J-S36027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 ELIZABETH OTERO                         :
                                         :
                   Appellant             :   No. 3395 EDA 2017

            Appeal from the Judgment of Sentence July 20, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0009089-2012


BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY DUBOW, J.:                         FILED OCTOBER 18, 2018

      Appellant, Elizabeth Otero, appeals from her July 20, 2017 Judgment of

Sentence of 18 to 36 months’ incarceration following the revocation of her

parole. Appellant challenges the discretionary aspects of her sentence and

argues that the trial court erred in failing to determine whether she was

eligible for sentencing under the Recidivism Risk Reduction Incentive (“RRRI”)

Act, 61 Pa.C.S. §§ 4501-4512.     We conclude that further proceedings are

necessary to determine whether Appellant is eligible for an RRRI sentence.

Accordingly, we vacate and remand for further proceedings.
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        On December 20, 2012, Appellant, a mental health court participant,1

entered a negotiated guilty plea to one count of Burglary,2 a first-degree

felony.    That same day, the court sentenced her to 11½ to 23 months’

incarceration, followed by 10 years’ reporting probation.3        The imposed

sentence included immediate parole to an inpatient mental health treatment

program. The conditions of Appellant’s sentence required that she maintain

mental health, drug, and alcohol treatment, that she appear for court dates,

attend meetings with her probation officer, not commit new crimes, and

submit to random drug screenings.4

        Over the course of the following 4 years, Appellant violated the terms

of her probation with a number of technical violations and one direct violation

resulting from a prostitution arrest in Philadelphia. Over the same period, the

court made multiple findings of Appellant’s incompetency.

        On June 9, 2017, the court issued a bench warrant for Appellant’s arrest

due to her failure to maintain treatment and for testing positive for cocaine.




____________________________________________


1 Appellant has a diagnosis of schizophrenia, and cocaine and marijuana use
disorder. In addition, she has borderline intellectual functioning.

2   18 Pa.C.S. § 3502(a).

3   Appellant waived the preparation of a Pre-Sentence Investigation Report.

4On January 3, 2013, the court paroled Appellant to Girard Medical Center,
and drug rehabilitation was scheduled.



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Following a psychiatric evaluation, Appellant was deemed incompetent and

the court committed her to a treatment center for 30 days.

       On July 20, 2017, after being deemed competent, Appellant appeared

for a violation hearing.        That same day, the court revoked Appellant’s

probation and sentenced her to a term of 18 to 36 months’ incarceration,

followed by three years of probation, for her Burglary conviction.5 The court

determined that Appellant was not eligible for a reduced RRRI sentence.

       Appellant filed a timely Petition to Vacate and Reconsider Sentence,

which the court denied on August 4, 2017.

       This timely appeal followed. Both Appellant and the revocation court

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

       Appellant raises the following issues on appeal, which we have reordered

for ease of disposition:

       1. The lower court erred as a matter of law and abused its
          discretion when, based on purely technical violations, the lower
          court imposed a manifestly excessive and unreasonable
          sentence of 1½ to 3 years of confinement, inasmuch as the
          court failed to conduct an individualized sentencing, did not
          properly consider the sentencing factors under 42 Pa.C.S. §
          9721, ignored whether the sentence was the least stringent to
          protect the community, did not consider Appellant’s
          rehabilitative needs, did not sufficiently place its reasons for its
          sentence on the record, and violated 42 Pa.C.S. § 9771(c) of
          the Sentencing Code by imposing a sentence of incarceration
          upon revocation without the required statutory justifications.


____________________________________________


5 The sentencing court recommended Appellant serve her sentence at a state
facility that can provide Appellant with mental health treatment. The court
also terminated Appellant from participating in mental health court.

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      2. The lower court imposed an illegal sentence by ruling that
         Appellant, who was found in violation of a sentence for the
         [underlying] crime of First[-]Degree Burglary, was ineligible for
         a reduced sentence under the [RRRI] Act [ ], in contravention
         of Commonwealth v. Cullen-Doyle, 164 A.3d 1239 (Pa.
         2017), which holds that a present conviction for First-Degree
         Burglary, by itself, does not disqualify a defendant from
         eligibility for a reduced sentence under the [RRRI] Act.

