J-S81038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JENNIFER RAE HURD                       :
                                         :
                   Appellant             :   No. 1041 MDA 2018

       Appeal from the Judgment of Sentence Entered April 16, 2018
    In the Court of Common Pleas of Adams County Criminal Division at
                      No(s): CP-01-CR-0000254-2017


BEFORE:   STABILE, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                  FILED FEBRUARY 26, 2019

     Appellant, Jennifer Rae Hurd, appeals from the judgment of sentence

entered in the Court of Common Pleas of Adams County after she pleaded

guilty to Driving Under the Influence of Alcohol (“DUI”), highest rate of

alcohol, in violation of 75 Pa.C.S.A. § 3802(c). Herein, she challenges the

discretionary aspects of her sentence. We affirm.

     The pertinent facts and procedural history are as follows:

     On September 19, 2017, Appellant appeared before [the trial
     court] and entered a plea of guilty to amended count 2 of the
     criminal information, DUI, highest rate of alcohol in violation of §
     3802(c) of the Vehicle Code as a misdemeanor of the first degree
     and third offense for mandatory sentencing purposes.              In
     accordance with 75 Pa.C.S.a. § 3804(c)(3), Appellant faced a
     twelve month mandatory minimum sentence. Appellant’s plea
     was pursuant to a plea agreement which recommended a
     sentence of sixty months county intermediate punishment with
     twelve months[’] restrictive intermediate punishment. During the
     plea colloquy [the trial court] explained to the Appelalnt tha the
     twelve months of restrictive punishment consisted of eight months

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S81038-18


     at the Adams County Work Release Facility and four months on
     electronic monitoring, house arrest.1 Sentence was scheduled for
     November 16, 2017, to allow Appellant to undergo an assessment
     to determine her eligibility for an intermediate punishment
     sentence.


     1 The Adams County Intermediate Punishment Plan, effective
     January 1, 2015, sets forth a recommendation that the restrictive
     period will be divided two thirds at the Adams County work release
     facility and one-third house arrest with electronic monitoring.


     On November 14, 2017, sentencing counsel for Appellant filed a
     Sentencing Memorandum requesting [that the trial court] impose
     an intermediate punishment sentence with a minimal amount of
     jail time and a lengthy period of time on house arrest, based on
     Appellant’s medical issues. Appellant required surgery for a total
     hip replacement of her right hip and Appellant was also being
     treated for multiple sclerosis. Appellant’s treatment for multiple
     sclerosis included specific required medication.       Appellant’s
     counsel confirmed that the medical provider at the Adams County
     Adult Correctional Complex could provide Appellant with her
     prescribed medication if incarcerated at the Adams County Adult
     Correctional Complex.      [The trial court] also received and
     reviewed supplemental character letters to the Sentencing
     Memorandum, also dated November 14, 2017.

     On November 1, 2017, at the request of Appellant with no
     objection from the Commonwealth, sentence was continued until
     April 16, 2018 to afford Appellant the opportunity to undergo hip
     replacement surgery prior to sentence.

     On April 16, 2018, Appellant appeared with sentence counsel for
     sentence.        Appellant filed a Supplemental Sentencing
     Memorandum with [the trial court] on April 11, 2018, which
     provided information [to the trial court] concerning Appellant’s
     diagnosis of multiple sclerosis. Prior to sentence it was confirmed
     that Primecare Medical, the medical provider for Adams County
     Adult Correctional Complex, would provide the necessary
     medication to Appellant concerning her treatment for multiple
     sclerosis. During the sentencing hearing Appellant’s counsel
     advised [the trial court] that other than multiple sclerosis,
     Appellant was not dealing with any medical issues at that time,

                                    -2-
J-S81038-18


      but had not undergone surgery for the hip replacement.
      Appellant’s counsel requested a restrictive intermediate
      punishment sentence with more time on house arrest and a lesser
      period of incarceration at the work release facility of the Adams
      county Adult Correctional Complex. This request was based on
      Appellant’s medical issues and Appellant’s employment in
      Lancaster County. [The trial court] sentenced Appellant to sixty
      months intermediate punishment with 12 months’ restrictive
      intermediate punishment, [the latter consisting of] eight months
      at the Adams County Adult Correctional Complex work release
      facility and four months on house arrest with electronic
      monitoring.

