Opinion
J-S56009-18 No. 70 MDA 2018
10-10-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. BEATRICE EMILY MCCAIN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 7, 2017
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000798-2016, CP-36-CR-0003303-2015, CP-36-CR-0003379-2015, CP-36-CR-0003531-2015, CP-36-CR-0003535-2015, CP-36-CR-0003871-2015, CP-36-CR-0004544-2015, CP-36-CR-0006092-2015 BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Beatrice Emily McCain, appeals from the judgment of sentence entered in the Lancaster County Court of Common Pleas, following revocation of her parole/probation. We affirm.
The relevant facts and procedural history of this case are as follows. On January 6, 2016, Appellant entered open guilty pleas to multiple counts of retail theft at six separate docket numbers (Nos. 3303, 3379, 3531, 3535, 3871, and 4544). The court sentenced Appellant to an aggregate term of 5 years' probation. A few weeks later, on January 28, 2016, the Commonwealth charged Appellant with several new criminal offenses. The court determined these new offenses violated the terms of Appellant's probation at the original six docket numbers and revoked Appellant's probation on July 27, 2016; the court resentenced Appellant to an aggregate term of 9 to 23 months' incarceration, plus 3 years' probation. Additionally, on October 31, 2016, Appellant entered a negotiated guilty plea on the new 2015 criminal docket (No. 6092) and the new 2016 criminal docket (No. 798), and the court sentenced Appellant to two concurrent sentences of 9 to 23 months' incarceration, plus 1 year probation, to be served consecutive to her probation violation sentence of 9 to 23 months' incarceration, plus 3 years' probation.
In August 2017 and September 2017, Appellant again violated the terms of her probation. Following a parole and probation violation hearing, the court revoked Appellant's parole/probation on September 21, 2017, and ordered a pre-sentence investigation ("PSI") report. On December 7, 2017, with the benefit of the PSI, the court imposed a revocation sentence of 2½ to 5 years' incarceration in the aggregate on all of the docket numbers.
Appellant filed a post-sentence motion on December 14, 2017. Appellant filed a timely notice of appeal on January 5, 2018. On January 9, 2018, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on January 30, 2018.
The court denied Appellant's post-sentence motion on February 8, 2018.
Generally, a notice of appeal "shall be filed within 30 days after the entry of the order from which the appeal is taken." Pa.R.A.P. 903(a). Nevertheless, "[a] motion to modify a sentence imposed after a revocation shall be filed within 10 days of the date of imposition. The filing of a motion to modify sentence will not toll the 30-day appeal period." Pa.R.Crim.P. 708(E). Rule 708 makes clear that Pa.R.Crim.P. 720, which otherwise governs the timing of post-sentence motion procedures and appeals, does not apply to revocation cases. Id. Comment. See also Commonwealth v . Parlante , 823 A.2d 927, 929 (Pa.Super. 2003) (stating: "An appellant whose revocation of probation sentence has been imposed after a revocation proceeding has 30 days to appeal her sentence from the day her sentence is [imposed], regardless of whether...she files a post-sentence motion"). Here, Appellant timely filed her notice of appeal on January 5, 2018, within 30 days of December 7, 2017, the date of her revocation sentence. See id. Thus, we depart from the trial court's comments on the "premature" nature of Appellant's notice of appeal. ( See Trial Court Opinion, filed February 8, 2018, at 1 n.1.)
Appellant raises the following issue for our review:
WAS THE TRIAL COURT'S SENTENCE OF TWO AND ONE-HALF TO FIVE YEARS' INCARCERATION IN A STATE CORRECTIONAL INSTITUTION ON DOCKET NOS. 3303-2015; 3379-2015; 3531-2015; 3535-2015; 3871-2015; 4544-2015; [AND] 6092-2015 MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION?(Appellant's Brief at 4).
Appellant argues her revocation sentence of 2½ to 5 years' incarceration is excessive and an abuse of the court's discretion. Specifically, Appellant alleges the court did not consider all of the relevant factors in concluding a sentence of incarceration was warranted, but relied heavily on only a few factors: (1) Appellant's prior criminal record, rather than the periods of time she remained crime-free and sober; (2) Appellant's prior overall violations on all other dockets she has been supervised on, rather than on the violations of the dockets at issue; and (3) Appellant's continued substance abuse, rather than on her efforts to better herself during past periods of supervision. Appellant maintains the protection of the public and her rehabilitative needs are better served by providing her with mental health and drug and alcohol treatment instead of a lengthy period of incarceration. Appellant concludes this Court should reverse the judgment of sentence and remand the case for resentencing. As presented, Appellant's claim challenges the discretionary aspects of sentencing. See Commonwealth v. Lutes , 793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive challenges discretionary aspects of sentencing); Commonwealth v. Cruz-Centeno , 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (explaining claim that court did not consider mitigating factors challenges discretionary aspects of sentencing).
When reviewing the outcome of a revocation proceeding, this Court is limited to determining the validity of the proceeding and the legality of the judgment of sentence imposed. Commonwealth v. Heilman , 876 A.2d 1021 (Pa.Super. 2005). Notwithstanding the stated scope of review suggesting only the legality of a sentence is reviewable, an appellant may also challenge the discretionary aspects of a sentence imposed following revocation. Commonwealth v. Sierra , 752 A.2d 910 (Pa.Super. 2000). See also Commonwealth v. Cartrette , 83 A.3d 1030 (Pa.Super. 2013) (en banc) (discussing that scope of review following revocation proceedings includes discretionary sentencing claims).
Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Sierra , supra at 912. Prior to reaching the merits of a discretionary sentencing issue:
[W]e 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 [Rule 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. Hyland , 875 A.2d 1175, 1183 (Pa.Super. 2005), appeal denied, 586 Pa. 723, 890 A.2d 1057 (2005) (most internal citations omitted).
When appealing the discretionary aspects of a sentence, an appellant must also invoke the appellate court's jurisdiction by including in her brief a separate concise statement demonstrating a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon , 571 Pa. 419, 812 A.2d 617 (2002); Commonwealth v. Tuladziecki , 513 Pa. 508, 522 A.2d 17 (1987); Pa.R.A.P. 2119(f). "The requirement that an appellant separately set forth the reasons relied upon for allowance of appeal 'furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court's evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases.'" Commonwealth v. Williams , 562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in original).
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Anderson , 830 A.2d 1013 (Pa.Super. 2003). A substantial question exists "only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Sierra , supra at 912-13. This Court does not accept bald assertions of sentencing errors as substantial questions. Commonwealth v. Malovich , 903 A.2d 1247 (Pa.Super. 2006). Rather, an appellant must articulate the bases for her allegations that the sentencing court's actions violated the sentencing code. Id.
"In general, the imposition of sentence following the revocation of probation is vested within the sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal." Commonwealth v. Hoover , 909 A.2d 321, 322 (Pa.Super. 2006). A sentence should not be disturbed where it is evident the court was aware of the appropriate sentencing considerations and weighed them in a meaningful fashion. Commonwealth v. Fish , 752 A.2d 921, 923 (Pa.Super. 2000).
The Sentencing Guidelines do not apply to sentences imposed following revocation of probation. Commonwealth v. Ferguson , 893 A.2d 735, 739 (Pa.Super. 2006), appeal denied, 588 Pa. 788, 906 A.2d 1196 (2006). "[U]pon sentencing following a revocation of probation, the trial court is limited only by the maximum sentence that it could have imposed originally at the time of the probationary sentence." Commonwealth v. Coolbaugh , 770 A.2d 788, 792 (Pa.Super. 2001). A court can sentence a defendant to total confinement after revoking probation if the defendant was convicted of another crime, the defendant's conduct indicates it is likely that she will commit another crime if she is not imprisoned, or such a sentence is essential to vindicate the court's authority. Commonwealth v. Crump , 995 A.2d 1280 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010).
Additionally, the existence of a PSI report enables the court to consider all of the information relevant to its sentencing decision:
Where [PSI] reports exist, we shall continue to presume that the sentencing judge was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors. A [PSI] report constitutes the record and speaks for itself. In order to dispel any lingering doubt as to our intention of engaging in an effort of legal purification, we state clearly that [sentencing courts] are under no compulsion to employ checklists or any extended or systematic definitions of their punishment procedure. Having been fully informed by the pre-sentence report, the sentencing court's discretion should not be disturbed. This is particularly true, we repeat, in those circumstances where it can be demonstrated that the judge had any degree of awareness of the sentencing considerations, and there we will presume also that the weighing process took place in a meaningful fashion.Commonwealth v. Devers , 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988). If the sentencing court has the benefit of a PSI, the law presumes the court was aware of the relevant information regarding the defendant's character and weighed those considerations along with any mitigating factors. Commonwealth v. Tirado , 870 A.2d 362 (Pa.Super. 2005).
Instantly, Appellant has properly preserved her sentencing issue for appeal. Nevertheless, Appellant does not appear to have raised a substantial question. See Cruz-Centeno , supra at 545 (stating as general rule, "[a]n allegation that a sentencing court failed to consider or did not adequately consider certain factors does not raise a substantial question that the sentence was inappropriate"). In response, the trial court reasoned as follows:
A review of the record clearly demonstrates a meaningful consideration of the appropriate and relevant sentencing factors, done with the benefit of a presentence investigation and statements from both [Appellant] and [Appellant's] counsel. Contrary to [Appellant's] assertion, consideration was given to [Appellant's] circumstances, including her long-standing drug and alcohol addiction, her disability, her minimal work history, her mother's declining health and the fact that she has children who are being raised by her mother. However, also taken into consideration was [Appellant's] extensive prior record, including eighteen (18) prior retail thefts, one (1) conspiracy charge, four (4) unsworn falsifications, three (3) disorderly conducts, (1) prostitution charge, one (1) theft of a leased property, (1) charge for recklessly endangering another person, and fourteen (14) probation and parole violations. Despite having numerous opportunities to become rehabilitated and overcome her drug and alcohol addiction, including treatment with five (5) different facilities/programs and an opportunity with Mental Health Court, [Appellant] continues to abuse drugs, continues to lie, continues to fail to comply with requirements of supervised release and continues to reoffend in order to, admittedly, support her drug addiction. While [Appellant] openly acknowledged her drug issues and lamented about her personal circumstances, she showed little to no remorse or any understanding of the seriousness of her crimes. For all of the foregoing reasons, [Appellant's] aggregate sentence is proper and appropriate in light of all the relevant factors and considering the protection of the public, the gravity of the offense on the victim and community, and the rehabilitative needs of [Appellant].( See Trial Court Opinion at 3-4). The record supports the court's sentencing decision, and we see no reason to disturb it. Accordingly, we affirm.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/10/2018