J-S73024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    KEIRA ELOUISE BLUNT                        :
                                               :
                      Appellant                :    No. 730 MDA 2017

              Appeal from the Judgment of Sentence April 11, 2017
    In the Court of Common Pleas of Berks County Criminal Division at No(s):
                           CP-06-CR-0004400-2014,
                            CP-06-CR-0004402-2014


BEFORE:      OLSON, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY DUBOW, J.:                                    FILED MARCH 27, 2018

        Appellant, Keira Elouise Blunt, appeals from the April 11, 2017

Judgment of Sentence entered following the revocation of her parole. After

careful review, we affirm.

        On June 27, 2016, Appellant entered a guilty plea at two separate

docket    numbers      to   Possession    With     Intent   to   Deliver   a   Controlled

Substance.1 The court sentenced Appellant to two concurrent terms of 165

days’ to 23 months’ incarceration, followed by one year of probation.2

____________________________________________


1   35 Pa.C.S. §780-113(a)(30).

2 The Sentencing Orders at each docket number are comprised of two parts:
“Part 1” and “Part 2.” At Part 1, the court sentenced Appellant to a term of
incarceration. At Part 2, the court sentenced Appellant to a one-year
probationary term.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        While on parole supervision by the Berks County Adult Probation &

Parole Office, Appellant violated a technical provision of her supervision by

possessing and using drugs or drug paraphernalia. On April 11, 2017, the

court held a parole revocation hearing. At the hearing, Appellant admitted

to violating the conditions of her parole, and asked the court if she could

“just max [her] whole sentence out and get this over and done with?

Because I don’t want to keep coming here.”         N.T., 4/11/17, at 6-7.   The

court attempted to clarify Appellant’s statement, to which she retorted,

“[j]ust max this out.” Id. at 7.

        Following the hearing, the court revoked Appellant’s parole and

probation and resentenced Appellant at each docket number to serve the

remainder of the maximum sentence originally imposed at Part 1 plus an

additional sentence of 18 to 36 months’ incarceration at Part 2.

        Appellant filed a timely Post-Sentence Motion in which she challenged

the discretionary aspects of her sentence. The trial court denied the Motion

on April 21, 2017, in part, and granted the Motion in part to indicate

Appellant’s boot camp eligibility. This timely appeal followed.3

        Appellant raises the following issue for our review:

        Whether the [s]entencing [c]ourt erred and abused its discretion
        in sentencing Appellant to no less than 18 nor more than 36
        months to the Bureau of Corrections for confinement in a State
        Correctional Facility on Part 2 of two dockets, to run
____________________________________________


3   Appellant and the trial court complied with Pa.R.A.P. 1925.



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      consecutively with each other and consecutive to Appellant’s
      parole revocation, when such sentence of total confinement is
      manifestly excessive, clearly unreasonable, and contrary to the
      fundamental norms underlying the Sentencing Code given the
      circumstances of the case, namely, the technical nature of the
      violations involved, the recommendation of the Berks County
      Adult Probation Office (APO), and Appellant’s amenability
      towards and recognition of the need for treatment outside of
      traditional rehab[?]

Appellant’s Brief at 11.

      “Generally, in reviewing an appeal from a judgment of sentence

imposed after the revocation of probation, this Court’s scope of review

includes the validity of the hearing, the legality of the final sentence, and if

properly raised, the discretionary aspects of the appellant’s sentence.”

Commonwealth v. Kuykendall, 2 A.3d 559, 563 (Pa. Super. 2010) (citing

Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006)).

      Appellant claims on appeal that her revocation sentence is excessive in

light of the technical nature of her violations and her “obvious need for

substance abuse treatment.” Appellant’s Brief at 20. See also id. at 22.

She argues that the court ignored the contrition that she expressed at her

sentencing hearing and her acknowledgement of her addiction, both of which

indicate that she is amenable to further rehabilitative treatment. Id. at 23.

Appellant also alleges that the court failed to comply with 42 Pa.C.S. §




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9721(b) when it did not provide reasons on the record for its sentencing

decision.4 Id.

        Appellant’s issue challenges the discretionary aspects of her sentence.

Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa. Super. 2008)

(recognizing that a claim that a sentence was excessive is treated as a

challenge    to   the    discretionary    aspects    of   sentencing).   See   also

Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super. 2009) (“The

failure to set forth adequate reasons for the sentence imposed has been held

to raise a substantial question.”) (citation omitted). However, “[w]here an

appellant challenges the discretionary aspects of a sentence . . . there is no

automatic right to appeal, and an appellant's appeal should be considered a

petition for allowance of appeal.”             Commonwealth v. W.H.M., Jr., 932

A.2d 155, 163 (Pa. Super. 2007).

        To reach the merits of a discretionary issue, this Court must determine

whether: (1) the appellant preserved the issue either by raising it at the

time of sentencing or in a post-sentence motion; (2) the appellant filed a

timely notice of appeal; (3) the appellant set forth a concise statement of
____________________________________________


4   Section 9721(b) of the Sentencing Code provides, in relevant part:

        In every case in which the court imposes a sentence for a felony
        or misdemeanor … the court shall make as a part of the record,
        and disclose in open court at the time of sentencing, a statement
        of the reason or reasons for the sentence imposed.

42 Pa.C.S. § 9721(b).



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reasons relied upon for the allowance of his appeal pursuant to Pa.R.A.P.

2119(f); and (4) the appellant raises a substantial question for our review.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)

(citation and footnotes omitted).

      In the instant case, Appellant filed a timely Notice of Appeal, and

timely Post-Sentence Motion.        She also included a separate Pa.R.A.P.

