J-S20029-18




NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ALLISON RENEE CHERRY                     :
                                          :
                    Appellant             :   No. 1293 MDA 2017

          Appeal from the Judgment of Sentence August 10, 2017
              In the Court of Common Pleas of Centre County
           Criminal Division at No(s): CP-14-CR-0001775-2013


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

MEMORANDUM BY OTT, J.:                             FILED AUGUST 29, 2018

      Allison Renee Cherry appeals from the judgment of sentence imposed

on August 10, 2017 in the Centre County Court of Common Pleas, following

her revocation from a county intermediate punishment (“IP”) program. The

court sentenced Cherry to a term of 12 months to five years’ incarceration.

Cherry raises claims regarding the sufficiency of the evidence in sustaining

her IP violations and the discretionary aspects of her sentencing. Based on

the following, we affirm.

      On July 4, 2013, a State College police officer found Cherry passed out

in a gas station parking lot. The officer detected a strong odor of alcohol and

observed Cherry to have bloodshot eyes and slurred speech. She admitted

she had been drinking and she performed unsatisfactorily on the field sobriety
J-S20029-18


tests.    Video surveillance from the gas station confirmed that Cherry was

driving. Cherry was taken to the hospital and after agreeing to a blood draw,

the results revealed her blood alcohol content was 0.226%. See generally,

Affidavit of Probable Cause, 8/12/2013. She was charged with various crimes

related to the incident and on January 23, 2014, she pled guilty to driving

under the influence of alcohol (“DUI”).1         On March 27, 2014, the court

sentenced Cherry to a term of five years’ IP in the Centre County DUI Court

program.

         Since that time, Cherry committed numerous violations of her IP

sentence and received five notices of those violations in the form of written

warnings on April 8, 2015, August 25, 2015, September 21, 2015, October

13, 2015, and June 28, 2017.2            Subsequently, on July 31, 2017, Cherry




____________________________________________


1   See 75 Pa.C.S. § 3802(c).

2 With respect to each violation notification, the court did not revoke Cherry’s
IP but did warn of potential ramifications for misconduct. As to her first
violation, the court imposed a sanction of one month of enhanced curfew
compliance/electronic monitoring. As to her second violation, the court
instructed Cherry to follow her plan of action until she could be placed in a
rehabilitation facility. Subsequently, on August 27, 2015, the court issued an
order, requiring that Cherry attend and successfully complete an inpatient
treatment program at Pyramid Healthcare. With respect to her third violation,
Cherry received a sanction of one month of enhanced curfew
compliance/electronic monitoring, followed by 60 days of Transdermal Alcohol
Detection. Cherry did not receive any new sanctions with regard to her
remaining violations.



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received her sixth notice of violations. No sanctions were imposed at the time,

but she was notified of a revocation hearing.

       At the conclusion of the revocation hearing3 on August 10, 2017, the

court found Cherry violated conditions #1, #2, #4, #10, and #11 of her IP

sentence. The court explained its determination as follows:

             [T]his Court revoked [Cherry]’s Intermediate Punishment
       because it found that [she] had violated Conditions 1, 2, 4, 10,
       and 11 of the Intermediate Punishment. DUI Condition 1 states
       that [Cherry] had to comply with all municipal, county, state, and
       federal criminal laws, as well as provisions of the Vehicle Code,
       Controlled Substance, Drug, Device, and Cosmetic Act, and the
       Liquor Code. It was alleged that [Cherry] violated DUI Condition
       1 when she pled guilty to a Public Drunkenness and Similar
       Misconduct charge for incidents occurring on August 23, 2015.
       [Cherry] also allegedly violated Condition 2, In-Home
       Detention/Electronic Monitoring, by leaving her residence on
       February 22, 2015 without authorization. [Cherry] allegedly
       violated Condition 4, Leaving the Commonwealth Without
       Permission, when she travelled to the Carolinas from July 25-29,
       2017 without permission.

