J-S34014-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                    v.

TAMARRA GEARY

                         Appellant                  No. 3128 EDA 2016


        Appeal from the Judgment of Sentence September 8, 2016
          In the Court of Common Pleas of Montgomery County
                        Criminal Division at No(s):
                        CP-46-CR-0000001-2008
                        CP-46-CR-0000202-2008
                        CP-46-CR-0003995-2009
                        CP-46-CR-0004056-2009


BEFORE: BOWES, SOLANO, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                               FILED MAY 23, 2017

      Tamarra Geary appeals from the judgment of sentence of twelve to

twenty-four months incarceration, plus three years probation imposed after

the court found her in violation of probation. We affirm.

      Appellant was arrested in 2009 and charged with access device fraud,

forgery, identity theft, tampering with public records, and other related

offenses, stemming from multiple occasions where she obtained, or

attempted to obtain, merchandise using false identification and stolen credit

cards. On March 13, 2013, she entered into an open guilty plea to a single

count of access device fraud and one count of tampering with public records.


* Retired Senior Judge specially assigned to the Superior Court.
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The remaining charges were nolle prossed. The court imposed a sentence of

time served to twenty-three months at each count, to run consecutively,

followed by three years of probation.            Appellant received credit for time

served and was granted immediate parole.

       While serving her probationary sentence, Appellant allegedly violated a

Protection From Abuse Order (“PFA”).               In order to avoid punishment,

Appellant fled.1 As a result, she failed to meet her reporting requirements or

pay her fines and restitution for a period of two years. Appellant waived her

right to a Gagnon I hearing, and the court held a Gagnon II hearing on

September 8, 2016.         At that hearing, Appellant stipulated to a technical

violation for failing to report, and thereafter, the court revoked her

probation.     The court then imposed an aggregate sentence of twelve to

twenty-four months incarceration, plus three years probation.

       Appellant filed a timely petition for reconsideration of sentence on

September 12, 2016.         Before the court responded to Appellant’s petition,

she filed a timely notice of appeal on September 29, 2016.2               Appellant

complied with the court’s order to file a Rule 1925(b) concise statement of

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1
 Although a hearing was scheduled on Appellant’s alleged PFA violation, the
complaining witness did not appear, and the prosecution withdrew the
charges.
2
  The trial court ultimately filed an order denying Appellant’s petition for
reconsideration on October 12, 2016.



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matters complained of on appeal, and the court filed its Rule 1925(a)

opinion. This matter is now ready for our review.

      Appellant presents one question for our consideration:           “[Appellant]

asserts that the sentences imposed were manifestly harsh and excessive and

not in conformity with the sentencing code and the holding in the

Pennsylvania Supreme Court holding (sic) in Comonwealth v. Cottle[, 426

A.2d 598 (Pa. 1981)].” Appellant’s brief at 7.

      When considering an appeal from a sentence imposed after the court

has revoked probation, we may review “the validity of the revocation

proceedings, the legality of sentence imposed following revocation, and any

challenge   to   the   discretionary   aspects   of   the   sentence     imposed.”

Commonwealth v. Wright, 116 A.3d 133, 136 (Pa.Super. 2015).

      Appellant raises a challenge to the discretionary aspects of her

sentence.    When reviewing such a challenge, we are informed by the

following standard of review: “[s]entencing 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.” Commonwealth v. Zirkle,

107 A.3d 127, 132 (Pa.Super. 2014) (citation omitted). Further, “the right

to appellate review of the discretionary aspects of a sentence is not

absolute, and must be considered as a petition for permission to appeal.” In

order to invoke this Court’s jurisdiction:




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      [W]e conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal; (2) whether the
      issues were properly preserved at sentencing or in a motion to
      reconsider and modify sentence; (3) whether appellant’s brief
      has a fatal defect; and (4) whether there is a substantial
      question that the sentence appealled from is not appropriate
      under the Sentencing Code.

