J-S12003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KAITLYN JOANNE MANGONE

                            Appellant                  No. 2474 EDA 2015


             Appeal from the Judgment of Sentence June 26, 2015
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0002546-2014

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

MEMORANDUM BY MUNDY, J.:                              FILED MARCH 04, 2016

        Appellant, Kaitlyn Joanne Mangone, appeals from the June 26, 2015

aggregate judgment of sentence of one to two years’ imprisonment, followed

by three years’ probation, imposed following the revocation of her prior

probation sentence. After careful review, we affirm.

        The trial court set forth the facts and procedural history of his case as

follows.

                    [Appellant] was originally arrested for offenses
              committed on June 3, 2014.           [Appellant] was
              charged with Aggravated Assault, 18 Pa.C.S.A.
              § 2702(a)(2),    Simple    Assault,    18    Pa.C.S.A.
              § [2701](a)(1), Harassment—Subject          Other   to
              Physical Contact, 18 Pa.C.S.A. § 2709(a)(1), Public
              Drunkenness and Similar Misconduct, 18 Pa.C.S.A.
              § 5505, and Aggravated Assault, 18 Pa.C.S.A.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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              § 2702(a)(3). On August 29, 2014, [Appellant] …
              pled guilty to Aggravated Assault, 18 Pa.C.S.A.
              § 2702(a)(3).     In return, the Commonwealth
              withdrew the other four charges.

                   [That same day], [Appellant] was sentenced to
              a period of incarceration for a minimum of three
              months to a maximum of six months and a period of
              supervision for a maximum of twelve months.
              [Appellant] was also given credit for her time served
              and ordered to pay court costs and fines totaling
              $1,475.69.

                     [Appellant’s] Petition for Parole was approved
              on October 8, 2014 and became effective on October
              9, 2014.      [Appellant] was released on parole.
              Northampton County Probation Department filed a
              Petition for Review of [Appellant’s] parole on
              December 26, 2014 after [Appellant] received a new
              charge.    A Gagnon II[1] hearing was held on
              February 13, 2015 as a result of the new charge and
              technical violations. As a result, [Appellant] was
              found a willful violator of her supervision and a strict
              compliance order was entered.          [Appellant] was
              released from Northampton County Prison following
              the Gagnon II hearing.

                     Another Gagnon II hearing was held on June
              26, 2015 in regard to [Appellant’s] technical
              violations of supervision since being released after
              the first Gagnon II hearing. [Appellant’s] Probation
              Officer, Christiana Buniak [], testified at the June 26,
              2015 Gagnon II hearing.           Buniak stated that
              [Appellant’s] technical violations included: failing to
              report as directed, failing to enroll in treatment,
              failing to submit to random urine screens, failing to
              comply with mental health treatment, failing to
              provide a verifiable address, and failing to make
              payments, as [Appellant] still owes $1,435.69.

____________________________________________


1
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).



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                 Specifically, after [Appellant] was released on
          February 13, 2015, [Appellant] failed to report to
          Buniak’s office until April 9, 2015. When [Appellant]
          finally reported to Buniak on April 9, 2015, [she]
          tested positive for heroin, methamphetamine, and
          marijuana and admitted to drinking alcohol.
          [Appellant] was advised to immediately get a Drug
          and Alcohol Evaluation, and she did so on April 16,
          2015.        The     Drug    and   Alcohol   Evaluation
          recommended intensive outpatient treatment, but
          [Appellant] never enrolled in treatment and missed
          three appointments in connection with the
          evaluation’s recommendation for intensive outpatient
          treatment. Moreover, on April 23, 2015, [Appellant]
          was given notice of a Gagnon I hearing to be held
          on May 7, 2015.               [Appellant] missed her
          appointment with Buniak on May 6, 2015 and did not
          appear for the Gagnon I hearing on May 7, 2015.
          As a result of her failure to appear, a bench warrant
          was issued and [Appellant] was subsequently picked
          up on the bench warrant.

                Buniak also recommended that [Appellant] be
          sentenced to a state correctional facility. Buniak
          reasoned that due to [Appellant’s] “mental health
          and drug issues … the State system would be able to
          help her out a little bit more.” Further, Buniak
          stated that [Appellant’s] maximum date of
          supervision remained December 4, 2015.

