Com. v. Shollenberger, H. ( 2014 )

J-S63026-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HEATHER MARIE SHOLLENBERGER
Appellant No. 523 MDA 2014
Appeal from the Judgment of Sentence February 20, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001573-2009
BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 19, 2014
Appellant, Heather Marie Shollenberger, appeals from the judgment of
sentence entered by the Honorable Nancy L. Butts, Court of Common Pleas
of Lycoming County. After careful review, we affirm.
As we write primarily for the parties, a detailed factual and procedural
history is unnecessary. In 2009, Shollenberger was sentenced to 24 months
of intermediate punishment for theft by unlawful taking. Her probation was
revoked in 2010, and she was re-sentenced to two years of probation,
specially supervised by the Pennsylvania Board of Probation and Parole, to
be served consecutively to another sentence being supervised by the Board.
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*
Retired Senior Judge assigned to the Superior Court.
J-S63026-14
On November 22, 2013, Shollenberger failed to appear at a scheduled
meeting with her probation officer and refused to give her location. A bench
warrant was issued, and Shollenberger was arrested on January 18, 2014.
After a probation violation hearing, her probation was revoked, and the trial
court sentenced her to a term of imprisonment of one to two years, with an
additional two years’ probation. After post sentence motions were denied,
Shollenberger filed this timely appeal.
On appeal, Shollenberger only raises a challenge to the sentence
imposed, arguing that the trial court imposed an excessive sentence that
failed to take into consideration her familial circumstances and rehabilitative
needs. Shollenberger concedes that this is a challenge to the discretionary
aspects of her sentence. See Appellant’s Brief, at 8.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted). When challenging the discretionary aspects
of the sentence imposed, an appellant must present a substantial question
as to the inappropriateness of the sentence. See Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be
met before we will review this challenge on its merits.” McAfee, 849 A.2d
at 274. “First, an appellant must set forth in his brief a concise statement of
the reasons relied upon for allowance of appeal with respect to the
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discretionary aspects of a sentence.” Id. “Second, the appellant must show
that there is a substantial question that the sentence imposed is not
appropriate under the Sentencing Code.” Id. That is, “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.” Tirado, 870 A.2d at 365. We examine an appellant’s Rule
2119(f) statement to determine whether a substantial question exists. 1 See
id. “Our inquiry must focus on the reasons for which the appeal is sought,
in contrast to the facts underlying the appeal, which are necessary only to
decide the appeal on the merits.” Id.In the present case, Shollenberger’s appellate brief contains the
requisite 2119(f) concise statement, and, as such, is in technical compliance
with the requirements to challenge the discretionary aspects of a sentence.
Shollenberger contends that her sentence was manifestly excessive and that
the trial court imposed sentence without “taking into consideration
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1
Rule 2119 provides the following, in pertinent part:
…
(f) Discretionary aspects of sentence. An appellant who
challenges the discretionary aspects of a sentence in a criminal matter
shall set forth in his brief a concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary aspects
of a sentence. The statement shall immediately precede the argument
on the merits with respect to the discretionary aspects of sentence.
Pa.R.A.P., Rule 2119(f), 42 PA.CONS.STAT.ANN.
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[Shollenberger’s] familial circumstances, as well as the need for treatment
for her addiction.” Appellant’s Brief, at 7. “[T]his Court has held that an
excessive sentence claim – in conjunction with an assertion that the trial
court failed to consider mitigating factors – raises a substantial question.”
Commonwealth v. Samuel, ___ A.3d ___. ___, 2014 WL 5305816, *4
(Pa. Super. 2014, October 17, 2014).
Our scope of review in an appeal following a sentence imposed after
probation revocation is limited to the validity of the revocation proceedings
and the legality of the sentence imposed following revocation.
Commonwealth v. Infante, 585 Pa. 408, 419, 888 A.2d 783, 790 (2005).
“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. Ahmad, 961 A.2d 884, 888 (Pa. Super. 2008) (citation
omitted). Upon sentencing following a revocation of probation, the trial
court is limited only by the maximum sentence that it could have imposed
originally at the time of the probationary sentence. See Commonwealth v.
Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001). However, a re-sentence
may not exceed the statutory limits of the sentence, including allowable
deductions for time served. See id.Although Shollenberger argues that the sentence imposed by the lower
court following revocation was excessive, she notably does not argue that
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the sentence imposed by the court was beyond the statutory maximum, nor
does the record support such an assertion. It is well settled that the
sentencing guidelines do not apply to sentences imposed as a result of
probation or parole revocations. See Commonwealth v. Ware, 737 A.2d
251, 255 (Pa. Super. 1999).2 Here, the lower court did not exceed the
statutory maximum when it resentenced Shollenberger to one to two years’
imprisonment for theft following the revocation of her probation. Given that
Shollenberger had been given the opportunity to avoid imprisonment for this
crime twice before, the trial court’s sentence is reasonable.
We further note that the record belies Shollenberger’s assertion that
the sentencing court failed to consider her rehabilitative needs. The trial
court repeatedly acknowledged Shollenberger’s substance abuse problems.
See N.T., Sentencing, 2/20/14, at 6; Sentencing Order, 2/20/14, at 1.
Thus, we conclude that Shollenberger’s sole issue on appeal merits no relief.
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2
204 PA.Code § 303.1(b) provides: “The sentencing guidelines do not apply
to sentences imposed as a result of the following: . . . revocation of
probation, intermediate punishment or parole.”
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Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2014
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