      On April 25, 2018, Kaitlyn Clarkson, Esquire entered her
      appearance on behalf of Appellant. On April 26, 2018, Appellant
      filed a Petition for Bail After Finding of Guilt Pursuant to
      Pa.R.Crim.P. Rule 521, and a Motion to Modify Sentence. On May
      30, 2018, [the trial court] granted Appellant’s Petition for Bail
      After Finding of Guilt Pursuant to Pa.R.Crim.P. 521 and denied
      Appellant’s Motion to Modify Sentence. On June 22, 2018,
      Appellant filed her Notice of Appeal. By Order of Court dated June
      25, 2018, [the trial court] directed Appellant to file a Concise
      Statement of Matters Complained of on Appeal. Appellant timely
      filed her Concise Statement on July 5, 2018.

Trial Court Opinion, 8/2/18, at 1-3.

      Appellant presents one question for our consideration:

      [Where] Hurd suffers from multiple sclerosis, COPD, and
      degenerative disk disease, and requires hip surgery and a nose
      reconstruction[, did] the trial court sentence [her] excessively in
      ordering her to serve eight months in the Adams County
      Correctional Complex [as part of the initial 12-month restrictive
      setting portion of her 60-month IPP sentence]?

Appellant’s brief, at 4.

      This Court has held:

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to appellate review as of right. Prior to
      reaching the merits of a discretionary sentencing issue:



                                       -3-
J-S81038-18


           [w]e 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. § 781(b).

     Objections to the discretionary aspects of a sentence are generally
     waived if they are not raised at the sentencing hearing or raised
     in a motion to modify the sentence imposed at that hearing.

Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa.Super. 2006) (some

citations and punctuation omitted).

     The Rule 2119(f) statement

     must specify where the sentence falls in relation to the sentencing
     guidelines and what particular provision of the Code is violated
     (e.g., the sentence is outside the guidelines and the court did not
     offer any reasons either on the record or in writing, or double-
     counted factors already considered). Similarly, the Rule 2119(f)
     statement must specify what fundamental norm the sentence
     violates and the manner in which it violates that norm....

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en

banc). “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.

     Here, Appellant timely appealed, preserved the issue in her post-

sentence motion, and included a Pa.R.A.P. 2119(f) statement in the brief. See

Evans, 901 A.2d at 533.     Further, Appellant asserts in her Rule 2119(f)

statement that she raises a substantial question that her sentence of



                                      -4-
J-S81038-18



incarceration was inappropriate where she claims the trial court failed to

consider her individual circumstances consisting of a disabling medical

diagnosis and her resultant need for nearly continuous physical assistance.

      Even if we assume arguendo that Appellant’s claim raises a substantial

question, we observe that:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the 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. Sheller, 961 A.2d 187, 190 (Pa.Super. 2008) (citation

omitted). “Where pre-sentence reports exist, we shall . . . presume that the

sentencing judge was aware of relevant information [contained therein] and

weighed those considerations along with mitigating statutory factors. A pre-

sentence   report   constitutes   the    record   and   speaks    for   itself.”

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).               Moreover, a

challenge to a standard range sentence must show the sentence is “clearly

unreasonable” based on the circumstances of the case. Commonwealth v.

Coulverson, 34 A.3d 135, 146 (Pa.Super. 2011).

      Here, the record confirms both the existence of a presentence

investigation report and the court’s repeated inquiry into Appellant’s medical

condition, as it asked both parties for pertinent medical updates and otherwise

articulated an awareness of her condition. N.T. 4/16/18, at 2-6. The court


                                     -5-
J-S81038-18



thereafter imposed a standard range sentence, to which Appellant filed a

motion for reconsideration of sentence. Again, at the hearing on Appellant’s

motion, the court demonstrated a consideration of the sentencing guidelines,

sentencing alternatives, and the likelihood that Appellant would receive

adequate attention to her needs in a medical facility at the prison.         N.T.

5/15/18, at 11-13.

         Given this record, we discern no merit to Appellant’s contention that the

court failed to give reasonable consideration to her individual medical needs

as they related to a sentence of incarceration. To that end, we adopt the trial

court’s rationale as expressed on pages 5-7 of its Pa.R.A.P. 1925(a) Opinion.

Accordingly, Appellant’s challenge to the discretionary aspects of her sentence

fails.

         Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/26/2019




                                        -6-
                                                                                               Circulated 02/01/2019 09:12 AM




        _IN·THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
                                  CRIMINAL                     ···                                                            .-,...

