Commonwealth v. Woods, 792 MDA 2021

• Court: Superior Court of Pennsylvania
• Writing for the Court: PELLEGRINI, J.
• Parties: COMMONWEALTH OF PENNSYLVANIA v. BRUCE KENNETH WOODS Appellant
• Docket Number: 792 MDA 2021,J-S35041-21
• Decision Date: 13 December 2021

COMMONWEALTH OF PENNSYLVANIA
v.
BRUCE KENNETH WOODS Appellant

No. 792 MDA 2021

No. J-S35041-21

Superior Court of Pennsylvania

December 13, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered September 10, 2020 In the Court of Common Pleas of Huntingdon County Criminal Division at No(s): CP-31-CR-0000454-2019

BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

PELLEGRINI, J.

Bruce Kenneth Woods (Woods) appeals nunc pro tunc from the judgment of sentence imposed in the Court of Common Pleas of Huntingdon County (trial court) following his guilty plea to possession of contraband by an inmate, 18 Pa.C.S. § 5123(a.2), a second-degree felony. He challenges the discretionary aspects of sentence. We affirm.

The following background facts and procedural history from our independent review of the record and the trial court's August 4, 2021 opinion are not in dispute.

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I.

Woods is an inmate at SCI-Smithfield where he is serving a sentence of not less than 25 nor more than 50 years' incarceration pursuant to his negotiated guilty plea to third-degree murder, robbery and solicitation to commit perjury. On December 16, 2018, Woods met with a female visitor and surveilling law enforcement officers observed the woman hand Woods three balloons containing suspected controlled substances. Woods swallowed the balloons and defecated them days later. Forensic testing confirmed that the balloons contained heroin and buprenorphine, a Schedule I and Schedule II substance, respectively.

On September 10, 2020, Woods pleaded guilty to possession of a controlled substance by an inmate. Prior to Woods entering the plea, the prosecutor stated on the record that he was offering a sentence of not less than 18 nor more than 36 months' imprisonment. During his colloquy, Woods stated that he accepted the sentencing offer. The trial court sentenced Woods pursuant to the agreement, consecutive to any sentences he already was serving. Woods did not raise any objections to the sentence at that time.

On September 21, 2020, Woods filed a timely post-sentence motion to withdraw the plea on the sole basis that he was no longer interested in it and that he instead wanted to go to trial. He did not challenge the discretionary aspects of his sentence. The court denied the motion on November 20, 2020.

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On June 11, 2021, Woods filed a motion to appeal nunc pro tunc that the trial court granted on June 14, 2021. That same day, Woods filed his notice of appeal. He filed a timely statement of errors complained of on appeal. See Pa.R.A.P. 1925(b).

II.

Woods raises one issue for our review which concerns the discretionary aspects of his sentence.^[1] He states the issue as: "Is the sentence imposed on [him] manifestly excessive, given the lack of harm caused to any other person and his acceptance of responsibility and rehabilitative needs?" (Woods' Brief, at 4). However, as observed by both the trial court and the

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Commonwealth, he failed to preserve his issue in the trial court by raising the discretionary aspects of sentence issue either at sentencing or in his post-sentence motion, thus denying the trial court the opportunity to reconsider or modify his sentence. (See Trial Court Opinion, at 2); (Commonwealth's Brief, at 8-9). Hence, the claim is waived. See Commonwealth v. Griffiths, 65 A.3d 932, 936 (Pa. Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013) (discretionary aspects of sentence claim waived where appellant fails to raise claim during sentencing proceedings or in post-sentence motion); Commonwealth v. Reeves, 778 A.2d 691, 692-93 (Pa. Super. 2001) (failure to raise specific claim regarding imposition of sentence in post-sentence motion deprived trial court opportunity to consider it and, thus, claim waived on appeal).

Moreover, even if he had not waived the issue, Woods would be due no relief, even though he raises a substantial question. See Commonwealth v. Derrickson, 242 A.3d 667, 680 (Pa. Super. 2020), appeal denied, 253 A.3d 213 (Pa. 2020) ("claim that the trial court failed to consider relevant sentencing criteria, including the protection of the public, the gravity of the...