J-S56015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

STEPHANIE LYNN ECK,

                            Appellant                 No. 1990 MDA 2015


        Appeal from the Judgment of Sentence Entered October 5, 2015
                In the Court of Common Pleas of Clinton County
                          Criminal Division at No(s):
                           CP-18-CR-0000097-2015
                           CP-18-CR-0000508-2014


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 16, 2016

        Appellant, Stephanie Lynn Eck, appeals from the judgment of sentence

of an aggregate term of 24 to 168 months’ incarceration, imposed after she

pled guilty in two separate cases to two counts of retail theft, graded as

third-degree felonies.1 On appeal, Appellant raises one issue challenging the

discretionary aspects of her sentence. We affirm.

        The facts underlying Appellant’s convictions are not pertinent to the

present appeal.      In regard to the procedural history of this case, we note

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  Under 18 Pa.C.S. § 3929(b)(1)(iv), retail theft constitutes a third-degree
felony “when the offense is a third or subsequent offense, regardless of the
value of the merchandise.”
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that Appellant entered open guilty pleas to the above-stated charges on

March 26, 2015. A pre-sentence investigation report (PSI) was ordered by

the trial court, and sentencing was scheduled for June 15, 2015. However,

on that date, Appellant failed to appear and a bench warrant was issued for

her arrest.

      Appellant was apprehended approximately three months later, and her

sentencing hearing was conducted on October 5, 2015. At the close of that

proceeding, the court sentenced Appellant to consecutive terms of 12 to 84

months’ incarceration for each of her retail theft convictions.    Thus, her

aggregate sentence is 24 to 168 months’ incarceration.        The court also

directed that Appellant be eligible for the Recidivism Risk Reduction

Incentive (RRRI) Act, 61 Pa.C.S. §§ 4501-4512, after serving a minimum of

9 months’ incarceration.

      Appellant filed a timely post-sentence motion for reconsideration of her

sentence. After conducting a hearing on that motion, the court subsequently

denied it on October 27, 2015. Appellant filed a timely notice of appeal, and

also timely complied with the trial court’s order to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. Herein, she presents

one issue for our review:

      1. Did the [t]rial [c]ourt commit error in sentencing Appellant in
      the Aggravated Range despite the fact that [Appellant’s] crimes
      were de minimis, [Appellant] had tremendous remorse, and the
      [c]ourt’s rationale for said aggravated range sentences had
      nothing to do with the underlying facts of the instant case?

Appellant’s Brief at 4.

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     Appellant’s issue challenges 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.
     Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
     challenging the discretionary aspects of his sentence must
     invoke this Court's jurisdiction by satisfying a four-part test:

        We 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).

     Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
     2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
     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. Mann, 820 A.2d 788, 794 (Pa. Super.
     2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

     The determination of what constitutes a substantial question
     must be evaluated on a case-by-case basis. Commonwealth v.
     Paul, 925 A.2d 825, 828 (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.” Sierra, supra at 912–13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

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

     Here, Appellant has met the first two prongs of the test for obtaining

review of her discretionary-aspects-of-sentencing claim.   In regard to the




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third and fourth prongs, Appellant has presented a Rule 2119(f) statement in

her brief. Therein, she asserts, in pertinent part, that,

      [t]he [t]rial [c]ourt’s sentence, favoring consecutive rather than
      concurrent terms, was unreasonable as follows: [Appellant’s]
      crimes were non-violent and de minimis; she owes restitution,
      which cannot be easily paid from prison; and Appellant is an
      addict in need of treatment, not incarceration.

            Therefore, there are substantial questions as to the
      appropriateness of the sentence imposed. Pursuant to Pa.R.A.P.
      2119(f), Appellant would respectfully request that this Honorable
      Court concur in the conclusion that there are substantial
      questions as to the appropriateness of the sentence.

Appellant’s Brief at 8.

      We initially note our displeasure with Appellant’s failure to cite any

legal authority supporting her assertion that her discretionary-aspects-of-

sentencing claim amounts to a substantial question for our review.

Nevertheless, we will deem Appellant’s Rule 2119(f) statement as presenting

a “plausible argument” that her aggravated-range sentence of 24 to 168

months’ incarceration “is clearly unreasonable,” where that sentence was

imposed for non-violent, retail-theft offenses. Commonwealth v. Dodge,

77 A.3d 1263, 1271 (Pa. Super. 2013).         Accordingly, we will review the

merits of Appellant’s sentencing claim. In doing so, we bear in mind that,

      [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

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       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.

       The rationale behind such broad discretion and the
       concomitantly deferential standard of appellate review is that the
       sentencing court is in the best position to determine the proper
       penalty for a particular offense based upon an evaluation of the
       individual circumstances before it.

Moury, 992 A.2d at 169-70 (citation omitted).

