J-A31039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

KAITLYN CHRISTINE CANOY,

                            Appellant                    No. 884 MDA 2015


             Appeal from the Judgment of Sentence April 23, 2015
               in the Court of Common Pleas of Dauphin County
              Criminal Division at No.: CP-22-CR-0002460-2013


BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED JANUARY 05, 2016

        Appellant, Kaitlyn Christine Canoy, appeals from the judgment of

sentence entered on April 23, 2015, following the revocation of her

probation. On appeal, Appellant challenges the discretionary aspects of her

sentence.     For the reasons discussed below, we affirm the judgment of

sentence.

        We take the underlying facts and procedural history in the matter from

the trial court’s July 20, 2015 opinion and our independent review of the

certified record.

        On April 10, 2014, Appellant pleaded guilty to charges of retail theft

and theft by unlawful taking.         The charges arose from Appellant’s theft of
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*
    Retired Senior Judge assigned to the Superior Court.
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items from Kohl’s Department Store on three occasions between August and

November    2012,   and   the   theft    of   prescription   narcotics   from   her

grandmother.    (See Trial Court Opinion, 7/20/15, at 2).          The trial court

sentenced Appellant to a term of twelve months’ county probation.

      On February 5, 2015, the trial court revoked Appellant’s probation

based upon her positive drug test and failure to conform to the rules of

probation. (See N.T. Revocation Hearing, 2/05/15, at 2-6). The trial court

sentenced Appellant to nine months’ intermediate punishment (IP), with the

first four months to be served on work release. (See Trial Ct. Op., at 1).

      On April 23, 2015, a second revocation hearing took place after

Appellant was found in possession of stolen property. (See N.T. Revocation

Hearing, 4/23/15, at 2-3). The trial court sentenced Appellant to thirty-six

months’ IP, with the first six months restricted to the Dauphin County

Prison. (See Trial Ct. Op., at 1).

      On May 4, 2015, Appellant filed a post-sentence motion, which the

trial court denied on May 8, 2015. The instant, timely appeal followed. On

May 21, 2015, the trial court ordered Appellant to file a concise statement of

errors complained of on appeal.      See Pa.R.A.P. 1925(b).      Appellant timely

filed her Rule 1925(b) statement on May 26, 2015. On July 20, 2015, the

trial court filed an opinion. See Pa.R.A.P. 1925(a).

       On appeal, Appellant raises the following question for our review:

            Whether the trial court erred in denying Appellant’s [p]ost-
      [s]entence [m]otion where her sentence was excessive and

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       unreasonable and constitutes too severe a punishment in light of
       the alleged gravity of the offense, Appellant’s rehabilitative
       needs, and what is needed to protect the public?

(Appellant’s Brief, at 5).

       On appeal, Appellant challenges the discretionary aspects of her

sentence.1     In Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super.

2013) (en banc), an en banc panel of this Court held that “this Court’s scope

of review in an appeal from a revocation sentencing includes discretionary

sentencing challenges.” Cartrette, supra at 1034. Thus, Appellant’s claim

is properly before us.

       The right to appeal the discretionary aspects of a sentence is not

absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

2004), appeal denied, 860 A.2d 122 (Pa. 2004).            When an appellant

challenges the discretionary aspects of the sentence imposed, she must

present “a substantial question as to the appropriateness of the sentence[.]”

Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)

(citations omitted).      An appellant must, pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f), articulate “a colorable argument that the

sentence violates a particular provision of the Sentencing Code or is contrary

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1
  We note that Appellant preserved her discretionary aspects of sentence
claim by filing a timely post-sentence motion for reconsideration of
sentence. See McAfee, infra at 275.




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J-A31039-15


to   the     fundamental   norms    underlying   the   sentencing    scheme.”

Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)

(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If

an appellant’s Rule 2119(f) statement meets these prerequisites, we

determine whether a substantial question exists. See Commonwealth v.

Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied,

759 A.2d 920 (Pa. 2000). “Our inquiry must focus on the reasons for which

the appeal is sought, in contrast to the facts underlying the appeal, which

are necessary only to decide the appeal on the merits.” Id. (emphases in

original).

      Here, Appellant has included a Rule 2119(f) statement in her brief.

(See Appellant’s Brief, at 8-9).    In it, Appellant argues that the sentence

was excessive and unreasonable and constitutes too severe a punishment

because her grandmother is in failing health and her father has heart

troubles.    (See id. at 9).   This claim raises a substantial question.    See

Commonwealth v. Swope, 123 A.3d 333, 339-40 (Pa. Super. 2015).

              [T]he 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. . . . Once probation has been revoked, a sentence of
      total confinement may be imposed if any of the following
      conditions exist: (1) the defendant has been convicted of
      another crime; or (2) the conduct of the defendant indicates that
      it is likely that [s]he will commit another crime if [s]he is not
      imprisoned; or, (3) such a sentence is essential to vindicate the
      authority of court.




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Commonwealth v. Edwards, 71 A.3d 323, 327 (Pa. Super. 2013), appeal

denied, 81 A.3d 75 (Pa. 2013) (citations omitted).

       Here, as discussed above, this was Appellant’s second revocation of

probation.     Further, Appellant’s suspension from the work release program

was for the same type of theft activity that led to her underlying conviction.

(See N.T. Revocation Hearing, 4/23/15, at 3-5). Thus, Appellant has twice

demonstrated her inability to conform to the requirements of probation and

IP. (See Trial Ct. Op., at 3-4). Moreover, Appellant’s assertion that various

members of her family were in poor health is completely irrelevant to the

question of her rehabilitative needs.          Lastly, Appellant’s sentence was well

within the statutory limits.2       (See id.).    Thus, the record amply supports

Appellant’s sentence of IP with the first six months restricted to the Dauphin

County Prison, and her claim that the sentence was unreasonable is

frivolous. See Edwards, supra at 327.

       Further, even if this were not the case, Appellant’s argument consists

of boiler-plate citation to case law and a single paragraph argument that

simply reiterates her claim at the revocation hearing regarding the poor

health of her grandmother and father and concludes with the statement that

the trial court erred in denying her motion for modification. (See Appellant’s
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2
  We note that the sentencing guidelines do not apply to sentences imposed
following a revocation of probation. See Commonwealth v. Williams, 69
A.3d 735, 741 (Pa. Super. 2013), appeal denied, 83 A.3d 415 (Pa. 2014)
(citation omitted).



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Brief, at 10-12).    It is settled that “we do not accept bald assertions of

sentencing errors.     Rather, Appellant must support [her] assertions by

articulating the way in which the court’s actions violated the sentencing

code.”    Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.

2006) (citation omitted). Appellant failed to do so. (See Appellant‘s Brief,

at 10-12). Appellant’s issue does not merit relief. See Malovich, supra at

1252.

        Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2016




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