             [Cherry] allegedly violated condition 10, Abstention from
       Alcohol/Non-Prescribed Drugs on several occasions. First[,] she
       admitted to having alcoholic beverages on August 15, 21, and 22,
       of 2015. Several alcoholic beverages/empty alcoholic beverage
       containers were found at her approved residence on June 27, 2017
       allegedly violating Condition 10. [Cherry] allegedly violated
       condition 10 when she tested positive for EtG (alcohol). She
       admitted that she had consumed alcoholic beverages at an
       establishment selling alcohol on April 30, 2017 and June 26, 2017.

             [Cherry] allegedly violated Condition 11, Entering an
       Establishment that Sells Alcohol. [Cherry] allegedly violated
       condition 11 after she admitted that she was at Indigo Night
       Club/Bar drinking alcohol on August 21 and 22 of 2015. [Cherry]
       also admitted to violating condition 11 on April 30, 2017 and June
____________________________________________


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

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       26, 2017 by drinking alcohol at Pickles Bar. In total [Cherry]
       received six notifications of violations for the incidents listed above
       since entering the DUI Court Program by Court Order of March 27,
       2014.

Trial Court Opinion, 10/6/2017, at 1-2. The court then revoked Cherry’s IP

sentence and imposed a term of 12 months to 5 years in state correctional

institution. This timely appeal follows.4

       In her first argument, Cherry challenges the sufficiency of the evidence

regarding her revocation, complaining the court should not have revoked her

IP sentence based on her prior conduct in 2015 because those violations had

been previously subject to court sanctions, and therefore, the double jeopardy

clause5 applies. See Cherry’s Brief 15. Specifically, she states:

             The double jeopardy clause of the constitution does not
       preclude, as double punishment, a second sentencing where there
       have been violations of a conditional sentence like probation or
       intermediate punishment. Double jeopardy does not preclude the
       remand for a new revocation hearing where a reviewing court has
       determined that the evidence presented at the first revocation
       hearing was insufficient to sustain the violation.

             It does not follow, as the Commonwealth suggests, that
       principles grounded in double jeopardy do not apply to the
       revocation process. Collateral estoppel bars the Commonwealth
____________________________________________


4   On August 17, 2017, the trial court ordered Cherry to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Cherry filed a concise statement on September 1, 2017. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on October 6, 2017.

5 See Commonwealth v. Wilson, 147 A.3d 7, 13 (Pa. Super. 2016) (“The
double jeopardy clause of the Pennsylvania Constitution prohibits retrial of a
defendant when the conduct of the prosecutor is intentionally undertaken to
prejudice the defendant to the point of denying him a fair trial.”) (citation
omitted).

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      from revoking parole based on conduct for which the probationer
      was tried and acquitted prior to the violation hearing. It also
      invalidates a probation violation based solely on a new conviction
      that is subsequently vacated on appeal.

             Res judicata differs from collateral estoppel only in that the
      latter contemplates different adjudicative forums while the former
      contemplates identical adjudicative forums.             Res judicata
      recognizes the sanctity of final judgment on a litigated claim and
      protects the rights of the parties by barring the re-litigation of that
      claim in a subsequent proceeding in the same forum. In the
      context of probation and parole, it has been used by the
      Commonwealth Court to bar a second revocation hearing where
      the Parole Board found insufficient evidence of the claim at the
      first hearing.

             In the instant matter, revoking Ms. Cherry’s intermediate
      punishment based on the 2015 conduct was barred by res
      judicata. Unarguably, she was served with a notification of
      violations for the 2015 conduct and a final determination was
      made by the court that sanctions short of revocation and re-
      sentencing was appropriate punishment for that conduct.

Id. at 15-17 (citations omitted).

      We are guided by the following:

      A challenge to the sufficiency of the evidence is a question of law
      subject to plenary review. We must determine whether the
      evidence admitted at trial and all reasonable inferences drawn
      therefrom, when viewed in the light most favorable to the
      Commonwealth as the verdict winner, is sufficient to support all
      elements of the offenses. A reviewing court may not weigh the
      evidence or substitute its judgment for that of the trial court.

Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007)

(citations and internal quotations omitted), appeal denied, 945 A.2d 169 (Pa.

2008).