                 At the June 26, 2015 Gagnon II hearing,
          [Appellant] stated that she was approximately
          sixteen weeks pregnant and was interested in
          pursuing intensive outpatient or inpatient treatment.
          When asked why she did not go to treatment
          following her April 2015 Drug and Alcohol Evaluation
          or prior to the evaluation, [Appellant] responded that
          she had just discovered her pregnancy and
          consequently, she stated, “I wasn’t in my right state
          of mind.      I didn’t know how to … handle the
          situation. I was very upset, and I just kind of
          blocked out the whole world.”         [Appellant] also
          indicated that she is currently treated for post-
          traumatic stress disorder and bipolar disorder.

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              Additionally, [Appellant] testified that she has not
              used drugs since finding out she was pregnant.

                      Following the June 26, 2015 Gagnon II
              hearing testimony, the [trial court] revoked
              [Appellant’s] probation and resentenced [Appellant]
              to a period of incarceration in a state correctional
              facility for a minimum of twelve months to a
              maximum of twenty-four months, followed by a
              period of State supervision of thirty-six months.

Trial Court Opinion, 10/1/15, at 1-4 (citations omitted).       On July 1, 2015,

Appellant timely filed a motion for reconsideration of sentence, which the

trial court did not act on. See generally Pa.R.Crim.P. 708(E). Thereafter,

on July 24, 2015, Appellant timely filed a notice of appeal.2

       On appeal, Appellant presents the following issue for our review.

              Did the trial court commit a clear abuse of discretion,
              a fundamental error in applying the correct law, or a
              violation of Constitutional rights and impose a
              sentence which is manifestly excessive; or the result
              of actions by the sentencing court was inconsistent
              with the Sentencing Code or contrary to the
              fundamental norms underlying the sentencing
              process; or the judgment is so manifestly
              unreasonable or the result of partial[it]y, prejudice,
              bias or ill will as shown by the evidence of record
              that it cannot stand by virtue of failing to consider
              the mitigating evidence presented by [Appellant?]

Appellant’s Brief at 5.

       We review a trial court’s sentence imposed following the revocation of

probation for an error of law or an abuse of discretion. Commonwealth v.
____________________________________________


2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014), appeal denied, 109 A.3d

678 (Pa. 2015). “[Our] scope of review in an appeal from a revocation of

sentencing includes discretionary sentencing challenges.” Commonwealth

v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc). “An abuse

of discretion is not merely an error of judgment, but if in reaching a

conclusion the law is overridden or misapplied or the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will,

as   shown      by   the   evidence   or    the   record,   discretion   is   abused.”

Commonwealth v. Burns, 988 A.2d 684, 689 (Pa. Super. 2009) (en banc)

(citation omitted), appeal denied, 8 A.3d 341 (Pa. 2010).

      Appellant does not dispute that she violated her probation. Instead,

she claims that the trial court abused its discretion when it revoked her

probation and sentenced her to one to two years’ imprisonment, followed by

three years’ probation.      Appellant’s Brief at 11-12.      This challenge to the

discretionary aspects of a sentence is not appealable as of right.             Colon,

supra at 1042.        Instead, an appellant must petition for permission to

appeal.   Id.    We evaluate the following factors to determine whether to

grant permission to appeal a discretionary aspect of sentencing.

             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 his 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 [as required by
             Rule 2119(f) of the Pennsylvania Rules of Appellate

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           Procedure]; and (4) whether the concise statement
           raises a substantial question that the sentence is
           appropriate under the sentencing code. The third
           and fourth of these requirements arise because
           Appellant’s attack on his sentence is not an appeal
           as of right. Rather, he must petition this Court, in
           his [Rule 2119(f)] concise statement of reasons, to
           grant consideration of his appeal on the grounds that
           there is a substantial question.      [I]f the appeal
           satisfies each of these four requirements, we will
           then proceed to decide the substantive merits of the
           case.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013). Further, “[i]f a

defendant fails to include an issue in his [or her] Rule 2119(f) statement,

and the Commonwealth objects, then the issue is waived and this Court may

not review the claim.” Commonwealth v. Karns, 50 A.3d 158, 166 (Pa.

Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013).

     Here, Appellant filed a timely notice of appeal and preserved her

discretionary sentencing challenges in her timely post-sentence motion and

Rule 1925(b) concise statement. However, Appellant’s brief did not include

a separate Rule 2119(f) concise statement of the reasons relied upon for

allowance of appeal. Moreover, the Commonwealth, in its brief, objected to

Appellant’s failure to include a Rule 2119(f) statement in her brief.

Commonwealth’s Brief at 6.        Consequently, we are precluded from

addressing the discretionary aspects claim. See Edwards, supra; Karns,

supra.




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     Based on the foregoing, we conclude Appellant did not preserve her

sole issue on appeal. Accordingly, we affirm the trial court’s June 26, 2015

judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2016




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