J-S30040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

CHARLENA KEGLER

                            Appellant                   No. 2175 EDA 2015


             Appeal from the Judgment of Sentence June 23, 2015
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0400351-2005


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                                FILED MAY 02, 2016

        Appellant Charlena Kegler appeals from the judgment of sentence

entered on June 23, 2015 in the Philadelphia County Court of Common Pleas

following the revocation of her probation.       We find Appellant waived her

discretionary aspects of sentencing claim and affirm the judgment of

sentence.

        The trial court set forth the following factual and procedural history:

           [Appellant] was arrested [on] July 28, 2000 for forging
           checks at area banks.      Shortly after her arrest, she
           disappeared and her whereabouts remained unknown for
           nearly the next five years. On May 19, 2005, [Appellant]
           finally appeared before [the c]ourt and pled guilty to
           [f]orgery,[1] graded as a felony of the third degree.
           Pursuant to her negotiated sentence, [the c]ourt sentenced
           her to two years reporting probation. [Appellant] was
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1
    18 Pa.C.S. § 4101(a)(1).
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       ordered to seek and maintain employment, stay out of
       trouble with the law, and pay all fines, costs, and
       restitution.

       Subsequently, [Appellant] absconded from supervision and
       wanted cards were issued on July 18, 2005. She was
       apprehended by authorities more than two years later on
       October 31, 2007, and a court date was scheduled for
       December 7, 2007. On that date, [Appellant] appeared
       briefly in the courtroom but disappeared before her case
       was called.     Wanted cards were issued once again.
       [Appellant] remained at large until she was arrested a year
       and a half later on July 25, 2009. She appeared before
       [the c]ourt on August 20, 2009, at which time [the c]ourt
       found her to be in technical violation of her sentence for
       absconding from supervision. [The c]ourt revoked her
       probation and sentenced her to 11 1/2 to 23 months
       county incarceration plus 5 years reporting probation.
       [Appellant] was ordered to complete a drug treatment
       program, enroll in job training, complete parenting classes,
       earn her GED, and pay costs, fines and restitution at a rate
       of $25 per month.

       On February 18, 2010, [Appellant] was paroled to an
       intensive residential drug and mental health treatment
       program at Gaudenzia House.        Upon completing this
       program, [Appellant] was instructed to enroll in outpatient
       drug treatment. On January 3, 2012, she provided her
       probation officer with a certificate of completion from
       Gaudenzia outpatient services; however, she tested
       positive for PCP, marijuana and benzodiazepine use.
       Throughout the summer of 2012, [Appellant] continued to
       test positive for drug use. Her probation officer provided
       her with referrals to dual diagnosis outpatient treatment
       centers[,] but she never enrolled. On September 27,
       2012, [Appellant] admitted herself to the psychiatric unit
       of Hahnemann University Hospital. She was discharged on
       October 2, 2012 and immediately absconded from
       supervision. Her whereabouts remained unknown until she
       was arrested [on] May 7, 2015, after she violated a
       Protection From Abuse order (PFA).

       On June 23, 2015, [Appellant] appeared before [the c]ourt
       for her second violation hearing.     First, [the c]ourt
       reviewed [Appellant’s] criminal history since her first

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       appearance before [the c]ourt in 2005. Defense counsel
       asked that [the c]ourt order a presentence investigation
       report as well as a forthwith mental health evaluation,
       arguing that [Appellant’s] mental health problems were
       undiagnosed and that she was apprehended by authorities
       after she tried to commit suicide and not because she
       violated a PFA. [The c]ourt denied that request, finding
       that [Appellant’s] mental health issues were already well
       known, as she received dual diagnosis treatment while at
       Gaudenzia House and her probation officer gave her
       numerous referrals to dual diagnosis outpatient treatment
       centers. [Appellant] chose not to enroll herself in these
       programs. (N.T.[,] 6/23/15, p. 2 -12).

       Defense counsel then insisted that a forthwith psychiatric
       evaluation was necessary, although she admitted that she
       had barely spoken with [Appellant] prior to the violation
       hearing beyond asking [Appellant] two questions about her
       arrest.    [The c]ourt then conducted an on-the-record
       colloquy, asking [Appellant] her age, education, history of
       mental illness, medication use, and whether she
       understood why she was in court. [Appellant] responded
       that she understood she was in court because she was not
       reporting to her probation officer, had absconded from
       supervision and had been using drugs.            [Appellant]
       explained that she attempted suicide in March 2015, and
       as a result, received inpatient treatment in a mental health
       facility where she was prescribed the drug Haldol and later
       Risperdal.     Based upon this colloquy, [the c]ourt
       determined that a forthwith psychiatric evaluation was
       unnecessary, that [Appellant] was in fact assisting her
       lawyer, and that [Appellant] was competent to proceed
       with the violation hearing. Id. at 13-18.

