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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                        :
SHERRY LYNN HARVEY,                     :          No. 1778 MDA 2013
                                        :
                       Appellant        :


         Appeal from the Judgment of Sentence, August 14, 2013,
            in the Court of Common Pleas of Wyoming County
             Criminal Division at No. CP-66-CR-0000229-2013


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED DECEMBER 17, 2014

     This is an appeal from the judgment of sentence entered by the Court

of Common Pleas of Wyoming County.            On July 12, 2013, appellant,

Sherry Lynn Harvey, entered a guilty plea to one count of introducing

contraband into a correctional facility and one count of simple assault.

Appellant was sentenced on August 14, 2013, to an aggregate term of

imprisonment of 50 months to 132 months.            Appellant challenges the

discretionary aspects of her sentence. Upon review, we affirm.

     The trial court summarized the details of this case as follows:

           On July 5, 2013 a Criminal Information was filed in
           the Court of Common Pleas of Wyoming County
           setting forth that between January 21, 2013 and
           May 2, 2013 in Tunkhannock Township, Defendant
           Sherry Lynn Harvey (hereinafter “Defendant”) did
           sell, give, transmit or furnish to a convict in a prison
           owned or leased by the Commonwealth or a county a


* Retired Senior Judge assigned to the Superior Court.
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          controlled substance without a written permit signed
          by the physician of such institution.              More
          specifically,    Defendant     unlawfully     furnished
          suboxone, a Schedule III controlled substance, to
          Wyoming County Correctional Facility inmate,
          Shawn Miller and Eric Simonson, by opening the
          stitching on the tongue of a sneaker and inserting
          the suboxone inside and sealing it shut with super
          glue.    As a result, Defendant was charged with
          Contraband, 18 Pa.C.S.A. §5123(a) and Possession
          of    a    Controlled   Substance,      35    Pa.C.S.A.
          § 13(a)16[sic]. That same day, July 5, 2013, a
          separate Criminal Information was filed in Wyoming
          County charging Defendant with Simple Assault,
          18 Pa.C.S.[A.] §2701(a)(1), Disorderly Conduct,
          18 Pa.C.S.A.      §5503(a)(1)      and     Harassment,
          18 Pa.C.S.A. §2709(a)(1). On or about May 31,
          2013, while an inmate at the Wyoming County
          Correctional Facility on the Contraband charge,
          Defendant engaged in fighting by striking another
          inmate with a closed fist, requiring the victim to seek
          medical     attention  from     the    local   hospital.
          Defendant’s actions caused much disorder for the
          Wyoming County Facility and jeopardized the safety
          of the staff and inmates. Immediately following the
          assault,     Defendant    was     relocated    to   the
          Susquehanna County Correctional Facility.

                On July 12, 2013 Defendant pleaded guilty to
          one count of Introducing Contraband into a
          Correctional Facility and one count of Simple Assault.
          On August 14, 2013 Defendant appeared before this
          Court for sentencing with a prior record score of
          two (2). Pursuant to 18 Pa.C.S.A. §5123, Defendant
          was subject to a twenty four (24) month mandatory
          minimum sentence in docket 2013-CR-229.

               After comments from counsel for the
          Commonwealth and the Defendant, in 2013-CR-229,
          Defendant was sentenced to forty eight (48) months
          to one hundred twenty (120) months on the charge
          of Contraband, 18 Pa.C.S.A. §5123(a), a felony of
          the second degree.       Defendant was further
          sentenced in docket number 13-CR-259 to two (2) to


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            twelve (12) months on the charge of Simple Assault,
            18 Pa.C.S.A. § 2701(a)(1), a misdemeanor of the
            third degree, to run consecutive to the previous
            sentence. Defendant is not eligible for an RRRI
            minimum sentence due to the mandatory minimum
            sentence.    The aggregate sentence imposed on
            Defendant was fifty (50) months to one hundred and
            thirty two (132) months.

Trial court opinion, 10/28/13 at 1-3.

      A motion to modify sentence was filed on August 23, 2013. By order

filed on September 16, 2013, the motion was denied.         Appellant filed a

timely appeal on October 1, 2013. Appellant was ordered to file a concise

statement of errors raised on appeal ,and she timely complied.

      Appellant raises one issue for our consideration:

            1.     THIS   HONORABLE     COURT   ERRED   IN
                   SENTENCING THE APPELLANT FOR A SINGLE
                   COUNT OF INTRODUCING CONTRABAND TO A
                   SECURE FACILITY, TO A SENTENCE OF 48 TO
                   120 MONTHS IN A STATE CORRECTIONAL
                   INSTITUTION WHEN SUCH A SENTENCE WAS
                   IN VIOLATION OF THE FUNDAMENTAL NORMS
                   OF THE SENTENCING PROCESS AND WAS NOT
                   SUPPORTED BY REASONS STATED ON THE
                   RECORD THAT WERE SUFFICIENT AS A
                   MATTER    OF  LAW    TO   SUPPORT   THE
                   IMPOSITION OF SUCH A SENTENCE.