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       “Revocation of a probation sentence is a matter committed to the sound

discretion of the trial court and that court’s decision will not be disturbed on

appeal in the absence of an error of law or an abuse of discretion.” Id.6

       When assessing whether to revoke probation, the trial court must
       balance the interests of society in preventing future criminal
       conduct by the defendant against the possibility of rehabilitating
       the defendant outside of prison. In order to uphold a revocation
       of probation, the Commonwealth must show by a preponderance
       of the evidence that a defendant violated his probation.

Commonwealth v. Allshouse, 33 A.3d 31, 37 (Pa. Super. 2011) (quotation

marks and citations omitted), appeal denied, 49 A.3d 441 (Pa. 2012).         “A

probation violation is established whenever it is shown that the conduct of the

probationer indicates the probation has proven to have been an ineffective

vehicle to accomplish rehabilitation and not sufficient to deter against future

antisocial conduct.”7 Commonwealth v. Ortega, 995 A.2d 879, 886 (Pa.

Super. 2010), appeal denied, 20 A.3d 1211 (Pa. 2011). “A trial court does

not necessarily abuse its discretion in imposing a seemingly harsh post-

revocation sentence where the defendant originally received a lenient


____________________________________________


6 This Court has previously held the revocation of a county intermediate
punishment sentence is equivalent to the revocation of probation. See
Commonwealth v. Philipp, 709 A.2d 920, 921 (Pa. Super. 1998); see also
Commonwealth v. Melius, 100 A.3d 682, 685-686 (Pa. Super. 2014).

7  “[T]he reason for revocation of probation need not necessarily be the
commission of or conviction for subsequent criminal conduct. Rather, this
Court has repeatedly acknowledged the very broad standard that sentencing
courts must use in determining whether probation has been violated[.]”
Commonwealth v. Ortega, 995 A.2d at 886 (citations and internal
quotations omitted).

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J-S20029-18


sentence and then failed to adhere the conditions imposed on him.”

Commonwealth v. Schutzues, 54 A.3d 86, 99 (Pa. Super. 2012) (citation

omitted), appeal denied, 67 A.3d 796 (Pa. 2013). Lastly, “technical violations

are sufficient to trigger the revocation of probation.”   Commonwealth v.

Sierra, 752 A.2d 910, 912 (Pa. Super. 2000) (citation omitted).

      Pursuant to 42 Pa.C.S. § 9773, a trial court may “revoke a sentence of

county intermediate punishment upon proof of a violation of specific conditions

of the sentence.” 42 Pa.C.S. § 9773(b). Additionally, Subsection (c) requires

that before doing so, the trial court must conduct a hearing “at which the court

shall consider the record of the initial sentencing proceeding as well as the

conduct of the defendant while serving a sentence of county intermediate

punishment.” 42 Pa.C.S. § 9773(c). See also Pa.R.Crim.P. 708 (violation of

probation, intermediate punishment, or parole: hearing and disposition).

      Moreover, because Cherry argues the doctrines of collateral estoppel

and res judicata apply, we note:     Both doctrines "preclud[e] parties from

contesting matters that they have had a full and fair opportunity to litigate."

Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (internal quotation marks and

citations omitted). Collateral estoppel “means simply that when an issue of

ultimate fact has once been determined by a valid and final judgment, that

issue cannot again be litigated between the same parties in any future

lawsuit.”    Commonwealth v. Castro, 856 A.2d 178, 181-82 (Pa. Super.

2004).      “Under res judicata, a final judgment on the merits of an action


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precludes the parties or their privies from relitigating issues that were or could

have been raised in that action[.]” In re Stevenson, 40 A.3d 1212, 1222

(Pa. 2012), quoting Allen v. McCurry, 49 U.S. 90, 94 (1980).

      Here, the court explained its rationale for revoking Cherry’s IP sentence

as follows:

             This Court found that the preponderance of evidence
      presented supported the allegations that [Cherry] violated []
      Conditions 1, 2, 4, 10, [and] 11. This Court notes, with heartfelt
      regret, that [Cherry] was unable to follow the DUI Court
      Conditions despite [Cherry] receiving leniency on many
      opportunities in the hopes of rehabilitation. The six notices of
      violations demonstrate that [Cherry] had continuously struggled
      with rehabilitation while involved in the Intermediate Punishment.
      The evidence before the Court demonstrated that Intermediate
      Punishment was no longer a viable means of rehabilitating
      [Cherry] and therefore revocation was in order.