Appellant’s Brief at ii.

      Appellant’s first issue challenges the discretionary aspects of her

sentence. Challenges to the discretionary aspects of sentencing do not entitle

an appellant to review as of right, and a challenge in this regard is properly

viewed as a petition for allowance of appeal.          42 Pa.C.S. § 9781(b);

Commonwealth          v.   Tuladziecki,   522   A.2d   17,   18   (Pa.   1987);

Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000).                 An

appellant challenging the discretionary aspects of his sentence must satisfy a

four-part test. We evaluate: (1) whether Appellant filed a timely notice of

appeal; (2) whether Appellant preserved the issue at sentencing or in a motion

to reconsider and modify sentence; (3) whether Appellant’s brief includes a

concise statement of the reasons relied upon for allowance of appeal; and (4)

whether the concise statement raises a substantial question that the sentence

is appropriate under the Sentencing Code.       Commonwealth v. Carrillo-

Diaz, 64 A.3d 722, 725 (Pa. Super. 2013). An appellant must articulate the

reasons the sentencing court’s actions violated the Sentencing Code.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010); Sierra,

752 A.2d at 912-13.



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      Here, Appellant timely appealed from her revocation sentence and she

preserved her challenge to the discretionary aspects of her sentence in a

Motion to Reconsider and in a Pa.R.A.P. 2119(f) Statement in her Brief to this

Court. Thus, we consider whether Appellant has presented this Court with a

substantial question for review.

      Appellant claims that her revocation sentence of total confinement for a

technical violation, and not a new criminal offense, violates the fundamental

norms underlying the sentencing process. Appellant’s Brief at 12 (citing 42

Pa.C.S. § 9771(c)). She also claims that her sentence is excessive and that

the court failed to consider all relevant sentencing factors. Appellant’s Brief

at 13 (citing 42 Pa.C.S. § 9721(b)). We conclude that Appellant has raised a

substantial question for this Court’s review. Sierra, 752 A.2d at 913. We,

thus, address the merits.

      Generally, “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.” Sierra, 752 A.2d

at 913.

      42 Pa.C.S. § 9771(b) authorizes a court to revoke an order of probation

upon proof that a defendant has violated one or more of its specified

conditions. 42 Pa.C.S. § 9771(b).

      Upon revoking probation, “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.”

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42 Pa.C.S. § 9771(b). Thus, upon revoking 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. Simmons, 56 A.3d

1280, 1287 (Pa. Super. 2012); 42 Pa.C.S. § 9771(b).

      Once probation has been revoked, 42 Pa.C.S. § 9771(c) prohibits the

imposition of a sentence of total confinement upon revocation unless: (1) the

defendant has been convicted of another crime; or (2) the defendant’s conduct

is indicative that she is likely to commit another crime if she is not

incarcerated; or (3) a sentence of total confinement is necessary to vindicate

the court’s authority. See 42 Pa.C.S. § 9771(c).

      Section 9721(b)’s requirement 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[]” does not apply

to a revocation sentence. Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa.

2014) (citing 42 Pa.C.S. § 9721(b)). See also 204 Pa. Code § 303.1(b) (“The

sentencing guidelines do not apply to sentences imposed as a result of . . .

revocation of probation, intermediate punishment or parole.”).

      Appellant argues that, in sentencing her to total confinement for a

technical violation, the sentencing court violated the provisions of 42 Pa.C.S.

§ 9771(c). Appellant’s Brief at 19. She disputes the court’s reasoning that

its sentence was necessary to vindicate the authority of the court because her

violation “was based purely on treatment problems stemming from her mental

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health issues.” Id. at 21. She avers that her sentence of incarceration is

“purely punitive” and “will not foster [A]ppellant’s rehabilitative process.” Id.

