J-S37037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

CHRYSTAL BREWINGTON

                         Appellant                   No. 3016 EDA 2014


        Appeal from the Judgment of Sentence September 22, 2014
              In the Court of Common Pleas of Bucks County
           Criminal Division at No(s): CP-09-CR-0000306-2012,
                           CP-09-0003069-2012


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                             FILED JULY 20, 2015

      Chrystal Brewington appeals from the judgment of sentence imposed

by the Court of Common Pleas of Bucks County, following the revocation of

her probation. Upon review, we affirm.

      The trial court set forth the factual and procedural history of this case

as follows:

      In 2012 [Brewington] entered guilty pleas in four cases,
      numbers 306-2012, 317-2012, 3069-2012, and 2226-2012. In
      306-2012, [Brewington] was charged with false alarms to
      agencies of public safety, simple assault, resisting arrest, and
      disorderly conduct – making unreasonable noise, disorderly
      conduct – creating a hazardous or physically offensive condition,
      and public drunkenness and similar misconduct. On March 7,
      2012, she entered a guilty plea to those offenses and sentencing
      was deferred. In 317-2012, [Brewington] was initially charged
      with use/possession of drug paraphernalia, public drunkenness
      and similar misconduct, and disorderly conduct – creating a
      hazardous or physically offensive condition. The Commonwealth
      thereafter withdrew the disorderly conduct charge. On March 7,
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     2012, [Brewington] entered a guilty plea to the remaining
     offenses.      Sentencing was deferred.          In 3069-2012,
     [Brewington] was charged with simple assault and disorderly
     conduct-engaging in fighting, threatening, violent or tumultuous
     behavior. On June 26, 2012 she entered a guilty plea to those
     offenses.      Sentencing was deferred.          In 2226-2012,
     [Brewington] was initially charged with possessing instruments
     of crime, theft by unlawful taking, receiving stolen property,
     unauthorized use of automobiles and other vehicles, criminal
     mischief, disorderly conduct – engaging in fighting, threatening,
     violent or tumultuous behavior, and reckless driving.        The
     Commonwealth thereafter withdrew the theft and receiving
     stolen property charges.      On June 26, 2012, [Brewington]
     entered a guilty plea to the remaining offenses. Sentencing was
     deferred.

     On August 17, 2012, [Brewington] stood for sentencing in all
     four cases. In case number 306-2012, the sentencing guideline
     ranges for the lead offenses are: mitigated- ~; standard – RS-9;
     aggravated – 12. [Brewington] was sentenced to a term of
     probation of five years.      In case number 317-2012, the
     sentencing guideline ranges for the lead offenses are: mitigated
     - ~; standard – RS-2; aggravated – 5. [Brewington] was
     sentenced to a term of probation of one year. On case number
     3069-2012, the sentencing guidelines for the lead offenses are:
     mitigated - ~; standard – RS-12; aggravated – 12.
     [Brewington] was sentenced to a term of probation of two years.
     As a condition of her probations, [Brewington] was ordered to
     continue in mental health and drug and alcohol treatment. On
     case number 2226-2012, the sentencing guidelines for the lead
     offense set forth the following range of sentences: mitigated –
     RS; standard – 3-14; aggravated – 17.          [Brewington] was
     sentenced to time served to twenty-three months with
     immediate parole. All sentences were run concurrent to one
     another.

     On June 23, 2014, a probation violation hearing was held in case
     numbers 306-2012 and 3069-2012 as a result of [Brewington]’s
     drug use, failure to take medications as directed, failure to
     comply with mental health treatment, multiple police contacts
     alleging criminal behavior against an elderly individual and
     reports of her driving without a license. [Brewington] agreed
     that she was in violation of her probations. It was ordered that
     she continue on probation.        After that violation hearing,
     [Brewington] absconded [supervision]. A warrant was issued for

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       her arrest on July 2, 2014. On July 15, 2014, a hearing was
       held and [Brewington] was released on recognizance pending
       her probation violation hearing.        On August 11, 2014,
       Brewington appeared before Honorable Diane E. Gibbons and
       was found in violation of her probation on both cases. At that
       hearing, it was the recommendation of Adult Probation and
       Parole that [Brewington] be found in violation of her probations,
       that her probations be revoked and that she be resentenced to
       eighteen months to thirty-six months to be served in a State
       Correctional Facility four months on case number 306-2012 and
       to a consecutive term of incarceration of six months to twenty-
       four months on case number 3069-2012.             Judge Gibbons
       deferred sentence for sixty days and ordered Brewington to
       attend Penndel Mental Health, take all medications, have no
       contact with victim, not to drive, attend all appointments, and
       meet all prior conditions.

