J-S56014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

FRANCES LORRAINE ROARK,

                            Appellant                No. 565 MDA 2015


            Appeal from the Judgment of Sentence February 24, 2015
                In the Court of Common Pleas of Lancaster County
    Criminal Division at No(s): CP-36-CR-0000236-2004, CP-36-CR-0003845-
           2013, CP-36-CR-0004410-2013, CP-36-CR-0005477-2012


BEFORE: SHOGAN, JENKINS, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED OCTOBER 27, 2015

        Appellant, Frances Lorraine Roark, appeals from the judgment of

sentence entered following her convictions of various drug and theft offenses

and the revocation of her parole in a previous criminal matter. We affirm.

        The trial court summarized the procedural history of this case as

follows:

              On June 13, 2014, [Appellant] appeared before the [c]ourt
        to enter a non-negotiated guilty plea on Information Numbers
        5477-2012, 3845-2013, and 4410-2013, with a request that she
        be evaluated for acceptance into the State Intermediate
        Punishment Program (“SIPP”). (Notes of Testimony, Guilty Plea
        at 2-6, 14-15) (“N.T.G.P.”). The guilty pleas were accepted and
        sentencing was deferred pending an evaluation to determine

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     whether [Appellant] would be eligible to participate in SIPP. Id.
     at 16.

            On September 9, 2014, [Appellant] appeared for a parole
     violation hearing before the Honorable Howard Knisely on
     Information Number 0236-2004, due to her failure to report for
     a scheduled appointment and failure to remain in contact with
     her probation officer. (Notes of Testimony, Parole Violation at 2)
     (hereinafter “N.T.P.V.”).1 After [Appellant] was found to be in
     violation of probation and parole, Judge Knisely directed that
     [Appellant] be evaluated for SIPP, after which she would receive
     a concurrent sentence to those imposed on the new criminal
     charges for which [Appellant] was already being evaluated. Id.
     at 5-6.
          1
            On October 27, 2004, [Appellant] tendered a
          negotiated guilty plea on Information Number 0236-
          2004 to Burglary (F1), Conspiracy to commit
          burglary (F1), and Theft by unlawful taking (M1).

            On December 22, 2014, after being advised by the
     Pennsylvania Department of Corrections that [Appellant] was not
     eligible for SIPP due to pending criminal charges in the state of
     Maryland, the [c]ourt entered an Order directing that Lancaster
     County Adult Probation & Parole Services conduct a presentence
     investigation on the above-captioned cases.2
          2
            During sentencing, defense counsel acknowledged
          [Appellant] was not eligible for SIPP due to pending
          criminal charges in the state of Maryland. (N.T.S. at
          15).

            On February 24, 2015, upon completion of a Pre-Sentence
     Investigation   (“PSI”) Report, [Appellant]      appeared for
     sentencing, at which time the [c]ourt imposed the following
     sentence: On 5477-2012: (count 1) Violation of the Controlled
     Substance, Drug, Device & Cosmetic Act (delivery of crack
     cocaine): 2-5 years SCI; (count 2) Criminal Use of
     Communication Facility: 1-5 years SCI; (count 3) Conspiracy to
     deliver cocaine: 2-5 years SCI.3         (Notes of Testimony,
     Sentencing at 24-25) (“N.T.S.”).     All sentences were made
     concurrent to each other. Id. at 25. On 3845-2013: (count 1)
     Violation of the Controlled Substance, Drug, Device & Cosmetic
     Act (delivery of crack cocaine): 1½-5 years SCI; (count 2)