2119(f) Statement in her Brief.     As to whether Appellant has presented a

substantial question, we must examine the specific sentencing issues she

has raised.

      The determination of whether there is a substantial question is made

on a case-by-case basis, and this Court will grant the appeal 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. Commonwealth v. Sierra, 752 A.2d 910, 912-13 (Pa.

Super. 2000).

      In her Rule 2119(f) Statement, Appellant alleges that her sentence of

total confinement is manifestly excessive because her probation violations

were merely technical, she is in need of substance abuse treatment, the

court did not adequately consider the sentencing factors provided in Section

9721(b) of the Sentencing Code, the court failed to articulate on the record




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its reasons for imposing this particular sentence, and the court’s sentence

was motivated by a desire to punish Appellant. Appellant’s Brief at 17.

      We previously have held that the question of whether a court should

impose a sentence of total confinement upon a technical violation of

probation     implicates   the    fundamental      norms     of    sentencing.

Commonwealth v. Crump, 995 A.2d 1280, 1282; see also Sierra, 752

A.2d at 913 (“On appeal from a revocation proceeding, we find a substantial

question is presented when a sentence of total confinement, in excess of the

original sentence, is imposed as a result of a technical violation of parole or

probation. Such a sentence must be examined in light of section 9771(c).”).

Thus, Appellant has raised a substantial question. We proceed to the merits

of Appellant’s claim.

      We review a claim that a revocation sentence is excessive with the

following in mind:

         The imposition of a sentence following the revocation of
         probation is vested within the sound discretion of the trial
         court, which, absent an abuse of that discretion, will not be
         disturbed on appeal. An abuse of discretion is more than
         an error in judgment—a sentencing court has not abused
         its discretion unless the record discloses that the judgment
         exercised was manifestly unreasonable, or the result of
         partiality, prejudice, bias or ill-will.

Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014) (citation

omitted).   When imposing a sentence of incarceration after revocation of

probation, the sentencing court “is limited only by the maximum sentence




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that it could have imposed originally at the time of the probationary

sentence.” Id. at 1044 (citation omitted).

     The same abuse of discretion standard applies in reviewing a challenge

to the discretionary aspects of sentencing. Commonwealth v. Dodge, 77

A.3d 1263, 1274 (Pa. Super. 2013). “Additionally, this Court’s review of the

discretionary aspects of a sentence is confined by the statutory mandates of

42 Pa.C.S. § 9781(c) and (d).”     Id. (citation omitted).   Section 9781(c)

provides:

        (c) Determination on appeal.—The appellate court shall
        vacate the sentence and remand the case to the
        sentencing court with instructions if it finds:

            (1) the sentencing court purported to sentence
            within the sentencing guidelines but applied the
            guidelines erroneously;

            (2) the sentencing court sentenced within the
            sentencing guidelines but the case involves
            circumstances where the application of the guidelines
            would be clearly unreasonable; or

            (3) the sentencing court sentenced outside the
            sentencing   guidelines and  the  sentence   is
            unreasonable.

        In all other cases the appellate court shall affirm the
        sentence imposed by the sentencing court.

42 Pa.C.S. § 9781(c)(1-3).

     In reviewing the record, we consider:

        (1) The nature and circumstances of the offense and the
        history and characteristics of the defendant.




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         (2) The opportunity of the sentencing court to observe the
         defendant, including any presentence investigation.

         (3) The findings upon which the sentence was based.

         (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

      Although Section 9721(b) requires the court to make a statement of

the reasons for the sentence imposed following revocation, the reasons

“need not be as elaborate as that which is required at the initial sentencing.”

Commonwealth v. Pasture, 107 A.3d 21, 28 (Pa. Super. 2014).

      Appellant argues that her sentence of total confinement is excessive

because her violation was merely technical and because she needs

substance abuse treatment.      Appellant’s Brief at 20, 22.     She also argues

that she   has demonstrated her        amenability     to   further   rehabilitative

treatment. Id. at 23. Last, Appellant alleges that the court failed to comply

with 42 Pa.C.S. § 9721(b) when it did not provide reasons on the record for

its sentencing decision. Appellant’s Brief at 22-23.

      The trial court explained its sentence as follows:

      [T]he record is clear that the court appropriately considered,
      though briefly, the facts and circumstances of this case. We
      found that Appellant’s excuses for not attending rehab to be
      nonsense, which clearly evinces future non-compliance with
      probation or parole.     Additionally, we put great weight in
      Appellant’s statements. . . . A [c]ourt can hardly be considered
      to have abused its discretion when the sentence imposed
      matches the request of Appellant.

Trial Ct. Op., 6/23/17, at 3.


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      Our review of the sentencing transcript indicates that, contrary to

Appellant’s averment, in fashioning Appellant’s revocation sentence, the

court explicitly noted that it had considered (1) Appellant’s admission that

she violated the terms of her supervision; (2) the recommendations of

Appellant’s parole supervisor; (3) Appellant’s prior efforts at completing

substance abuse treatment programs, the excuses she gave for not being

successful in those programs, and her desire to participate in a different

program; and (4) Appellant’s request to “max [her] whole sentence out.”

N.T. Sentencing, 4/11/17.

      The record is devoid of any indication that the trial court exercised

judgment that was “manifestly unreasonable, or the result of partiality,

prejudice, bias[,] or ill-will” Colon, supra at 1043. We, thus, conclude that

the trial court did not abuse its discretion in imposing Appellant’s sentence of

confinement for violating the conditions of her probation.

      Judgment of Sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/27/2018




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