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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                                          :
                   v.                     :
                                          :
                                          :
JACKELINE RIVERA,                         :
                            Appellant     :
                                          :     No. 1222 EDA 2016

             Appeal from the Judgment of Sentence March 29, 2016
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0003372-2012

BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY DUBOW, J.:                           FILED MARCH 15, 2017

        Appellant, Jackeline Rivera, appeals from the Judgment of Sentence of

9 to 18 months’ incarceration following the revocation of her probation. We

affirm.

        The relevant facts and procedural history, as gleaned from the

Certified Record, are as follows. On September 28, 2012, Appellant entered

a plea of nolo contendere to one count of Receiving Stolen Property.1 The

court sentenced Appellant to a period of time-served to 12 months less one

day, followed by 2 years of probation.         The court granted Appellant

immediate parole.




1
    18 Pa.C.S. § 3925(a).
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        On March 19, 2013, Appellant appeared for a probation violation

hearing. Appellant conceded that she violated her probation, and the court

revoked her parole and probation. The court remanded Appellant to prison

to serve the balance of her parole sentence, and resentenced her to a

consecutive term of 2 years’ probation.

        The court granted Appellant parole on July 4, 2013.    On January 3,

2014, police arrested Appellant and charged her with Retail Theft and

Conspiracy to Commit Retail Theft.2 On April 1, 2014, Appellant appeared

for a second probation revocation hearing, and conceded the allegations in

the revocation Petition.    The court again revoked Appellant’s parole and

remanded Appellant to serve the balance of the parole sentence in county

prison.    The court immediately re-paroled Appellant, and re-imposed a 2-

year probationary sentence consecutive to the completion of Appellant’s

parole.

        On September 8, 2015, Appellant appeared before the court for a third

probation revocation hearing following allegations that Appellant failed to

remain drug-free and failed to undergo drug screening as directed by the

Adult Probation Office.    Appellant admitted to violating the terms of her

probation.    Owing to her repeated noncompliance with the terms of her

parole and probation, and her need for drug treatment, the court sentenced

Appellant to 11½ to 23 months’ incarceration, followed by 2 years of

2
    18 Pa.C.S. § 3929(a)(1) and 18 Pa.C.S. § 903(a)(1), respectively.



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probation. The court also ordered Appellant to undergo a drug and alcohol

evaluation, and directed that, if recommended, Appellant could be released

to an inpatient treatment program. On November 18, 2015, based on the

recommendation from the evaluation, the court granted Appellant parole to

inpatient treatment.

        On December 24, 2015, police arrested Appellant, and charged her

with one count of Simple Assault, a misdemeanor of the second degree, and

one count of Harassment, graded as a summary offense.3 Appellant pleaded

guilty, and the court sentenced her to 12 months of probation.

        Appellant’s arrest for Simple Assault and Harassment, and her

admission that she smoked marijuana on December 21, 2015, constituted

violations of her probation.         Accordingly, on March 8, 2016, Appellant

appeared for a fourth probation revocation hearing, at which she conceded

that    she   had   violated   her   probation.   The   Adult   Probation   Office

recommended that the court revoke Appellant’s probation and resentence

her to an additional period of 1 to 2 years’ incarceration in state prison.

        Following the hearing, the court revoked Appellant’s probation and

remanded her to serve the remainder of her September 8, 2015 sentence.

Additionally, the court imposed a sentence of 9 to 18 months’ incarceration,

on the Simple Assault charge, to be served consecutive to the balance of the



3
    18 Pa.C.S.§ 2701(a)(1) and 18 Pa.C.S. § 2709(a)(1), respectively.



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parole violation. The court denied Appellant’s request to be eligible for the

Reduced Recidivism Reduction Initiative (“RRRI”).

      After the court imposed the sentence, Appellant became aggravated

and argumentative. As she was leaving the courtroom, Appellant called the

court an inappropriate name.       The court, therefore, ordered Appellant to

return for a hearing on March 22, 2016, to show cause as to why the court

should not hold her in contempt.

