Opinion
J-S24042-16 No. 1196 MDA 2015
03-10-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. KRISTALYNN SIERRA Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence June 12, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0006328-2013 BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Kristalynn Sierra, appeals from the judgment of sentence entered in the Dauphin County Court of Common Pleas, following revocation of her probation. We affirm.
The trial court opinion properly sets forth the relevant facts and procedural history of this case. Therefore, we have no need to repeat them.
Appellant raises the following issue on appeal:
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S POST-SENTENCE MOTION TO MODIFY SENTENCE WHERE THE SENTENCE IMPOSED IS EXCESSIVE IN LIGHT OF THE GRAVITY OF THE OFFENSE, APPELLANT'S REHABILITATIVE NEEDS, AND WHAT IS NECESSARY TO PROTECT THE PUBLIC?(Appellant's Brief at 5).
Appellant argues the sentence she received is excessive, unreasonable, and violates sentencing norms in light of her rehabilitative needs and what is necessary to protect the public. Appellant asserts she suffered a downward spiral, ignited by her mental health problems, that caused the acts which led to her probation revocation. Appellant avers she would be better able to address her rehabilitative needs outside the state prison setting. Appellant contends that, with proper mental health treatment from the numerous available facilities in the local area, she could rehabilitate herself into society and be better able to become a productive member of society, which in turn would better protect the public. Appellant concludes the trial court abused its discretion in sentencing Appellant to a state prison sentence. As presented, Appellant's issue challenges the discretionary aspects of her sentence. See Commonwealth v. Malovich , 903 A.2d 1247 (Pa.Super. 2006) (stating claim that court failed to consider factors under Section 9771(c) before imposing sentence of total confinement following probation revocation implicates discretionary aspects of sentencing); Commonwealth v. Lutes , 793 A.2d 949 (Pa.Super. 2002) (explaining 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) (stating allegation court ignored mitigating factors challenges discretionary aspects of sentencing).
Appellant preserved these challenges in her motion for reconsideration of sentence.
"Revocation of a probation sentence is a matter committed to the sound discretion of the trial court and that court's decision will not be disturbed on appeal in the absence of an error of law or an abuse of discretion." Commonwealth v. Perreault , 930 A.2d 553, 558 (Pa.Super. 2007), appeal denied, 596 Pa. 729, 945 A.2d 169 (2008). The Sentencing Code permits a court to revoke an order of probation under the following circumstances:
§ 9771. Modification or revocation of order of probation
(a) General rule.—The court may at any time terminate continued supervision or lessen or increase the conditions upon which an order of probation has been imposed.
(b) Revocation.—The court may revoke an order of probation upon proof of the violation of specified conditions of the probation. Upon revocation the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation.
(c) Limitation on sentence of total confinement.—The court shall not impose a sentence of total confinement upon revocation unless it finds that:
42 Pa.C.S.A. § 9771(a)-(c). Whether the probationer, in fact, violated the conditions of her probation must be demonstrated by evidence of probative value. Commonwealth v. Sims , 770 A.2d 346 (Pa.Super. 2001). The Commonwealth bears a lesser burden of proof at a probation revocation hearing than it does in a criminal trial. Commonwealth v. Allshouse , 969 A.2d 1236 (Pa.Super. 2009). "The Commonwealth establishes a probation violation meriting revocation when it shows, by a preponderance of the evidence, that the probationer's conduct violated the terms and conditions of her probation, and that probation has proven an ineffective rehabilitation tool incapable of deterring probationer from future antisocial conduct." Perreault , supra at 558. "[A]n implied condition of any sentence of probation is that the defendant will not commit a further offense." Commonwealth v. Infante , 585 Pa. 408, 420, 888 A.2d 783, 790 (2005) (quoting Commonwealth v. Mallon , 406 A.2d 569, 571 (Pa.Super. 1979)).(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or
(3) such a sentence is essential to vindicate the authority of the court.
