J-A09026-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MELISSA SARVEY F/K/A MELISSA               :
    CIELESKI                                   :
                                               :   No. 1358 WDA 2019
                       Appellant               :

         Appeal from the Judgment of Sentence Entered August 7, 2019
     In the Court of Common Pleas of Jefferson County Criminal Division at
                       No(s): CP-33-CR-0000014-2012

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MELISSA SARVEY F/K/A MELISSA               :
    CIELESKI                                   :
                                               :   No. 1359 WDA 2019
                       Appellant               :

         Appeal from the Judgment of Sentence Entered August 7, 2019
     In the Court of Common Pleas of Jefferson County Criminal Division at
                       No(s): CP-33-CR-0000605-2007


BEFORE:      SHOGAN, J., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY MURRAY, J.:                                  FILED MAY 27, 2020

        Melissa Sarvey (Appellant) appeals from the judgment of sentence

entered following remand by this Court for resentencing.           Because we




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A09026-20



conclude that the trial court abused its discretion in resentencing Appellant,

we vacate the judgment of sentence and remand for resentencing.

      A prior panel of this Court summarized the facts and procedural history:

             On July 26, 2011, while Appellant was incarcerated at the
      Jefferson County Correctional Facility, she attempted to deliver
      one-half of a tablet of Oxycodone and one tablet of Zolpidem
      (Ambien) to another inmate. The incident was recorded on video.
      Appellant hid the pills under a commissary form and slid them
      under her cell door toward another inmate’s cell. A corrections
      officer noticed the papers being pushed underneath Appellant’s
      cell door and attempted to pick them up. Appellant refused to
      release the papers, and after a struggle, the officer was able to
      take the papers away from Appellant. The officer handed the
      commissary form back to Appellant, and as the officer walked
      away, she noticed a baggie containing two pills in the place where
      the paper had been. The officer confiscated the baggie[.] . . .
      Appellant was ultimately charged with two counts of [possession
      with the intent to deliver (PWID)], two counts of possession by an
      inmate, two counts of controlled substance to prison, and two
      counts of criminal attempt.

            On April 16, 2012, a jury found Appellant guilty on all
      charges. On May 17, 2012, the trial court sentenced Appellant to
      consecutive terms of incarceration of one to three years for one
      PWID count and one and one-half years to three years for the
      second PWID count. The court further imposed consecutive terms
      of incarceration of one and one-half years to three years for each
      count of possession by an inmate, and a term of incarceration of
      two to five years for each count of controlled substance to prison.
      Finding that the criminal attempt convictions merged with the
      controlled substance to prison convictions, the sentencing court
      did not impose a sentence for the criminal attempt convictions.
      The trial court also revoked Appellant’s probation on a single count
      of hindering apprehension at Docket CP-33-CR-605-2007 and
      sentenced her to an additional term of confinement of one to two
      years. Finally, the trial court revoked Appellant’s probation at
      Dockets CP-33-CR-662-2008, CP-33-CR-387-2008, and CP-33-
      CR-388-2008, and resentenced Appellant to five years of
      probation at each docket, running concurrent to each other.
      Appellant’s total period of incarceration was ten and one-half to

                                     -2-
J-A09026-20


      twenty-four years of incarceration followed by five years of
      probation.

            Appellant filed a timely direct appeal, arguing that the trial
      court erred when it allowed the Commonwealth to amend the
      charges immediately before trial. On direct appeal, she argued
      that the amendment did not allow her sufficient time to adjust her
      defense strategy and subjected her to mandatory minimum
      sentences that increased the severity of her penalty. This Court
      found that Appellant’s appeal was without merit because the new
      charges did not arise from different facts nor would they have
      required her to alter her trial or defense strategy; thus, she was
      not prejudiced by the amendment. See Commonwealth v.
      Sarvey, 68 A.3d 368, 968 WDA 2012 (Pa. Super. Filed February
      21, 2013 (unpublished memorandum)[].             Appellant sought
      Supreme Court review, which was denied on September 14, 2013.
      Commonwealth v. Sarvey, 621 Pa. 672, 74 A.3d 1031 (Pa.
      2013).

             Appellant sought timely collateral review, and the PCRA
      court appointed counsel. Counsel filed a no merit letter/petition
      to withdraw as counsel pursuant to Commonwealth v. Turner,
      518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v.
      Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988) (en banc), on
      February 14, 2014. After receiving notice of the PCRA court’s
      intent to dismiss the PCRA petition without a hearing, Appellant
      sent the court a letter in which she stated she wanted to continue
      the appeal. Ultimately, and after a convoluted path and a change
      of counsel, this Court directed the PCRA court to order Appellant
      to file an amended PCRA petition within thirty days from the date
      of our memorandum. Appellant filed her timely amended petition,
      and following an extensive hearing, the PCRA court denied her
      petition.