Trial Court Opinion, 2/12/15, at 1-4 (footnotes omitted).

       During her sixty-day sentence deferral, Brewington failed to take her

medications, failed to provide the required residence information and was

once again arrested by the Bristol Police. On September 12, 2014, she was

taken into police custody, after running around a picnic, naked, in front of a

hundred adults and children. She also broke the windshield of a woman’s

car and a teen boy’s headphones. She was charged with two counts of open

lewdness1 and one count of criminal mischief.2

       On September 22, 2014, Judge Gibbons sentenced Brewington to an

aggregate sentence of two to five years in a state correctional facility.

____________________________________________


1
    18 Pa.C.S. § 5901.
2
    18 Pa.C.S. § 3304(a)(2).




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Brewington    filed   a    motion   for   reconsideration,   which   was   denied.

Brewington filed a timely notice of appeal that same day. She filed a timely

concise statement of errors complained of on appeal on November 12, 2014.

      On appeal, Brewington presents two issues for our review:

      1. Whether it was a violation of 42 Pa.C.S. § 9771 to impose a
      sentence of total confinement for technical violations of
      probation; and

      2. Whether an aggregate sentence of 24 to 60 months was
      manifestly excessive for technical violations of probation?

Appellants’ Brief, at 4.

      These claims implicate the discretionary aspects of Brewington’s

sentence, which are not appealable as of right.              Rather, an appellant

challenging the sentencing court’s discretion must invoke this Court’s

jurisdiction by satisfying a four-part test.      Commonwealth v. Prisk, 13

A.3d 526 (Pa. Super. 2011).

      We 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 Pa.R.Crim.P 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. § 9781(b).

Id. at 532, citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006). An appellate court will find a “substantial question” and review the

decision of the trial court only where an aggrieved party can articulate clear

reasons why the sentence imposed by the trial court compromises the


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sentencing scheme as a whole. Commonwealth v. Tuladziecki, 522 A.2d

17 (Pa. 1987).

      Here,    Brewington   has   preserved her    claim   in    her   motion   for

reconsideration, and filed a timely notice of appeal.      Brewington has also

included in her brief a concise statement pursuant to Pa.R.A.P. 2119(f). See

Appellant’s Brief at 11.    Moreover, Brewington’s claim that the trial court

sentenced her to a term of total confinement in excess of her original

sentence based solely on a technical violation raises a substantial question

for our review. See Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.

Super. 2010) (“The imposition of a sentence of total confinement after the

revocation of probation for a technical violation, and not a new criminal

offense, implicates the ‘fundamental norms which underlie the sentencing

process.’”); Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super.

2000); see also Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa.

Super. 2006) (“[A] claim that a particular probation revocation sentence is

excessive in light of its underlying technical violations can present a question

that we should review.”).

      Brewington       argues     that     the   court     did     not    provide

reasons on the record pursuant to 42 Pa.C.S. § 9771 to justify total

confinement.      Under 42 Pa.C.S. § 9771(c), a court may sentence a

defendant to total confinement subsequent to revocation of probation if any

of the following conditions exist:

              (1) the defendant has been convicted of another crime; or

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           (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.

42 Pa.C.S. § 9771(c)(1)-(3).

     Brewington asserts that since she was not convicted of a crime at her

violation hearing, there was no evidence that her conduct was indicative that

she would commit another crime or was the sentence necessary to vindicate

the authority of the court.      However, at the sentencing hearing, the

Commonwealth presented testimony from Brewington’s probation officer,

Ellyn H. Forquer, detailing violations and difficulties during Brewington’s

sixty-day sentencing deferral:

     On August 15th, 2014 Miss Brewington failed to provide proof of
     application of residence and was given an extension from [my]
     supervisor and she continued to fail to provide verification. On
     September 12, 2014, on-call Officer Hearn received a call from
     Officer Ed O’Brien of Bristol Township Police. Miss Brewington
     was in their custody due to the fact she was running around at a
     picnic naked in front of a hundred adults and children. She
     broke the windshield of a woman’s car and a teenager’s
     headphones. She was charged with two counts of lewdness and
     criminal mischief. On September 2nd, 2014 the Children & Youth
     case worker reported that the father of Miss Brewington’s son
     called her and stated Miss Brewington showed up to the
     residence on September 1 at 1:00 o’clock in the morning, which
     is a violation of her curfew. September 5th, 2015 while in
     custody pending this hearing Miss Brewington incurred three
     class one misconducts for disobeying a direct order, insolence,
     and abusive language to staff.

Sentencing Hearing, 9/22/14 at 11-13.




