J-S75020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             IN THE SUPERIOR COURT OF
                                               PENNSYLVANIA
                      Appellee

                 v.

LARAINE ROTHWELL

                      Appellant               No. 112 EDA 2016


       Appeal from the Judgment of Sentence December 7, 2015
          In the Court of Common Pleas of Delaware County
         Criminal Division at No(s): CP-23-CR-0007523-2013


COMMONWEALTH OF PENNSYLVANIA             IN THE SUPERIOR COURT OF
                                               PENNSYLVANIA
                      Appellee

                 v.

LA’RAINE LYNITE ROTHWELL

                      Appellant               No. 113 EDA 2016


       Appeal from the Judgment of Sentence December 7, 2015
          In the Court of Common Pleas of Delaware County
         Criminal Division at No(s): CP-23-CR-0005252-2011


BEFORE: BOWES, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                 FILED OCTOBER 12, 2016

     La’Raine Rothwell appeals from the December 7, 2015 judgment of

sentence entered in the Court of Common Pleas of Delaware County
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following a violation of her intermediate punishment.1 We affirm.

       On March 6, 2008, when Rothwell was arrested on charges of retail

theft,2 she already possessed a lengthy criminal history that included seven

retail theft convictions. She pled guilty and the trial court sentenced her to

imprisonment followed by probation.

       On June 28, 2011, Rothwell was again arrested on charges of retail

theft as well as resisting arrest.3            She pled guilty and the trial court

sentenced her to 3 to 23 months’ imprisonment followed by 2 years’

probation.

       On October 26, 2013, Rothwell was arrested on charges of robbery,4

simple assault,5 retail theft, and receiving stolen property.6       On March 13,

2014, the trial court sentenced Rothwell to 24 months’ county intermediate

punishment7 with the condition that she stay away from J.C. Penney and

____________________________________________


       1
      The sentences were imposed at two docket numbers: CP-23-CR-
0007523-2013 and CP-23-CR-0005252-2011.
       2
           18 Pa.C.S. § 3929(a)(1).
       3
           18 Pa.C.S. § 5104.
       4
           18 Pa.C.S. § 3701(a)(1)(iv).
       5
           18 Pa.C.S. § 2701(a)(1).
       6
           18 Pa.C.S. § 3925(a)(1).
       7
        See 42 Pa.C.S. § 9804 (authorizing and describing county
intermediate punishment programs).



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enter a mental health treatment program. On that same date, the trial court

found her in violation of her probation on the 2008 and 2011 charges. The

trial court sentenced Rothwell to a new term on both dockets: one year of

probation for the 2008 charges and two years’ probation for the 2011

charges, to run concurrently with the sentence imposed for the 2013

charges.

       Rothwell failed to comply with the conditions of her intermediate

punishment. The trial court described Rothwell’s actions during the following

months as follows:

            [Rothwell] failed to participate in education, treatment and
            rehabilitation programs. She did not cooperate with her
            therapist.    After testing positive for cocaine, she was
            ordered to attend meetings but failed to do so. She was
            hostile and resistant to treatment. She used her cell
            phone during group sessions.         She continued to test
            positive for cocaine. She twice obtained prescriptions for
            Tylenol with codeine and once for Percocet despite the fact
            the she was not permitted to take any narcotics. She
            agreed to bring the Percocet pills to the Probation
            Department but failed to do so, claiming that her sister
            had flushed them down the toilet.

1925(a) Op. at 2.

       On November 24, 2015, the trial court held a Gagnon II8 hearing

and, after considering all of the evidence and recommendations, found

Rothwell in violation of her intermediate punishment. For the 2011 charges,

____________________________________________


       8
           Gagnon v. Scarpelli, 411 U.S. 778 (1973).




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the trial court sentenced Rothwell to 24 to 84 months’ imprisonment. For

the 2013 charges, it sentenced her to an additional 1 to 2 years’

imprisonment, to be served consecutively.9

       After Rothwell’s petitions for reconsideration were denied, she filed a

timely notice of appeal.         Both Rothwell and the trial court complied with

Pennsylvania Rule of Appellate Procedure 1925.                Rothwell raises the

following issue on appeal:

            Whether the sentences handed down in these matters per
            the orders of December 7, 2015 were harsh and excessive
            under the circumstances since the record is abundantly
            clear that a probationary period was a viable alternative to
            the actual term of imprisonment imposed.

Appellant’s Br. at 7.

       Rothwell     challenges    the   discretionary   aspects   of   her   sentence.

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super. 2011).         Before we address a discretionary challenge, 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; and (4) whether the concise
            statement raises a substantial question that the sentence
            is appropriate under the sentencing code.”

____________________________________________


       9
           The trial court issued its final sentencing order on December 7, 2015.



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Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006));

see also Allen, 24 A.3d at 1064.

      Rothwell filed a timely notice of appeal, preserved her claim in a timely

post-sentence motion, and included in her brief a concise statement of

reasons relied upon for allowance of appeal pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f).     We must now determine whether she has

raised a substantial question that the sentence is inappropriate under the

sentencing code and, if so, review the merits.

      We evaluate whether a particular issue raises a substantial question on

a case-by-case basis.    Commonwealth v. Dunphy, 20 A.3d 1215, 1220

(Pa.Super. 2011). A substantial question exists where a defendant raises a

“plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa.Super. 2013) (citation

and internal quotation omitted). “[C]laims that a penalty is excessive and/or

disproportionate   to   the   offense   can   raise   substantial   questions.”

Commonwealth v. Malovich, 903 A.2d at 1247, 1253 (Pa.Super. 2006).