Commonwealth v. Sarvey, 199 A.3d 436, 443-44 (Pa. Super. 2018)

(citations to notes of testimony omitted).

      On appeal from the PCRA court’s denial of her petition, Appellant raised

multiple issues, including an ineffective assistance of counsel claim averring




                                     -3-
J-A09026-20



that her trial counsel “fail[ed] to raise on appeal the discretionary aspects of

the lower court’s sentence.” Sarvey, 199 A.3d at 445.

       Agreeing with Appellant that her underlying discretionary sentencing

claim had merit, a panel of this Court held that “Appellant’s sentence of over

ten years of incarceration for attempt[ing] to pass one and one-half pills . . .

was    unduly    harsh    and    clearly   unreasonable   given   the   nature   and

circumstances of the offenses.” Sarvey, 199 A.3d at 456-57. We reversed

the order of the PCRA court, vacated Appellant’s judgment of sentence, and

remanded her case for resentencing “consistent with [our] opinion.” Id. at

457.

       Upon remand, the trial court resentenced Appellant to an aggregate

term of 8 to 17 years of incarceration, followed by two years of probation.

Appellant did not file post-sentence motions.             On September 6, 2019,

Appellant filed two separate notices of appeal.1

       Appellant presents two issues for our review:

       1. Does sentencing [Appellant] to a maximum sentence in excess
       of ten years, in direct contravention of the Superior Court of
       Pennsylvania’s order in [Commonwealth] v. Sarvey, 199 A.3d
       436 (Pa. Super. Ct. 2018), constitute legal error where in Sarvey,
       this Court expressly stated that sentencing [Appellant] to “over
       ten years of incarceration for attempting to pass one and one-half


____________________________________________


1  Appellant has complied with our Supreme Court’s directive in
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) by filing separate
notices of appeal at each docket, “where a single order resolves issues arising
on more than one docket.” Id. at 971.


                                           -4-
J-A09026-20


      pills was clearly unreasonable” and “remanded for resentencing
      consistent with that opinion”? Id. at 457.

      2. Does sentencing [Appellant] to a maximum sentence in excess
      of ten years constitute an abuse of discretion because a term
      exceeding ten years of incarceration “for attempting to pass one
      and one-half pills” is “clearly unreasonable”?

Appellant’s Brief at 5-6.

      Appellant challenges the discretionary aspects of her sentence. “The

right to appellate review of the discretionary aspects of a sentence is not

absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).

“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction

when challenging the discretionary aspects of a sentence.” Id. We conduct

this four-part test to 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 reasons relied upon for the allowance of appeal
      pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a
      substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted). “A defendant presents a substantial question when he sets forth 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) (citations

omitted).




                                      -5-
J-A09026-20


      Appellant has complied with the first three prongs of the test by raising

her discretionary sentencing claims at the time of sentencing, filing a timely

notice of appeal, and including in her brief a Rule 2119(f) concise statement.

See Appellant’s Brief at 8-10.      Therefore, we examine whether Appellant

presents a substantial question for review.

      Appellant alleges that in the aggregate, the consecutive sentences she

received were excessive. See Appellant’s Brief at 9. She further argues that

“a sentence exceeding ten years for attempting to pass one and a half pills is

‘clearly unreasonable.’”    Id. at 9-10.     While we note that the trial court

decreased Appellant’s maximum sentence from 24 years to 17 years, upon

review, we again “opine that the sentence was unquestionably harsh.”

Sarvey, 199 A.3d at 455-56 (“Although we are cognizant of the danger of any

amount of drugs in a prison setting and realize the sentencing court was

familiar with Appellant’s history . . . . [w]e also note that Appellant’s crime did

not involve violence. Further, we reiterate that Appellant’s crime involved one

episode of attempting to pass a very small quantity of prescription pills.”).

Thus, Appellant has raised a substantial question. See Commonwealth v.

Moury, 992 A.2d 162, 171-72 (Pa. Super. 2010) (“[T]he imposition of

consecutive, rather than concurrent, sentences may raise a substantial

question . . . where the aggregate sentence is unduly harsh, considering the

nature of the crimes and length of imprisonment.”).

