Com. v. Bunch, A.

J-S41035-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ALAINNA MARIE BUNCH :
:
Appellant : No. 146 EDA 2018

Appeal from the Judgment of Sentence October 19, 2017
In the Court of Common Pleas of Carbon County
Criminal Division at No(s): CP-13-CR-0000120-2013

BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 30, 2018

Appellant, Alainna Marie Bunch, appeals from the judgment of sentence

entered in the Carbon County Court of Common Pleas, following revocation of

her probation. We affirm.

The relevant facts and procedural history of this case are as follows.

On October 14, 2012, [Appellant] was arrested and charged
with violations of 18 Pa.C.S.A. § 908(a), Possession of a
Prohibited Offensive Weapon, and 35 P.S. § 780-
113(a)(16), Possession of a Controlled Substance. On May
22, 2014, [Appellant] entered a guilty plea to the Possession
of a Prohibited Offensive Weapon charge and was
immediately sentenced to one (1) year of probation and
ordered to pay the court costs and costs of prosecution in
an amount not less than Fifty Dollars ($50.00) per month.
As part of the “special provisions” of that sentence,
[Appellant] was to also render fifty (50) hours of community
service and be subject to the standard conditions of release
adopted by the [c]ourt. On that same date, [Appellant] met
with a representative of the Carbon County Adult Probation
Office and executed a document entitled “Conditions of
Supervision.” Condition #3 of that document reads as
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S41035-18

follows: “You will refrain from the violation of all Municipal,
County, State and Federal Criminal Statutes, as well as
provisions of the Vehicle Code and Liquor Code. You must
notify your probation/parole officer of any arrest, citation
within seventy-two (72) hours of occurrence.” [Appellant]
executed this document on May 22, 2014.

While on [probation], [Appellant] was alleged to have
committed various offenses of the Vehicle Code, including
Driving Under the Influence of Alcohol or Controlled
Substance, a violation of 75 Pa.C.S.A. § 3802(d). This was
alleged to have occurred on March 15, 2015.

On June 9, 2015, Adult Probation Officer Joseph Bettine filed
a Petition for Revocation of Parole/Probation against
[Appellant]. [Officer] Bettine alleged that [Appellant]
violated three (3) conditions of her supervision, namely: 1)
that she was charged with DUI and related summary
offenses; 2) that she failed to make a concerted effort to
pay her court costs; and 3) that she did not complete her
community service hours.

On June 22, 2015, [Appellant] waived her Gagnon I
hearing. [Appellant’s] initial Gagnon II hearing was
scheduled for September 25, 2015, but was continued due
to the unresolved new charges. Similarly, the Gagnon II
hearing was thereafter continued numerous times for the
same reason. After [Appellant] was convicted on new
charges, her Gagnon II hearing was scheduled for May 19,
2017, but it was continued to give her an opportunity to
apply for a public defender. From that date forward,
[Appellant] was assigned various public defenders to
represent her at the Gagnon II hearing.

On August 25, 2017, [Appellant] failed to appear for her
Gagnon II hearing and subsequently a warrant was issued
for her arrest. This warrant was eventually served on
[Appellant] and thereafter she was incarcerated. On
October 19, 2017, her Gagnon II hearing was held.

After hearing testimony and argument from both
[Appellant] and the Commonwealth, [the c]ourt determined
that the facts of the case warranted revocation of
[Appellant]’s probation. As a result, the [c]ourt then

-2-
J-S41035-18

resentenced [Appellant] to a period of incarceration of five
(5) months to twelve (12) months in the Carbon County
Correctional Facility with credit for twenty-four (24) days
served to that date.[1] On November 17, 2017, an [a]ppeal
was filed on [Appellant]’s behalf. Thereafter, on November
20, 2017, [the court denied Appellant’s motion for
reconsideration and] directed [Appellant] to file her [Rule]
1925(b) Statement of [Errors] Complained of on Appeal,
which she did on December 11, 2017.

(Trial Court Opinion, filed January 11, 2018, at 1-4) (internal footnotes

omitted).

Appellant raises the following issues for our review:

WHETHER THE TRIAL COURT ERRED IN CONSIDERING
ALLEGED TECHNICAL VIOLATIONS OF APPELLANT’S
PROBATION DURING RESENTENCING WHERE EVIDENCE
WAS PRESENTED THAT APPELLANT SATISFIED THOSE
TECHNICAL VIOLATIONS PRIOR TO THE HEARING[?]

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
IMPOSING A SENTENCE THAT WAS EXCESSIVE IN LIGHT OF
OTHER FACTORS PRESENTED BY APPELLANT AT THE
HEARING[?]

(Appellant’s Brief at 2).