       Here, Appellant’s argument challenging her sentence consists of the

following paragraph:

             Appellant understands the very difficult burden that she
       faces here. However, it is readily apparent from the nature of
       the charges that they [were] not violent. It is further obvious
       that the charges involved in the instant matters are de minimis,
       as one case was for [theft of items worth] a value of $3.91 and
       the other for [items worth] $1.99.         At sentencing, it was
       undisputed that Appellant would owe restitution and that she
       was a substance abuser.             It bears noting that the
       Commonwealth        believed   that    consecutive   probationary
                                                          [2]
       sentences might be an appropriate disposition.          With due
       respect to the [t]rial [c]ourt, the sentences imposed herein
       result only in a delay in the payment of restitution with no
       noticeable gain to the Commonwealth or the community at large,
       as [] Appellant is a non-violent offender. The [c]ourt focused on
____________________________________________


2
  In support of this comment regarding the Commonwealth’s purported
sentencing recommendation, Appellant cites to pages 14 to 15 of the
sentencing hearing transcript. That portion of the transcript contains the
court’s statement of its reasons for imposing Appellant’s sentence; nothing
in those pages of the record suggests that the Commonwealth supported a
probationary sentence in this case. Moreover, our review of the sentencing
hearing transcript reveals that the Commonwealth “request[ed] the [c]ourt
… consider [a] potential sentence in the [aggravated] range of 12 to 60
months on each case to be served consecutive.” N.T. Sentencing, 10/5/15,
at 3.     Consequently, Appellant’s statement that the Commonwealth
supported a probationary term is not supported by the record.



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      the punitive aspects of sentencing due to the [c]ourt’s frustration
      that [] Appellant did not appear for sentencing at the date and
      time that it was initially scheduled.

Appellant’s Brief at 9.

      Our review of the record convinces us that Appellant’s challenge to her

sentence is meritless, and that the court did not abuse its discretion in

imposing aggravated-range, consecutive terms of incarceration. Notably, at

the sentencing hearing, the court acknowledged the sentencing guideline

ranges applicable to Appellant’s offenses.     N.T. Sentencing at 13.      It also

stated that it “listened to the comments of the [Commonwealth], the

comments of [defense counsel], and the comments of [Appellant].” Id. The

court also stated that it reviewed and “considered all of the information that

was set forth in the [PSI]” and it had “also reviewed a previous [PSI] that

was completed on May 7 of 2012.” Id. at 13-14. The court then provided

the following reasons for imposing Appellant’s sentence:

            As noted, [Appellant] is 33 years of age, she’s single, she
      is the mother of three children. Although she attained her GED
      in 2010, she is and has remained unemployed for some period of
      time. Her criminal history includes a misdemeanor retail theft
      conviction in 2005, two misdemeanor 1 forgery convictions in
      2006, a misdemeanor theft by deception conviction in 2008,
      various motor vehicle code summary offenses, [and] two
      misdemeanor retail theft convictions in 2011. And she is now
      before the [c]ourt on the felony 3 retail theft charges.

            [Appellant] has been on probation, she’s been revoked
      from probation on numerous occasions, she’s served time in the
      correctional facilities, all to no avail. It’s extremely clear to this
      [c]ourt that [Appellant] is not amenable to county supervision
      and that county supervision is not a sentencing option at this
      time. She’s also been incarcerated at the State level. She last



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      appeared in the State system in 2009. [Appellant] is eligible for
      RRRI if sentenced to a State Correctional Institution.

            The [PSI] confirms that [Appellant] is a drug user. I think
      the term used in the report was that she is an avid drug user.
      Her counsel disputes that, however, [counsel] does acknowledge
      that [Appellant] has a severe problem with Suboxone.

            It does not appear to the [c]ourt that [Appellant] ever took
      responsibility for her actions, and [she] placed herself at a
      higher level priority than her three children.

             [Appellant] was to be sentenced on June 15 after the
      [c]ourt had granted her a continuance to care for her children’s
      dental needs. As thanks, [Appellant] failed to appear. The
      [c]ourt believes she changed her physical appearance and was
      just recently apprehended on a Bench Warrant.

             Quite frankly, [Appellant] just doesn’t get it.         She
      continues to steal. It’s clear that any sentence of probation or
      partial confinement will put [her] back in a position where she
      will continue to commit crimes. The time that [Appellant] has
      spent in custody did not aid her in her rehabilitation. [Appellant]
      is not capable of being a law abiding citizen, and a lengthy
      period of incarceration is the only solution to assist her in her
      rehabilitation.

Id. at 14-15.

      The court clearly stated various factors that it weighed in deciding to

fashion Appellant’s sentence. Pertinent to Appellant’s argument on appeal,

nothing in the court’s rationale evinced that the court focused only on her

failure to appear at the prior sentencing hearing. Additionally, it is obvious

that the court took into account the nature of Appellant’s current offenses,

and her drug-addiction issues.    However, based on Appellant’s continued

criminal behavior and probation violations, the court ultimately concluded

that she is not amenable to rehabilitation. In sum, the court stated ample,

and reasonable, grounds for imposing aggravated range, consecutive


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sentences for each of Appellant’s retail-theft offenses.   Accordingly, we

ascertain no abuse of the court’s sentencing discretion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2016




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