J-A24010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

SHELBY DARLIN CASPER

                            Appellant                  No. 1096 WDA 2016


              Appeal from the Judgment of Sentence June 28, 2016
                In the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0006331-2013
                                           CP-02-CR-0009079-2012


BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                       FILED NOVEMBER 9, 2017

       Shelby Darlin Casper appeals from the June 28, 2016 judgment of

sentence entered in the Allegheny County Court of Common Pleas following

her revocation of probation. We affirm.

       The trial court set forth the history of this case as follows:

               On December 6, 2012, . . . Casper, pled guilty at CC
            201209079 [(“CC 2012”)] to one count each of Criminal
            Conspiracy (Burglary), Theft by Unlawful Taking and
            Receiving Stolen Property.[1] This Court sentenced her to
            three years probation at the Conspiracy count and no
            further penalty at the remaining counts. On September
            25, 2013, [Casper] pled guilty at CC 201306331 [(“CC
            2013”)] to one count of Possession of Firearm with Altered
            Manufacturer’s Number, one count of Possession of a
            Controlled Substance with Intent to Deliver (PWID), one
____________________________________________


       1
           18 Pa.C.S. §§ 903, 3921(a), and 3925(a), respectively.
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           count of Possession of a Controlled Substance, two counts
           of Recklessly Endangering Another Person and one count
           of Possession of Drug Paraphernalia.[2]       This Court
           sentenced [Casper] on the Possession of Firearm with
           Altered Manufacturer’s Number count to two years of
           Intermediate Punishment with 3 years of concurrent
           probation at the PWID count, and no further penalty at the
           remaining charges.

              On February 4, 2014, this Court found [Casper] to have
           violated probation at [CC 2012] by virtue of her new
           conviction at [CC 2013] and resentenced her to a new
           three[-]year term of probation. On June 30, 2015, this
           Court found [Casper] to be a technical violator of her
           probation at both cases.        This Court revoked and
           reimposed probation again at [CC 2012], and took no
           action at [CC 2013]. On June 28, 2016, after a third
           violation hearing, this Court found [Casper] to be a
           technical violator of her conditions of probation and
           resentenced her at [CC 2012] to one to two years
           incarceration and [gave her credit for time served]. At [CC
           2013], this Court imposed a period of incarceration of 42
           to 100 months with three years consecutive probation.

Opinion, 3/10/17, at 2 (“1925(a) Op.”).

       Casper timely filed her notice of appeal.3   On appeal, she raises the

following issue: “Did the trial court fail to adequately consider and apply all

of the relevant sentencing criteria, including the protection of the public, the

gravity of the offense/violation, and especially Ms. Casper’s character and
____________________________________________


       2
       18 Pa.C.S. § 6110.2(a), 35 P.S. §§ 780-113(a)(30), 780-113(a)(16),
18 Pa.C.S. § 2705, and 35 P.S. § 780-113(a)(32), respectively.
       3
        On July 19, 2016, Casper filed a post-sentence motion nunc pro tunc.
The trial court granted nunc pro tunc relief but did not rule on the motion.
Because this is a revocation sentence, the 30-day appeal period is not tolled
and Casper had to file her notice of appeal within the required 30 days. See
Pa.R.Crim.P. 708(E). Therefore, Casper’s notice of appeal, filed on July 28,
2016, is timely.



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rehabilitative needs, as required under 42 Pa.C.S.A. § 9721(b) (Sentencing

generally; general standards)[?]”      Casper’s Br. at 6 (full capitalization

omitted).

      Casper is challenging the discretionary aspects of her sentence.

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super. 2011).      Before we address such a challenge, we first

determine:

         (1) whether the appeal is timely; (2) whether [a]ppellant
         preserved his issue; (3) whether [a]ppellant’s brief
         includes a concise statement of the reasons relied upon for
         allowance of appeal with respect to the discretionary
         aspects of sentence; and (4) whether the concise
         statement raises a substantial question that the sentence
         is appropriate under the [S]entencing [C]ode.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).

      Casper filed a timely notice of appeal, preserved her claim in a timely

post-sentence motion, and included in her brief a concise statement of

reasons relied upon for allowance of appeal pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f). Additionally, Casper’s claim that her sentence

is excessive in light of the technical violations of her probation raises a

substantial question.   See Malovich, 903 A.2d at 1253 (“[A] claim that a

particular probation revocation sentence is excessive in light of its underlying




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technical violations can present a question that we should review.”).

Accordingly, we will review the merits of her claim.