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     Conspiracy to deliver cocaine: 1½–5 years SCI.4 Id. The
     sentences were made concurrent to each other but consecutive
     to the sentence imposed on 5477-2012. Id. On 4410-2013,
     Theft by Unlawful Taking, [Appellant] was placed on concurrent
     probation for one year.5 Id. [Appellant’s] sentences on all
     counts were within the standard range of the sentencing
     guidelines. See Sentencing Guidelines Worksheets.6
          3
           35 P.S. § 780-113(a)(30), 18 Pa. C.S.A. § 7512(a),
          and 18 Pa. C.S.A. § 903 respectively.
          4
            35 P.S. § 780-113(a)(30) and 18 Pa. C.S.A. § 903
          respectively.
          5
              18 Pa. C.S.A. § 3921(a).
          6
            [Appellant’s] guidelines were as follows: On 5477-
          2012: (count 1) delivery of cocaine: Offense Gravity
          Score (“OGS”): 6; Prior Record Score (“PRS”): 5;
          Standard Range Sentence (“SRS”): 21-27 months;
          (count 2) criminal use of communication facility;
          OGS: 5; PRS: 5; SRS: 12-18 months; (count 3)
          conspiracy to deliver cocaine: OGS: 6; PRS: 5; SRS:
          21-27 months. On 3845-2013: (count 1) delivery of
          cocaine; OGS: 5; PRS: 5; SRS: 12-18 months;
          (count 2) conspiracy to deliver cocaine: OGS: 5;
          PRS: 5; SRS: 12-18 months. On 4410-2013 (count
          1) theft by unlawful taking: OGS: 1; PRS: 5; SRS:
          RS-6    months.        See   Sentencing    Guidelines
          Worksheets; (N.T.S. at 5).

           On the parole violation at 0236-2004, [Appellant’s] parole
     was immediately terminated and she was sentenced as follows:
     (count 1) Burglary: 3 ½-10 years SCI; (count 2) Conspiracy to
     commit burglary: 3 ½-10 years SCI.7 (N.T.S. at 27). The
     sentences were made concurrent to each other and concurrent
     to the sentences imposed on 5477-2012, 3845-2013 and 4410-
     2013. Id. The aggregate sentence on all criminal dockets
     resulted in a prison sentence of not less than 3½ years nor more
     than 10 years in the state correctional institution. Id. at 25.
     [Appellant] did not receive credit for any time served on the
     parole violation sentence, because that credit was applied to the
     sentences imposed on the new criminal charges for which


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     [Appellant] remained incarcerated without posting bail.    Id. at
     27.
          7
            [Appellant’s] original split sentence was as follows:
          (count 1) Burglary: 1 ½ to 3 years SCI plus 7 years
          of consecutive probation; (count 2) Conspiracy to
          commit burglary: 10 years probation concurrent to
          count 1; (count 3) Theft by Unlawful Taking: merged
          for sentencing purposes. See Sentencing Order.
          These sentences were below the standard range of
          the sentencing guidelines, which started at 24
          months for the burglary offense. See Sentencing
          Guidelines Worksheet.

            On March 6, 2015, [Appellant] filed a Post-Sentence
     Motion to Modify Sentence. In that Motion[, Appellant] did not
     seek relief for the sentences imposed on the new criminal
     charges, recognizing they were guideline sentences. See Post-
     Sentence Motion to Modify Sentence.         Rather, [Appellant]
     requested a shorter sentence on the parole violation because all
     time credit was attributed to the new criminal charges, and as a
     result [Appellant] would remain incarcerated on the parole
     violation beyond the date she would be paroled on the new
     criminal charges. Id. This [c]ourt issued an Order on March 17,
     2015 denying said Motion.8
          8
            When a parolee is incarcerated on new criminal
          charges and does not post bail or has her bail
          revoked, time spent in jail is not credited to the
          parolee’s original sentence on re-commitment as a
          convicted parole violator because the parolee was
          not incarcerated solely on the Board’s warrant.
          Martin v. Pennsylvania Bd. of Prob. & Parole,
          840 A.2d 299, 305 (Pa. 2003). The period of pretrial
          confinement is credited to the sentence received
          upon conviction of new criminal charges, unless the
          parolee is acquitted or no new sentence is imposed
          for a conviction on the new charges. Id. “[W]here
          an offender is incarcerated on both a Board detainer
          and new criminal charges, all time spent in
          confinement must be credited to either the new
          sentence or the original sentence.”     Id. at 309
          (emphasis added). See also Commonwealth v.


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J-S56014-15


            Schutzues, 54 A.3d 86 (Pa. Super. 2012); 42 Pa.
            C.S.A. § 9760(4).

Trial Court Opinion, 5/1/15, at 1-4.