            The first issue complained of by [Cherry] concerning
      Conditions 1 and 2 is that the incidents occurred at least two years
      ago. This statement demonstrates that [Cherry] had difficulty
      adhering to the Conditions of the Intermediate Punishment for
      several years. This was further evidence that Intermediate
      Punishment was not a viable means of rehabilitating [Cherry] and
      therefore revocation was in order.

             The second issue complained of by [Cherry] concerning
      Conditions 1 and 2 is that [she] already suffered court sanctions
      for the conduct at the time. This argument seems to implicate
      collateral estoppel as the argument being asserted by [Cherry].
      Collateral estoppel means simply that when an issue of ultimate
      fact has once been determined by a valid and final judgment, that
      issue cannot again be litigated between the same parties in any
      future lawsuit. Ashe v. Swenson, 397 U.S. 436, 443 (1970).

            Sanctions are a part of the Intermediate Punishment and
      are an appropriate condition since they are intended to effectuate
      rehabilitation and reintegration into society. The sanctions allow
      the Court to discipline a [probationer] without having to revoke
      the Intermediate Punishment. The sanction process starts when

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     the DUI team discovers a [probationer] violated a condition of the
     Intermediate Punishment. Then the DUI team meets with this
     Court to discuss whether the violation requires a sanction and if
     so what sanction should the Court issue. Then on the day of the
     DUI Court the DUI team initiates the discussion of the violation.
     The [probationer] then has an opportunity to respond before the
     sanction is issued. The sanctioning process for DUI Court is not a
     judicial one but an administrative one. There is not an ultimate
     fact which has been determined by a valid and final judgment in
     the DUI Court sanctioning process which would trigger collateral
     estoppel. Furthermore these violations demonstrate that the DUI
     Court had tried to be lenient in the past in order for the
     rehabilitation to succeed but [Cherry] was not able to comply with
     the Conditions and therefore the Intermediate Punishment was
     revoked.

                                          …

           Assuming arguendo, [Cherry]’s violations of Conditions 1, 2,
     and 4 were not proper for consideration, this Court would still have
     grounds for finding revocation was in order for the violations of
     Conditions 10 and 11.        [Cherry] admitted to entering an
     establishment that sells alcohol, admitted to consuming alcohol,
     and alcohol was found at her residence. These violations alone
     demonstrate that Intermediate Punishment was not a viable
     means of rehabilitating [Cherry] and therefore revocation was in
     order.

Trial Court Opinion, 10/6/2017, at 3-5.

     We agree with the court’s sound rationale.

     The Double Jeopardy Clause does not provide the defendant with
     the right to know at any specific moment in time what the exact
     limit of his punishment will turn out to be. Congress has
     established many types of criminal sanctions under which the
     defendant is unaware of the precise extent of his punishment for
     significant periods of time, or even for life, yet these sanctions
     have not been considered to be violative of the Clause. Thus,
     there is no double jeopardy protection against revocation of
     probation and the imposition of imprisonment. (citation omitted).
     There are other situations where probation may be revoked and
     sentence of imprisonment imposed. (citations omitted).


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Commonwealth v. Mysnyk, 527 A.2d 1055, 1056-1057 (Pa. Super. 1987)

(italics in original), appeal denied, 538 A.2d 498 (Pa. 1987).

       Here, Cherry’s 2015 violations of Conditions 1 and 2, and resulting

sanctions, were not being relitigated by the trial court during the August 10,

2017, revocation hearing. Moreover, the Commonwealth was not pursuing

these claims for a second time but rather, was requesting the trial court to

consider Cherry’s multiple failures to adhere to the conditions of her IP in

determining whether or not to revoke it.8          N.T., 8/10/2017, at 3-4, 7-8.

Additionally, as noted by the trial court, these sanctions were administrative

in nature, not criminal, and based on the circumstances, it was evident that

Cherry was incapable of following simple DUI Court conditions despite

receiving numerous leniency opportunities.9 Cherry’s arguments concerning

collateral estoppel and res judicata do not persuade us otherwise.