      “Sentencing is a matter vested within the discretion of the trial court

and will not     be   disturbed absent   a manifest abuse       of discretion.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010).                 “A

sentencing court need not undertake a lengthy discourse for its reasons for

imposing a sentence or specifically reference the statute in question, but the

record as a whole must reflect the sentencing court’s consideration of the

facts of the crime and character of the offender.” Id. at 1283.

      Upon revocation of probation, a trial court may impose a sentence of

total confinement if any of the following requirements are met:        “(1) the

defendant has been convicted of another crime; or (2) the conduct of the

defendant indicates that it is likely that he will commit another crime if he is

not imprisoned; or (3) such a sentence is essential to vindicate the authority

of the court.”    42 Pa.C.S. § 9771(c).        “[T]he sentencing alternatives

available to the court shall be the same as were available at the time of

initial sentencing, due consideration being given to the time spent serving

the order of probation.” 42 Pa.C.S. § 9771(b).

      Casper claims that the trial court abused its discretion in imposing an

aggregate term of 54 to 124 months’ incarceration plus 3 years of probation.

Casper contends that the sentence was manifestly unreasonable because

revocation was based solely on technical violations; the trial court failed to


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consider the protection of the public, the gravity of the offense, and Casper’s

rehabilitative needs; and the trial court ignored key mitigating evidence.

      Here, the trial court found:

         This Court considered numerous factors in sentencing
         [Casper], including two Pre-Sentence reports. The
         Pennsylvania Supreme Court has held:

               Where pre-sentence reports exist, we shall
               continue to presume that the sentencing judge
               was aware of relevant information regarding
               the defendant’s character and weighed those
               considerations along with mitigating statutory
               factors . . . [.] Having been informed by the
               pre-sentence report, the sentencing court’s
               discretion should not be disturbed.

         Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).

            The hearing on June 28, 2016 was [Casper]’s third
         violation of probation hearing. She refused to participate
         in a Justice Related Services (“JRS”) program and has
         been unable or unwilling to maintain mental health
         treatment compliance.      She twice removed her ankle
         bracelet.     She displayed a defiant attitude toward
         probation supervision and this Court. She was placed in
         alternative housing for a therapeutic intervention three
         times and was sent back to jail each time for program
         violations. She used marijuana daily, with her last date of
         usage being the date of her arrest. Yet, she denied having
         drug problems. She has repeatedly demonstrated through
         her words and her conduct that she is either unwilling or
         unable to be supervised in the community or to follow the
         reasonable rules of society.

            The sentence imposed was designed to afford [Casper]
         the opportunity to receive necessary and appropriate
         mental health and drug and alcohol treatment which she
         repeatedly failed to avail herself of while under community
         supervision or in alternative housing.            Further, the
         sentence affords her the opportunity to either earn parole
         at her minimum or remain detained until she demonstrates
         stability, maturity and the ability to follow rules. Thus, this


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         Court did not err in sentencing her to time served on the
         2012 case and a standard range period of incarceration of
         42 to 100 months with three years consecutive probation
         on the 2013 gun and drug case.

1925(a) Op. at 6-7 (some internal citations omitted). We find no abuse of

discretion.

      Further, the trial court thoroughly stated on the record its reasons for

imposing its sentence:

         THE COURT: . . . This is her third violation of probation
         hearing. She has never had JRS but she doesn’t want it.
         She says she can do this on her own. I can’t order her to
         be medication compliant. Without JRS, I don’t feel that I
         can continue to have probation supervise her in the
         community. I don’t know what else to say but on a third
         violation on a Felony 2 burglary of a gun[ shop], second
         violation on a Felony 2. She twice removed her ankle
         bracelet. She has displayed a terrible defiant attitude and
         carries an Axis II diagnosis. If you’re asking me to give her
         another chance at probation, I don’t think I’m going to be
         willing to do that without some support.

                                     ...

         THE COURT: Ms. Casper, don’t waste my time. Do you
         want to cooperate with the JRS plan if they accept the
         referral or not?

         THE DEFENDANT: Would that mean I would go to another
         program?

         THE COURT: I don’t know what JRS would recommend
         until they accept you and meet with you and come up with
         a plan.

         THE DEFENDANT: I don’t want to go to another program.
         So no.

                                     ...

         THE COURT: All right. I’m not going to refer her to JRS.
         She’s not going to cooperate with it.      Her attitude


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        continues to be terrible. She believes she should be able
        to dictate to me what she needs and what she’ll do or not
        do and I won't accept that.

                                     ...

