J. S54036/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                            Appellee        :
                                            :
                    v.                      :
                                            :
HOLLY SHAUGHNESSY,                          :
                                            :
                            Appellant       :     No. 655 EDA 2015

            Appeal from the Judgment of Sentence February 5, 2015
             In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0016015-2010

BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 21, 2015

        Appellant, Holly Shaughnessy, appeals from the judgment of sentence

entered in the Mental Health Court program of the Philadelphia Court of

Common Pleas following the second revocation of her probation. Appellant

argues her sentence of 3½ to 10 years’ imprisonment is excessive because

she committed only technical violations and her particular circumstances did

not warrant a state sentence. We affirm.

        On April 21, 2011, in the instant case, Appellant pleaded guilty to

burglary1 and received a sentence of 11½ to 23 months’ imprisonment, to

be followed by 6 years’ probation. “Appellant was ordered to be supervised



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3502(a).
J.S54036/15


by the Mental Health Unit and was ultimately transferred to Mental Health

Court (MHC) for supervision.” Trial Ct. Op., 5/11/15, at 1-2.

        The trial court summarized the ensuing procedural history as follows.

On September 1, 2011, Appellant pleaded guilty to simple assault and

recklessly endangering another person,2 and received a sentence of 11½ to

23 months’ imprisonment, “with parole to program once a bed [was]

available,” to be followed by 2 years’ probation.   “On December 8, 2011,

Appellant was paroled to Gaudenzia Broad Street, a residential treatment

facility.” Id. at 2.

          As is procedure in MHC, Appellant was scheduled for status
          of mental health and treatment hearings at regular
          intervals to monitor [her] compliance and progress.
          Appellant did make strides toward her discharge, but
          admitted to [the] probation [department] that she violated
          house rules by having intercourse with other patients that
          resulted in loss of privileges on August 21, 2012.

             By the September 28, 2012 hearing date, Appellant
          became compliant at the program, and on March 10, 2013,
          she moved to a recovery house . . . .

             It was reported that on the June 10, 2013 status
          hearing date, Appellant tested positive for crack cocaine.
          She was placed on weekly reporting with probation-with a
          90 day black out at Women Walking in Victory, her
          treatment and housing facility. On July 8, 2013, [the]
          probation [department] learned that Appellant was
          dismissed from the program for initiating an argument, she
          was required to serve several jury box sanctions[3], and

2
    18 Pa.C.S. §§ 2701, 2705.
3
  A jury box sanction, usually imposed for a minor infraction, requires the
defendant to observe court proceedings for a specified amount of time.



                                     -2-
J.S54036/15


       later approved     to   stay   with   her   brother,   Mike
       Shaughnessy.

          On August 16, 2013, Appellant tested positive for
       opiates.   In response, Appellant provided a copy of
       discharge paperwork from Temple Hospital for alleged back
       pain that showed she was given prescriptions for Vicodin
       and Motrin. Appellant stated that her brother held the
       medication because of her drug history. However, when
       [the] probation [department] contacted her brother, he
       claimed Appellant never told him she was prescribed
       anything and didn’t give him any prescriptions to hold.
       Subsequently, Appellant was a given custody sanction for
       the positive drug screen and for being dishonest in her
       response to the Court. On November 15, 2013, Appellant
       was instructed to enroll in an inpatient program after
       another positive drug test.

          On April 16, 2013, Appellant was compliant and
       received a completion certificate for the Dialectical
       Behavioral Therapy (DBT) group.        On June 6, 2013,
       Appellant tested positive again for opiates, and was given
       a two week custody sanction. On October 31, 2013,
       Appellant was compliant with treatment program.

          On January 09, 2014, Appellant tested positive for
       opiates, and was ordered to serve a week custody sanction
       on January 30, 2014. On March 13 and April 17, 2014,
       Appellant was compliant with program.

          On June 19, 2014, Appellant tested positive for opiates,
       and served jury boxes and a weekend sanction. On June
       30, 2014, probation received a call from Appellant who
       stated she got high in an attempt to commit suicide.
       Arrangements were made with her case management team
       for her to report to Community Treatment Team (CTT) on
       July 1, 2014. However, on July 17, 2014, Appellant failed
       to attend her pain management appointment. Appellant
       relapsed on cocaine and heroin, and was served two jury
       box sanctions.