Appellant’s brief at 4.

      Appellant’s claim challenges the discretionary aspects of her sentence.

                   Challenges to the discretionary aspects of
            sentencing do not entitle an appellant to review as of
            right.    An appellant challenging the discretionary
            aspects of his sentence must invoke this Court’s
            jurisdiction by satisfying a four-part test:



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                 [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).

            Objections to the discretionary aspects of a sentence
            are generally waived if they are not raised at the
            sentencing hearing or in a motion to modify the
            sentence imposed.

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

omitted).

     Instantly, appellant filed a post-sentence motion for reconsideration

and then filed a timely notice of appeal. In addition, appellant has complied

with the briefing requirements of Commonwealth v. Tuladziecki, 522 A.2d

17 (Pa. 1987), and Pa.R.A.P. 2119(f) by including a concise statement of her

reasons for challenging the discretionary aspects of her sentence.      Last,

appellant presents a substantial question for our review. We have held that

“when a sentence exceeds the aggravated range of the guidelines and there

is an allegation of excessiveness, this Court must review the record to

determine whether there was an abuse of discretion.” Commonwealth v.




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Monahan, 860 A.2d 180, 182 (Pa.Super. 2004), appeal denied, 878 A.2d

863 (Pa. 2005).

      Appellant argues her sentence was in violation of the fundamental

norms of the sentencing process because the trial court did not follow the

statutory mandate of Section 9721(b) as it did not consider the gravity of

the offense, or the rehabilitative needs of appellant. According to appellant,

the result is a sentence that is clearly excessive in that it ranges far beyond

that which is necessary to address the Section 9721(b) factors. Additionally,

appellant contends the trial court failed to set forth logical and legally sound

reasons for the deviation from the guidelines.

      Our standard of review for sentencing claims is as follows:

            [T]he proper standard of review when considering
            whether       to  affirm    the    sentencing      court’s
            determination is an abuse of discretion. [A]n abuse
            of discretion is more than a mere error of judgment;
            thus, a sentencing court will not have abused its
            discretion unless the record discloses that the
            judgment exercised was manifestly unreasonable, or
            the result of partiality, prejudice, bias, or ill-will. In
            more expansive terms, our Court recently offered:
            An abuse of discretion may not be found merely
            because an appellate court might have reached a
            different conclusion, but requires a result of manifest
            unreasonableness, or partiality, prejudice, bias, or
            ill-will, or such lack of support so as to be clearly
            erroneous.

Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa.Super. 2012)

(quotation omitted).

            In exercising its discretion, the trial court must
            consider the character of the defendant and the


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           particular circumstances of the offense in light of the
           legislative Guidelines for sentencing, and the court
           must impose a sentence that is consistent with the
           protection of the public, the gravity of the offense
           and the rehabilitative needs of the defendant.

Commonwealth v. Guth, 735 A.2d 709, 711 (Pa.Super. 1999), appeal

denied, 743 A.2d 915 (Pa. 1999), quoting Commonwealth v. Burkholder,

719 A.2d 346, 350 (Pa.Super. 1998), appeal denied, 747 A.2d 364 (Pa.

1999); see 42 Pa.C.S.A. § 9721(b).

     Our review is guided by 42 Pa.C.S.A. § 9781(c) and (d) which provide:

           § 9781. Appellate review of sentence

           (c)   Determination on appeal.--The appellate
                 court shall vacate the sentence and remand
                 the case to the sentencing court with
                 instructions if it finds:

                 (1)   the sentencing court purported to
                       sentence within the sentencing
                       guidelines    but    applied  the
                       guidelines erroneously;

                 (2)   the sentencing court sentenced
                       within the sentencing guidelines
                       but      the      case      involves
                       circumstances       where        the
                       application of the guidelines would
                       be clearly unreasonable; or

                 (3)   the sentencing court sentenced
                       outside the sentencing guidelines
                       and the sentence is unreasonable.

                 In all other cases the appellate court shall
                 affirm the sentence imposed by the sentencing
                 court.




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     Section 9781(d) provides that when we review the record, we must

have regard for:

                   (1)   The nature and circumstances of
                         the offense and the history and
                         characteristics of the defendant.

                   (2)   The opportunity of the sentencing
                         court to observe the defendant,
                         including      any    presentence
                         investigation.

                   (3)   The findings upon      which   the
                         sentence was based.

                   (4)   The guidelines promulgated by the
                         commission.

42 Pa.C.S.A. § 9781(c), (d).

     Our supreme court in Commonwealth v. Walls, 926 A.2d 957 (Pa.

