J-S34024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

CHRISTY JANICE MOXLEY

                        Appellant                  No. 1757 MDA 2015


   Appeal from the Judgment of Sentence Entered September 24, 2014
In the Court of Common Pleas of the 39th Judicial District, Franklin County
  Branch, Criminal Division at Nos: CP-28-CR-0000229-2013, CP-28-CR-
                 0002344-2013, CP-28-CR-0002359-2013


BEFORE: PANELLA, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.:                           FILED JUNE 22, 2016

     Appellant, Christy Janice Moxley, appeals from the September 24,

2014 judgment of sentence. We affirm in part, vacate in part, and remand.

     This consolidated appeal arises from three DUI arrests. Police arrested

Appellant and charged her with DUI (75 Pa.C.S.A. § 3802(c) (highest rate of

alcohol)) on December 20, 2012. On June 12, 2013, the trial court granted

Appellant’s motion for Accelerated Rehabilitative Disposition (“ARD”) on that

offense.   The Commonwealth charged Appellant with two subsequent DUI

offenses, on August 1 and September 13, 2013, both under § 3802(c). On

October 30, 2013, the Commonwealth moved to revoke Appellant’s ARD.

     On June 23, 2014, Appellant pled guilty to the aforementioned DUI

offenses, as well as driving on a suspended license (75 Pa.C.S.A. § 1543)
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and an accident involving damage to an attended vehicle (75 Pa.C.S.A.

§ 3743).    On September 24, 2014, the trial court sentenced Appellant in

absentia, imposing concurrent sentences—including a 24-month probation

sentence for her conviction under § 3743—resulting in an aggregate 60

months of intermediate punishment, the first nine months and five days of

which were to be served as work release from the Franklin County prison.

Appellant filed a timely post-sentence motion on Monday, October 6, 2014.1

That motion was denied by operation of law on September 10, 2015. This

timely appeal followed.

       Appellant first argues that her 24-month probation sentence under

§ 3743 is illegal. Section 3743(b) provides that an accident causing damage

to an attended vehicle is a third degree misdemeanor punishable by a

$2,500.00 fine, one year of incarceration, or both. 75 Pa.C.S.A. § 3743(b).

Similarly, the Crimes Code provides that the maximum term for a third

degree misdemeanor is one year of incarceration. 18 Pa.C.S.A. § 1104(3).

The trial court and the Commonwealth concede that the trial court erred in

imposing a two-year probation sentence for Appellant’s § 3743 offense. We

agree, inasmuch as the term of a sentence of probation “may not exceed the

maximum term for which the defendant could be confined.”      42 Pa.C.S.A.


____________________________________________


1
  The ten-day deadline expired on Saturday, October 4, 2014. Appellant’s
motion was therefore timely.



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§ 9754(a). We will therefore vacate the judgment of sentence and remand

for resentencing on that offense.

       Next, Appellant challenges the sentence imposed at docket number

222 of 2013 (relating to Appellant’s December 20, 2012 arrest). She argues

the trial court abused its discretion in ordering her to serve five days of work

release at the beginning of the 6-month intermediate punishment sentence

imposed for that conviction. Appellant asserts that the sentencing guidelines

provide for three days of work release for a first offense, and the trial court

failed to explain its reasons for imposing a sentence outside the guideline

range.2

       The sentencing transcript flatly contradicts Appellant’s assertion:

             [T]his Court finds that [Appellant] has had a gross
       disregard for society.   Furthermore, [Appellant] has been
       granted numerous opportunities by this Court to answer for her
       actions.   The Court accepts she may have serious medical
       concerns, but at the same time finds [Appellant] has essentially
       not appeared when given the opportunity.

              [T]he Court finds it is necessary to protect society. So a
       substantial jail term will hopefully protect society from this
       individual who has grave and serious issues with alcohol
       consumption.

             So, to do less than that is to place society prematurely at
       risk. So, those are the reasons.

____________________________________________


2
   To preserve a challenge to the trial court’s sentencing discretion, an
appellant must raise the issue in a timely post-sentence motion, file a timely
notice of appeal, include a Pa.R.A.P. 2119(f) statement in the appellate brief,
and raise a substantial question for review.



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N.T. Sentencing, 9/24/2014, at 10. Appellant’s argument lack merit.

      Finally, Appellant argues the trial court erred in imposing county

incarceration rather than electronic monitoring.   Appellant argues the trial

court failed to account for Appellant’s rehabilitative needs. This issue lacks

merit.   As evidenced in the quote above, the trial court was aware of

Appellant’s rehabilitative needs—the court noted “serious medical concerns.”

The court nonetheless found that the need to protect the public justified a

period of incarceration.   Appellant fails to explain why she cannot pursue

rehabilitation both during and after incarceration. We discern no abuse of

discretion on the part of the sentencing court.

      To summarize, we vacate the 24-month probation sentence for

Appellant’s conviction under 75 Pa.C.S.A. § 3743 in accord with the trial

court’s request. We affirm the remainder of the judgment of sentence.

      Judgment of sentence affirmed in part and vacated in part.         Case

remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2016




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