J. S54036/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
HOLLY SHAUGHNESSY, :
:
Appellant : No. 655 EDA 2015
Appeal from the Judgment of Sentence February 5, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0016015-2010
BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 21, 2015
Appellant, Holly Shaughnessy, appeals from the judgment of sentence
entered in the Mental Health Court program of the Philadelphia Court of
Common Pleas following the second revocation of her probation. Appellant
argues her sentence of 3½ to 10 years’ imprisonment is excessive because
she committed only technical violations and her particular circumstances did
not warrant a state sentence. We affirm.
On April 21, 2011, in the instant case, Appellant pleaded guilty to
burglary1 and received a sentence of 11½ to 23 months’ imprisonment, to
be followed by 6 years’ probation. “Appellant was ordered to be supervised
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3502(a).
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by the Mental Health Unit and was ultimately transferred to Mental Health
Court (MHC) for supervision.” Trial Ct. Op., 5/11/15, at 1-2.
The trial court summarized the ensuing procedural history as follows.
On September 1, 2011, Appellant pleaded guilty to simple assault and
recklessly endangering another person,2 and received a sentence of 11½ to
23 months’ imprisonment, “with parole to program once a bed [was]
available,” to be followed by 2 years’ probation. “On December 8, 2011,
Appellant was paroled to Gaudenzia Broad Street, a residential treatment
facility.” Id. at 2.
As is procedure in MHC, Appellant was scheduled for status
of mental health and treatment hearings at regular
intervals to monitor [her] compliance and progress.
Appellant did make strides toward her discharge, but
admitted to [the] probation [department] that she violated
house rules by having intercourse with other patients that
resulted in loss of privileges on August 21, 2012.
By the September 28, 2012 hearing date, Appellant
became compliant at the program, and on March 10, 2013,
she moved to a recovery house . . . .
It was reported that on the June 10, 2013 status
hearing date, Appellant tested positive for crack cocaine.
She was placed on weekly reporting with probation-with a
90 day black out at Women Walking in Victory, her
treatment and housing facility. On July 8, 2013, [the]
probation [department] learned that Appellant was
dismissed from the program for initiating an argument, she
was required to serve several jury box sanctions[3], and
2
18 Pa.C.S. §§ 2701, 2705.
3
A jury box sanction, usually imposed for a minor infraction, requires the
defendant to observe court proceedings for a specified amount of time.
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later approved to stay with her brother, Mike
Shaughnessy.
On August 16, 2013, Appellant tested positive for
opiates. In response, Appellant provided a copy of
discharge paperwork from Temple Hospital for alleged back
pain that showed she was given prescriptions for Vicodin
and Motrin. Appellant stated that her brother held the
medication because of her drug history. However, when
[the] probation [department] contacted her brother, he
claimed Appellant never told him she was prescribed
anything and didn’t give him any prescriptions to hold.
Subsequently, Appellant was a given custody sanction for
the positive drug screen and for being dishonest in her
response to the Court. On November 15, 2013, Appellant
was instructed to enroll in an inpatient program after
another positive drug test.
On April 16, 2013, Appellant was compliant and
received a completion certificate for the Dialectical
Behavioral Therapy (DBT) group. On June 6, 2013,
Appellant tested positive again for opiates, and was given
a two week custody sanction. On October 31, 2013,
Appellant was compliant with treatment program.
On January 09, 2014, Appellant tested positive for
opiates, and was ordered to serve a week custody sanction
on January 30, 2014. On March 13 and April 17, 2014,
Appellant was compliant with program.
On June 19, 2014, Appellant tested positive for opiates,
and served jury boxes and a weekend sanction. On June
30, 2014, probation received a call from Appellant who
stated she got high in an attempt to commit suicide.
Arrangements were made with her case management team
for her to report to Community Treatment Team (CTT) on
July 1, 2014. However, on July 17, 2014, Appellant failed
to attend her pain management appointment. Appellant
relapsed on cocaine and heroin, and was served two jury
box sanctions.
