J-S41020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TIFFANY DIANE WEAVER

                            Appellant                 No. 1629 MDA 2016


             Appeal from the Judgment of Sentence March 22, 2016
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0003423-2014
                            CP-22-CR-0004046-2011
                            CP-22-CR-0004417-2012
                            CP-22-CR-0004419-2012


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                              FILED JUNE 16, 2017

        Tiffany Diane Weaver appeals from the judgment of sentence, entered

in the Court of Common Pleas of Dauphin County, after revocation of her

intermediate punishment (“IP”), probation and parole. Upon careful review,

we affirm.

        Weaver’s relevant criminal history includes guilty pleas entered at four

separate dockets.       First, On August 28, 2012, Weaver pled guilty to five

counts of forgery and four counts of theft by unlawful taking at docket

number 4046-CR-2011. She was sentenced to a term of IP. On September

5, 2013, after a revocation hearing, Weaver was resentenced to serve 24
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S41020-17



months’ probation. On August 8, 2014, Weaver’s IP was again revoked and

she was sentenced to 6 to 23 months in county prison, with immediate

eligibility for work release.

      At docket number 4417-CR-2012, Weaver pled guilty to felony drug

charges and criminal use of a communication facility on July 29, 2013. She

was sentenced to probation, which was revoked after a hearing on August 8,

2014, at which time she was resentenced to probation.

      Also on July 29, 2013, Weaver entered a guilty plea to criminal

trespass and theft by unlawful taking at docket number 4419-CR-2012 and

was sentenced to probation. That probation was also revoked at the August

8, 2014 hearing and she was sentenced to 6 to 23 months in county prison,

with immediate eligibility for work release.

      Finally, on June 6, 2014, Weaver pled guilty to charges of theft by

unlawful taking and receiving stolen property at docket number 3423-CR-

2014 and was sentenced to 12 months’ probation.

      On March 22, 2016, Weaver was again brought before the court for a

revocation hearing, at which time the Commonwealth alleged technical

violations of her IP, probation and parole at the above four docket numbers.

After finding her to be in violation, the court resentenced Weaver to an

aggregate of 18 to 36 months’ incarceration and, at docket number 4046-

CR-2011, directed Weaver to serve the unexpired balance of her term, or 13

months and 14 days.




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      On April 13, 2016, Weaver filed a post-sentence motion nunc pro tunc,

in which she attempted to preserve a challenge to the discretionary aspects

of her sentence.     However, before the court could act on that motion,

Weaver filed a notice of appeal to this Court on April 19, 2016.            On

September 2, 2016, Weaver filed a praecipe to discontinue that appeal.

Thereafter, Weaver filed with the trial court a petition under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, seeking

reinstatement of her direct appellate rights to enable her to preserve her

challenge to the discretionary aspects of her sentence.       The PCRA court

granted relief, reinstating her right to file both a post-sentence motion and a

direct appeal.   On September 15, 2016, Weaver filed a motion to modify

sentence nunc pro tunc, which the court denied on September 19, 2016.

This timely appeal follows, in which Weaver raises the following issue for our

review:

      Was not the imposition of a probation violation sentence of 1 ½
      to 3 years[’] incarceration clearly unreasonable, so manifestly
      excessive as to constitute an abuse of discretion, and
      inconsistent with the protection of the public, the gravity of the
      offenses, and [Weaver’s] rehabilitative needs where the
      revocation    conduct     involved    technical    violations   of
      parole/probation and a new criminal charge contested by
      [Weaver]?

Brief of Appellant, at 5.

      Our standard of review is well-settled.

      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.

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     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. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014).

     Weaver challenges the discretionary aspects of her sentence.     Such a

challenge is not appealable as of right. Rather, Appellant must petition for

allowance of appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v.

Colon, 102 A.3d 1033, 1042 (Pa. Super. 2014).