Appellant argues by the time of her Gagnon II hearing and

resentencing, she had satisfied her court costs; and the Commonwealth

withdrew this technical violation, but the court incorrectly considered this

factor when it resentenced Appellant. Appellant maintains the Commonwealth

did not inform her that some of her community service hours were

____________________________________________

1 On October 25, 2017, Appellant timely filed a motion for reconsideration of
the sentence.

-3-
J-S41035-18

unsatisfactory, and the court also incorrectly gave weight to this factor during

resentencing. Appellant submits she substantially complied with the

conditions of her probation and remained crime-free for ten (10) months,

factors which the court failed to consider when it excessively resentenced

Appellant to five (5) to twelve (12) months’ incarceration. As presented,

Appellant challenges the discretionary aspects of her sentence. See

Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal

denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating allegation court ignored

mitigating factors challenges discretionary aspects of sentencing).

When reviewing the outcome of a revocation proceeding, this Court may

review the discretionary aspects of sentencing. Commonwealth v.

Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013) (en banc) (explaining

that, notwithstanding prior decisions which stated our scope of review in

revocation proceedings is limited to validity of proceedings and legality of

sentence, we unequivocally hold that this Court’s scope of review on appeal

from revocation sentencing also includes discretionary sentencing challenges).

Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910

(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing

issue:

[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify

-4-
J-S41035-18

sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s
brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in her brief a

separate concise statement demonstrating that there is a substantial question

as to the appropriateness of the sentence under the Sentencing Code.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.

2119(f). This Court must evaluate what constitutes a substantial question on

a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825 (Pa.Super.

2007). A substantial question exists “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, 913 (Pa.Super. 2000).

A claim of excessiveness can raise a substantial question as to the

appropriateness of a sentence under the Sentencing Code, even if the

sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at

624. Bald allegations of excessiveness, however, do not raise a substantial

question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather,

-5-
J-S41035-18

a substantial question exists “only where the appellant’s Rule 2119(f)

statement sufficiently articulates the manner in which the sentence violates

either a specific provision of the sentencing scheme set forth in the Sentencing

Code or a particular fundamental norm underlying the sentencing process….”

Id. Generally, “[a]n allegation that a sentencing court failed to consider or

did not adequately consider certain factors does not raise a substantial

question that the sentence was inappropriate.” Cruz-Centeno, supra at 545.

In the context of probation revocation and resentencing, the Sentencing

Code provides, in pertinent part:

§ 9771. Modification or revocation of order of
probation

(a) General rule.—The court may at any time
terminate continued supervision or lessen or increase the
conditions upon which an order of probation has been
imposed.

(b) Revocation.—The court may revoke an order of
probation upon proof of the violation of specified conditions
of the probation. Upon revocation the sentencing
alternatives available to the court shall be the same as were
available at the time of initial sentencing, due consideration
being given to the time spent serving the order of probation.

(c) Limitation on sentence of total
confinement.—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 [she] will commit another crime if [she]
is not imprisoned; or

-6-
J-S41035-18

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

* * *

42 Pa.C.S.A. § 9771(a)-(c).2 “The reason for revocation of probation need

not necessarily be the commission of or conviction for subsequent criminal

conduct. Rather, this Court has repeatedly acknowledged the very broad

standard that sentencing courts must use in determining whether probation

has been violated.” Commonwealth v. Colon, 102 A.3d 1033, 1041

(Pa.Super. 2014), appeal denied, 631 Pa. 710, 109 A.3d 678 (2015).

“[T]he revocation of a probation sentence is a matter committed to the

sound discretion of the trial court and that court’s decision will not be disturbed

on appeal in the absence of an error of law or an abuse of discretion.”

Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa.Super. 2006).

Following the revocation of probation, the court may impose a sentence of

total confinement if any of the following conditions exist: the defendant has

been convicted of another crime; the conduct of the defendant indicates it is

likely she will commit another crime if she is not imprisoned; or, such a

sentence is essential to vindicate the authority of the court. See 42 Pa.C.S.A.

§ 9771(c).

Pursuant to Section 9721(b), “the court shall follow the general principle

____________________________________________

2Possession of a prohibited offensive weapon is a first-degree misdemeanor,
which carries a maximum sentence of five (5) years’ imprisonment. 18
Pa.C.S.A. §§ 908, 1101.

-7-
J-S41035-18

that the sentence imposed should call for confinement that is consistent with

the protection of the public, the gravity of the offense as it relates to the

impact on the life of the victim and on the community, and the rehabilitative

needs of the defendant.” 42 Pa.C.S.A. § 9721(b). “[T]he court shall make as

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.” Id.

Nevertheless, “[a] sentencing court need not undertake a lengthy discourse

for its reasons for imposing a sentence….” Commonwealth v. Crump, 995

A.2d 1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475

(2010). Rather, “the record as a whole must reflect the sentencing court’s

consideration of the facts of the crime and character of the offender.” Id.

See also Commonwealth v. Carrillo-Diaz, 64 A.3d 722 (Pa.Super. 2013)

(explaining where revocation court presided over defendant’s no contest plea

hearing and original sentencing, as well as his probation revocation hearing

and sentencing, court had sufficient information to evaluate circumstances of

offense and character of defendant when sentencing following revocation).