[On September 25, 2014, a] violation of probation
hearing was conducted and Appellant was found to be in
violation of her probation for [the three June and July]
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positive tests for opiates . . . . Appellant was
sentenced . . . to 11½ to 23 months of incarceration plus 8
years of reporting probation with immediate parole to
Divine Light Recovery House.
On December 12, 2014, [the] probation [department]
received a call from CTT stating Appellant was discharged
from Divine Light Recovery House due to taking another
resident’s suboxone. On December 16, 2014, Appellant
was instructed to report to probation for detention, which
occurred without incident.
Id. at 2-4 (paragraph breaks added).
The trial court conducted the instant violation of probation hearing on
February 5, 2015. It found her in technical violation for suboxone use,
revoked her probation, and immediately imposed a new sentence of 3½ to
10 years’ imprisonment. Appellant filed a timely post-sentence motion,
which was denied. Appellant then filed the instant appeal and complied with
the court’s order to file a Pa.R.A.P. 1925(b) statement of errors complained
of on appeal.
On appeal, Appellant argues the trial court abused its discretion in
imposing a sentence of total confinement, where there was “clear evidence
that [she] exhibited the ability to be amenable to treatment and probation,
as well as her avoidance of criminal activity.” Appellant’s Brief at 9.
Appellant avers she incurred “only technical violations,” which “consisted of
sporadic behavioral problems and opiate abuse relating to a drug addiction
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that [she] has had tremendous difficulty overcoming.”4 Id. at 16, 17. She
contends she “has, several times, demonstrated the ability to succeed in
treatment and comply with the rules of probation, . . . was not a danger to
the community, was proving she was not likely to commit another crime,
and obviously requires significant help and continuous treatment for her
addiction.” Id. at 18. Appellant maintains “her particular circumstances did
not warrant a state sentence,” and the court’s imposition of a state sentence
“places ‘form over substance.’” Id. at 16. Appellant also alleges the
sentence is improper under Subsection 9771(c)(3) of the Sentencing Code,
which allows for a probation-revocation sentence of total confinement when
it “is essential to vindicate the authority of the court.”5 42 Pa.C.S. §
9771(c)(3). Instead, she claims, “[i]ncarceration is purely punitive in this
scenario and will not foster [her] rehabilitative process.” Appellant’s Brief at
19. We hold no relief is due.
Preliminarily, we note Appellant preserved this issue in her post-
sentence motion, has included a Pa.R.A.P. 2119(f) statement in her
appellate brief, and has raised a substantial question for our review. See
4
Appellant also describes her technical violation as “a relapse in the form of
using the suboxone of another facility resident.” Appellant’s Brief at 18.
5
Subsections 9771(c)(1) and (2) allow for a sentence of total confinement
upon revocation of probation where “the defendant has been convicted of
another crime” and the defendant’s conduct “indicates that it is likely that he
will commit another crime if he is not imprisoned.” 42 Pa.C.S. § 9771(c)(1)-
(2). Appellant states that neither of these subsections are applicable.
Appellant’s Brief at 9.
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Commonwealth v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (stating
defendant must raise discretionary aspect of sentencing issue either during
sentencing proceedings or in post-sentence motion, and in Pa.R.A.P. 2119(f)
statement); Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super.
2010) (stating, “The imposition of a sentence of total confinement after the
revocation of probation for a technical violation, and not a new criminal
offense, implicates the ‘fundamental norms which underlie the sentencing
process,’” and finding substantial question raised). Accordingly, we find
Appellant has preserved her discretionary aspect of sentencing issue for our
review. See Tobin, 89 A.3d at 666; Crump, 995 A.2d at 1282.
We consider the relevant standard of review:
[A] trial court has broad discretion in sentencing a
defendant, and concomitantly, the appellate courts utilize a
deferential standard of appellate review in determining
whether the trial court abused its discretion . . . .
. . . At initial sentencing, all of the rules and procedures
[for a court’s] discretionary sentencing authority [apply].