    COMMONWEAL TH OF PENNSYLVANIA                                                 CP-01-CR-254-2017

                            vs.
                                                                                                                            ?' .

                                                                                                                -
            . JENNIFER RAE HURD                                                                                             c-,
                                                                                                                            �. �
                                                                                                                :!
                                                                                                                �
                                                                                                                • .
                                                                                                                            -·
                                                                                                                            ::i.:
                                                                                                                            .......
                                                                                                                            <n·
                             OPINION PURSUANT Tb Pa. R.A.P. 1926(a)
                                                                                                                ••••
                                                                                                                 ...,,, .

           Jennifer Rae Hurd (hereinafter "Appellant") appeals from this Court's Jud�rhent
                                                                                                                                       ...
    of Sentence Order dated April 16, 2018 and denial of Defendant's Motion to Modify

    Sentence, filed May 30, 2018. For the reasons set fortb below, it is respectfully

    requested that this Court's Judgment of Sentence be affirme�.


           On September 19, 2017 Appellant appeared before this Court and entered a plea

    of guilty to amended count 2 of the criminal information, DUI, highest rate of alcohol in

    violation of §3802(c)   of the Vehicle Code as a misdemeanor of the first degree and third
    offense for mandatory sentenclnq purposes. In accordance with 75 Pa. C.S.A §

    3804(�)(3), Defendant ·faced a twelve month mandatory minimum sentence. Appellant's

plea was pursuant to a plea agreement which recommended                          a sentence of sixty months
county intermediate punishment with twelve months restrictive intetmediate punishment.

During the. plea colloquy this Court explained to the Appellant that the twelve months of

restrictive intermediate punishment consisted of eight months                          al   the Adams County
         .         '
Work Release Facility and four months on electronic monitbring, house arrest.1


                                                                  ...   ,
                                                                        I•




1
 The Adams County lntermJc:11ate Punishment Plan,
                                                        effec;fi.ve
                                                                                    fort&
                                                                    January 1,,2015, sets    a recomme�dation that
the restrictive �eriod will be.:dlvlded two thirds at the Adalns County work release facility and one third house
arrest with electronic morntcrlng.
 Sentence was scheduled for November 16, 2017 to allow Appellant to undergo an

 assessment to determine her eligibility for an mtermeclate punlshment sentence.
                                                         f�




        On November 14, 2017 sentencing counsel for Appellant filed a Sentencing

Memorandum requesting this Court impose an intermediate ;punishment sentence with

a minimal amount of jail time and a lengthy period of time on house arrest, based on

Appellant's medical issues. Appellant required surgeryJor a total hip replacement of her

right hip and Appellant was also being treated for rpultiple sclerosis. AppeJlant's

treatment for multiple sclerosis included specific teqy;red medication. Appellant's

counsel confirmed that the medical provider at the Adarns County Adult Correctional

Complex could provide Appellant with her prescribed .medlcatlon If incarcerated at the

Adams County Adult Correcttonal Complex. This Court. also received and reviewed

supplemental character letters to the Sentencing Memorandum, also dated November

14, 2017.

       On November 16, 2017, at the request of Appellant with ho objection from the

Commonwealth, sentence was continued Jntil April ,1,6, ,2018 to afford Appellant the

opportunity to undergo the hip replacement !urgery prior to sentence.

       On April 16, ib18 Appellant appealed with s�nt�nblng dbunsel for sentence.

Appellant filed a Sup�lemer1tal Sentencing Memoran.�:fum with tHis Court        dh April   11,

2018, which*·' provided\ lnformatlon
                              '
                                   .                     .
                                     to this iiCourt con9errying
                                                         · ·· · ,:·. Appellant's diagnosis of
                                                                     ··,)<,      '\




multiple sc�rosis. Prior to sentence it w�s confirmed that Prlrhecare M�dical, the

medical prdvider for Adams County Adult correctlopa' .Cbmplei, would �rovide the

necessary medlcatlon to Appellant concerhing her treatment fbr multiple sclerosis.

During the sentencin� hearing Appellant's bounsel advised this 6ourt that other than

                                             2
 multiple sclerosis, Appellant was not dealing with any medical issues at that time, but

 had not undergone surgery for the hip replacement. Appellant's counsel requested a

 restrictive intermediate punishment sentence with more time on house arrest and a

 lesser period of incarceration. at. the work release facility of the Adams County Adult

 correcnonal Complex. This request
                              '1
                                   was based on . Appellant's
                                                     )
                                                              medical issues and

Appellant's employment Jn Lancaster County. This Court sentenced Appellant to sixty

months    intermediate         punishment . with                        twelve        months                   restrictive     intermediate

punishment, eight months at the Adams County Adult Correctional Complex work

release facj,lity and four mont�$ on house arrest with electronic monitoring.