      In reviewing Appellant’s sentencing claim, we recognize:


                                       -6-
J-A09026-20


      Sentencing is a matter vested in the sound discretion of the
      sentencing judge. The standard employed when reviewing the
      discretionary aspects of sentencing is very narrow. We may
      reverse only if the sentencing court abused its discretion or
      committed an error of law. A sentence will not be disturbed on
      appeal absent a manifest abuse of discretion. In this context, an
      abuse of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing 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. We must accord
      the sentencing court’s decision great weight because it was in the
      best position to review the defendant’s character, defiance or
      indifference, and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (citations

omitted).

      Initially, Appellant attempts to invoke a challenge to the legality of

sentence by suggesting that the trial court “ignored this Court’s mandate to

resentence [Appellant].” Appellant’s Brief at 11. We reject this contention.

In holding that the trial court imposed a sentence that was “unduly harsh and

clearly unreasonable given the nature and circumstances of the offense,” we

concluded that Appellant’s underlying discretionary sentencing claim had

merit and her trial counsel was therefore “ineffective for failing to preserve

and appeal” the issue. Sarvey, 199 A.3d at 456-57. For that reason, we

vacated Appellant’s sentence and remanded her case “for resentencing

consistent with [our] opinion.” Id. at 457.

      While a trial court on remand must strictly comply with the mandate of

an appellate court, “[a]n appellate [c]ourt has no power to impose a sentence;

that power is to be exercised exclusively by the trial court and can only be


                                       -7-
J-A09026-20


usurped by the legislature.” Commonwealth v Holiday, 954 A.2d 6, 10 (Pa.

Super. 2008) (citation omitted).      “Therefore, where an appellate [c]ourt

determines a sentence is illegal or otherwise improper, the Court may not

superimpose its judgment on the trial court by directing the sentence

imposed[.]” Id.

      In deciding Appellant’s prior appeal, we directed the trial court to

resentence Appellant. However, as the fashioning of a sentence is left to the

discretion of the trial court, we do not read our prior decision as implying a

particular sentence on remand. See Holiday, 954 A.2d at 10. Rather, we

examine Appellant’s new sentence, and whether it is excessive and harsh

given the nature and circumstances of the offenses.

      Appellant argues that the trial court abused its discretion in resentencing

her to an aggregate term of 8 to 17 years of incarceration because her

sentence is “still considerably over ten years, and therefore still clearly

unreasonable.” Appellant’s Brief at 11.     Appellant, the trial court, and the

Commonwealth all debate whether the term “sentence,” as used in our

previous opinion, refers to the minimum or maximum sentence Appellant

originally received.   See Appellant’s Brief at 11-12; Trial Court Opinion,

10/4/19, at *1; Commonwealth Brief at 2-3. Appellant argues that the term

“sentence” refers to her maximum sentence. Appellant’s Brief at 11 (“As this

Court well knows, an inmate’s minimum sentence is merely the date upon

which an inmate becomes eligible for parole consideration . . . Minimum


                                      -8-
J-A09026-20


sentences are therefore not ‘sentences’ that trial courts impose.”).         In

response, both the trial court and the Commonwealth define “sentence” as the

minimum sentence Appellant was given. Trial Court Opinion, 10/4/19, at *1

(“Both of [Appellant’s] issues rely on her interpretation of the Superior Court

opinion.   The [c]ourt did not and does not agree with her interpretation,

though.”); Commonwealth’s Brief at 2-3 (“The [trial] court and, indeed, any

reasonable person with knowledge of the matter, would infer . . . that it was

the minimum sentence being discussed by this Court rather than the

maximum.”) (emphasis omitted). We agree with Appellant.

      The Pennsylvania Supreme Court has stated that “the maximum

sentence is the real sentence . . . the only portion of the sentence which has

legal validity.”   Commonwealth v. Batts, 163 A.3d 410, 430 (Pa. 2017)

(citing Commonwealth v. Daniel, 243 A.2d 400, 403 (Pa. 1968)). “Under

Pennsylvania law, the minimum term imposed on a prison sentence merely

sets the date prior to which a prisoner may not be paroled.”        Rogers v.

Pennsylvania Bd. of Probation and Parole, 724 A.2d 319, 326 n.2 (Pa.

1999) (citation omitted, emphasis in original).     Accordingly, “[w]here the

sentence is one of total confinement as specified in [S]ection 9721(a)(4), the

[sentencing] court is compelled to state a maximum sentence, which is, in

effect, the full sentence to be served, and a minimum sentence, which

specifies the date on which the defendant, once jailed, is eligible for parole.”