2007), observed that under this statute, we must review a sentence that is

outside of the guidelines in terms of whether it is unreasonable. It stated

that the term “unreasonable,” while not defined, generally means a decision

that is either irrational or not guided by sound judgment. It continued that

the context of the term’s use in Section 9781 also indicates that the

legislature “intended the concept of unreasonableness to be inherently a

circumstance-dependent concept that is flexible in understanding and lacking

precise definition.” Id. at 963. Our supreme court indicated that a sentence

can be found to be unreasonable after review of the four elements contained

in Section 9781(d) or if the sentencing court failed to take into account the

factors outlined in 42 Pa.C.S.A. § 9721(b).    However, the court concluded


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that when the proper standard of review is utilized, “rejection of a

sentencing court’s imposition of sentence on unreasonable grounds [should]

occur infrequently, whether the sentence is above or below the guideline

ranges.” Id. at 964.

        Here, appellant pled guilty to a single count of introducing contraband

to a secure facility, a second-degree felony, with a mandatory two-year

minimum sentence. The trial court imposed a sentence of 48 to 120 months

that fell beyond the aggravated range of the guidelines, but below the

statutory maximum.1 The trial court offered the following seven reasons for

its departure:

             [O]ne, the serious nature of this offense.

             Two, the sentence includes a mandatory minimum.

             Three, the defendant engaged her younger sister
             and through deception and without her sister’s
             knowledge, involved her in the commission of this
             crime.

             Four, the actions of the defendant directly affected
             the sobriety and treatment plans of the inmates in
             the Wyoming County Correctional Facility.

             Five, the actions of the defendant placed the
             corrections officers at the Wyoming County
             Correctional Facility at risk by having illegal
             substances and items brought into the Wyoming
             County Correctional Facility.

             Six, the actions of the defendant affected the
             integrity of the Wyoming County Correctional Facility
             Drug and Alcohol Treatment Programs administered

1
    The statutory maximum for this crime is 60 to 120 months.


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            by A Better Today as funded by the taxpayers of
            Wyoming County.

            Seven, the crime was not of one time, but an event
            that occurred five to seven times based upon the
            admissions of the defendant showing a continued
            course of conduct and intent.

Notes of testimony, 8/14/13 at 7-8.

      Appellant argues that the trial court’s first and second reasons

regarding the serious nature of the offense and mandatory minimum are

both taken into account by the Pennsylvania Sentencing Guidelines and are

already calculated into the guidelines.     Appellant also takes issue with the

trial court’s fourth, fifth, and sixth reasons for its sentence which concern

the consequences of bringing drugs into a prison.

      Appellant also contends the facts of this case do not support the trial

court’s conclusions. The trial court voiced its concern that other inmates and

correctional officers were put at risk by appellant’s actions. Appellant claims

there was no evidence that any individual at the prison other than the

intended target of the drugs, Shawn Miller, who was appellant’s paramour,

and his cellmate, Eric Simonson, received any of the drugs.         The record

shows that the contraband introduced into the correctional facility consisted

of two eight-milligram suboxone strips hidden in the tongue of a sneaker

that was intended for Miller. Miller’s cellmate, Simonson, tested positive for

the drug; Miller refused to take a drug test. Appellant points out there was

no evidence of record that the amounts delivered were of such quantity to



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give rise to an inference of further distribution beyond the intended

recipient.

      In light of our standard of review, we cannot conclude that the trial

court abused its broad discretion in sentencing. While appellant may have

pled guilty to one count of introducing contraband into a correctional facility,

the record indicates a continuing course of conduct. In its opinion, the trial

court opined, “Defendant’s actions, which based on her own admission

occurred at least five (5) to seven (7) times, placed numerous individuals

and programs in jeopardy.” (Trial court opinion, 10/28/13 at 5). According

to the affidavit of probable cause, “[Appellant] admitted to doing this 5 to

7 times with various amounts of strips secreted inside.”      (Certified record,

document #1). The criminal information filed by the district attorney states

“that between January 21, 2013 and May 2, 2013, in Tunkhannock

Township, [appellant] did sell, give, transmit or furnish to any convict in a

prison . . . .” (Certified record, document #5).

      Additionally, the trial court noted appellant used her sister to deliver to

the prison the sneakers containing contraband.          Appellant’s sister was

interviewed and stated she had no knowledge that appellant had placed

illegal contraband in the sneakers or that she was facilitating a crime. (See

trial court opinion, 10/28/13 at 5.)

      Despite appellant’s arguments for a two-year sentence, the sentencing

court supported its sentence by noting appellant has a long criminal record;



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she involved her sister in facilitating a crime on more than one occasion; she

delivered drugs to two inmates; and she endangered prison staff and other

inmates with those drugs as she cannot say for certain that the drugs never

left her paramour or his cellmate.     Despite several attempts at in-patient

and out-patient treatment, appellant suffers from severe addiction and

mental health issues.     Thus, the sentencing court took into account the

factors outlined by 42 Pa.C.S.A. § 9721(b)(“the court shall follow the general

principle 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).       The court had and considered

appellant’s presentence report. We cannot conclude appellant’s sentence of

50 to 132 months was unreasonable. We, therefore, affirm.

      Judgment of sentence affirmed.

      Olson, J. joins the Memorandum.

      Strassburger, J. files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/17/2014




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