Moreover, “a claim that a particular probation revocation sentence is

excessive in light of its underlying technical violations can present a question

that we should review.” Id.




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       Rothwell maintains that her sentence was harsh and excessive under

the circumstances.       She claims that the trial court (1) imposed a term of

total confinement without properly assessing the criteria set forth in 42

Pa.C.S. § 9725, and (2) sentenced Rothwell to a term that was inconsistent

with the punishment necessary to protect the public and to meet her

rehabilitative needs. Appellant’s Br. at 10. These claims raise a substantial

question.      See Commonwealth v. Cartrette, 83 A.3d 1030, 1042

(Pa.Super. 2013) (“In his 2119(f) statement, Appellant argues that the trial

court’s sentence is not consistent with the gravity of his violation, the need

for public protection, or his needs for rehabilitation. . . . [W]e find this

argument raises a substantial question.”).10         Because Rothwell’s concise

statement raises a substantial question, we will address the merits of her

claim.

       “Sentencing is a matter vested within the discretion of the trial court

and will not       be   disturbed absent       a manifest abuse   of discretion.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010).                 “An

abuse of discretion requires the trial court to have acted with manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
____________________________________________


       10
         In addition, Rothwell raises a substantial question because the trial
court sentenced her to total confinement following technical violations of
probation. Appellant’s Br. at 8; see Commonwealth v. Colon, 102 A.3d
1033, 1043 (Pa.Super. 2014) (“Appellant’s claim that the trial court
sentenced him to a term of total confinement based solely on a technical
violation raises a substantial question for our review.”).



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support so as to be clearly erroneous.” Id. “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.

      Rothwell argues that the trial judge’s “discretion to incarcerate

[Rothwell] was limited by       the   standards codified in     section 9725.”

Appellant’s Br. at 17. She contends that the trial court erred because there

was an alternative treatment available to address her rehabilitative needs

and that the sentence of 3 to 9 years’ imprisonment was excessive. We

disagree.

      A review of the record shows that the trial court appropriately

considered “the protection of the public, [the] gravity of offense in relation

to impact on victim and community, and [Rothwell’s] rehabilitative needs.”

42 Pa.C.S. § 9721(b). In doing so, the trial court noted:

         [Rothwell] is guilty of repeated flagrant violations that . . .
         evidence a resistance to reform. She is afflicted with
         mental illness, but she refuses to take appropriate steps to
         combat her drug addiction, which only exacerbates her
         mental illness. She either cannot or will not stay clear of
         intoxicating substances. She repeatedly tested positive for
         cocaine. She obtained prescription medications and then
         refused to surrender them. She refused to participate in
         group counseling and a 12-step program. She declined to
         cooperate with a drug counselor. Each time she returned
         to court, she asked for another chance, and she promised
         to obey.




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            Faced with a string of empty promises, this Court had no
            option other than to place her in prison, where she will
            have diminished access to recreational drugs and where
            the authorities can prevail upon her at every turn to at
            least attend meetings and counseling sessions. They can
            lead her to water; whether or not she actually takes a
            drink from the well of recovery is in her own hands. The
            current regimen is doing her no good. A prison sentence
            can only drive home the urgency of her situation and the
            necessity of becoming clean and sober.

1925(a) Op. at 5.11

       The trial court did not abuse its discretion in imposing the 3-to-9-year

sentence.     Although inpatient treatment was an alternative, the trial court

was not required to sentence Rothwell to such treatment.12 “The sentencing


____________________________________________


       11
         In her brief, Rothwell admits that she “clearly failed to embrace the
multiple opportunities she was presented” and that she could not “argue that
revocation from her intermediate punishment sentence was not warranted.”
Appellant’s Br. at 17.
       12
        In addition, the trial court did not err in imposing a term of total
confinement following Rothwell’s technical violation. Section 9771(c) states:

            The court shall not impose a sentence of total confinement
            upon revocation unless it finds that:

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

42 Pa.C.S. § 9771(c). The trial court found that such a sentence was
essential to vindicate the authority of the court, because it had to “ensure
that the rules have some meaning” and if it did not impose this sentence
“defendants and others so inclined [would] believe that the Probation
(Footnote Continued Next Page)


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court was in the best position to evaluate [Rothwell’s] character and [her]

defiance or indifference.” Malovich, 903 A.2d at 1254. As noted above, the

trial court found that Rothwell repeatedly violated the terms of her

probation. In addition, Rothwell “demonstrated a complete lack of interest

in rehabilitation.” 1925(a) Op. at 6. She tested positive multiple times for

cocaine; failed to appear for or participate in meetings; would obtain

prescription narcotics from other sources when she was not allowed to take

those substances; displayed a disrespectful attitude toward her therapists;

and used her cell phone during meetings. Id. at 2-3.

      The trial court further found that Rothwell had violated the terms of

her probation on multiple occasions, that such violations indicated an

inability to reform, and that Rothwell failed to avail herself of the

opportunities presented to her.             The trial court found that a term of

imprisonment was the best avenue to address Rothwell’s drug addiction,

noting that she required something “less voluntary” than the treatment she

received at the Mental Health Court. 1925(a) Op. at 3. It further noted that

the prison provides drug and alcohol treatment and that Rothwell would be

able to move to a halfway house after completing her term. The sentence

imposed by the trial court was appropriate considering Rothwell’s history.

      Judgment of sentence affirmed.
                       _______________________
(Footnote Continued)

Department’s rules are meaningless and are meant to be broken.” 1925(a)
Op. at 5. This was not an abuse of discretion.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2016




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