J-S24042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                     v.

KRISTALYNN SIERRA

                            Appellant                    No. 1196 MDA 2015


            Appeal from the Judgment of Sentence June 12, 2015
              In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0006328-2013


BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                             FILED MARCH 10, 2016

      Appellant, Kristalynn Sierra, appeals from the judgment of sentence

entered in the Dauphin County Court of Common Pleas, following revocation

of her probation. We affirm.

      The trial court opinion properly sets forth the relevant facts and

procedural history of this case. Therefore, we have no need to repeat them.

      Appellant raises the following issue on appeal:

         WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
         WHEN IT DENIED APPELLANT’S POST-SENTENCE MOTION
         TO MODIFY SENTENCE WHERE THE SENTENCE IMPOSED
         IS EXCESSIVE IN LIGHT OF THE GRAVITY OF THE
         OFFENSE, APPELLANT’S REHABILITATIVE NEEDS, AND
         WHAT IS NECESSARY TO PROTECT THE PUBLIC?

(Appellant’s Brief at 5).

      Appellant    argues      the      sentence   she   received   is   excessive,
J-S24042-16


unreasonable, and violates sentencing norms in light of her rehabilitative

needs and what is necessary to protect the public.               Appellant asserts she

suffered a downward spiral, ignited by her mental health problems, that

caused the acts which led to her probation revocation. Appellant avers she

would be better able to address her rehabilitative needs outside the state

prison setting.        Appellant contends that, with proper mental health

treatment from the numerous available facilities in the local area, she could

rehabilitate herself into society and be better able to become a productive

member of society, which in turn would better protect the public. Appellant

concludes the trial court abused its discretion in sentencing Appellant to a

state prison sentence.          As presented, Appellant’s issue challenges the

discretionary aspects of her sentence.1 See Commonwealth v. Malovich,

903 A.2d 1247 (Pa.Super. 2006) (stating claim that court failed to consider

factors under Section 9771(c) before imposing sentence of total confinement

following     probation     revocation     implicates      discretionary     aspects   of

sentencing); Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002)

(explaining    claim    that    sentence       is   manifestly   excessive    challenges

discretionary aspects of sentencing); Commonwealth v. Cruz-Centeno,

668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195

(1996) (stating allegation court ignored mitigating factors challenges
____________________________________________


1
  Appellant preserved these challenges in her motion for reconsideration of
sentence.



                                           -2-
J-S24042-16


discretionary aspects of sentencing).

     “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.” Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa.Super.

2007), appeal denied, 596 Pa. 729, 945 A.2d 169 (2008). The Sentencing

Code permits a court to revoke an order of probation under the following

circumstances:

        § 9771.      Modification or revocation of order of
        probation

        (a) General rule.—The court may at any time terminate
        continued supervision or lessen or increase the conditions
        upon which an order of probation has been imposed.

        (b) Revocation.—The court may revoke an order of
        probation upon proof of the violation of specified conditions
        of the probation.       Upon revocation the 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.

        (c) Limitation on sentence of total confinement.—
        The court shall not impose a sentence of total confinement
        upon revocation unless it finds that:

           (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.

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J-S24042-16



42 Pa.C.S.A. § 9771(a)-(c). Whether the probationer, in fact, violated the

conditions of her probation must be demonstrated by evidence of probative

value.   Commonwealth v. Sims, 770 A.2d 346 (Pa.Super. 2001).             The

Commonwealth bears a lesser burden of proof at a probation revocation

hearing than it does in a criminal trial. Commonwealth v. Allshouse, 969

A.2d 1236 (Pa.Super. 2009). “The Commonwealth establishes a probation

violation meriting revocation when it shows, by a preponderance of the

evidence, that the probationer’s conduct violated the terms and conditions of

her probation, and that probation has proven an ineffective rehabilitation

tool incapable of deterring probationer from future antisocial conduct.”

Perreault, supra at 558.       “[A]n implied condition of any sentence of

probation is that the defendant will not commit a further offense.”

