Com. v. Swiderski, J. ( 2015 )

J-S08007-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JASON MARTIN SWIDERSKI, :
:
Appellant : No. 830 EDA 2014
Appeal from the Judgment of Sentence January 31, 2014,
Court of Common Pleas, Northampton County,
Criminal Division at No. CP-48-CR-0000002-2010
BEFORE: DONOHUE, WECHT and JENKINS, JJ.
MEMORANDUM BY DONOHUE, J.: FILED MAY 20, 2015
Appellant, Jason Martin Swiderski (“Swiderski”), appeals from the
judgment of sentence entered on January 31, 2014, following sentencing for
a second violation of probation. For the reasons that follow, we affirm the
judgment of sentence.
The certified record on appeal reflects that on March 10, 2010,
Swiderski pleaded guilty to one count of receiving stolen property, 18
Pa.C.S.A. § 3925, for which the trial court sentenced him in June 2010 to a
term of incarceration of 18 to 36 months, followed by three years of
probation. On August 23, 2010, the trial court entered an order modifying a
previous order of restitution, directing Swiderski to pay $18,224. On
September 13, 2013, the trial court revoked Swiderski’s probation and
resentenced him. On January 31, 2014, after a second probation violation,
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the trial court again resentenced Swiderski, this time to a term of
incarceration of one to two years.
This appeal followed. This Court initially dismissed the appeal based
upon appointed counsel’s failure to file a docketing statement, but we
reinstated the appeal after Swiderski filed a petition to represent himself pro
se. Upon remand, the trial court conducted a Grazier1 hearing, at which
time it concluded that Swiderski could represent himself. On appeal,
Swiderski now raises the following five issues for our review and
determination:
1. Whether the court erred in letting the
Commonwealth break [the] plea agreement when
[it] stated on record that “no position would be taken
on sentencing” [but the trial court] allowed [it]
resulting in longer probation tail.
2. [The b]urden to establish the value of the stolen
property is upon the Commonwealth, not the
reasonableness or the opinion of the judge that the
victim proved by hearsay on amounts of fair market
value, [and the record is] devoid of any such
evidence.
3. [Swiderski’s] counsel failed to file [an] appeal on an
appealable issue at the conclusion of restitution
hearing when asked to do so by [Swiderski].
4. [Swiderski’s first] PCRA that raised similar
appealable issues [was] dismissed as moot due to
inordinate delay by the Commonwealth.
5. Probation officer at [Gagnon II] hearing heavily
influenced [the trial] judge[, implicating a Code of
1
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Judicial Conduct question] by running [the]
proceedings in his favor to appease himself and his
office.
Swiderski’s Brief at 7.2
We must agree with the Commonwealth that none of these issues may
be reviewed by this Court. For his first issue on appeal, Swiderski complains
about his original sentence following his guilty plea, contending that the
Commonwealth’s alleged misconduct resulted in a longer term of probation
than might otherwise have been imposed. This issue, however, should have
been raised by the filing of an appeal from his original sentence (imposed in
June 2010). An appeal must be taken at the first opportunity to do so, and
Swiderski’s failure to file a direct appeal from his original judgment of
sentence resulted in a waiver of this claim. See, e.g., Commonwealth v.
Harper, 436 A.2d 1217, 1220 (Pa. Super. 1981). Swiderski cannot appeal
issues relating to his original judgment of sentence in an appeal of a
subsequent judgment of sentence following a violation of probation.
Likewise, for his second issue on appeal, Swiderski challenges the
amount of restitution the trial court ordered him to pay. This claim is also
waived, as it should have been raised in an appeal of the trial court’s
restitution order in August 2010.
2
On January 15, 2015, this Court granted Swiderski an extension of time
until April 6, 2015 to file a reply brief. As of this date, he has not done so.
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For his third and fourth issues on appeal, Swiderski argues that his
counsel failed to file an appeal of the restitution order and that a petition for
relief alleging this ineffectiveness, filed pursuant to the Post Conviction Relief
Act, 42 Pa.C.S.A. § 9541-46 (“PCRA”), was improperly dismissed. Again,
however, this is not the appropriate forum for resolution of these issues. A
claim that Swiderski’s counsel was ineffective for failing to file a timely
appeal of the restitution order must be raised in a PCRA petition, and a claim
that such a PCRA petition was improperly dismissed must be set forth in an
appeal from the order dismissing the PCRA petition. The present appeal is a
direct appeal from the judgment of sentence following a violation of
probation, and is simply not the appropriate legal mechanism to resolve
these issues.
Finally, for his fifth issue on appeal, Swiderski contends that the trial
court violated provisions of the Code of Judicial Conduct for over-relying on
the testimony of the probation officer when imposing sentence on January
31, 2014. In this regard, we note that the jurisdiction of this Court with
respect to claims of violations of the Code of Judicial Conduct is limited to
determining whether the appellant received a fair trial. Reilly by Reilly v.
SEPTA, 489 A.2d 1291, 1300 (Pa. 1985). In this case, we conclude that no
such issue has been preserved for appellate review. At no time during the
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proceedings below, including either at the Gagnon II3 hearing or in
Swiderski’s subsequent motion for sentence modification (denied by order
dated February 10, 2014), did Swiderski raise any issue relating to an over-
reliance on the testimony of the probation officer or otherwise claim that the
revocation of probation proceeding were not conducted fairly and impartially.
Issues not raised in the lower court may not be asserted for the first time on
appeal. Pa.R.A.P. 302(a); Commonwealth v. Strunk, 953 A.2d 577, 579
(Pa. Super. 2008).
Judgment of sentence affirmed.
Wecht, J. joins the Memorandum.
Jenkins, J. files a Concurring Statement in which Donohue, J. and
Wecht, J. join.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/2015
3
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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