         In   addition,   Appellant   argues    that   her   revocation   sentence   is

inconsistent 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 her

rehabilitative needs. Id. at 22 (citing 42 Pa.C.S. § 9721(b)). In particular,

she claims that the sentencing court failed to consider the relevant factors set

forth in 42 Pa.C.S. § 9721(b) and that the ordered term of incarceration

exceeded that which is required to protect the public because Appellant has

never demonstrated that she is a threat to public safety. Id. at 22-23. She

posits that her sentence is “counterproductive and fails to account for any of

the individualized sentencing needs announced in the [Sentencing] Code.” Id.

at 23.

         In addressing Appellant’s claim, the sentencing court explained that

Appellant’s “sentence of total confinement was proper to vindicate the

authority of the [c]ourt.” Trial Ct. Op., 11/7/17, at 6. The sentencing court,

which had presided over every stage of this proceeding—from Appellant’s

original guilty plea hearing to the resentencing that is the subject of the instant

appeal—explained          that   Appellant’s   non-compliant     behavior    persisted

throughout her time in mental health court and resulted in probation

revocations in 2013, 2015, and 2017, and her eventual expulsion from mental

health court.      Id.    The court made every effort to afford Appellant the




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opportunity to obtain mental health and drug treatment and even permitted

her to reenter mental health court despite her persistent non-compliance. Id.

        The court also explained that, when fashioning Appellant’s revocation

sentence, it properly considered the need to protect the public, the gravity of

Appellant’s offense, and her rehabilitative needs. Id. at 7. It noted that it

had balanced the ample opportunities it had afforded her to avail herself of

the services and support of mental health court with her continued failure to

do so. Id.

        Following our review of the record, we conclude that the sentencing

court properly exercised its discretion in imposing a sentence of total

confinement. Given Appellant’s history of repeated non-compliance with the

terms of her parole, a sentence of total confinement was necessary to

vindicate the court’s authority. Thus, Appellant is not entitled to relief on this

claim.

        In her second issue, Appellant claims that, because the court found her

ineligible for an RRRI sentence based on her present conviction of First-Degree

Burglary, her sentence is illegal pursuant to the holding in Commonwealth

v. Cullen-Doyle, 164 A.3d 1239 (Pa. 2017).6 Appellant’s Brief at 15.

        The RRRI Act is a penal statute. Commonwealth v. Chester, 101 A.3d

56, 60 n.6 (Pa. 2014). Eligibility for an RRRI sentence is codified in 61 Pa.C.S.

§ 4503, and the question of whether a defendant is RRRI eligible “presents a

____________________________________________


6   The sentencing court and the Commonwealth agree with Appellant.

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question of statutory construction and implicates the legality of the sentence

imposed.” Commonwealth v. Quiles, 166 A.3d 387, 392 (Pa. Super. 2017)

(quotations and citation omitted). “Therefore, our standard of review is de

novo and the scope of our review is plenary.”       Id. (quotation and citation

omitted).

      To qualify for a RRRI minimum sentence, the defendant must establish

that she is an “eligible offender,” which the RRRI Act defines, in relevant part,

as follows:

      A defendant or inmate convicted of a criminal offense who will be
      committed to the custody of the [Department of Corrections] and
      who meets all of the following eligibility requirements:

         (1) Does not demonstrate a history of present or past
         violent behavior.

61 Pa.C.S. § 4503(1). The determination of whether the defendant fulfills

these standards “entails statutory interpretation,” for which “our review is de

novo and plenary.” Cullen-Doyle, 164 A.3d at 1241 (citation omitted).

      In Cullen-Doyle, decided the same day that the instant court sentenced

Appellant, the Pennsylvania Supreme Court held that a conviction of First-

Degree Burglary, by itself, does not disqualify a defendant from RRRI

eligibility. Id. at 1244.

      Instantly, the sentencing court deemed Appellant, who had one present

conviction of First-Degree Burglary, ineligible for an RRRI sentence. In light

of our Supreme Court’s holding in Cullen-Doyle, we conclude that the trial

court erred in finding that Appellant’s single, current conviction for First-


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Degree Burglary necessarily rendered her ineligible for the RRRI program

under Section 4503(1).       Thus, we vacate the Judgment of Sentence and

remand for reconsideration of Appellant’s eligibility for the RRRI program.

      Judgment of Sentence vacated. Case remanded for further proceedings.

Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/18




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