Com. v. Hill, A. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALISON K. HILL
Appellant No. 2137 MDA 2014
Appeal from the Judgment of Sentence Entered on November 20, 2014
In the Court of Common Pleas of Perry County
Criminal Division at No.: CP-50-CR-0000428-2008
BEFORE: WECHT, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY WECHT, J.: FILED JULY 20, 2015
Allison K. Hill appeals the judgement of sentence that was entered on
November 20, 2014, following revocation of her probationary sentence for
two counts of forgery,1 and after being re-sentenced to two to five years’
imprisonment on each count, with both sentences running concurrent with
each other. We affirm.
The trial court summarized the relevant factual and procedural history
of this case as follows:
On July 15, 2009, [Hill] entered a guilty plea to two (2) counts of
Forgery, Felonies of the Third Degree, in violation of Title 18
§ 4101(a)(2). The [c]ourt sentenced [Hill] to five (5) years of
probation with the Perry County Probation Department. [Hill]
was further ordered at that time to submit to a Drug and Alcohol
Evaluation and to follow all recommendations resulting from that
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1
18 Pa.C.S. § 4101(a)(2).
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evaluation. On that same date, [Hill] [] entered a guilty plea in
another case docketed at CR 185 of 2009, to one (1) count of
Criminal Attempt, Access Device Fraud, a Felony of the Third
Degree, in violation of Title 18 § 901(a) and § 4106. The [c]ourt
sentenced [Hill] in that case to two (2) years Probation.
On June 12, 2012, Perry County Probation issued a detainer
after [Hill] received new charges in Cumberland County. On
March 20, 2013, the [c]ourt re-sentenced [Hill] to the State
Intermediate Punishment Program (“SIP”) under docket CR 185
of 2009. On December 30, 2013, [Hill] was expelled from the
Program after she signed out of her outpatient treatment center,
Promise Place, and failed to return. As a result, the [c]ourt held
a SIP revocation hearing and on July 28, 2014, re-sentenced
[Hill] to nine (9) to twenty-three (23) months incarceration
under docket CR 185 of 2009. Due to [Hill’s] incarceration since
December 2013, [Hill] was released on July 28, 2014. On
November 4, 2014, another detainer was issued after [Hill]
admitted to drug usage and failed to appear for appointments
with her Probation Officer.
* * *
In this case, on July 15, 2009, [Hill] signed the Rules and
Regulations and Conditions Governing Adult Probation as
witnessed by her Probation Officer, Michelle Orris. The Gagnon
II[2] Petition, filed November 19, 2014, indicates that [Hill]
violated No. 4 of these Rules and Regulations, requiring that she
not indulge in the use, sale, or distribution of narcotics o[r]
drugs of any form. On September 15, 2014, [Hill] admitted that
she was using drugs to her Supervising Probation Officer in
Cumberland County. [Hill] indicated that for the past month she
was using 1-2 heroin bags a day. [Hill] further admitted to her
Probation Officer in Dauphin County that she had been using 25-
30 bags since August of 2014. At the Violation Hearing on
November 20, 2014, [Hill’s] Probation Officer, Michelle Orris also
indicated that these admissions were only one month after
[Hill’s] release from her previous re-sentence. Finally, when
[Hill] was detained by Perry County Probation on November 4,
2014, her drug test was positive for 753 [ng]/ml of heroin, as
well as 75 [ng]/ml Buprennorphine.
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2
See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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The Gagnon II Petition further averred that [Hill] also violated
No. 1 of the Rules, Regulations and Conditions of Probation
requiring that she report to her Probation Officer when directed
and that she be available for visits any time or any place. [Hill’s]
Cumberland County Probation Officer informed Perry County
Probation that she was unable to locate [Hill] after directing that
she enter drug treatment on September 15, 2014. Probation
Officer Janette Medvidovich made several attempts to contact
[Hill] to no avail. While Officer Medvidovich was able to speak
with [Hill’s] mother on two occasions and informed her that [Hill]
must report to Perry County Probation, [Hill] still refused to
contact the Office. [Hill] was not located until she appeared for
an appointment with Dauphin County Probation on November 4,
2014.
Trial Court Opinion (“T.C.O.”), 2/26/2015, pages 1, 3, and 4 (unpaginated).
Because of this, Hill was found to have violated the terms and conditions of
her probationary sentence on November 20, 2014. Her probationary
sentence was revoked by the trial court and she was re-sentenced to two to
five years of incarceration in a state correctional institution. The court
ordered this sentence to run concurrently with the sentence at CR 185 of
2009. Hill received credit for time served from November 4, 2014. Hill did
not file a post-sentence motion.
Hill filed a timely notice of appeal. By order dated December 22,
2014, the trial court directed that she file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On January 19,
2015, Hill filed her concise statement, alleging that the trial court abused its
discretion in re-sentencing Hill to a prison term, rather than providing her
with the opportunity to receive drug rehabilitation or to serve her sentence
in local jail. Brief for Hill at 21. Additionally, she avers that, because her
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probation violations are less egregious than receiving new charges, her new
sentence was harsh and excessive. Id. at 22.
Hill raises the following issue for our consideration:
1. Did the trial court abuse its discretion in re-sentencing the
defendant to an incarcerative state correctional institution
sentence of minimum two (2) years, maximum five (5) years
on two counts of Forgery, Felonies of the Third Degree?
Brief for Hill at 7.
Our standard for reviewing the discretionary aspects of a sentence is
as follows:
In general, the imposition of 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.
Commonwealth v. Edwards, 71 A.3d 323, 327 (Pa. Super. 2013). Hill
argues that the trial court abused its discretion by imposing a high-end
standard range sentence in a state prison. By imposing such a sentence, Hill
cannot receive local drug treatment rehabilitation. According to Hill, the
result was an excessive sentence, in light of the fact that the violations of
the terms of her probation were technical in nature, such as not checking in
with her probation officer, and are not based upon new charges. Therefore,
she argues that the result was an abuse of the court’s discretion. Brief for
Hill at 18.
Hill’s argument challenges the discretionary aspects of her sentence.
Hill is not entitled as of right to a review of such challenge. Before we have
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jurisdiction over such a claim, an appellant must satisfy the following
protocol:
We 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 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. § 9781(b).
Commonwealth v. Levy, 83 A.3d 457, 467 (Pa. Super. 2013). Hill has
filed a timely notice of appeal and has included in her brief a Rule 2119(f)
statement. However, Hill did not preserve her discretionary aspects of
sentence challenges, either at her re-sentencing or in a post-sentence
motion.
The sentencing judge explained to Hill that she had ten days from
November 20, 2014, to file any post-sentence motions. Notes of Testimony
(“N.T.”), 11/20/2014, at 13. At the resentencing hearing, Hill did not raise
the argument that she now presents to this Court. Nor did she file a post-
sentence motion raising the issue. Consequently, Hill has waived her
challenges to the discretionary aspects of her sentence, and thus has failed
to invoke our jurisdiction over such claims. See Commonwealth v.
McAfee, 849 A.2d 270, 275 (Pa. Super. 2004). (“Issues challenging the
discretionary aspects of sentence must be raised in a post-sentence motion
or by presenting the claim to the trial court during the sentencing
proceedings.”); Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
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waived and cannot be raised for the first time on appeal.”). Consequently,
we will not review the merits of Hill’s claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2015
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