J-S07034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
              v.                      :
                                      :
                                      :
 VANESSA L. WAGNER                    :
                                      :
                   Appellant          :   No. 775 MDA 2018

       Appeal from the Judgment of Sentence Entered April 20, 2018
  In the Court of Common Pleas of Lycoming County Criminal Division at
                     No(s): CP-41-CR-0000327-2013,
           CP-41-CR-0001024-2015, CP-41-CR-0002062-2013

 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
              v.                      :
                                      :
                                      :
 VANESSA LYNN WAGNER                  :
                                      :
                   Appellant          :   No. 776 MDA 2018

       Appeal from the Judgment of Sentence Entered April 20, 2018
  In the Court of Common Pleas of Lycoming County Criminal Division at
                     No(s): CP-41-CR-0001024-2015

 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
              v.                      :
                                      :
                                      :
 VANESSA L. WAGNER                    :
                                      :
                   Appellant          :   No. 777 MDA 2018

          Appeal from the Judgment of Sentence October 4, 2016
  In the Court of Common Pleas of Lycoming County Criminal Division at
                     No(s): CP-41-CR-0000327-2013
J-S07034-19


BEFORE:       OLSON, J., McLAUGHLIN, J., and PELLEGRINI,* J.

MEMORANDUM BY PELLEGRINI, J.:                       FILED FEBRUARY 27, 2019

         Vanessa L. Wagner appeals the judgment of sentence entered in the

Court of Common Pleas of Lycoming County (trial court). Her sole claim is

that the trial court imposed an excessively harsh prison term after revoking a

State Intermediate Punishment (SIP).1 As to this discretionary aspect of the

sentencing, we affirm.

                                         I.

         The trial court’s Rule 1925(a) opinion sets forth all of the relevant case

facts:

         [Wagner] was using heroin and, between late December 2012 and
         the end of January 2013, she stole $420 from her relatives and
         used it to purchase heroin. As a result, she was charged in case
         327-2013 with theft by unlawful taking (TBUT), graded as a
         misdemeanor of the first degree. On June 28, 2013, [she] pleaded
         guilty to TBUT, and on September 30, 2013 she was sentenced to
         two years’ probation.

         On November 17, 2013, [Wagner] stole $285 from her relatives
         and used this money to purchase heroin. She injected heroin and
         then drove with her two-year old daughter in the vehicle. She
         stopped at a park and made her two-year old daughter stand
         outside in cold and rainy weather while she sat in the vehicle and
         injected more heroin.      [Wagner] was charged with TBUT,
         endangering the welfare of children (EWOC) and related offenses

*   Retired Senior Judge assigned to the Superior Court.
1 See generally Commonwealth v. Kuykendall, 2 A.3d 559, 563-64 (Pa.
Super. 2010) (explaining that SIP is a two-year program aimed at treating the
addictions of certain criminal offenders); 61 Pa.C.S. § 4105(b) (setting forth
requirements of SIP program). The program “is a privilege granted at the
discretion of the sentencing court.” Kuykendall, 2 A.3d at 565.


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     in case 2062-2013. On May 5, 2014, [Wagner] pleaded guilty to
     TBUT and EWOC, both misdemeanors of the first degree. The
     court imposed an aggregate sentence of four years’ supervision in
     the [county] Intermediate Punishment (IP) program with the first
     seven months to be served at the Lycoming County Pre-Release
     Center. The court also revoked [Wagner’s] probation under 327-
     2013 and resentenced her to two years’ probation consecutive to
     the sentence imposed in case 2062-2013. The conditions of
     [Wagner’s] supervision included undergoing an assessment at the
     West Branch Drug and Alcohol Commission (West Branch) and
     complying with all recommendations. Furthermore, the court
     advised the appellant that if she did not take advantage of this
     opportunity and she placed her interests above those of her child,
     the court would not hesitate in revoking her sentence and
     imposing a period of state incarceration.

     On May 7, 2015, the appellant took another individual’s debit card
     and used it at Weis Markets to purchase $113.89 in merchandise
     and she attempted to use the card at an ATM . . . On June 9,
     2015, in case 1024-2015, the appellant was charged with access
     device fraud, a misdemeanor of the third degree. On July 20,
     2015, [Wagner] pleaded guilty to this charge and was sentenced
     to 12 months’ probation consecutive to any sentence she was
     presently serving. On that same date, the court found that the
     appellate violated the conditions of her probation and IP program
     in her 2013 cases, but the court did not revoke those sentences.
     Instead, the court directed [Wagner] to attend and successfully
     complete the Re-entry Services Program, attend one meeting
     every day, obtain a sponsor, and follow any recommendation of
     West Branch and her counseling program. The court advised
     [Wagner] if she relapsed again she was at risk not only for county
     incarceration but a 60-day diagnostic evaluation or State
     Intermediate Punishment (SIP) evaluation.

     On May 26, 2016, the court found that [Wagner] violated the
     conditions of her probation and her IP program by: testing
     positive for amphetamines, methamphetamines, and cocaine;
     being discharged from Crossroads counseling; and placing a child
     in danger by driving while drugs or metabolites were in her
     system. [Wagner] admitted that she used cocaine a few days
     prior to May 13, 2016. The court sent [Wagner] to be evaluated
     for the SIP program. On October 4, 2016, the court revoked its
     prior sentences under cases 327-2013, 2062-2013, and 1024-
     2015, and re-sentenced [her] to the SIP program.