      Appellant then filed this timely appeal.   Both Appellant and the trial

court have complied with Pa.R.A.P. 1925.

      Appellant presents the following issue for our review:

      1. Did the court impose an unreasonable sentence which
      contravenes the policy underlying the Sentencing Code where
      the sentence is manifestly unreasonable, focuses solely on the
      [Appellant’s] prior record without considering any mitigating
      factors, and is not an individualized sentence?

Appellant’s Brief at 4.

      Appellant argues that the trial court abused its discretion in imposing

the sentences in this case.       Specifically, Appellant contends that the

sentences imposed were harsh and excessive in light of the factors which

should have been considered by the sentencing court.

      It is well settled that there is no absolute right to appeal the

discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d

800, 805 (Pa. Super. 2006).       Rather, an appellant’s appeal should be

considered to be a petition for allowance of appeal.     Commonwealth v.

W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).

      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test:

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J-S56014-15


           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.
           [708 & 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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)). Objections to the discretionary aspects of a sentence are generally

waived if they are not raised at the sentencing hearing or in a motion to

modify the sentence imposed.    Id. (citing Commonwealth v. Mann, 820

A.2d 788 (Pa. Super. 2003)).

     In Commonwealth v. Reeves, 778 A.2d 691 (Pa. Super. 2001), we

reaffirmed the principle articulated in Commonwealth v. Jarvis, 663 A.2d

790 (Pa. Super. 1995), wherein this Court observed that, although

Pa.R.Crim.P. 1410 (presently Rule 720) characterizes post-sentence motions

as optional, the rule expressly provides that only issues raised in the trial

court will be deemed preserved for appellate review. Applying this principle,

the Reeves Court held that an objection to a discretionary aspect of a

sentence is waived if not raised in a post-sentence motion or during the

sentencing proceedings.   See Commonwealth v. Parker, 847 A.2d 745

(Pa. Super. 2004) (holding challenge to discretionary aspect of sentence was

waived because appellant did not object at sentencing hearing or file post-

sentence motion).   See also Pennsylvania Rule of Criminal Procedure 708

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J-S56014-15


Comment (discussing proper preservation of issues challenging discretionary

aspect of sentence imposed following revocation hearing).

     Whether a particular issue constitutes a substantial question about the

appropriateness of a sentence is a question to be evaluated on a case-by-

case basis.   Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.

2001).   As to what constitutes a substantial question, this Court does not

accept bald assertions of sentencing errors. Commonwealth v. Malovich,

903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the

reasons the sentencing court’s actions violated the sentencing code. Id. “A

substantial question will be found where the defendant advances a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009) (citations omitted).

     Herein, the first requirement of the four-part test is met because

Appellant brought a timely appeal.     However, Appellant partially met the

second requirement because she only challenged in her post-sentence

motion the discretionary aspects of sentence in relation to the sentence

imposed for her parole violation.    In her post-sentence motion, Appellant

asserted that the sentencing court should have considered assorted

mitigating circumstances, including her chaotic childhood, limited education,

mental health issues, substance abuse, and health conditions, rather than


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J-S56014-15


her lengthy criminal history in fashioning her parole revocation sentence.

See “Post Sentence Motion to Modify Sentence,” 3/6/15, at 1-3. Ultimately,

Appellant stated the following at the conclusion of her post-sentence motion:

       12. The modification of the sentence to allow for an earlier
       parole date on the parole violation sentence would still serve
       the retribution phase of the sentence and send a message to the
       community concerning the seriousness of [Appellant’s] offenses
       and the dangers of substance abuse for people like [Appellant]
       who continue to commit crimes because of their addiction.

              WHEREFORE, [Appellant] respectfully requests that this
       Honorable Court modify the sentence by reducing the
       parole violation sentence to a remaining term of
       imprisonment that will allow [Appellant] to be paroled on the
       parole violation at the same date as the minimum sentence for
       the new charges. This sentence would highlight the seriousness
       of these offenses, and such a sentence would afford [Appellant
       the] opportunity to address her serious medical issues upon an
       earlier release.