Commonwealth v. Infante, 585 Pa. 408, 420, 888 A.2d 783, 790 (2005)

(quoting Commonwealth v. Mallon, 406 A.2d 569, 571 (Pa.Super. 1979)).

      When reviewing the outcome of a revocation proceeding, this Court is

limited to determining the validity of the proceeding, the legality of the

judgment of sentence imposed, and the discretionary aspects of sentencing.

Commonwealth v. Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013)

(en banc) (explaining appellate review of revocation sentence includes

discretionary sentencing challenges). Appealing the discretionary aspects of

a sentence requires the appellant to invoke the appellate court’s jurisdiction

by including in her brief a separate concise statement demonstrating a

                                    -4-
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substantial question as to the appropriateness of the sentence under the

Sentencing Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617

(2002); Pa.R.A.P. 2119(f).       This Court evaluates what constitutes a

substantial question on a case-by-case basis.      Commonwealth v. Paul,

925 A.2d 825 (Pa.Super. 2007).      A substantial question exists “only when

the appellant advances a colorable argument that the sentencing judge’s

actions were either: (1) inconsistent with a specific provision of the

Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process.”    Commonwealth v. Sierra, 752 A.2d 910, 913

(Pa.Super. 2000).

      “In general, the imposition of sentence following the revocation of

probation is vested within the sound discretion of the trial court, which,

absent an abuse of that discretion, will not be disturbed on appeal.”

Commonwealth v. Hoover, 909 A.2d 321 (Pa.Super. 2006). Following the

revocation of probation, the court may impose a sentence of total

confinement if any of the following conditions exist: the defendant has been

convicted of another crime; the conduct of the defendant indicates it is likely

he will commit another crime if he is not imprisoned; or, such a sentence is

essential to vindicate the authority of the court.       See 42 Pa.C.S.A. §

9771(c). The Sentencing Guidelines do not apply to sentences imposed

following a revocation of probation.    Commonwealth v. Ferguson, 893

A.2d 735 (Pa.Super. 2006), appeal denied, 588 Pa. 788, 906 A.2d 1196


                                     -5-
J-S24042-16


(2006).   “[U]pon sentencing following a revocation of probation, the trial

court is limited only by the maximum sentence that it could have imposed

originally at the time of the probationary sentence.”    Commonwealth v.

Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001).

      Pursuant to Section 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.”    42 Pa.C.S.A. § 9721(b).     “[T]he

court shall make as part of the record, and disclose in open court at the time

of sentencing, a statement of the reason or reasons for the sentence

imposed.”   Id.   Nevertheless, “[a] sentencing court need not undertake a

lengthy discourse for its reasons for imposing a sentence or specifically

reference the statute in question….” Commonwealth v. Crump, 995 A.2d

1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475

(2010). Rather, the record as a whole must reflect the sentencing court’s

consideration of the facts of the case and the defendant’s character.     Id.

See also Commonwealth v. Carrillo-Diaz, 64 A.3d 722 (Pa.Super. 2013)

(explaining where revocation court presided over defendant’s no contest plea

hearing and original sentencing, as well as his probation revocation hearing

and sentencing, court had sufficient information to evaluate circumstances of

offense and character of defendant when sentencing following revocation).


                                    -6-
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      A claim of excessiveness can raise a substantial question as to the

appropriateness of a sentence under the Sentencing Code, even if the

sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at

624. A substantial question exists “only where the appellant’s Rule 2119(f)

statement sufficiently articulates the manner in which the sentence violates

either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

process….”    Id. at 435, 812 A.2d at 627.       See, e.g., Cartrette, supra

(indicating claim that revocation court ignored appropriate sentencing

factors raises substantial question). An allegation that the sentencing court

failed to consider a specific mitigating factor, however, does not necessarily

raise a substantial question.     Commonwealth v. Berry, 785 A.2d 994

(Pa.Super. 2001) (holding claim that sentencing court ignored appellant’s

rehabilitative needs failed to raise substantial question).

