NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No WDA 2013

Transcription

1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. SHELLY ANSELL Appellant No WDA 2013 Appeal from the Judgment of Sentence entered September 4, 2013 In the Court of Common Pleas of Mercer County Criminal Division at No: CP-43-CR BEFORE: PANELLA, MUNDY, and STABILE, JJ. MEMORANDUM BY STABILE, J.: FILED: June 6, 2014 Appellant, Shelly Ansell, appeals from the September 4, 2013 judgment of sentence entered after revocation of her probation. We affirm. On February 2, 2010, Appellant pled guilty to conspiracy to commit burglary. 1 The trial court s March 19, 2010 judgment of sentence imposed 9 to 18 months of incarceration followed by 18 months of probation. Appellant was released from prison on March 17, 2011 and detained on August 23, 2011 following an arrest for receiving stolen property and theft from a motor vehicle. 2 The trial court revoked Appellant s parole on February 9, 2012 and 1 18 Pa.C.S.A. 903, Pa.C.S.A. 3925, 3934.

2 re-sentenced her to 3 to 12 months of incarceration followed by 12 months of probation. Appellant was released from prison on April 19, 2012 and detained on April 16, 2013 following another arrest for theft from a motor vehicle. The trial court modified Appellant s probation to require in-patient treatment for drug and alcohol abuse. Once again, Appellant was arrested while on probation, this time for theft by unlawful taking. 3 She then also left the drug and alcohol treatment program against medical advice. The trial court revoked her probation and on September 4, 2013, imposed her present sentence of 15 to 36 months of incarceration. On September 23, 2013, Appellant filed a nunc pro tunc motion to modify her sentence. The same day, the trial court entered an order denying the motion and directing Appellant to file her appeal within 30 days of the imposition of sentence. Appellant filed this timely appeal on October 4, 2013, the last day of the appeal period. Appellant challenges the discretionary aspects of her sentence, arguing her sentence is manifestly excessive and not tailored to her rehabilitative needs or to the protection of society. To preserve a challenge to the discretionary aspects of a sentence, an appellant must file timely notice of appeal, preserve the argument in a timely post-sentence motion or orally at 3 18 Pa.C.S.A

3 sentencing, include a Pa.R.A.P. 2119(f) statement in the appellate brief, and raise a substantial question. Commonwealth v. Dewey, 57 A.3d 1267, 1269 (Pa. Super. 2012). As noted above, Appellant filed a timely notice of appeal. Her post-sentence motion was not timely, as it was filed more than ten days after sentencing. Pa.R.Crim.P. 708(E). In denying the motion, the trial court clearly treated it as untimely, requiring Appellant to file her notice of appeal within 30 days of the imposition of sentence. See Pa.R.Crim.P. 708(E). Ordinarily, an untimely post-sentence motion would result in waiver of a challenge to the discretionary aspects of a sentence. Dewey, 57 A.3d at Our review of the record, including the transcript of the September 4, 2013 hearing and the sentencing order, reveals that the trial court failed to notify Appellant of the deadline for her post-sentence motion, in accordance with Pa.R.Crim.P. 708(D)(2). As such, we can excuse the untimeliness of that motion. Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super. 2001). Appellant s brief includes a statement of the reasons relied upon for allowance of appeal, in accordance with Pa.R.A.P. 2119(f). As noted above, Appellant asserts her sentence is manifestly excessive, not tailored to her rehabilitative needs, and not tailored to the protection of the public and thus - 3 -

4 not in accord with the dictates of 42 Pa.C.S.A. 9721(b). 4 Appellant s argument raises a substantial question. Commonwealth v. Williams, 69 A.3d 735, 740 (Pa. Super. 2013), appeal denied, 83 A.3d 415 (Pa. 2014). Thus, we proceed to review the merits. We review the trial court s sentence for abuse of discretion. Commonwealth v. Dodge, 77 A.2d 1263, 1274 (Pa. Super. 2013). The Sentencing Code, quoted here in relevant part, governs our appellate review: Appellate Review of Sentence. (d) Review of record. --In reviewing the record the appellate court shall have regard for: (1) The nature and circumstances of the offense and the history and characteristics of the defendant. (2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation. (3) The findings upon which the sentence was based. 42 Pa.C.S.A. 9781(d)(1-3). Instantly, we need not concern ourselves with the sentencing guidelines, as they do not apply to a sentence imposed after revocation of probation or parole. Williams, 69 A.3d at 741. Instead, we must determine whether the trial court imposed confinement that is 4 In selecting from the alternatives [ ], the court shall follow the general principle 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)

5 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). Appellant argues she is learning how to maintain sobriety. Appellant s Brief at 10. Appellant states she has support from family and women she met at AA meetings. Id.; N.T. Sentencing, 9/4/13, at 13. Further, Appellant states she was forced to leave the court-ordered drug treatment program due to problems with the staff. Appellant s Brief at 10. Appellant believes the trial court failed to take account of these factors in fashioning Appellant s sentence. The trial court noted Appellant has failed to overcome her addiction. N.T., 9/4/13, at 16. Also, the trial court noted Appellant s three new convictions since her original sentence in this matter. Id. Appellant has 21 arrests and 18 convictions as an adult. Trial Court Opinion, 11/7/13, at 4. The trial court did not accept Appellant s excuse for leaving the drug treatment program, and found that she left against medical advice. Id. Given Appellant s extensive criminal history and failed attempts at rehabilitation, the trial court concluded it had run out of options and therefore imposed 15 to 36 months of incarceration, by far Appellant s longest sentence to date. Id.; N.T. Sentencing, 9/4/13, at 16. The trial court also recommended Appellant be a part of the therapeutic community during incarceration. N.T. Sentencing, 9/4/13, at

6 In summary, the record belies Appellant s argument that the trial court failed to take account of her rehabilitative needs. The court noted Appellant s departure from court-ordered rehabilitation and recommended she continue to undergo rehabilitation in prison. In addition, the court reasoned a longer sentence was appropriate given Appellant s history of recidivism. We discern no abuse of discretion in the trial court s sentence. Judgment of sentence affirmed. Judge Mundy concurs in the result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/6/