       Defense counsel recommended a [forensic intensive
       recovery (“FIR”)] evaluation for dual diagnosis treatment
       and that [Appellant] receive supervision from the Mental
       Health Unit. If [the c]ourt chose to impose a term of
       incarceration, defense counsel asked that a county
       sentence be imposed, that [Appellant] undergo drug
       treatment and eventually enter a work release program
       where she could earn her GED. Id. at 18-19.

       The Commonwealth argued that [Appellant] absconded
       from supervision three times over the last 10 years, and

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          that all of the local and county resources had proved
          unsuccessful at helping [Appellant] rehabilitate herself.
          The Commonwealth recommended a state sentence. Id.
          at 19 -20.

          [Appellant] spoke next on her own behalf. She apologized
          for thumbing her nose at the [c]ourt and acknowledged
          that she needed help.        She asked for a long-term
          treatment program and requested that she serve any term
          of incarceration in the county jail so she could be close to
          her family. Id. at 20.

          [The c]ourt found [Appellant] in technical violation for
          absconding from supervision, testing positive for drug use,
          and not completing any of the terms and conditions of her
          sentence.    [The c]ourt noted that [it] had reviewed
          [Appellant’s] treatment summary from Gaudenzia House,
          dated May 11, 2014,[2] and that at that time, [Appellant]
          had been diagnosed with bipolar disorder, depression, and
          polysubstance abuse of Xanax, alcohol and PCP. [The
          c]ourt terminated Appellant’s parole and revoked her
          probation.    [Appellant] was sentenced to 2 1/2 to 5
          years[’] state incarceration, with credit for time served.
          [The c]ourt recommended that [Appellant] serve her
          sentence at SCI-Chester where she could receive dual
          diagnosis treatment. [The c]ourt ordered Defendant to
          complete parenting classes, earn her GED, and enroll in
          job training. [Appellant] was deemed Recidivism Risk
          Reduction Incentive (RRRI) eligible.

Opinion, 10/8/2015, at 1-4 (“1925(a) Opinion”).           On July 23, 2015,

Appellant filed a timely notice of appeal. Both Appellant and the trial court

complied with Pennsylvania Rule of Appellate Procedure 1925.




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2
   At sentencing, Appellant’s attorney stated Appellant provided
documentation from Gaudenzia and that she was at Gaudenzia from
February 11, 2014 to May 12, 2014. N.T., 6/23/2015, at 6.



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     Appellant raises the following issue on appeal:

        Did not the probation revocation court violate the tenets of
        the Sentencing Code by sentencing [A]ppellant to a 2 1/2
        to 5 year term of total confinement for technical violations
        only, where [A]ppellant had not been convicted of a crime
        for ten years, where the court did not take into
        consideration [A]ppellant’s rehabilitative needs and
        declined to order a pre-sentence investigation or mental
        health evaluation even though [A]ppellant’s last pre-
        sentence investigation report was from 2009 and she had
        recently been diagnosed with severe mental illnesses and
        had attempted suicide?

Appellant’s Brief at 3.   This issue challenges the discretionary aspects of

Appellant’s 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) (quoting Commonwealth v. Sierra, 752 A.2d 910,

912 (Pa.Super.2000)).      Before this Court can address a discretionary

challenge, we must engage in a four-part analysis to determine:

        (1) whether the appeal is timely; (2) whether Appellant
        preserved his issue; (3) whether Appellant’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 sentencing code.

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

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

also Allen, 24 A.3d at 1064. To preserve a challenge to the discretionary

aspects of a sentence, an appellant must raise the issue “in a post-sentence



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motion or by presenting the claim to the trial court during the sentencing

proceedings.”    Commonwealth v. Cartrette, 83 A.3d 1030, 1042-43

(Pa.Super.2013) (quoting Commonwealth v. Kittrell, 19 A.3d 532, 538

(Pa.Super.2011)). “Absent such efforts, an objection to a discretionary

aspect of a sentence is waived.” Id.

     Although Appellant filed a timely notice of appeal and her appellate

brief contains a statement of reasons relied upon for allowance of appeal

pursuant to Pennsylvania Rule of Appellate Procedure 2119(f), she failed to

file a post-sentence motion or object to the sentence at the sentencing

hearing. Because she failed to file a post-sentence motion or object at the

sentencing hearing, her claim challenging the discretionary aspects of her

sentence is waived. Cartrette, 83 A.3d at 1042-43.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2016




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