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     [Wagner admittedly] violated the conditions of the SIP
     program by committing the crime of escape, and she was
     expelled from the program. [Wagner] also used Suboxone
     without it being prescribed for her. On April 20, 2018, the
     court revoked the SIP sentence and re-sentenced [her] to an
     aggregate sentence of five to ten years’ incarceration in a state
     correctional institution, which consisted of one to two years’
     incarceration for TBUT and a consecutive two to four years’
     incarceration for EWOC in case 2062-2013, as well as a
     consecutive two to four years’ incarceration for TBUT in case 327-
     2013. The sentence in case 1024-2015 was guilt without further
     punishment.

                                   ....

     [T]he court believes [Wagner’s] supervision history justified a
     lengthy state sentence. Despite utilizing every available resource,
     including drug treatment and counseling, probation, the Reentry
     Services program, the county IP program, and the SIP program,
     nothing was successful. [Wagner’s] substance abuse resulting in
     her committing new crimes, which was not only a violation of the
     conditions of her supervision; it also made [her] a danger to
     herself and others.

     When [Wagner] used controlled substances, she not only risked
     overdosing and killing herself, but she endangered her child and
     the public. The court sentenced her to the SIP program because
     she used multiple controlled substances and she endangered her
     child by driving a motor vehicle after using cocaine. This was the
     second time that she had endangered her child by driving after
     using controlled substances. The SIP program was [her] last
     chance. She squandered it by escaping from a half-way house.
     [She] continually sabotaged herself.         Despite escalating
     sanctions and repeated warnings that if her behaviors
     continued she would face a state sentence, [she] continued
     to use controlled substances and commit crimes. For the
     safety of everyone, the court imposed a lengthy state
     sentence.

Trial Court Opinion, at pp. 1-5 (emphases added).

     Wagner filed a boilerplate motion to reconsider her sentence and the

motion was denied.   She timely filed a notice of appeal.    In her Concise

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Statement of Matters Complained of on Appeal (Rule 1925(b) statement),

Wagner asserted as the sole ground that “the trial court abused its discretion

by imposing an unduly harsh and manifestly excessive sentence of an

aggregate of five to ten years at a state correctional institution.”

      In her brief, Wagner argues more specifically that the trial court abused

its discretion when revoking the SIP sentence because there was no evidence

that the SIP program is no longer viable for her. She stresses that she does

not have a violent criminal history; her crimes stemmed from addiction; and

she was making marked progress in the SIP program. Further, Wagner notes

that at the time of the most recent offenses, she had been working a full-

time job, she had regained custody of her child and she had shown remorse

for her past actions.     Wagner asserts that the trial court should have

emphasized her improvement rather than the difficulties she faced in her road

to recovery.    She contends that she should have been granted an SIP

sentence rather than a prison term, which she claims is excessive.

                                       II.

      Wagner’s asserted error concerns the trial court’s exercise of discretion

in imposing an aggregate prison sentence of five to ten years. Issues related

to the discretionary aspects of sentencing do not entitle an appellant to review

as of right, so such a challenge is treated as a petition for allowance of appeal.

See 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 522 A.2d 17

(Pa. 1987); Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super. 2000).


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Discretionary rulings are reviewed under an abuse of discretion standard. See

Commonwealth v. Flowers, 149 A.3d 867 (Pa. Super. 2016).

      To warrant appellate review as to this type of discretionary matter, the

petition for allowance of appeal must satisfy a four-part test: (1) whether the

appellant filed a timely notice of appeal; (2) whether the issue was preserved;

(3) whether the appellant’s brief includes a concise statement of the reasons

relied upon for allowance of appeal; and (4) whether the concise statement in

the brief raises a substantial question that the sentence is appropriate under

the Sentencing Code. See Commonwealth v. Carrillo-Diaz, 64 A.3d 722,

725 (Pa. Super. 2013).

      Here, Wagner has failed the second part of the above test because she

did not specify the grounds of her appeal in her Rule 1925(b) statement or

motion to reconsider the sentence. An appellant must specifically articulate

the reasons the sentencing court’s actions violated the sentencing code. See

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en

banc); Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010). “[A Rule

1925(b)] statement which is too vague to allow the [trial] court to identify the

precise issue raised on appeal is equivalent to no statement at all.”

Commonwealth v. Thompson, 778 A.2d 1215, 1223-24 (Pa. Super. 2001).

The trial court in this case was never apprised of the specific grounds Wagner

asserts on appeal. Her failure to preserve those grounds for appellate review

now precludes relief.


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      Regardless of the lack of preservation, we find no merit in Wagner’s

claim that the trial court abused its discretion in sentencing. Wagner had the

burden of proving that the 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.” See Commonwealth v. Raven, 97 A.3d

1244, 1253 (Pa. Super. 2014). She failed to do so.

      The trial court’s opinion (quoted above nearly in its entirety)

demonstrates thorough consideration of the pertinent sentencing factors and

case facts. The record reflects that Wagner has a long history of drug abuse

and mental illness. She has repeatedly attempted treatment for these issues,

but has continually relapsed, putting herself, her daughter and the public in

danger.

      Wagner now claims that there is no competent evidence that an SIP

sentence would be improper even though she was expelled from the program

as recently as January 2018 when she escaped. At the sentencing, the trial

judge explicitly recognized the potential that Wagner had exhibited during her

years in treatment. However, the trial judge could not reconcile that success

with Wagner’s pattern of relapse. The trial judge explained that a prison term

was Wagner’s best chance at preventing her from further harming herself or

others. There is no dispute that entry into an SIP program is a matter of




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discretion to be exercised by the trial court. See Kuykendall, 2 A.3d at 565.2

Thus, we cannot find that the trial court abused its discretion in revoking the

SIP sentence and imposing an aggregate prison term of five to ten years.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/27/2019




2 Upon expulsion from an SIP program, the trial court “shall revoke” an SIP
sentence, and “the sentencing alternatives available to the court shall be the
same as the alternatives available at the time of the initial sentencing.” 42
Pa.C.S. § 9774(b)-(c).

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