Com. v. Burks, E.

J-S22041-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ELISE MARIE BURKS, :
:
Appellant : No. 1915 WDA 2014
Appeal from the Judgment of Sentence Entered March 21, 2013,
in the Court of Common Pleas of Allegheny County,
Criminal Division, at No(s): CP-02-CR-0000893-2007
CP-02-CR-0005841-2007
CP-02-CR-0008288-2006
BEFORE: PANELLA, LAZARUS, and STRASSBURGER, JJ.*
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 24, 2015
Elise Marie Burks (Appellant) appeals from the judgment of sentence
imposed following the revocation of her probation. We affirm.
The trial court set forth the relevant factual and procedural
background of this case as follows.
On November 26, 2007, [Appellant] pled guilty at CC
200608288, to one count of retail theft, one count of possession
of altered, forged, or counterfeit documents or plates, two
counts of receiving stolen property, one count of possession of
marijuana, one count of possession of drug paraphernalia, [and]
one count of criminal conspiracy (to engage in retail theft).
[Appellant] pled guilty at CC 200700893, to five counts of felony
retail theft, one count of criminal conspiracy (to engage in retail
theft), [and] one count of possessing instruments of crime.
[Appellant] pled guilty at CC 200705841, to one count of retail
theft. On November 26, 2007, after accepting [Appellant’s]
guilty plea at the above-captioned matter, [the trial court]
imposed an aggregate sentence of time served, followed by a
consecutive five years of probation.
*Retired Senior Judge assigned to the Superior Court.
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[Appellant] committed subsequent retail thefts and [the
trial court] revoked [Appellant’s] probation on all of the above-
captioned cases. On October 24, 2012, [the trial court] revoked
[Appellant’s] probation at all of the above cases and imposed an
aggregate sentence of 18 months of intermediate punishment
followed by 1 year of probation, as entry into the Drug Court
program. [Appellant] was further Ordered to submit to random
urinalysis and “must complete all treatment recommended by
the drug court treatment team” and participate in the criminality
group. [Appellant] was admitted into the Drug Court program
and [the trial court] warned [Appellant] that if she violated
probation again she would be going to a state prison.
[Appellant] did not cooperate with the drug court program.
[The trial court] recited [Appellant’s] history as follows:
Well, let’s see what we got here. [Appellant]
entered the drug court program as a convicted
violator of probation. In addition to imposing no
further penalty at the remaining counts of the above-
noted complaints [the trial court] took no action and
closed interest in four other felony retail theft
complaints on October 24, 2012.
She was transferred from Renewal’s alternative
housing program to the Delaware House October 24,
2012 and referred to POWER for intensive outpatient
treatment, but failed to attend the intake
appointment, failed to attend the intake — that’s the
first thing, the intake appointment — on two
occasions.
She was sanctioned with a five-day swift
intervention on November 21, 2012, and that lasted
til [sic] November 26.
December 10, 2012, she was placed on
electronic monitoring at the Delaware House, due to
accountability issues. It took her 10 days to have an
accountability problem. At the time she had a terrible
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attitude and was uncooperative with the probation
office.
[Appellant] refused to discuss windows for
treatment and meetings and refused to submit to
urinalysis and testing.
[Appellant] had already received an
unsatisfactory report in her progress hearing on
December 6, 2012 due to her inability to comply with
rules of supervision and treatment.
[* * * ]
December 12, 2012 she was taken into
custody for failing to attend treatment, and a
detainer was lodged against her....
While awaiting a bed date at Gaiser [Appellant]
exhibited behavior that resulted in the drug
treatment team deciding placement at Gaiser was no
longer appropriate. It was further decided
[Appellant] was no longer an appropriate candidate
for drug court and revocation proceedings were
instituted.
[Appellant’s] probation was revoked by [the trial court] on
March 21, 2013. [The trial court resentenced [Appellant] to
incarceration for 16 to 32 month[s] at CC200705841, plus a
consecutive 1 to 2 years at both CC200608288, and
CC200700893, for an aggregate sentence of 40 to 80 months of
incarceration [with applicable credit for time served]. [Appellant]
filed a pro se post-sentence motion on April 10, 2013.
[Appellant] filed a timely Post-Conviction Relief Act petition
(PCRA Petition) on July 9, 2013. [The trial court] appointed
counsel, who filed an Amended PCRA petition on November 26,
2013, requesting reinstatement of [Appellant’s] post-sentencing
and appellate rights. The Commonwealth filed an answer on
February 19, 2014. [The trial court] scheduled a PCRA hearing.
On March 26, 2014, [the trial court] reinstated [Appellant’s]
post-sentencing / appellate rights nunc pro tunc, and granted
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[recidivism risk reduction incentive (“RRRI”) program]
consideration at all three cases. [Appellant] withdrew the third
issue contained in her Amended PCRA petition. [Appellant] filed
a post-sentence motion on April 3, 2014, which [the trial court]
denied on April 15, 2014. On May 2, 2014, [Appellant] filed a
notice of appeal to the Pennsylvania Superior Court, and Concise
Statement of Matters Complained of on Appeal. This appeal was
dismissed by the Pennsylvania Superior Court as untimely.