Commonwealth v. Basinger, 982 A.2d 121, 127 (Pa. Super. 2009) (citation


                                     -9-
J-A09026-20


omitted); see also 42 Pa.C.S.A. § 9756 (“In imposing a sentence of total

confinement the court shall at the time of sentencing specify any maximum

period up to the limit authorized by law . . . The court shall impose a minimum

sentence of confinement which shall not exceed one-half of the maximum

sentence imposed.”). Consistent with the foregoing, we examine Appellant’s

17-year maximum in reviewing her discretionary sentencing claim.

         We reiterate that sentencing is within the sound discretion of the trial

court.     Cook, 941 A.2d at 11.      However, a trial court’s discretion is not

unrestricted. See Commonwealth v. Robertson, 874 A.2d 1200, 1212 (Pa.

Super. 2005) (“The deference paid to the trial court does not necessitate a

rubber stamped approval of the sentences imposed by the sentencing court.”)

(citation omitted).     Otherwise, “[a]ppellate review of sentencing matters

would become a mockery and a sham if all sentences were routinely affirmed

under the guise of the discretion of the trial court.” Id. (citation omitted).

         Section 9781(c)(2) of the Sentencing Code provides that on appeal, this

Court “shall vacate the sentence and remand the case to the sentencing court

with instructions if it finds: . . . the sentencing court sentenced within the

sentencing guidelines but the case involves circumstances where the

application of the guidelines would be clearly unreasonable[.]” 42 Pa.C.S.A.

§ 9781(c)(2).       In determining whether a particular sentence is clearly

unreasonable,

         the appellate court must consider the defendant’s background and
         characteristics as well as the particular circumstances of the

                                       - 10 -
J-A09026-20


       offense involved, the trial court’s opportunity to observe the
       defendant, the presentence investigation report, if any, the
       Sentencing Guidelines as promulgated by the Sentencing
       Commission, and the ‘findings’ upon which the trial court based
       its sentence.

Commonwealth v. Coulverson, 34 A.3d 135, 147 (Pa. Super. 2011)

(citation omitted).

       Here, the trial court resentenced Appellant to an aggregate 17 years of

incarceration. Upon review, we again conclude that given the circumstances,

the sentence was unreasonable.

       In our prior decision, we recognized the danger of any amount of a

controlled substance in a prison setting, and the trial court’s familiarity with

Appellant’s history.     See Sarvey, 199 A.3d at 455-56.     However, the fact

remains that Appellant’s 17-year sentence is the result of Appellant’s single

act of attempting to pass a half tablet of oxycodone and one tablet of Ambien

to another inmate, and the trial court’s imposition of consecutive sentences.2

While this decision is well-within the trial court’s normal discretion, see

Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014), under these

circumstances, the 17-year aggregate sentence is unreasonable.

       This Court has explained that defendants are not entitled to “volume

discounts” when they are sentenced for multiple convictions.               See



____________________________________________


2If the trial court had ordered Appellant’s sentences to run concurrently, the
aggregate sentence would have been 2 to 4 years of incarceration.


                                          - 11 -
J-A09026-20


Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, 598 (Pa. Super.

2010). However, in this case, Appellant’s six convictions arise from a single

incident. While the crimes do not merge for sentencing purposes, in our prior

decision, we observed the “substantial overlap among [possession with the

intent to deliver, possession by an inmate, and controlled substance to

prison.” Sarvey, 199 A.3d at 456.

       Appellant was convicted of one attempt to deliver one and a half tablets

of controlled substances to another inmate.              She was not convicted of

attempting to deliver controlled substances to multiple inmates, or another

inmate on more than one occasion, and she was not found in possession of a

moderate or large amount of controlled substances while imprisoned. Also,

none    of   Appellant’s   convictions     involved    violence.    Compare     with

Commonwealth v. Jones, 942 A.2d 903 (Pa. Super. 2008) (discretionary

sentencing claim meritless where defendant was sentenced on 10 convictions

to 80 to 160 years of imprisonment for crime spree during which he robbed

and sexually assaulted three elderly women on three separate occasions).

       On    this   record,   we   find    Appellant’s    17-year   sentence   to   be

unreasonable, and once again remand for resentencing.

       Judgment of sentence vacated.               Case remanded for resentencing.

Jurisdiction relinquished.




                                          - 12 -
J-A09026-20


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2020




                          - 13 -