          [On September 25, 2014, a] violation of probation
       hearing was conducted and Appellant was found to be in
       violation of her probation for [the three June and July]


                                  -3-
J.S54036/15


        positive tests for opiates . . . .         Appellant was
        sentenced . . . to 11½ to 23 months of incarceration plus 8
        years of reporting probation with immediate parole to
        Divine Light Recovery House.

           On December 12, 2014, [the] probation [department]
        received a call from CTT stating Appellant was discharged
        from Divine Light Recovery House due to taking another
        resident’s suboxone. On December 16, 2014, Appellant
        was instructed to report to probation for detention, which
        occurred without incident.

Id. at 2-4 (paragraph breaks added).

     The trial court conducted the instant violation of probation hearing on

February 5, 2015.    It found her in technical violation for suboxone use,

revoked her probation, and immediately imposed a new sentence of 3½ to

10 years’ imprisonment.     Appellant filed a timely post-sentence motion,

which was denied. Appellant then filed the instant appeal and complied with

the court’s order to file a Pa.R.A.P. 1925(b) statement of errors complained

of on appeal.

     On appeal, Appellant argues the trial court abused its discretion in

imposing a sentence of total confinement, where there was “clear evidence

that [she] exhibited the ability to be amenable to treatment and probation,

as well as her avoidance of criminal activity.”      Appellant’s Brief at 9.

Appellant avers she incurred “only technical violations,” which “consisted of

sporadic behavioral problems and opiate abuse relating to a drug addiction




                                    -4-
J.S54036/15


that [she] has had tremendous difficulty overcoming.”4 Id. at 16, 17. She

contends she “has, several times, demonstrated the ability to succeed in

treatment and comply with the rules of probation, . . . was not a danger to

the community, was proving she was not likely to commit another crime,

and obviously requires significant help and continuous treatment for her

addiction.” Id. at 18. Appellant maintains “her particular circumstances did

not warrant a state sentence,” and the court’s imposition of a state sentence

“places ‘form over substance.’”      Id. at 16.    Appellant also alleges the

sentence is improper under Subsection 9771(c)(3) of the Sentencing Code,

which allows for a probation-revocation sentence of total confinement when

it “is essential to vindicate the authority of the court.”5      42 Pa.C.S. §

9771(c)(3).   Instead, she claims, “[i]ncarceration is purely punitive in this

scenario and will not foster [her] rehabilitative process.” Appellant’s Brief at

19. We hold no relief is due.

      Preliminarily, we note Appellant preserved this issue in her post-

sentence motion, has included a Pa.R.A.P. 2119(f) statement in her

appellate brief, and has raised a substantial question for our review.     See


4
  Appellant also describes her technical violation as “a relapse in the form of
using the suboxone of another facility resident.” Appellant’s Brief at 18.
5
  Subsections 9771(c)(1) and (2) allow for a sentence of total confinement
upon revocation of probation where “the defendant has been convicted of
another crime” and the defendant’s conduct “indicates that it is likely that he
will commit another crime if he is not imprisoned.” 42 Pa.C.S. § 9771(c)(1)-
(2). Appellant states that neither of these subsections are applicable.
Appellant’s Brief at 9.



                                     -5-
J.S54036/15


Commonwealth v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (stating

defendant must raise discretionary aspect of sentencing issue either during

sentencing proceedings or in post-sentence motion, and in Pa.R.A.P. 2119(f)

statement); Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super.

2010) (stating, “The imposition of a sentence of total confinement after the

revocation of probation for a technical violation, and not a new criminal

offense, implicates the ‘fundamental norms which underlie the sentencing

process,’” and finding substantial question raised).      Accordingly, we find

Appellant has preserved her discretionary aspect of sentencing issue for our

review. See Tobin, 89 A.3d at 666; Crump, 995 A.2d at 1282.

     We consider the relevant standard of review:

        [A] trial court has broad discretion in sentencing a
        defendant, and concomitantly, the appellate courts utilize a
        deferential standard of appellate review in determining
        whether the trial court abused its discretion . . . .