      Instantly, Appellant complains the sentencing court did not adequately

consider specific mitigating factors (her efforts while on probation and

rehabilitative needs); this allegation does not raise a substantial question.

See id. Likewise, Appellant’s claim of excessiveness regarding the overall

length of the revocation sentence does not merit review.        See Mouzon,

supra. As to any remaining claims, after a thorough review of the record,

the briefs of the parties, the applicable law, and the well-reasoned opinion of

the Honorable Deborah E. Curcillo, we conclude Appellant merits no relief.


                                      -7-
J-S24042-16


The trial court opinion comprehensively discusses and properly disposes of

the question presented. (See Trial Court Opinion, filed August 14, 2015, at

4-5) (finding: court did not ignore Appellant’s mental health issues and

needs; court specifically ordered Appellant to receive mental health

treatment in prison; Appellant’s rehabilitative needs are extensive, and court

gave her opportunity to take advantage of various outside programs

following her initial arrest at underlying docket; Appellant started to take

advantage of some programs, but she subsequently made poor choices;

while under supervision, Appellant cut off her ankle monitor; Appellant’s

offenses are grave as they involve physical violence and included use of

deadly weapon; Appellant also has history of not following through with

treatment; Appellant is risk to public because once she starts making bad

decisions she is unable to stop herself from spiraling downward; Appellant

has demonstrated extremely poor judgment in stopping her medications and

in taking synthetic marijuana). We accept the court’s analysis and see no

reason to disturb the sentence imposed. Accordingly, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2016

                                    -8-
                                                                          Circulated 02/24/2016 03:56 PM




COMMONWEALTH           OF PENNSYLVANIA              : INTHE COURT OF COMMON PLEAS,
                                                    :.DAUPHIN COUNTY, PENNSYLVANIA

                      v.                            : 1196 MDA 2015
                                                    : 6328 CR 2013

            KRISTALYNN SIERRA                       : CRIMINAL MATTER



 TRIAL COURT MEMORANDUM OPINION PURSUANT TO PENNSYLVANIA
             RULE OF APPELLATE PROCEDURE 1925(a)

         Presently before the Superior Court of Pennsylvania is the appeal of K.ristalynn

 Sierra (hereinafter "Appellant") from the judgment of sentence entered by this Court

 during a Revocation and Sentencing Hearing on June 12, 2015.

                                     Procedural History

         On November 23, 2013, at docket 6328 CR 2013, Appellant was charged with

 defiant trespass, two counts of simple assault, criminal mischief, aggravated assault and

 burglary. She entered into a guilty plea on August 22, 2014.

         On March 4, 2015, Appellant was charged at docket 2114 CR 2015 with escape

 and criminal mischief. She entered a guilty plea on May 26, 2015.

         Thereafter, on June 12, 2015, she was revoked at docket 6328 CR 2013 and

 sentenced at docket 2114 CR 2015. At docket 6328 CR 2013, she was sentenced as

 follows:

     •   Count 1: 6-12 month Dauphin County Prison
     •   Count 2: 1-2 years in a state correctional institution
     •   Count 3: 1-2 years in a state correctional institution
     •   All sentences to run concurrent.



                                                 5-5
       At docket 2114 CR 2015 she was sentenced to 1-2 years in a state correctional

institution to run consecutive to docket 6328 CR 2013.

        She filed a post sentence motion asserting the revocation sentences were

excessive and unreasonable and constitutes too severe a punishment in light of the gravity

of the offense, what is needed to protect the public and her rehabilitative needs. This

Court ordered briefs due on July 8, 2015 (Appellant), and July 23, 2015

(Commonwealth).

       Appellant filed a timely brief and subsequently on July 13, 2015, filed a Notice of

Appeal on docket 6328 CR 2013 pursuant to Pa.R.Crim.P 7080 and E which indicate

that the time for appeal is not tolled by the filing of a post sentence motion in a

revocation proceeding. The Commonwealth failed to file a brief as ordered. That post-

sentence motion was ruled upon on August 13, 2015, only in regards to docket 2114 CR

2015, as the 2013 docket is the subject matter of this appeal.