       Nevertheless, as the trial court found, even if the prior violations were

not proper for review, it would still have grounds for finding revocation based

on the fifth and sixth violations of Conditions 4, 10, and 11 in 2017.10 The


____________________________________________


8 With respect to the first four violations, there were no formal proceedings,
resulting in revocation. The court either ordered Cherry to one-month periods
of enhanced curfew compliance/electronic monitoring, placement at a
rehabilitation facility, or imposed no sanction.

9 It merits repeating that Cherry committed six violations since her sentencing
in March of 2014.

10 Cherry’s counsel admitted to her conduct supporting those violations. See
N.T., 8/10/2017, at 7.

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court acted within its province when it determined that IP did not satisfy

Cherry’s rehabilitative needs. See Allshouse, supra. Furthermore, it merits

mention that when Cherry signed her “Centre County DUI Court Program –

Conditions of In-Home Detention/Electronic Monitoring,” she agreed to the

following:

       I acknowledge that the Intermediate Punishment Program/In-
       home Detention Program has been explained to me, and I have
       been advised that under the law, the Court may at any time, for
       cause, revoke or modify any condition of your Intermediate
       Punishment Sentence.

       I realize I am subject to arrest and incarceration, for cause, by
       the Centre County Probation Department. The Court may, if it
       sees fit, revoke my Intermediate Punishment Sentence and
       impose an appropriate sentence.

N.T., 8/10/2017, Exhibit - Centre County DUI Court Program – Conditions of

In-Home Detention/Electronic Monitoring, 6/24/2014, at unnumbered 2.11

Accordingly, we conclude the trial court properly revoked Cherry’s IP

sentence, and her first argument fails.

       In her second argument, Cherry contends that her sentence is

excessive. Cherry’s Brief at 18. Specifically, she states:

       Absent the summary public drunkenness conviction and [the]
       2015 technical violations, the [trial] court articulated that the April
       2017 conduct of entering a bar, consuming, and possessing
       alcoholic beverages “… alone demonstrated that Intermediate
____________________________________________


11 In her written guilty plea colloquy, Cherry indicated that she understood
her DUI offense carried a possible maximum prison term of five years, her
simple assault offense carried a possible maximum prison term of two years,
and that her DUI offense had a mandatory minimum sentence of one year.
See Written Guilty Plea Colloquy, 3/13/2014, at unnumbered 2.

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       Punishment was not a viable means of rehabilitating [Cherry] and
       therefore revocation was in order.” This reasoning ignores the
       fact that at the time of the relapse it deemed her continued
       outpatient counseling sufficient to address this brief relapse. One
       is left with the inescapable conclusion that she was not
       “disingenuous” in her [concise statement] and she was revoked
       because that vacation she took with her girlfriend was the last
       straw for her probation officer. There were no allegations of other
       violations during this [sic] four days in July.

             No one challenged her testimony she retained her sobriety.
       There was nothing in the 2017 violations which would indicate that
       it was likely that she would commit a future crime. There was no
       allegations of operating an automobile during the entire course of
       her intermediate punishment.       There was no challenge to
       testimony that she had a good job that she would lose if sent to
       state prison.

Cherry’s Brief at 19-20 (record citation omitted).12        Cherry’s complaint

challenges the discretionary aspects of her sentence.

       "[T]his Court’s scope of review in an appeal from a revocation

sentencing includes discretionary sentencing challenges.” Commonwealth

v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc). Furthermore,

       “[t]here is no absolute right to appeal when challenging the
       discretionary aspect of a sentence.” Commonwealth v. Crump,
       995 A.2d 1280, 1282 (Pa. Super. 2010); 42 Pa.C.S. § 9781(b).
       Rather, an “[a]ppeal is permitted only after this Court determines
       that there is a substantial question that the sentence was not
       appropriate under the sentencing code.” Crump, supra at 1282.
       In determining whether a substantial question exists, this Court
       does not examine the merits of the sentencing claim.
       Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (Pa.
       1987).


____________________________________________


12  In her Rule 2119(f) statement, Cherry maintains that the trial court “abused
its discretion in sentencing her to an excessive sentence of state incarceration
based on mere technical violations of supervision.” Cherry’s Brief at 12.

