Com. v. Adams, C. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
C.J. ADAMS, :
:
Appellant : No. 929 WDA 2014
Appeal from the Judgment of Sentence May 7, 2014
In the Court of Common Pleas of Jefferson County
Criminal Division No(s).: CP-33-CR-0000399-2012
BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 2, 2014
Appellant, C.J. Adams, appeals from the judgment of sentence
entered in the Jefferson County Court of Common Pleas following a
revocation of her probation. On appeal, she challenges the discretionary
aspects of her sentence. We affirm.
The facts underlying her conviction are unnecessary to our disposition.
On February 4, 2013, Appellant pleaded guilty to corruption of minors and
was sentenced to, inter alia, five years’ probation, make restitution, and
complete sexual offender treatment. While on probation, the court issued a
detainer on April 15, 2014, which asserted Appellant violated her probation.
*
Former Justice specially assigned to the Superior Court.
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On April 24, 2014, the Commonwealth charged Appellant with technical
violations of her probation, including failure to stay at an approved
residence, failure to make restitution, and failure to complete sex offender
treatment. Appellant, represented by counsel, waived a Gagnon I hearing
and admitted to the above violations. Order, 5/1/14.
After reviewing a pre-sentence investigation report, the court formally
revoked Appellant’s probation and resentenced her on May 7, 2014, to
eighteen months to seven years’ imprisonment. On May 21, 2014, at 1:07
p.m., the court docketed Appellant’s nunc pro tunc motion for
reconsideration of sentence. The court denied Appellant’s motion at 1:21
p.m. Appellant filed a timely notice of appeal on June 6, 2014, and timely
filed a court-ordered Pa.R.A.P. 1925(b) statement.
Appellant raises the following issue:
Whether the trial court abused its discretion when it
revoked Appellant’s county-level probation and re-
sentenced her to serve a sentence of incarceration in a
state correctional institution for a minimum of eighteen
(18) months to a maximum of seven (7) years with credit
for time served for [A]ppellant’s violation of probation.
Appellant’s Brief at 3. Appellant argues that the sentence is unreasonable
and the court failed to justify its sentence adequately. We hold Appellant is
due no relief.
“[T]he 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.”
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Commonwealth v. Infante, 888 A.2d 783, 790 (Pa. 2005) (citation
omitted). “[I]t is now accepted that it is within our scope of review to
consider challenges to the discretionary aspects of an appellant’s sentence in
an appeal following a revocation of probation.” Commonwealth v.
Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006).
[T]he 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:
A probation violation is established whenever it is
shown that the conduct of the probationer indicates
the probation has proven to have been an ineffective
vehicle to accomplish rehabilitation and not sufficient
to deter against future antisocial conduct.
Furthermore, when the basis for revocation arises from the
advent of intervening criminal conduct, a VOP hearing may
be held prior to any trial arising from such criminal
conduct.
Infante, 888 A.2d at 791 (citations omitted).
To be reviewed on the merits, a challenge to the
discretionary aspects of sentence must raise a substantial
question that the sentence imposed is not appropriate. A
substantial question is raised when the appellant advances
a “colorable argument” that the sentence was either
“inconsistent with a specific provision of the Sentencing
Code” or “contrary to the fundamental norms which
underlie the sentencing process.” This Court determines
whether an appellant has raised a substantial question by
examination of the appellant’s concise statement of the
reasons relied upon for allowance of appeal, which must be
included in the appellant’s brief, pursuant to Pennsylvania
Rule of Appellate Procedure 2119(f). If a Rule 2119(f)
statement is not included in the appellant’s brief and the
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appellee objects to the omission, then this Court is
precluded from reviewing the merits of the appellant’s
claim.
Commonwealth v. Faulk, 928 A.2d 1061, 1071-72 (Pa. Super. 2007)
(citations omitted).
[T]he Rule 2119(f) statement must specify where the
sentence falls in relation to the sentencing guidelines and
what particular provision of the Code is violated (e.g., the
sentence is outside the guidelines and the court did not
offer any reasons either on the record or in writing, or
double-counted factors already considered). Similarly, the
Rule 2119(f) statement must specify what fundamental
norm the sentence violates and the manner in which it
violates that norm (e.g., the sentence is unreasonable or
the result of prejudice because it is 500 percent greater
than the extreme end of the aggravated range.).
Commonwealth v. Googins, 748 A.2d 721, 727 (Pa. Super. 2000) (en
banc).
Instantly, Appellant has included the following Rule 2119(f) statement
in her brief, which we reproduce in its entirety as follows:
The reasons relied on for allowance of appeal with respect
to the discretionary aspects of the sentence are that the
sentence was manifestly unreasonable under the
circumstances of the case and the probation violation, and
that the [c]ourt’s reasons for the sentence did not justify
the severity.
Appellant’s Brief at 5. Appellant’s Rule 2119(f) statement does not comply
with all of the requirements set forth by the Googins Court, but because the
Commonwealth has not objected to its deficiencies, we decline to find
waiver. See Googins, 748 A.2d at 727; cf. Faulk, 928 A.2d at 1071-72.
Appellant, however, does assert her sentence was inconsistent with the
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fundamental norms that underlie the sentencing process. See Googins,
748 A.2d at 727.
With respect to the merits, after careful review of the record, the
parties’ briefs, and the decision of the Honorable John H. Foradora, we affirm
on the basis of the trial court’s opinion. See Trial Ct. Op., 7/7/14, at 1-2
(holding Appellant poses continuing threat to children of community given
her failure to complete sex offender treatment). We therefore affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2014
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Circulated 11/05/2014 10:44 AM
Circulated 11/05/2014 10:44 AM