J-S38008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ALISON K. HILL

                            Appellant                 No. 2137 MDA 2014


    Appeal from the Judgment of Sentence Entered on November 20, 2014
                In the Court of Common Pleas of Perry County
              Criminal Division at No.: CP-50-CR-0000428-2008


BEFORE: WECHT, J., STABILE, J., and MUSMANNO, J.

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

       Allison K. Hill appeals the judgement of sentence that was entered on

November 20, 2014, following revocation of her probationary sentence for

two counts of forgery,1 and after being re-sentenced to two to five years’

imprisonment on each count, with both sentences running concurrent with

each other. We affirm.

       The trial court summarized the relevant factual and procedural history

of this case as follows:

       On July 15, 2009, [Hill] entered a guilty plea to two (2) counts of
       Forgery, Felonies of the Third Degree, in violation of Title 18
       § 4101(a)(2). The [c]ourt sentenced [Hill] to five (5) years of
       probation with the Perry County Probation Department. [Hill]
       was further ordered at that time to submit to a Drug and Alcohol
       Evaluation and to follow all recommendations resulting from that
____________________________________________


1
       18 Pa.C.S. § 4101(a)(2).
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       evaluation. On that same date, [Hill] [] entered a guilty plea in
       another case docketed at CR 185 of 2009, to one (1) count of
       Criminal Attempt, Access Device Fraud, a Felony of the Third
       Degree, in violation of Title 18 § 901(a) and § 4106. The [c]ourt
       sentenced [Hill] in that case to two (2) years Probation.

       On June 12, 2012, Perry County Probation issued a detainer
       after [Hill] received new charges in Cumberland County. On
       March 20, 2013, the [c]ourt re-sentenced [Hill] to the State
       Intermediate Punishment Program (“SIP”) under docket CR 185
       of 2009. On December 30, 2013, [Hill] was expelled from the
       Program after she signed out of her outpatient treatment center,
       Promise Place, and failed to return. As a result, the [c]ourt held
       a SIP revocation hearing and on July 28, 2014, re-sentenced
       [Hill] to nine (9) to twenty-three (23) months incarceration
       under docket CR 185 of 2009. Due to [Hill’s] incarceration since
       December 2013, [Hill] was released on July 28, 2014. On
       November 4, 2014, another detainer was issued after [Hill]
       admitted to drug usage and failed to appear for appointments
       with her Probation Officer.

                                      *        *   *

       In this case, on July 15, 2009, [Hill] signed the Rules and
       Regulations and Conditions Governing Adult Probation as
       witnessed by her Probation Officer, Michelle Orris. The Gagnon
       II[2] Petition, filed November 19, 2014, indicates that [Hill]
       violated No. 4 of these Rules and Regulations, requiring that she
       not indulge in the use, sale, or distribution of narcotics o[r]
       drugs of any form. On September 15, 2014, [Hill] admitted that
       she was using drugs to her Supervising Probation Officer in
       Cumberland County. [Hill] indicated that for the past month she
       was using 1-2 heroin bags a day. [Hill] further admitted to her
       Probation Officer in Dauphin County that she had been using 25-
       30 bags since August of 2014. At the Violation Hearing on
       November 20, 2014, [Hill’s] Probation Officer, Michelle Orris also
       indicated that these admissions were only one month after
       [Hill’s] release from her previous re-sentence. Finally, when
       [Hill] was detained by Perry County Probation on November 4,
       2014, her drug test was positive for 753 [ng]/ml of heroin, as
       well as 75 [ng]/ml Buprennorphine.
____________________________________________


2
       See Gagnon v. Scarpelli, 411 U.S. 778 (1973).



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      The Gagnon II Petition further averred that [Hill] also violated
      No. 1 of the Rules, Regulations and Conditions of Probation
      requiring that she report to her Probation Officer when directed
      and that she be available for visits any time or any place. [Hill’s]
      Cumberland County Probation Officer informed Perry County
      Probation that she was unable to locate [Hill] after directing that
      she enter drug treatment on September 15, 2014. Probation
      Officer Janette Medvidovich made several attempts to contact
      [Hill] to no avail. While Officer Medvidovich was able to speak
      with [Hill’s] mother on two occasions and informed her that [Hill]
      must report to Perry County Probation, [Hill] still refused to
      contact the Office. [Hill] was not located until she appeared for
      an appointment with Dauphin County Probation on November 4,
      2014.

Trial Court Opinion (“T.C.O.”), 2/26/2015, pages 1, 3, and 4 (unpaginated).

Because of this, Hill was found to have violated the terms and conditions of

her probationary sentence on November 20, 2014.              Her probationary

sentence was revoked by the trial court and she was re-sentenced to two to

five years of incarceration in a state correctional institution.     The court

ordered this sentence to run concurrently with the sentence at CR 185 of

2009. Hill received credit for time served from November 4, 2014. Hill did

not file a post-sentence motion.

      Hill filed a timely notice of appeal.    By order dated December 22,

2014, the trial court directed that she file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).         On January 19,

2015, Hill filed her concise statement, alleging that the trial court abused its

discretion in re-sentencing Hill to a prison term, rather than providing her

with the opportunity to receive drug rehabilitation or to serve her sentence

in local jail. Brief for Hill at 21. Additionally, she avers that, because her


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probation violations are less egregious than receiving new charges, her new

sentence was harsh and excessive. Id. at 22.

      Hill raises the following issue for our consideration:

      1. Did the trial court abuse its discretion in re-sentencing the
         defendant to an incarcerative state correctional institution
         sentence of minimum two (2) years, maximum five (5) years
         on two counts of Forgery, Felonies of the Third Degree?

Brief for Hill at 7.

      Our standard for reviewing the discretionary aspects of a sentence is

as follows:

      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. Edwards, 71 A.3d 323, 327 (Pa. Super. 2013).                Hill

argues that the trial court abused its discretion by imposing a high-end

standard range sentence in a state prison. By imposing such a sentence, Hill

cannot receive local drug treatment rehabilitation.      According to Hill, the

result was an excessive sentence, in light of the fact that the violations of

the terms of her probation were technical in nature, such as not checking in

with her probation officer, and are not based upon new charges. Therefore,

she argues that the result was an abuse of the court’s discretion. Brief for

Hill at 18.

      Hill’s argument challenges the discretionary aspects of her sentence.

Hill is not entitled as of right to a review of such challenge. Before we have

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jurisdiction over such a claim, an appellant must satisfy the following

protocol:

     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).

Commonwealth v. Levy, 83 A.3d 457, 467 (Pa. Super. 2013).           Hill has

filed a timely notice of appeal and has included in her brief a Rule 2119(f)

statement.    However, Hill did not preserve her discretionary aspects of

sentence challenges, either at her re-sentencing or in a post-sentence

motion.

     The sentencing judge explained to Hill that she had ten days from

November 20, 2014, to file any post-sentence motions. Notes of Testimony

(“N.T.”), 11/20/2014, at 13. At the resentencing hearing, Hill did not raise

the argument that she now presents to this Court. Nor did she file a post-

sentence motion raising the issue.     Consequently, Hill has waived her

challenges to the discretionary aspects of her sentence, and thus has failed

to invoke our jurisdiction over such claims.      See Commonwealth v.

McAfee, 849 A.2d 270, 275 (Pa. Super. 2004). (“Issues challenging the

discretionary aspects of sentence must be raised in a post-sentence motion

or by presenting the claim to the trial court during the sentencing

proceedings.”); Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

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waived and cannot be raised for the first time on appeal.”). Consequently,

we will not review the merits of Hill’s claim.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2015




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