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      In light of the foregoing, Honorable Diane E. Gibbons concluded that

probation was ineffective in rehabilitating Brewington.   At the sentencing

hearing, Judge Gibbons was clear about her reasoning for sentencing

Brewington to a state correctional facility:

      I find that we have exhausted all available resources in the
      community and we do not have the necessary resources at
      Bucks County Correctional Facility in order to deal with what has
      been an ongoing and extreme problem, and that only the
      resources that are available to address the circumstances that
      we have – that we are attempting to deal with on the County
      level are only available in the State Correctional Facility.

Sentencing Hearing, 9/22/14, at 22-23.

      Judge Gibbons’ finding satisfies the requirement under section 9771

(c)(2).   Sentencing was originally deferred on Brewington’s probation

violations to give her one last opportunity to demonstrate that she could

comply with the conditions of her probation and treatment. See Violation of

Probation Hearing, 8/11/14, at 21-25. During that time, Brewington was re-

arrested, clearly demonstrating that “it is likely [s]he will commit another

crime if [s]he is not imprisoned.” 42 Pa.C.S. § 9771(c)(2). The trial court

therefore properly revoked Brewington’s probation and imposed a sentence

of total confinement.     The sentence imposed was necessary to prevent

Brewington from continuing to endanger herself and others, is in accordance

with the dictates of section 9771(c), and did not otherwise constitute an

abuse of discretion.




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       In her second issue on appeal, Brewington contends that an aggregate

sentence of 24 to 60 months’ imprisonment was manifestly excessive for

technical violations of probation.             Brewington argues that one of her

technical violations, failure to take her mental health medication, occurred

because she was pregnant.3 Additionally, Brewington asserts that because

she served almost two years on probation without a violation, the aggregate

sentence was manifestly excessive and should be vacated and remanded for

resentencing. See Appellant’s Brief, at 10.

       Upon revoking probation, a sentencing court may choose from any of

the sentencing options that existed at the time of the original sentencing,

including incarceration. See 42 Pa.C.S.A. § 9771 (b). “[U]pon 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. Infante, 63 A.3d 358, 365 (Pa. Super.

2013) (internal quotation marks and citations omitted). “A trial court need

not undertake a lengthy discourse for its reasons for imposing a sentence or

specifically reference the statute in question, but the record as a whole must

reflect the sentencing court’s consideration of the facts of the crime and

character of the offender.” Crump, 995 A.2d at 1282-83 (Pa. Super. 2010).



____________________________________________


3
  Brewington was advised to discontinue the medicine or risk causing her
unborn child to suffer from birth defects.



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      At   the   September    22,    2014      sentencing   hearing,    Brewington’s

probation officer provided specific sentencing requests:

      On 306-2012, we would request that she be found in violation of
      her probation, revoke and resentenced to 18-36 months to be
      served in a State Correctional Facility. On 3069-2012, find in
      violation of probation, revoke and resentenced to 6-24 months in
      the State Correctional Facility to run consecutive for the parole
      matter on 206-2012. The rationale for this recommendation is
      due to the fact that [Brewington] has been afforded numerous
      opportunities for treatment in the community. She has been
      unsuccessful in the highest level of community care available.
      She continues to willfully fail to take her medications and fail to
      comply with the directives of her treatment provider, our
      department as well as directives from Your Honor. We feel that
      she would benefit from a long-term commitment in the
      therapeutic community with a continuance of care that can only
      be provided at the state level.

Sentencing Hearing, 9/22/14, at 15-16.

      Upon review, we discern no abuse of discretion where the trial court

considered the appropriate factors in concluding Brewington’s repeated

attempts at rehabilitation had failed.      See Commonwealth v. Simmons,

56 A.3d 1287 (Pa. Super. 2012).          Brewington’s conduct reflects a flagrant

disregard for the rehabilitative purpose of the probation program and a lack

of respect for the authority of the court. Brewington continuously violated

the terms of her probation by abusing drugs and alcohol, failing to secure

permanent     housing,   failing    to   attend   mental    health     appointments,

disobeying her curfew, and committing other technical violations. Although

Brewington was pregnant and unable to fulfill one of her probation

requirements, she committed multiple other technical violations during the


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span of her probation.4 Based on Brewington’s conduct while on probation,

it was reasonable for the trial court to impose a sentence of total

confinement to vindicate the court’s authority5 and provide Brewington with

access to long-term mental health and drug treatment that is only available

in the state system.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2015




____________________________________________


4
   See N.T. Violation of Probation Hearing, 8/11/14 at 3-4, 8-9; N.T.
Sentencing Hearing, 9/22/14 at 4-6, 11-15.
5
    See 42 Pa.C.S. § 9771(c)(3).




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