       On April 25, 2018 Kaitlyn Clarkson, Esquire entered her appearance on be�alf of

Appellant. On April 26, 201� Appellant filed Petition for Bail After Finding of Guilt

Pursuant to Pa. R.Crim.P. Rul.e 5.21, and Motion to Modify $entence. On May 30, 2018

this Court granted Appellant's Petition for 'sail After Finding of t3ullt Pursuant to Pa.

R.Crim.P. Rule 521 and denied Appellant'! Motion to Modify Sentence. On Ju11e 22,
                        kc        I       _-                      ft,                                     .·      :i           i       '
2018, Appellant filed fler Notice of Appeal. By Order of Court dated June 25, 2018 this
                                                   _




Court directed Appellant to file a Concise Statement of Mattel$ Complelned of on
                        -         .                              �                                                a
Appeal. Appellant tim�ly filed her Concise Statement on July 5, 2018.
                                                                 i
                                                       LEGAL S1!ANDARD


       "[A] challenge 1to the di$cretionary as;hects of atsentence is considere� a petition

for permission to aprleal because the righ\ to pursue such� a cl�im is not absolute."
                                                                                                                               '
Commonwbalth       v.        .Baker,           9.63       A.2d          495,       510                (Pa.     s'tJper.      2008)    (citing

Commonw\alth v. MbAfee, &49 A.2d 270, 274 (Pa. Super. 2004}). Pennsylvanta Rule
          {1_           t\            . ·. · . ,                 .:,.          .    '. -·_-_-.   -_ - _         ·J:1           f,,_
of Appellat� Procedure 2119(f) states "[a]n appellant who challerlges the discretionary

                                                                 3
 aspects 'of a sentence in a criminal matter shall set forth in a separate section 1:0f the

 brief a concise statement of the reasons relied upon for. allowance of appeal with

 respect to the discretionary aspects of a sentence." Pa.R.A.P. 2119(f). "Allowance of

appeal may be granted at the discretion of the appellate court where it appears that

there is a substantial question that' the sentence imposed is not appropriate under this

chapter." 42 Pa.C.S.A. § 9781(b). A substantial question exists "'only when the

appellant advances a colorable argument that the sentencing judge's actions were

either: (1) Inconsistent with the specific provisions of the Sentencing Code or (2)

contrary to the fundamental norms which underlie the sentencing process."

Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005) (quoting

Commonwealth      v.   Sierra, 752 A.2d 910, 913 (Pa. Super. 2000)).

       In deterrnlnlnq whether the trial court committed an abuse of discretion in

imposing sentence, the standard of review is well settled:

              Sentencing is a matter vested in the sound discretion of the sentence
      judge, and a sentencing will not be dlstorbed on appeal absent a manifest abuse
       of discretion. In this context, an abuse of discretion is not shown merely by an
      error in judgment. Rather, the 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. Shugars, 895 A.2d 1270, 1275 (Pa. Su'per. 2006) (citation omitted).

As the sentence at issue is a "standard rarlge" sentence, the sentence must be shown

to be "clearly unreasonable'' based on the Bircumstances of-the case. Commonwealth

v. Coulverson, 34 A.3d 135, 146 (Pa. Super. 2011).
                                       DISCUSSION

       In her concise statement, Appellant argues "the Court erred in giving Ms. Hurd an

excessive sentence for her individual circumstances. Ms. Hurd suffers from multiple·

                             . disk disease. She also 'requires
sclerosis, COPD and degenerative                            .
                                                                hip surgery and a

nose reconstruction. Ms. Hurd has fallen multiple times due to her MS, and broken

multiple bones from these falls. One of these falls broke her nose, and is the reason she

now requires a nose reconstruction."

       Based on Appellant's guilty plea to DUI, highest, rate of alcohol in violation of

§3802(c) of the Vehicle Code as a third offense for mandatory sentencing purposes, this

Court was mandated to impose a twelve month mandatory minimum sentence in

accordance with 75 Pa. C.S.A. § 3804(c)(3). Therefore. in accordance with 42 Pa.