                                    Factual Background

       While she was out on probation on her prior docket, Appellant attended various

support groups, Support Skills, Addictive/Compulsive Behavior classes, Family Support,

Female Offender's Head Start Program, utilized YWCA services and was taking creative

writing programs with the goal of finishing her GED. She suffers from several mental

health diagnoses: bipolar disorder, ADHD, and schizoaffective disorder.

        At docket 2114 CR 2015, Appellant, who was in between residences, stayed with

an ex-boyfriend. He attempted to rape her after which she cut off her ankle monitor. She
had previously been accepted into the Mental Health Program, but was kicked out of it

due to her escape charges and was revoked on docket 6328 CR 2013.

       Appellant was picked up after cutting her ankle monitor by her Probation Officer,

Maria Slabonik. Slabonik testified that the day she picked up Appellant was "pure hell."

(N.T. 7). Per Slabonik, Appellant fought them in the ambulance; at the hospital she spit

on and punched a security guard. Further, Appellant seemed to recall doing all of this the

following day, despite being off her medications and talcing synthetic marijuana. (N.T. 6,

8).

       On 6328 CR 2013, Appellant's charges included a gun which is why she received

such a high sentence. (N.T. 4). In that case, she cut through screen door of her

boyfriend's home while he, his mother and his sister were present. (Notes of Testimony

8/22/14, p. 3). In a negotiated plea agreement, her charge of burglary was reduced to

defiant trespass. She also had two simple assault causing serious bodily injury charges.

(N.T. 8/22/14 p. 2). She had been working with Case Management Unit but walked away

from the hospital at one point. (N.T. 8/22/14 p. 6).

        In our case, she was specifically ordered to be incarcerated at Muncy for drug,

alcohol and most importantly, mental health counseling.

              Appellant's Statement of Matters Complained of on Appeal

        Appellant contends that her revocation sentence is excessive and unreasonable

and constitutes too severe a punishment in light of the gravity of the offense, what is

needed to protect the public, and Defendant's rehabilitative needs.

                                         Discussion
        "[T]he 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" 42 Pa.C.S.A. § 9721(b)

        Appellant "must establish, by reference to the record, that the sentencing court

ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice,

bias or ill will, or arrived at a manifestly unreasonable decision." Commonwealth v.

Rodda. 723 A.2d 212, 214 (Pa.Super.1999) (en bane) (quotation marks and citations

omitted).

        We cannot and did not ignore Appellant's mental health issues and needs. Our

sentencing order specifically addressed her mental health needs by ordering mental health

treatment at Muncy. Her rehabilitative needs are clearly extensive and she was given the

opportunity to take advantage of various programs following her initial arrest at docket

6328 CR 2013. Her counsel indicated Appellant did begin to take advantage of some of

the programs; however, she also began to make more poor choices. While in between

homes, she began sleeping at the home of her ex-boyfriend. This man ultimately

attempted to rape her which understandably caused further mental health issues. She also

stopped taking her medication and began taking synthetic marijuana. Again, it's clear that

the various programs she was in were not helping her as she continued to make bad

decisions.

        Appellant's initial offenses on docket 6238 CR 2013 involved assault and

included the use of a weapon. Subsequently she cut her ankle monitor. The gravity of the
           offenses are grave as they involved physical violence. She also has a history of not

           following through on her treatment.

                   Again, her original offenses included the use of a weapon. Clearly Appellant is a

           risk to the public because once she starts making bad decisions, she is unable to stop

           herself from spiraling downward. Thankfully no one was killed during her first offense,

           but she has demonstrated extremely poor judgment in stopping her medications and

           taking synthetic marijuana.

                   For these reasons, we ask the Superior Court to uphold and affirm our judgment

           of sentence entered by this Court during a revocation.




                                                                                       Respectfully

                                                                                        submitted:




                                                                           Deborah E. Curcillo, Judge



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