        THE COURT: Please assume that I’ve read both
        presentence reports and the Behavior Clinic evaluation
        because I have. I’m aware that she has mental health
        needs. I cannot force her to receive treatment for them.

                                     ...

        THE COURT: She only wants [treatment] on her terms and
        I can’t promise her that. I won’t waste resources sending
        her to JRS with the anticipation they are going to
        recommend a dual diagnosis treatment program which she
        told me she doesn’t think will do any good and hasn’t done
        any good in the past and she won’t do. Is that right?

        THE DEFENDANT: Yes.

N.T., 6/28/16, at 3-5, 13, 16.

     Casper further argues that the trial court failed to consider key

mitigating evidence, such as her mental health treatment and medication,

employment history, and family support.     The record, however, belies her

claims. At the revocation hearing, trial court stated, “I'm aware that she has

mental health needs. I cannot force her to receive treatment for them.” Id.

at 16. The trial court gave Casper every opportunity to accept treatment,

which she repeatedly declined. Further, the following exchange occurred:

        THE COURT: We’re not talking about alternative housing.
        What we’re talking about is a program through JRS.

        THE DEFENDANT: I don’t understand what that means.
        What’s the difference?




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       THE COURT: There are a number of programs such as
       Pyramid, private programs that JRS may recommend for
       you.

       THE DEFENDANT: They are all rehab and I don’t have a
       drug problem.

       THE COURT: Let’s just go forward. She doesn’t have a
       drug problem in her estimation. She’s declining services.
       What am I going to do?

                                   ...

       THE COURT: Let me read from the Behavior Clinic
       evaluation which is based on her report.           [Casper]
       reported that she started using marijuana at age 13,
       alcohol at age 14, opiates at age 15. She used marijuana
       daily, and alcohol and opiates occasionally. The last use of
       marijuana and opiates was on the date of the arrest and
       the use of alcohol probably a few days before that. This is
       a person who by all data reported would be considered
       high risk for drug dependence. And the Behavior Clinic, in
       fact, indicates []cannabis use disorder in remission,
       secondary to controlled environment. Opioid use disorder
       in remission, secondary to controlled environment.

                                   ...

       THE COURT: . . . So I’m not going to play any games here,
       Ms. Casper. You seem to want to speak for yourself. Tell
       me what you want me to do.

       THE DEFENDANT: I don’t know.

       THE COURT: You’ve heard your options. Consider a JRS
       plan that will likely include an inpatient treatment
       somewhere or I have a presentence report and I’m
       prepared to resentence you here on both cases. It’s up to
       you.

       THE DEFENDANT: I guess I’ll do the JRS.

       THE COURT: What I’m telling you is assume the worst.
       It’s likely to be an inpatient treatment program. A dual
       diagnosis inpatient treatment program. If you’re unwilling
       to do that and seriously do that, then tell me that now
       because there is no point in wasting our judicial resources.

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         I’m encouraging you to do it. I’ve already done everything
         I can do short of that for you.

         THE DEFENDANT: I guess I don’t have a choice.

         THE COURT: You have a choice.

         THE DEFENDANT: I mean, I would rather do that than do
         10 years. So I guess I’m going to have to do that even
         though it’s obviously not beneficial to me whatsoever.

Id. at 7-9, 12-13. Additionally, the record reflects that the trial court was

aware of and considered Casper’s family support, see id. at 10-11, and had

the benefit of two pre-sentence reports, see Devers, 546 A.2d at 18.

      Finally, we disagree with Casper’s contention that the trial court did

not consider the protection of the public, the gravity of the offense, and her

rehabilitative needs. The trial court stated that Casper continuously violated

her probation, refused every opportunity given to receive treatment, and

that “[w]ithout JRS, I don’t feel that I can continue to have probation

supervise her in the community.” N.T., 6/28/16, at 3. Further, as discussed

above, the trial court thoroughly considered her rehabilitative needs.

      A trial court is “in the best position to evaluate [an a]ppellant’s

character and . . . defiance or indifference.” Malovich, 903 A.2d at 1254.

Given the trial court findings regarding Casper’s defiant attitude, her

repeated violations of probation, and her unwillingness to participate in

rehabilitation treatment, we cannot conclude that her sentence was

manifestly unreasonable. See id.




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      Because the record shows that the sentence imposed was essential to

vindicate the authority of the court under 42 Pa.C.S. § 9771(c)(3), and the

trial court fully stated its reasons on the record, we conclude it did not abuse

its discretion in imposing its sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2017




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