       On March 11, 2016, the court received a letter from Appellant

apologizing for her actions, and requesting that the court make her RRRI

eligible and sentence her to county prison. The trial court treated this letter

as a Motion for Reconsideration of Sentence. On March 22, 2016, Appellant

appeared for the show cause hearing, after which the court found her not

guilty of contempt.    The court also resentenced Appellant to 12 to 24

months’ incarceration, and granted Appellant’s request for RRRI eligibility.

      After prison officials notified the trial court that Appellant’s Simple

Assault conviction disqualified her from RRRI eligibility, on March 29, 2016,

the court entered an Order sua sponte vacating the March 22, 2016

Judgment of Sentence, and reinstating the March 8, 2016 Judgment of

Sentence.

      On April 9, 2016, Appellant sent the court a letter indicating that she

wished to appeal her Judgment of Sentence. On April 15, 2016, the court

entered an Order treating Appellant’s letter as a pro se Notice of Appeal,



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appointing Appellant counsel, and directing counsel to file a proper Notice of

Appeal. Counsel filed a Notice of Appeal on April 21, 2016. Appellant and

the trial court complied with Pa.R.A.P. 1925.

      “Generally, in reviewing an appeal from a judgment of sentence

imposed after the revocation of probation, this Court’s scope of review

includes the validity of the hearing, the legality of the final sentence, and if

properly raised, the discretionary aspects of the appellant’s sentence.”

Commonwealth v. Kuykendall, 2 A.3d 559, 563 (Pa. Super. 2010) (citing

Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006)).

      Appellant raises one issue on appeal in which she claims that “the

sentence imposed by the lower court [was] manifestly excessive or

otherwise unjustified based upon the lack of any proportional punishment

based upon the nature of [Appellant’s] probation violation and need for

rehabilitation[.]” Appellant’s Brief at 8. Appellant challenges the trial court’s

imposition of a consecutive sentence, which Appellant must serve in a state

prison, rather than county jail.      Id. at 17.     This issue implicates the

discretionary aspects of Appellant's sentence, which is reviewable by this

Court in the revocation setting.     Commonwealth v. Cartrette, 83 A.3d

1030 (Pa. Super. 2013) (en banc).

      Where an appellant challenges the discretionary aspects of a sentence,

there is no automatic right to appeal, and an appellant's appeal should be

considered a petition for allowance of appeal. Commonwealth v. W.H.M.,



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932 A.2d 155, 163 (Pa. Super. 2007). As we observed in Commonwealth

v. Moury, 992 A.2d 162 (Pa. Super. 2010):

         An appellant challenging the discretionary aspects of his
         sentence must invoke this Court's jurisdiction by satisfying
         a four-part test:

           [W]e 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.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006)).

      In the instant case, Appellant filed a timely notice of appeal, and

timely Post-Sentence Motion.       She also included a separate Pa.R.A.P.

2119(f) statement in her appellate brief.      As to whether Appellant has

presented a substantial question, we must examine the specific sentencing

issue raised by Appellant.

      In her Pa.R.A.P. 2119(f) Statement, Appellant alleges that her

probation violation “did not warrant [her transfer] to a [s]tate [c]orrectional

[i]nstitute to serve her sentence[,]” and that her sentence was not

reasonably proportional to the crimes she committed.       Appellant’s Brief at

12.

      It is well-settled that:


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         The determination of whether a particular issue raises a
         substantial question is to be evaluated on a case-by-case
         basis. Generally, however, in order to establish a
         substantial question, the appellant must show actions by
         the sentencing court inconsistent with the Sentencing Code
         or contrary to the fundamental norms underlying the
         sentencing process.

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal

citation omitted).

      Our review of Appellant’s Pa.R.A.P. 2119(f) statement reveals that

Appellant failed to allege that her sentence is inconsistent with the

Sentencing Code or contrary to the fundamental norms underlying the

sentencing process. Accordingly, we decline to find that Appellant raised a

substantial question permitting our review as to the trial court’s imposition

of consecutive sentences.4

      Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/15/2017




4
  Moreover, a challenge to the imposition of consecutive sentences does not
ordinarily  raise   a   substantial   question   permitting   our   review.
Commonwealth v. Mastromarino, 2 A.3d 581, 586-87 (Pa. Super. 2010).



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