C.S.A. § 9721(a) this Court had t�e authority to impose a total confinement sentence, a

state intermediate punishment sentence, or a county intermediate punishment

sentence. This Court agreed to accept the plea recommendatlon In this matter and

imposed the least restrictive sentence possible given· the twelve month mandatory

minimum sentence required in this case.

      This   Court    reviewed    sentencing    counsel's    Sentencing     Memorandum,

supplemental character letters to Sentencing         Memorandum and         Supplemental

Sentencing Memorandum prior to imposing sentence on April 16, 2018. This Court

listened to the comments of Appellant's counsel and the Commonwealth prior to

imposing sentencing and afforded Appellant an opportunity to provide comment.

      First, it is important· to keep in mind that Appellant has not 'appealed the legality

of her sentence. Rather, she seeks to challenge the dlscretlonary portions of her



                                            5
 sentence. The mandatory minimum sentence imposed in this case was mandated by

 statute. The sentence imposed was pursuant to a plea agreement between the

 Commonwealth and Appellant. One who pleads guilty and receives a negotiated
                                                                                   '
 sentence may not then seek discretionary review of that sentence. Commonwealth v.

 Dalberto, 648 A.2d 16, 20 (Pa. Super. 1994). Furthermore, the Pennsylvania Superior

Court· "has held on numerous occasions that a claim of inadequate consideration of

mitigating factors does not raise a substantial question ... " Commonwealth v. Disalvo,

70 A.3d 900, 903 (Pa. Super, 2013) (internal quotations omitted) (citation omitteo).

Therefore It is questionable \Yhether Appellant possesses a legal basis to attack the

discretionary portion of her sentence, given that sentence was imposed pursuant to a

plea agreement and Appellant's argument is based on, a claim of "inadequate

consideration of mitigating factors."

       Regardless, Appellant falls to set forth any specific provisions of the sentencinq

code or fundamental norms ur,,derlying the sentencing process which the trial court has

allegedly violated in imposing sentence. Such a failure precludes a review of the merits

that the sentence was excessive. Commonwealth v. Trippett, 932 A.2d 188, 202 (Pa.

Super. 2007); CommonwealtJ} v, Ladamus, 896 A.2d 592, 596 (Pa. Super. 2006).

      The lack of a substa�tial question is confirmed by a review of the circumstances

underlying Appellant's sentence. Prior to imposing sentence, this Court Indicated review

and reliance on the information in sentencing counsel's Sentencing Memorandum,

supplemental character letters to Sentencing Memorandum and Supplerpental

Sentencing Memorandum. This Court listened to the comments of counsel and afforded

Appellant the opportunity to provide this Court with comment. Thus, prior to imposing



                                           6
 sentence, this Court was armed with, and considered, the relevant information

 contained within sentencing counsel's memorandums and the comments of counsel.

 This Court took into account Appellant's medical issues and even afforded Appellant a

five month continuance of sentence to allow Appellant to deal with her medical issues.

This Court took into account the ability of the Adams County Adult Correctional

Complex to handle Appellant's medical issues, and provide proper medication

concerning such medical issues. This Court also considered Appellant's request to

serve a much greater portion of the restrictive intermediate punishment on house arrest

in Lancaster County for employment purposes. This Court considered the fact that this

was Appellant's third DUI conviction within a short period of time and that Appellant

committed this offense while awaiting trial and/or sentence on two other DUI offenses.

       As evidenced by the discussion above, this Court considered the factors listed in

§ 9721(b) when fashioning .Appellant's sentence. As such, Appellant's sentence was not

"manifestly unreasonaote, or the result of pcirtiality, prejudice, bias or ill will." Therefore,

this Court respectfully requests Appellant's Judgment of Sentence be affirmed.


                                                    BY THE COURT,


                                                    �c_W�
Date: August 2, 201 a                               SHAWN C. WAGNER
                                                    Judge



KelleyL. Margetas, Esquire
                                '   C?istribution   s'�\
                                                     )
                                                         \i   r.Jf? .
Kaltlyh S. Clarkson, Esquire        Original .            /O\&..<'
                                                             -,/..:;;,
                                    Kelley L. Margetas, E�quire� eJ�,<...,
                                    Kaitlyr:i S. Clarkson, �squire LJi;�\"-
                                    Court Administrator - J.1 ( �, e,       .
                                    Adams County Legal/Journal -Lt�.�"l...
                                    District & County Reports Q.ff\.,� \
                                    Media Copy 6.J. c. ,.
