over – almost two
weeks. And through the psychiatrist and the doctors down there,
we come to the conclusion. I told them I’m fed up; I had enough.
I talked to Harbor [Counseling]. They truly believe – and I’ve
done an extensive amount of talking with them. I’ve spent hours
talking to them and how I’m sick of my life. I’m sick of just how
I’ve lived all these years. I did what I did. I got in my truck, and
I drove over – over the hill from my home to where I was arrested
at. I don’t deny that, Your Honor. I didn’t do a refusal like I’ve
tried to do in the past. I told them if they wanted a blood test, I’d
be more than willing to go and do a blood test. Right then and
there, I just said I had enough. I got rid of everything I’ve owned.
My health conditions don’t allow me to even do the things I enjoy
to do anymore. I’d like to just be able to enjoy what I’ve got left

• 11 - J-S42010-25

of my life. When I went to the (inaudible) I was at a point where
I just didn’t care anymore. I wanted to be dead. I truly did. I
don’t feel that way now; I do occasionally have the thought, but
life has just been rough. I’ve had some good, but I’ve had a lot
of bad. And I’m sorry about the armed robbery in Florida; that
was something I did when I was nineteen. That was a very long
time ago. As [the Commonwealth] said, the driving and the DUIs
have been a problem. They’ve definitely been a problem. I mean,
the drinking’s got to go away. That’s the only thing that can
happen.

Id. at 5-6.

Upon review, we discern no error of law or abuse of discretion in the

trial court’s judgment of sentence. The trial court considered the general

sentencing standards set forth in Section 9721(b) of the Sentencing Code,

namely the protection of the public; the gravity of the offense, and Appellant’s

rehabilitative needs. During the events leading to his instant DUI conviction,

Appellant was operating a motor vehicle with a BAC of 0.242%, well above

the legal limit for operating a motor vehicle. Appellant has an extensive

history of DUIs, and it is clear that Appellant struggles with controlling his

urge to consume alcohol as demonstrated by his current course of medical

treatment. Appellant explained to the trial court his remorse for his actions,

his struggle with alcohol addiction, and his desire to live a life free of alcohol.

The trial court also had the benefit of a PSI report. The trial court, in

fashioning its sentence, considered Appellant’s history of DUI convictions, his

struggles with alcohol, and his desire of treatment. Although the sentencing

guidelines suggest an aggravated upper sentencing range of 11 months’

incarceration, based upon the reasons articulated by the trial court, and

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supported by the record, we do not find Appellant’s term of incarceration of

18 to 60 months to be unreasonable.

Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.
Prothonotary

Date: 03/05/2026

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