Instantly, Appellant raised her issues in a post-sentence motion and filed

a timely notice of appeal. Appellant, however, did not set forth a separate

statement of reasons for review under Rule 2119(f) in her appellate brief,

which ordinarily waives a discretionary-aspects-of-sentencing issue, unless

the Commonwealth fails to object to the omission. See Commonwealth v.

Saranchak, 544 Pa. 158, 675 A.2d 268 (1996) (stating court may overlook

-8-
J-S41035-18

appellant’s failure to provide Rule 2119(f) statement when appellee fails to

object, if substantial question is evident from appellant’s brief; boilerplate

assertions do not qualify as substantial questions regarding discretionary

aspects of sentencing). Here, the Commonwealth did not object to the missing

Rule 2119(f) statement.

As presented, Appellant’s claim that the court did not consider certain

mitigating factors, absent more, does not appear to present a substantial

question for our review. See Cruz-Centeno, supra; Mouzon, supra.

Moreover, the court stated its reasons for resentencing Appellant on the record

as follows:

THE COURT: The testimony that has been presented is
clear that there was a violation of the probation of
[Appellant] insofar as [at a] minimum, she was arrested for
and convicted of a new criminal offense. The testimony also
would suggest…the status of her court costs as of the time
of the filing of the petition [to revoke probation] were still
outstanding. [Appellant] still owed money as of the date
this petition was filed. So in theory, there are two violations
at the time the petition was filed. The third one, albeit
questionable in the sense that all community service work
must be verified, once it was received by [Appellant’s
probation officer], it was not verified prior to the effective
date of the petition being filed.

The bottom line is, there is a violation, or violations. So I
am going to revoke the probation. The question is[,] what
type of sentence should I impose? I understand the
probation office normally will recommend, albeit an
unwritten policy, anytime there is a new offense, it’s a
minimum of six months that they request. I agree with you,
[Appellant’s counsel], that’s not etched in stone. It’s
definitely not etched in stone in the [c]ourt’s mind, but it is
a consideration for the [c]ourt, just as much as [Appellant’s
counsel’s] recommendation that I impose a time[-]served

-9-
J-S41035-18

sentence is a consideration for the [c]ourt.

I would note that a new charge is the most egregious
violation of any supervision in my opinion, and obviously in
probation’s opinion as well. The fact that [Appellant] is
suffering from physical or mental issues and that’s why she
shouldn’t be in prison would suggest that if I go along with
that theory, there should be no one in prison. It should be
empty. And [Appellant], all the other problems and all the
other consequences that you have raised as a result of your
incarceration is a result of you violating your probation.

What I am going to do, taking into consideration everything
that’s been presented here this afternoon, is I am going to
resentence you with a sentence of five to 12 months with
credit for 24 days served.

(N.T., 10/19/17, at 28-29). See 42 Pa.C.S.A. § 9721(b); Crump, supra.

Further, in its opinion, the court stated:

[Appellant] was initially placed on ARD supervision on [the
original] charges; however, due to her failure and inability
to follow the terms and conditions of that supervision, she
was revoked from that program. While the [c]ourt would
agree that while serving this [probationary] sentence,
[Appellant] was only charged with new offenses one (1)
time, that one (1) time is an egregious violation of her
supervision. The [c]ourt does note that, after the filing of
the Petition to Revoke Probation, [Appellant] satisfied her
community service and [c]ourt costs. But the fact remains
that these were violations of her supervision, albeit technical
ones, because she did not complete them prior to the end
of her supervision.

[Appellant] also contends that the [c]ourt did not consider
her personal circumstances when it resentenced her. [The
c]ourt believes she is referring to the custody of her two (2)
children. The [c]ourt did consider that and notes that the
children were then and now in the custody of their father, a
parent who was no stranger to them and had not only been
in the process of securing primary custody of them, but was
already and integral part of their lives.

- 10 -
J-S41035-18

In imposing the five (5) to twelve (12) month sentence, the
[c]ourt took into consideration the fact that throughout this
case, [Appellant] was on supervision for a period of time,
both ARD and regular probationary supervision, and she
violated both. The violations that are part of this [a]ppeal
were threefold, and while [Appellant] was successful in
completing her community service and paying off her court
costs before her [Gagnon II] hearing, the fact remains that
she violated her probation in three (3) different ways. It
should be noted that while the recommendation of the
Commonwealth was for a minimum of six (6) months of
incarceration, the [c]ourt only sentenced [Appellant] to a
minimum of five (5) months. [The c]ourt did take into
consideration the issues raised by [Appellant], both at the
[Gagnon II] hearing and in this [a]ppeal. Such a sentence
was well within [the c]ourt’s discretion pursuant to 42
Pa.C.S.A. § 9771.

(Trial Court Opinion at 6-7). See Carillo-Diaz, supra. The record supports

the trial court’s rationale, therefore, we have no reason to disturb it. See

MacGregor, supra. Accordingly, we affirm the judgment sentence.

Judgment of sentence affirmed.

President Judge Emeritus Stevens joins this memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/30/18

- 11 -