When reviewing the outcome of a revocation proceeding, this Court is limited to determining the validity of the proceeding, the legality of the judgment of sentence imposed, and the discretionary aspects of sentencing. Commonwealth v. Cartrette , 83 A.3d 1031, 1033-34 (Pa.Super. 2013) (en banc) (explaining appellate review of revocation sentence includes discretionary sentencing challenges). Appealing the discretionary aspects of a sentence requires the appellant to 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); Pa.R.A.P. 2119(f). This Court evaluates what constitutes a substantial question on a case-by-case basis. Commonwealth v. Paul , 925 A.2d 825 (Pa.Super. 2007). 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." Commonwealth v. Sierra , 752 A.2d 910, 913 (Pa.Super. 2000).
"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 (Pa.Super. 2006). Following the revocation of probation, the court may impose a sentence of total confinement if any of the following conditions exist: the defendant has been convicted of another crime; the conduct of the defendant indicates it is likely he will commit another crime if he is not imprisoned; or, such a sentence is essential to vindicate the authority of the court. See 42 Pa.C.S.A. § 9771(c). The Sentencing Guidelines do not apply to sentences imposed following a revocation of probation. Commonwealth v. Ferguson , 893 A.2d 735 (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).
Pursuant to Section 9721(b), "the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with 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). "[T]he court shall make as part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed." Id. Nevertheless, "[a] sentencing court need not undertake a lengthy discourse for its reasons for imposing a sentence or specifically reference the statute in question...." Commonwealth v. Crump , 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010). Rather, the record as a whole must reflect the sentencing court's consideration of the facts of the case and the defendant's character. Id. See also Commonwealth v. Carrillo-Diaz , 64 A.3d 722 (Pa.Super. 2013) (explaining where revocation court presided over defendant's no contest plea hearing and original sentencing, as well as his probation revocation hearing and sentencing, court had sufficient information to evaluate circumstances of offense and character of defendant when sentencing following revocation).
A claim of excessiveness can raise a substantial question as to the appropriateness of a sentence under the Sentencing Code, even if the sentence is within the statutory limits. Mouzon , supra at 430, 812 A.2d at 624. A substantial question exists "only where the appellant's Rule 2119(f) statement sufficiently articulates the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process...." Id. at 435, 812 A.2d at 627. See , e.g., Cartrette , supra (indicating claim that revocation court ignored appropriate sentencing factors raises substantial question). An allegation that the sentencing court failed to consider a specific mitigating factor, however, does not necessarily raise a substantial question. Commonwealth v. Berry , 785 A.2d 994 (Pa.Super. 2001) (holding claim that sentencing court ignored appellant's rehabilitative needs failed to raise substantial question).
Instantly, Appellant complains the sentencing court did not adequately consider specific mitigating factors (her efforts while on probation and rehabilitative needs); this allegation does not raise a substantial question. See id. Likewise, Appellant's claim of excessiveness regarding the overall length of the revocation sentence does not merit review. See Mouzon , supra. As to any remaining claims, after a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Deborah E. Curcillo, we conclude Appellant merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed August 14, 2015, at 4-5) (finding: court did not ignore Appellant's mental health issues and needs; court specifically ordered Appellant to receive mental health treatment in prison; Appellant's rehabilitative needs are extensive, and court gave her opportunity to take advantage of various outside programs following her initial arrest at underlying docket; Appellant started to take advantage of some programs, but she subsequently made poor choices; while under supervision, Appellant cut off her ankle monitor; Appellant's offenses are grave as they involve physical violence and included use of deadly weapon; Appellant also has history of not following through with treatment; Appellant is risk to public because once she starts making bad decisions she is unable to stop herself from spiraling downward; Appellant has demonstrated extremely poor judgment in stopping her medications and in taking synthetic marijuana). We accept the court's analysis and see no reason to disturb the sentence imposed. Accordingly, we affirm.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/10/2016
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