[Appellant] filed a Post-Conviction Relief Act petition on October
21, 2014, seeking reinstatement of her appellate rights. On
November 20, 2014, [the trial court] reinstated the [Appellant’s]
direct appeal rights nunc pro tunc. [Appellant] filed an appeal to
[this Court] on November 24, 2014, and a Concise Statement of
Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).
Trial Court Opinion, 12/18/2014, at 1-4.
Appellant raises one issue on appeal.
Did the trial court err in denying Appellant’s post-sentencing
motions since the trial court erred in sentencing Appellant to an
aggregate sentence of 40-80 months (3 1/3 to 6 2/3 years) [of]
imprisonment (16-32 months at 5841-2007, a consecutive 1-2
years at 893-2007 and a consecutive 1-2 years at 8288-2006)
since the aggregate sentence was manifestly excessive (the
sentences could have been run concurrent to one another) and
the trial court failed to consider all of the factors contained at 42
Pa.C.S. §§ 9721(b) [and] 9781(d).
Appellant’s Brief at 4 (unnecessary capitalization omitted).
It is within this Court’s 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); see also Commonwealth v. McAfee, 849 A.2d 270,
274 (Pa. Super. 2004) (stating that a claim that the trial court erred in
imposing a sentence of total confinement upon revocation of probation is a
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challenge to the discretionary aspects of one’s sentence); Commonwealth
v. Whitman, 880 A.2d 1250, 1251 (Pa. Super. 2005) (stating that a claim
that one’s sentence is excessive is a challenge to the discretionary aspects of
the sentence). The imposition of a sentence following the revocation of
probation is vested within the sound discretion of the trial court, which we
will not disturb absent an abuse of that discretion. Commonwealth v.
Sierra, 752 A.2d 910, 913 (Pa. Super. 2000). An abuse of discretion
requires the trial court to have acted with manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support so as to be
clearly erroneous. Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.
Super. 2010) (citation and quotation omitted).
An appellant challenging the discretionary aspects of her sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) appeal
denied, 76 A.3d 538 (Pa. 2013) (citation omitted).
The record indicates that Appellant timely filed her appeal and that she
preserved this issue by including it in her motion to modify sentence.
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Additionally, Appellant has included in her brief a Rule 2119(f) statement.
We now turn to whether Appellant has presented a substantial question for
our review.
In her brief, Appellant contends that the trial court abused its
discretion in failing to impose a sentence “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 [], especially since [Appellant] cannot control her drug habit.”
Appellant’s Brief at 13. Additionally, Appellant argues the trial court failed to
state adequate reasons on the record for the sentence imposed.
An averment that the court failed to consider relevant sentencing
criteria of an appellant raises a substantial question. Commonwealth v.
Riggs, 63 A.3d 780, 786 (Pa. Super. 2012). Likewise, a claim that the trial
court failed to state on the record its reasons for sentence imposed raises
substantial question. Commonwealth v. Macais, 968 A.2d 773, 776 (Pa.
Super. 2009). Accordingly, because Appellant has stated substantial
questions, we will consider her discretionary aspects of sentencing
challenges on appeal.
Our legislature has imposed the following general standards to
observe when fashioning a sentence:
[T]he court shall follow the general principle that the
sentence imposed should call for confinement that is consistent
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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. The
court shall also consider any guidelines for sentencing and
resentencing adopted by the Pennsylvania Commission on
Sentencing and taking effect under section 2155 (relating to
publication of guidelines for sentencing, resentencing and parole
and recommitment ranges following revocation). In every case in
which the court imposes a sentence for a felony or
misdemeanor, modifies a sentence, resentences an offender
following revocation of probation, county intermediate
punishment or State intermediate punishment or resentences
following remand, 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…. Failure to
comply shall be grounds for vacating the sentence or resentence
and resentencing the defendant.
42 Pa.C.S. § 9721(b). “When imposing sentence, a court is required to
consider the particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer to the
defendant’s prior criminal record, age, personal characteristics and potential
for rehabilitation.” Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.
Super. 2014). “A sentencing court need not undertake a lengthy discourse
for its reasons for imposing a sentence or specifically reference the statute in
question, but the record as a whole must reflect the sentencing court’s
consideration of the facts of the crime and character of the offender.”
Crump, 995 A.2d at 1283 (citing Commonwealth v. Malovich, 903 A.2d
1247 (Pa. Super. 2006)).
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We begin by noting that Appellant’s aggregate sentence is comprised
of standard-range sentences for each conviction. Trial Court Opinion,
12/18/2014, at 4. Moreover, the trial court properly indicated Appellant’s
RRRI eligibility and applied the relevant time served. N.T., 3/21/2013, at 17.
Contrary to Appellant’s argument, the trial court discussed at length its
reasons for sentencing Appellant, detailing its decades-long experience of
dealing with her, her lengthy prior record, her inability to comply with the
requirements of the drug court program, her drug testing results, and her
reporting history. Id. at 4-15. Additionally, Appellant was given the chance
to detail her progress in jail-based programs, and explain to the court the
correlation between her drug addiction and her propensity to commit thefts.
Id. at 15-16. Our review of the record indicates that the trial court gave
ample reasons why Appellant should be sentenced to a term of total
confinement, in large part, due to her inability to control her interrelated
drug and theft habits. As the record belies Appellant’s claims, we hold that
her arguments do not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2015
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