        . . . At initial sentencing, all of the rules and procedures
        [for a court’s] discretionary sentencing authority [apply].
        However, it is a different matter when a defendant
        reappears . . . following a violation . . . of a probationary
        sentence. For example, . . . contrary to when an initial
        sentence is imposed, the Sentencing Guidelines do not
        apply, and the revocation court is not cabined by Section
        9721(b)’s requirement 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. §
        9721.

        . . . [U]pon revoking probation, the trial court is limited
        only by the maximum sentence that it could have imposed
        originally at the time of the [initial] sentence, although . . .


                                     -6-
J.S54036/15


           the court shall not impose a sentence of total confinement
           unless it finds that:

                                        *        *     *

             (3) such a sentence is essential to vindicate the
             authority of the court.

           42 Pa.C.S. § 9771(c)[(3)].

Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014) (some

citations omitted). This Court has stated, “A trial court does not necessarily

abuse its discretion in imposing a seemingly harsh post-revocation sentence

where the defendant originally received a lenient sentence and then failed to

adhere the conditions imposed on him.” Commonwealth v. Schutzues, 54

A.3d 86, 99 (Pa. Super. 2012), appeal denied, 67 A.3d 796 (Pa. 2013).

      At    the   instant   violation       of   probation    and   sentencing   hearing,

Appellant’s counsel stated Appellant has had “many successes, as well as . .

. challenges” under the court’s probation, and “is an addict and . . . needs

treatment.” N.T., 2/5/15, at 9. Counsel requested “as short a sentence as

possible, so that we can get her reconnected with CTT . . . and back into

treatment as soon as possible.”                  Id.       The Commonwealth conceded

Appellant “was doing well in 2012,” but summarized her various infractions.

Id. at 10-13. The Commonwealth argued, “[S]he has been given almost . .

. 5 years of this program[, has] been in numerous placements, has the

highest level of case management services provided in . . . Philadelphia,”

and “has gotten more chances than the average individual, with [the court]



                                             -7-
J.S54036/15


consistently putting treatment first . . . and not giving . . . as much

sanctions[.]” Id. at 15, 16. The Commonwealth recommended a sentence

of ten to twenty years’ imprisonment. Id. at 16.

      In imposing the sentence of 3 ½ to 10 years, the court considered “the

Commonwealth’s       recitation   of     the   many    listings   of    this   case”   and

“emphasize[d] the number of opportunities” Appellant had in the MHC

“program,    including   jury     box    sanctions,    weekend         sanctions,   weeks

sanctions—none of which seemed to have really hit home with” her. Id. at

20. The court stated, “I clearly believe that a state sentence is warranted,

given the number of opportunities, the county sentences that [Appellant

has] already been given. And it’s clear that none of those have worked to

vindicate the authority of this Court.” Id. at 21. The court recommended

that Appellant receive drug, alcohol, and mental health treatment while

incarcerated. Id.

      We hold the court did not abuse its discretion in imposing sentence.

After careful review of the violation of probation hearing transcript, the trial

court’s opinion, and both parties’ appellate briefs, we note there is no

dispute over the procedural history in this case over the course of

Appellant’s probationary terms.          Instead, Appellant’s challenge is to the

court’s   ultimate   conclusion        that    her   transgressions      surpassed     her

compliance. Contrary to Appellant’s claim, we find the trial court did state

its reasons for imposing a sentence of total confinement under Subsection



                                          -8-
J.S54036/15


9771(c)(3)—that Appellant has not succeeded in rehabilitation despite

numerous opportunities by the court. See 42 Pa.C.S. § 9771(c)(3); N.T. at

21.   Furthermore, because this was a violation of probation sentence, the

trial court was not required to consider the safety of the community or her

rehabilitative needs.6 See Pasture, 107 A.3d at 27-28; Appellant’s Brief at

18.   We do, however, reiterate the court’s recommendation that Appellant

continue to receive drug, alcohol, and mental health treatment in prison.

      For the forgoing reasons, we find no abuse of discretion.             See

Pasture, 107 A.3d at 27-28; Schutzues, 54 A.3d at 99.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/21/2015




6
  Appellant also argues: “That Section 9721(b) does not apply to a violation
of probation hearing is wrong.” Appellant’s Brief at 12. Such a policy and
legislative issue is beyond this panel’s review.



                                    -9-