Id. at 3 (emphasis added). Therefore, we limit our review to this claim.1

       Regarding the third requirement of the test, we observe that Appellant

included in her appellate brief the necessary separate concise statement of

the reasons relied upon for allowance of appeal pursuant to Pa.R.A.P.

2119(f).     Therefore, we will next determine whether Appellant raises a

substantial question requiring us to review the discretionary aspects of the

sentence imposed by the sentencing court.

____________________________________________


1
  To the extent that Appellant now presents additional challenges to the
discretionary aspects of sentencing with regard to the sentences imposed
upon Appellant for her “new charges,” such claims are waived due to
Appellant’s failure to present them in her post-sentence motion. Reeves.



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       In her Pa.R.A.P. 2119(f) statement, Appellant claims that the

sentencing court failed to properly consider the factors set forth in 42

Pa.C.S. § 9721(b). Appellant’s Brief at 8-10.2 Appellant claims that the trial

court simply relied upon the gravity of the offense and failed to consider

other circumstances in imposing a sentence upon Appellant in the standard

range of the sentencing guidelines.              Considering this claim to be an

allegation that the sentencing court failed to consider factors set forth under

42 Pa.C.S. § 9721(b), we conclude that, in this instance, Appellant has

raised a substantial question.          See Commonwealth v. Fullin, 892 A.2d

843, 847 (Pa. Super. 2006) (concluding that the appellant raised a

substantial question where it was alleged that the trial court failed to

properly    consider    the   factors    set   forth   in   42   Pa.C.S.   §   9721(b)).

Accordingly, because Appellant has stated a substantial question, we will

address this claim on appeal.

       It is undisputed that sentencing is a matter vested in the sound

discretion of the sentencing judge, and a sentence will not be disturbed on

appeal absent a manifest abuse of discretion. Fullin, 892 A.2d at 847. In

this context, an abuse of discretion is not shown merely by an error in

judgment.     Id.   Rather, the appellant must establish, by reference to the

____________________________________________


2
  We note that the factors to be considered under 42 Pa.C.S. § 9721(b)
include the protection of the public, gravity of offense in relation to impact
on victim and community, and rehabilitative needs of the defendant.



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record, that the sentencing court ignored or misapplied the law, exercised its

judgment for reasons of partiality, prejudice, bias, or ill will, or arrived at a

manifestly unreasonable decision. Id.

        Indeed, the sentencing judge has broad discretion in determining the

proper penalty, and this Court accords the sentencing court great deference,

as it is the sentencing court that is in the best position to view the

defendant’s character, displays of remorse, defiance, or indifference and the

overall effect and nature of the crime. Commonwealth v. Walls, 926 A.2d

957, 961 (Pa. 2007) (quotations and citations omitted). 3         As previously

stated, when imposing a sentence, the sentencing court must consider “the
____________________________________________


3
    The Walls Court instructed the following:

        In making this “unreasonableness” inquiry, the General
        Assembly has set forth four factors that an appellate court is to
        consider:

        (d) Review of the record.—In reviewing the record the appellate
        court shall have regard for:

              (1) The nature of the circumstances of the offense
              and the history and characteristics of the defendant.

              (2) The opportunity of the sentencing court to
              observe the defendant, including any pre-sentence
              investigation.

              (3) The findings upon which the sentence was based.

              (4) The guidelines promulgated by the commission.

        42 Pa.C.S. § 9781(d).

Walls, 926 A.2d at 963.



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J-S56014-15


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. § 9721(b).      As we have stated, “a court is

required to consider the particular circumstances of the offense and the

character of the defendant.”     Commonwealth v. Griffin, 804 A.2d 1, 10

(Pa. Super. 2002). “In particular, the court should refer to the defendant’s

prior criminal record, his age, personal characteristics and his potential for

rehabilitation.” Id.

         Appellant asserts that, in fashioning her sentence, the sentencing

court failed to consider properly Appellant’s personal character and physical

condition. Appellant’s Brief at 11-14. Appellant alleges that the sentencing

judge had a “personal agenda” regarding Appellant’s criminal behavior. Id.

at 12.