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            In addition, “issues challenging the discretionary aspects of
      a sentence must be raised in a post-sentence motion or by
      presenting the claim to the trial court during the sentencing
      proceedings. Absent such efforts, an objection to a discretionary
      aspect of a sentence is waived.” Commonwealth v. Kittrell,
      2011 PA Super 60, 19 A.3d 532, 538 (Pa. Super. 2011).
      Furthermore, a defendant is required to preserve the issue in a
      court-ordered Pa.R.A.P. 1925(b) concise statement and a
      Pa.R.A.P. 2119(f) statement. Commonwealth v. Naranjo, 2012
      PA Super 183, 53 A.3d 66, 72 (Pa. Super. 2012).

Cartrette, at 1042.

      A review of the record reveals that while Cherry filed a timely notice of

appeal, and included in her appellate brief a statement of reasons relied upon

for appeal pursuant to Tuladziecki, supra, and Pa.R.A.P. 2119(f), she did

not raise any objections to the sentence at sentencing and she did not file a

post-sentence motion for reconsideration. However, there is no indication in

the record that the trial court advised her of those post-sentence rights when

she was sentenced following the revocation of her IP. See N.T., 8/10/2017,

at 15-16.     Therefore, we decline to find waiver on this basis.           See

Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super. 2007) (“The

courts of this Commonwealth have held that a court breakdown occurred in

instances where the trial court, at the time of sentencing, either failed to

advise Appellant of his post-sentence and appellate rights or misadvised

him.”), appeal denied, 960 A.2d 838 (Pa. 2008).          Therefore, we must

determine whether she has raised a substantial question justifying our review.

      A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

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provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted).   An allegation that the trial court failed to consider the

requirements of Section 9771(c) before imposing a sentence of total

confinement raises a substantial question that the sentence imposed was

“inconsistent with a specific provision of the Sentencing Code.” Id. Moreover,

“a claim that a particular probation revocation sentence is excessive in light

of its underlying technical violations can present a question that we should

review.” Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super.

2006) (citation omitted). Accordingly, we proceed to an evaluation of Cherry’s

claim on appeal.

      The Sentencing Code provides that, similar to the revocation of a

probationary sentence, when a trial court revokes a county intermediate

punishment sentence, “the sentencing alternatives available to the court shall

be the same as the alternatives available at the time of initial sentencing.” 42

Pa.C.S. § 9773(b). Moreover, Section 9771(c) precludes a trial court from

imposing a sentence of total confinement upon revocation of probation unless

the court finds one or more of the following:

      (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




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         (3) such a sentence is essential to vindicate the authority of the
         court.

42 Pa.C.S. § 9771(c).

         In explaining Cherry’s sentence, the court stated:

                The final issue complained of on Appeal concerns whether
         the Court abused its discretion in sentencing [Cherry] for going on
         a short vacation without first receiving written permission.
         [Cherry] travelled to the Carolinas from July 25-29,2017 without
         permission from her probation officer. This violation was one of
         many considered by the Court including the violation of Conditions
         10 and 11. It would be disingenuous to state that this Court
         sentenced [Cherry] to state incarceration for a short vacation
         without receiving permission when there was evidence of other
         violations before the Court.

Trial Court Opinion, 10/6/2017, at 5.

         We find no abuse of discretion.        “Technical violations can support

revocation and a sentence of incarceration when such violations are flagrant

and indicate an inability to reform.” Commonwealth v. Carver, 923 A.2d

495, 498 (Pa. Super. 2007). Cherry’s conduct has repeatedly demonstrated

that a term of imprisonment was essential to vindicate the authority of the

court.     While focusing on the incidents that took place in 2017, Cherry

committed multiple, new violations, which broke three conditions of her IP

sentence.      Even after Cherry received her fifth warning concerning her

violations, she still violated the terms for a sixth time within a one month

period. It is evident from the record that Cherry was not taking advantage of

the opportunities given to her by the trial court, including inpatient treatment

program, she was not reforming her behavior, and she had a clear disregard


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for the authority of the court when she left the state without informing her

probation officer. Accordingly, the trial court did not abuse its discretion in

sentencing Cherry to a period of total confinement with regard to her IP

revocation.     Therefore, Cherry’s discretionary aspects of sentencing claim

fails.

         Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/29/2018




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