However, it is a different matter when a defendant
reappears . . . following a violation . . . of a probationary
sentence. For example, . . . contrary to when an initial
sentence is imposed, the Sentencing Guidelines do not
apply, and the revocation court is not cabined by Section
9721(b)’s requirement 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. §
9721.
. . . [U]pon revoking probation, the trial court is limited
only by the maximum sentence that it could have imposed
originally at the time of the [initial] sentence, although . . .
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the court shall not impose a sentence of total confinement
unless it finds that:
* * *
(3) such a sentence is essential to vindicate the
authority of the court.
42 Pa.C.S. § 9771(c)[(3)].
Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014) (some
citations omitted). This Court has stated, “A trial court does not necessarily
abuse its discretion in imposing a seemingly harsh post-revocation sentence
where the defendant originally received a lenient sentence and then failed to
adhere the conditions imposed on him.” Commonwealth v. Schutzues, 54
A.3d 86, 99 (Pa. Super. 2012), appeal denied, 67 A.3d 796 (Pa. 2013).
At the instant violation of probation and sentencing hearing,
Appellant’s counsel stated Appellant has had “many successes, as well as . .
. challenges” under the court’s probation, and “is an addict and . . . needs
treatment.” N.T., 2/5/15, at 9. Counsel requested “as short a sentence as
possible, so that we can get her reconnected with CTT . . . and back into
treatment as soon as possible.” Id. The Commonwealth conceded
Appellant “was doing well in 2012,” but summarized her various infractions.
Id. at 10-13. The Commonwealth argued, “[S]he has been given almost . .
. 5 years of this program[, has] been in numerous placements, has the
highest level of case management services provided in . . . Philadelphia,”
and “has gotten more chances than the average individual, with [the court]
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consistently putting treatment first . . . and not giving . . . as much
sanctions[.]” Id. at 15, 16. The Commonwealth recommended a sentence
of ten to twenty years’ imprisonment. Id. at 16.
In imposing the sentence of 3 ½ to 10 years, the court considered “the
Commonwealth’s recitation of the many listings of this case” and
“emphasize[d] the number of opportunities” Appellant had in the MHC
“program, including jury box sanctions, weekend sanctions, weeks
sanctions—none of which seemed to have really hit home with” her. Id. at
20. The court stated, “I clearly believe that a state sentence is warranted,
given the number of opportunities, the county sentences that [Appellant
has] already been given. And it’s clear that none of those have worked to
vindicate the authority of this Court.” Id. at 21. The court recommended
that Appellant receive drug, alcohol, and mental health treatment while
incarcerated. Id.
We hold the court did not abuse its discretion in imposing sentence.
After careful review of the violation of probation hearing transcript, the trial
court’s opinion, and both parties’ appellate briefs, we note there is no
dispute over the procedural history in this case over the course of
Appellant’s probationary terms. Instead, Appellant’s challenge is to the
court’s ultimate conclusion that her transgressions surpassed her
compliance. Contrary to Appellant’s claim, we find the trial court did state
its reasons for imposing a sentence of total confinement under Subsection
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9771(c)(3)—that Appellant has not succeeded in rehabilitation despite
numerous opportunities by the court. See 42 Pa.C.S. § 9771(c)(3); N.T. at
21. Furthermore, because this was a violation of probation sentence, the
trial court was not required to consider the safety of the community or her
rehabilitative needs.6 See Pasture, 107 A.3d at 27-28; Appellant’s Brief at
18. We do, however, reiterate the court’s recommendation that Appellant
continue to receive drug, alcohol, and mental health treatment in prison.
For the forgoing reasons, we find no abuse of discretion. See
Pasture, 107 A.3d at 27-28; Schutzues, 54 A.3d at 99.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2015
6
Appellant also argues: “That Section 9721(b) does not apply to a violation
of probation hearing is wrong.” Appellant’s Brief at 12. Such a policy and
legislative issue is beyond this panel’s review.
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Com. v. Shaughnessy, H.
Combined Opinion