         Our review of the record reflects that the sentencing court reviewed

Appellant’s presentence report, heard testimony from witnesses offered by

Appellant, accepted Appellant’s allocution and a letter from Appellant, and

heard argument from Appellant’s counsel prior to imposing Appellant’s

sentence. N.T., 2/24/15, at 6-16. In addition, at the time of sentencing,

the trial court gave a painstakingly detailed explanation for the sentence

imposed, which exhibited a thorough knowledge of Appellant’s multiple

mitigating factors, as well as the reasons for imposing the instant term of

incarceration. Id. at 18-24, 26.


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     As the trial court aptly stated in its opinion dated May 1, 2015:

            In the present case, the [c]ourt carefully considered all
     information contained in the PSI Report before imposing
     sentence on the parole violation. (N.T.S. at 18-19).14 The
     [c]ourt then recognized that [Appellant] was not amenable to
     treatment or rehabilitation outside a correctional facility, based
     in large part on a total of twelve prior probation and/or parole
     violations on all dockets. Id. at 21-23.15 Three such violations
     occurred on these charges while [Appellant] was under Drug
     Court supervision, and her fourth violation occurred only seven
     days after she was released from jail on the third violation. Id.
     at 9-10, 17, 22.16      This conduct clearly demonstrated that
     repeated attempts to rehabilitate [Appellant] and treat her drug
     addiction through probation and intensive supervision had been
     unsuccessful.17
           14
              As previously noted, where the sentencing judge
           has the benefit of a presentence investigation report
           it will be presumed that the judge was aware of all
           relevant information regarding a defendant’s
           character, and weighed those considerations along
           with mitigating factors.      [Commonwealth v.]
           Fowler, supra, 893 A.2d [758,] 766-[7]67[ (Pa.
           Super. 2006)].
           15
               The [c]ourt also considered the nature and
           circumstances of [Appellant’s] original charges for
           which she was now on parole, where [Appellant] and
           her co-conspirators committed a burglary and theft
           by luring the victim out of his residence under a
           ruse, entering the victim’s residence, and taking
           cash and jewelry valued at $500. See PSI Report.
           16
              [Appellant’s] prior violations were based on new
           criminal charges, moving from an approved
           residence, repeated failures to appear for random
           drug tests, and discharge from a drug treatment
           facility for failure to appear.     See PSI Report.
           [Appellant] was afforded a tremendous break on the
           three prior violations when she received probation or
           a time served sentence on each occasion. (N.T.S. at
           17, 22; PSI Report).


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               17
                   In addition to her parole violation sentences,
               [Appellant] received a break at the time of the guilty
               plea when the sentence imposed was below the
               standard range of the sentencing guidelines. See
               Sentencing Order; Sentencing Guidelines Worksheet.
               A trial court does not necessarily abuse its discretion
               in imposing a seemingly harsh post-revocation
               sentence where the defendant originally received a
               lenient sentence and then failed to adhere to the
               conditions imposed on her.        Commonwealth v.
               Schutzues, 54 A.3d 86, 99 (Pa. Super. 2012); see
               also Commonwealth v. Pasture, 107 A.3d 21, 28-
               29 (Pa. 2014).

            With convictions for new crimes involving the distribution
      of cocaine, this [c]ourt found that [Appellant] is a danger to
      society. (N.T.S. at 26). Furthermore, the [c]ourt noted that the
      conduct of [Appellant] indicated she would likely commit another
      crime if not incarcerated, based on her prior contact with the
      court, new crimes, and failed attempts at rehabilitation. Id.
      Additionally, [Appellant] has demonstrated total disregard for
      her probation officer, this court, and the criminal justice system,
      such that a state prison sentence was essential to vindicate the
      authority of the court. Id.

Trial Court Opinion, 5/1/15, at 15-16.

      Indeed, having thoroughly reviewed the record along with the opinion

of the sentencing court, we discern there is no indication that the sentencing

court ignored any relevant factors in fashioning the sentence. Accordingly, it

is our determination that there was no abuse of discretion on the part of the

sentencing court in imposing Appellant’s sentence within the standard range

of the sentencing guidelines.       Hence, we conclude that Appellant’s claim

lacks merit.

      Judgment of sentence affirmed.




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J-S56014-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2015




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