Id.

      Instantly, Appellant filed a timely notice of appeal and a timely petition

for reconsideration of her sentence.     In that petition, she contended her

sentence was excessive since she is the mother of a seven-year-old

daughter, she has been gainfully employed, and, other than fleeing, she did

not otherwise violate her probation.      Appellant has also attached a Rule

2119(f) concise statement of reasons relied upon for allowance of appeal

generally raising the same claim.        Thus, Appellant has preserved her

challenge and we need only consider whether she has raised a substantial

question that her sentence was inappropriate under the sentencing code.

      Appellant argues that the court imposed an excessive sentence that

does not reflect the seriousness of her violation, and that it failed to consider

circumstances that militated in favor of a lighter sentence.       In particular,

Appellant notes that during her probationary period she worked in home

healthcare and did not incur any direct probation violations.                She

emphasizes that she is the mother of a young daughter, and that she

specifically asked the court to consider that relationship in fashioning her

sentence. Appellant analogizes her case to the Supreme Court’s decision in

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Cottle, supra, and concludes that, similar to the appellant therein, a

sentence of confinement was too harsh in light of her marked rehabilitation

while on probation.

      Before we discuss Cottle, supra, we must first determine whether

Appellant’s claim presents a substantial question for our review.         We

determine whether an appellant has proposed a substantial question on a

case-by-case basis.   Commonwealth v. Popielarcheck, 151 A.3d 1088,

1093 (Pa.Super. 2016).    In addition, we note that 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.” Id. (citation omitted).

      At the outset, we observe that Appellant’s argument, on its face,

appears to raise a substantial question.   For example, she avers that the

“trial court sentenced [Appellant] to an excessive sentence that failed to

address an essential component of [her] rehabilitative needs,” and then sets

forth numerous examples of her circumstances that should have motivated

the court to impose a lesser sentence. Appellant’s brief at 20-22. We have

previously held that a substantial question exists where a party combines an

excessiveness claim “together with [a] claim that the court failed to consider

[a defendant’s] rehabilitative needs and mitigating factors upon fashioning

its sentence[.]” Commonwealth v. Swope, 123 A.3d 333, 340 (Pa.Super.

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2015). However, the mere assertion that the court erred in a certain way is

not talismanic, and we must consider the substance of Appellant’s argument

in addition to the statement of her claim when determining whether a

substantial question was raised.

       Instantly, although Appellant asserts that her sentence is excessive

because the court failed to consider her rehabilitative needs, the content of

her argument centers upon the court’s failure to consider her mitigating

circumstances, i.e., her consistent employment, her lack of other probation

violations, and her maternal obligations. Appellant’s brief does not set forth

her rehabilitative needs or how the court failed to address them in imposing

its sentence. Rather, Appellant focuses on her particular circumstances and

stresses how those circumstances rendered her sentence excessive.         We

have consistently held that a claim that the court did not give proper

consideration to mitigating factors does not raise a substantial question.3

See Commonwealth v. Kane, 10 A.3d 327, 335-336 (Pa.Super. 2010)

(stating, “[t]hat claim, that the court gave inadequate consideration to
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3
   Additionally, we note that the court premised Appellant’s sentence
primarily on its judgment that her conduct indicated that she was likely to
reoffend if not imprisoned, and that the sentence was essential to vindicate
the authority of the court. Trial Court Opinion, 11/1/16, at 2; N.T. Hearing,
9/8/16, at 21-22; 42 Pa.C.S. § 9771(c). We find these factors compelling in
evaluating Appellant’s sentence of incarceration. Thus, even if Appellant had
raised a substantial question, the reasons underlying the court’s sentence
are consistent with the protection of the public, and we discern no abuse of
discretion in that respect. See 42 Pa.C.S. § 9721(b).



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certain mitigating factors, does not raise a substantial question.”). Hence,

we do not reach the merits of Appellant’s appeal.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




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