Com. v. Blunt, K. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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