J-S09025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TARA M. ANDERSON                           :
                                               :
                       Appellant               :   No. 1009 WDA 2018

          Appeal from the Judgment of Sentence Entered June 8, 2018
     In the Court of Common Pleas of Venango County Criminal Division at
                       No(s): CP-61-CR-0000297-2014


BEFORE:      PANELLA, P.J., LAZARUS, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                              FILED MARCH 25, 2019

        Tara M. Anderson appeals from her judgment of sentence, entered in

the Court of Common Pleas of Venango County, following the revocation of

both probation and parole on docket number CP-61-CR-0000297-2014

(number 297). On appeal, Anderson challenges the discretionary aspects of

her sentence. After careful review, we affirm.

        On August 14, 2014, Anderson pleaded guilty under docket number 297

to driving under the influence—highest rate of alcohol1 for which she received

two days’ to six months’ incarceration followed by four and one-half years’

probation. On March 14, 2018, Anderson pleaded guilty to possession of drug



____________________________________________


1   75 Pa.C.S.A. § 3802(c).



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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paraphernalia2 on docket number MJ-28303-CR-0000046-2018. As a result,

the Commonwealth petitioned to revoke Anderson’s probation. At Anderson’s

Gagnon II3 hearing on March 22, 2018, she stipulated to directly and

indirectly violating her probation by being arrested in possession of a syringe

which she had used to inject methamphetamine. N.T. Gagnon II Hearing,

3/22/18, at 4. On June 8, 2018, Anderson was re-sentenced to two to five

years’ incarceration. The court found Anderson eligible for the Recidivism Risk

Reduction Initiative (RRRI) program, which, if completed successfully, would

adjust her minimum sentence to eighteen months’ incarceration.4 On June

27, 2018, Anderson filed a timely motion for modification of sentence, which

was denied on July 9, 2018. On July 10, 2018, Anderson filed a notice of

appeal, and thereafter complied with Pa.R.A.P 1925(b).

        Anderson raises the following issue on appeal: “Is the sentence imposed

upon [Anderson] unreasonable, manifestly excessive[,] and thus[,] an abuse

of discretion?” Brief of Appellant, at 9.



____________________________________________


2   35 P.S. § 780-112(a)(32).

3 In a Gagnon II hearing, the court renders a final decision as to whether to
revoke probation or parole. Gagnon v. Scarpelli, 411 U.S. 788 (1973).

4 RRRI enables eligible, non-violent offenders to reduce their minimum
sentences if they complete recommended programs and maintain good
conduct. See 61 Pa.C.S.A. §§ 4501–4512. Under the RRRI program, the
minimum sentence is reduced to three-fourths of the original minimum
sentence if that sentence is for fewer than three years. 61 Pa.C.S.A. §
4505(c)(2).

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      Anderson’s sole claim challenges the discretionary aspects of her

sentence. There is no absolute right to appellate review of the discretionary

aspects of sentencing. Rather, an 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
      [S]entencing [C]ode. . . . [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, Anderson preserved her claim by filing a post-sentence motion

and a timely notice of appeal. Additionally, her brief contains a statement of

reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f).

Accordingly, we must determine whether Anderson raises a substantial

question for our review.




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      “[W]e cannot look beyond the statement of questions presented and the

prefatory [Rule] 2119(f) statement to determine whether a substantial

question exists.” Commonwealth v. Christine, 81 A.3d 1, 10 (Pa. Super.

2013) (citation and quotation omitted).      In her Rule 2119(f) statement,

Anderson argues “the sentence imposed was unreasonably harsh and

manifestly excessive” and states she “believes the sentencing court did not

adequately consider the evidence presented at the sentencing hearing.” Brief

of Appellant, at 15.

      Anderson’s claim fails to raise a substantial question. It is well-settled

that an appellant must articulate the specific manner in which the sentencing

court’s actions violated the sentencing code. Commonwealth v. Malovich,

903 A.2d 1247, 1252 (Pa. Super. 2006). Bald assertions of sentencing error

will not suffice. Id. Moreover, “[t]his Court has held on numerous occasions

that a claim of inadequate consideration of mitigating factors does not raise a

substantial question for our review.” Commonwealth v. Radecki, 180 A.3d

441, 469 (Pa. Super. 2018) (citations omitted).       Accordingly, Anderson’s

claim fails.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

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Date: 3/25/2019




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