J-S63026-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

HEATHER MARIE SHOLLENBERGER

                            Appellant                  No. 523 MDA 2014


           Appeal from the Judgment of Sentence February 20, 2014
              In the Court of Common Pleas of Lycoming County
             Criminal Division at No(s): CP-41-CR-0001573-2009


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                        FILED NOVEMBER 19, 2014

        Appellant, Heather Marie Shollenberger, appeals from the judgment of

sentence entered by the Honorable Nancy L. Butts, Court of Common Pleas

of Lycoming County. After careful review, we affirm.

        As we write primarily for the parties, a detailed factual and procedural

history is unnecessary. In 2009, Shollenberger was sentenced to 24 months

of intermediate punishment for theft by unlawful taking. Her probation was

revoked in 2010, and she was re-sentenced to two years of probation,

specially supervised by the Pennsylvania Board of Probation and Parole, to

be served consecutively to another sentence being supervised by the Board.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      On November 22, 2013, Shollenberger failed to appear at a scheduled

meeting with her probation officer and refused to give her location. A bench

warrant was issued, and Shollenberger was arrested on January 18, 2014.

After a probation violation hearing, her probation was revoked, and the trial

court sentenced her to a term of imprisonment of one to two years, with an

additional two years’ probation. After post sentence motions were denied,

Shollenberger filed this timely appeal.

      On appeal, Shollenberger only raises a challenge to the sentence

imposed, arguing that the trial court imposed an excessive sentence that

failed to take into consideration her familial circumstances and rehabilitative

needs. Shollenberger concedes that this is a challenge to the discretionary

aspects of her sentence. See Appellant’s Brief, at 8.

      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). When challenging the discretionary aspects

of the sentence imposed, an appellant must present a substantial question

as to the inappropriateness of the sentence.        See Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be

met before we will review this challenge on its merits.” McAfee, 849 A.2d

at 274. “First, an appellant must set forth in his brief a concise statement of

the reasons relied upon for allowance of appeal with respect to the


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discretionary aspects of a sentence.” Id. “Second, the appellant must show

that there is a substantial question that the sentence imposed is not

appropriate under the Sentencing Code.” Id. That is, “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.”      Tirado, 870 A.2d at 365.          We examine an appellant’s Rule

2119(f) statement to determine whether a substantial question exists. 1 See

id. “Our inquiry must focus on the reasons for which the appeal is sought,

in contrast to the facts underlying the appeal, which are necessary only to

decide the appeal on the merits.” Id.

        In the present case, Shollenberger’s appellate brief contains the

requisite 2119(f) concise statement, and, as such, is in technical compliance

with the requirements to challenge the discretionary aspects of a sentence.

Shollenberger contends that her sentence was manifestly excessive and that

the    trial   court   imposed    sentence     without   “taking   into   consideration

____________________________________________


1
    Rule 2119 provides the following, in pertinent part:
                                       …
        (f) Discretionary aspects of sentence.              An appellant who
        challenges the discretionary aspects of a sentence in a criminal matter
        shall set forth in his brief a concise statement of the reasons relied
        upon for allowance of appeal with respect to the discretionary aspects
        of a sentence. The statement shall immediately precede the argument
        on the merits with respect to the discretionary aspects of sentence.

Pa.R.A.P., Rule 2119(f), 42 PA.CONS.STAT.ANN.




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[Shollenberger’s] familial circumstances, as well as the need for treatment

for her addiction.”    Appellant’s Brief, at 7. “[T]his Court has held that an

excessive sentence claim – in conjunction with an assertion that the trial

court failed to consider mitigating factors – raises a substantial question.”

Commonwealth v. Samuel, ___ A.3d ___. ___, 2014 WL 5305816, *4

(Pa. Super. 2014, October 17, 2014).

      Our scope of review in an appeal following a sentence imposed after

probation revocation is limited to the validity of the revocation proceedings

and   the   legality   of   the   sentence   imposed    following   revocation.

Commonwealth v. Infante, 585 Pa. 408, 419, 888 A.2d 783, 790 (2005).

“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. Ahmad, 961 A.2d 884, 888 (Pa. Super. 2008) (citation

omitted).   Upon 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. See Commonwealth v.

Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001). However, a re-sentence

may not exceed the statutory limits of the sentence, including allowable

deductions for time served. See id.

      Although Shollenberger argues that the sentence imposed by the lower

court following revocation was excessive, she notably does not argue that


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the sentence imposed by the court was beyond the statutory maximum, nor

does the record support such an assertion.           It is well settled that the

sentencing guidelines do not apply to sentences imposed as a result of

probation or parole revocations. See Commonwealth v. Ware, 737 A.2d

251, 255 (Pa. Super. 1999).2           Here, the lower court did not exceed the

statutory maximum when it resentenced Shollenberger to one to two years’

imprisonment for theft following the revocation of her probation. Given that

Shollenberger had been given the opportunity to avoid imprisonment for this

crime twice before, the trial court’s sentence is reasonable.

       We further note that the record belies Shollenberger’s assertion that

the sentencing court failed to consider her rehabilitative needs.      The trial

court repeatedly acknowledged Shollenberger’s substance abuse problems.

See N.T., Sentencing, 2/20/14, at 6; Sentencing Order, 2/20/14, at 1.

Thus, we conclude that Shollenberger’s sole issue on appeal merits no relief.




____________________________________________


2
  204 PA.Code § 303.1(b) provides: “The sentencing guidelines do not apply
to sentences imposed as a result of the following: . . . revocation of
probation, intermediate punishment or parole.”




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     Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2014




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