     Before we reach the merits of this issue, we must engage in a
     four part analysis to determine: (1) whether the appeal is
     timely; (2) whether Appellant preserved [her] issue; (3) whether
     Appellant’s brief includes a concise statement of the reasons
     relied upon for allowance of appeal with respect to the
     discretionary aspects of sentence; and (4) whether the concise
     statement raises a substantial question that the sentence is
     appropriate under the sentencing code. . . . [I]f the appeal
     satisfies each of these four requirements, we will then proceed to
     decide the substantive merits of the case.

Id. at 1042-43, quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.

Super. 2013); see also Commonwealth v. Kalichak, 943 A.2d 285, 289

(Pa. Super. 2008) (“[W]hen a court revokes probation and imposes a new

sentence, a criminal defendant needs to preserve challenges to the

discretionary aspects of that new sentence either by objecting during the

revocation sentencing or by filing a post-sentence motion.”).

     Here, Weaver preserved her claim in a motion to modify sentence

nunc pro tunc and filed a timely notice of appeal.     Additionally, her brief

contains a statement of reasons relied upon for allowance of appeal pursuant




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to Pa.R.A.P. 2119(f).       Accordingly, we must determine whether Weaver

raises a substantial question for our review.

      In her Rule 2119(f) statement, Weaver asserts that her sentence was

manifestly excessive and inconsistent with the protection of the public, the

gravity of the offenses, and her rehabilitative needs.          This claim raises a

substantial question.     See Commonwealth v. Derry, 150 A.3d 987, 995

(Pa. Super. 2016) (in challenging revocation sentence, “[a]ppellant presents

a substantial question for our review, to the extent that he challenges the

sentencing court’s failure to consider [s]ection 9721(b) factors”).

      Weaver also asserts that the imposition of a sentence of total

confinement for mere technical violations of her supervision violates the

fundamental norms underlying the sentencing process. 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, thus,

raises a substantial question. Commonwealth v. Crump, 995 A.2d 1280,

1282 (Pa. Super. 2010).

      When imposing a sentence of total confinement after a probation
      revocation, the sentencing court is to consider the factors set
      forth in 42 Pa.C.S. § 9771. Under 42 Pa.C.S. § 9771(c), a court
      may sentence a defendant to total confinement subsequent to
      revocation of probation if any of the following conditions exist:

            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

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

Id. at 1282–83. A sentencing court need not undertake a lengthy discourse

for its reasons for imposing a sentence or specifically reference the statute in

question, but the record as a whole must reflect the sentencing court’s

consideration of the facts of the crime and character of the offender. Id. at

1283, citing Commonwealth v. Malovich, 903 A.2d 1247 (Pa. Super.

2006).

       Here, Weaver appeared before the court for her third violation hearing

in less than three years. In addition to her technical violations for failure to

report a change in address and to pay restitution, Weaver was arrested with

25 bags of heroin, marijuana, and ecstasy in her possession. Weaver argues

that her new drug arrest has not yet resulted in a conviction. However, the

sentencing court noted that Weaver “has been given numerous chances and

yet fails to abide by the law,” Trial Court Opinion, 8/25/16, at 5, which

demonstrates her likelihood of committing another crime. Weaver cites to

her medical condition as a mitigating factor weighing in favor of community

supervision.1 However, the trial court noted that, while it was sympathetic

to her medical condition, Weaver’s new arrest occurred subsequent to her

____________________________________________


1
  Weaver informed the court that she had been diagnosed with a brain
tumor. When asked by the court for documentation of her condition,
Weaver was unable to present any, informing the court that “[m]y
grandfather has it all down in West Virginia, in my files.” N.T. Resentencing,
3/22/16, at 5.



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diagnosis and her condition had not stopped her from committing another

crime. See id.; N.T. Resentencing, 3/22/16, at 5.

     In sum, the record as a whole supports the court’s conclusion that

Weaver was likely to reoffend if not incarcerated, and that her repeated

failure to respond to previous judicial efforts, such as probation and IP,

demonstrate a need to vindicate the authority of the court by imposing a

sentence of total confinement. See 42 Pa.C.S. § 9771(c). Accordingly, we

can discern no abuse of discretion on the part of the court in fashioning

Weaver’s sentence. Raven, supra.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2017




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