J-S56014-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FRANCES LORRAINE ROARK,
Appellant No. 565 MDA 2015
Appeal from the Judgment of Sentence February 24, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000236-2004, CP-36-CR-0003845-
2013, CP-36-CR-0004410-2013, CP-36-CR-0005477-2012
BEFORE: SHOGAN, JENKINS, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 27, 2015
Appellant, Frances Lorraine Roark, appeals from the judgment of
sentence entered following her convictions of various drug and theft offenses
and the revocation of her parole in a previous criminal matter. We affirm.
The trial court summarized the procedural history of this case as
follows:
On June 13, 2014, [Appellant] appeared before the [c]ourt
to enter a non-negotiated guilty plea on Information Numbers
5477-2012, 3845-2013, and 4410-2013, with a request that she
be evaluated for acceptance into the State Intermediate
Punishment Program (“SIPP”). (Notes of Testimony, Guilty Plea
at 2-6, 14-15) (“N.T.G.P.”). The guilty pleas were accepted and
sentencing was deferred pending an evaluation to determine
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*
Retired Senior Judge assigned to the Superior Court.
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whether [Appellant] would be eligible to participate in SIPP. Id.
at 16.
On September 9, 2014, [Appellant] appeared for a parole
violation hearing before the Honorable Howard Knisely on
Information Number 0236-2004, due to her failure to report for
a scheduled appointment and failure to remain in contact with
her probation officer. (Notes of Testimony, Parole Violation at 2)
(hereinafter “N.T.P.V.”).1 After [Appellant] was found to be in
violation of probation and parole, Judge Knisely directed that
[Appellant] be evaluated for SIPP, after which she would receive
a concurrent sentence to those imposed on the new criminal
charges for which [Appellant] was already being evaluated. Id.
at 5-6.
1
On October 27, 2004, [Appellant] tendered a
negotiated guilty plea on Information Number 0236-
2004 to Burglary (F1), Conspiracy to commit
burglary (F1), and Theft by unlawful taking (M1).
On December 22, 2014, after being advised by the
Pennsylvania Department of Corrections that [Appellant] was not
eligible for SIPP due to pending criminal charges in the state of
Maryland, the [c]ourt entered an Order directing that Lancaster
County Adult Probation & Parole Services conduct a presentence
investigation on the above-captioned cases.2
2
During sentencing, defense counsel acknowledged
[Appellant] was not eligible for SIPP due to pending
criminal charges in the state of Maryland. (N.T.S. at
15).
On February 24, 2015, upon completion of a Pre-Sentence
Investigation (“PSI”) Report, [Appellant] appeared for
sentencing, at which time the [c]ourt imposed the following
sentence: On 5477-2012: (count 1) Violation of the Controlled
Substance, Drug, Device & Cosmetic Act (delivery of crack
cocaine): 2-5 years SCI; (count 2) Criminal Use of
Communication Facility: 1-5 years SCI; (count 3) Conspiracy to
deliver cocaine: 2-5 years SCI.3 (Notes of Testimony,
Sentencing at 24-25) (“N.T.S.”). All sentences were made
concurrent to each other. Id. at 25. On 3845-2013: (count 1)
Violation of the Controlled Substance, Drug, Device & Cosmetic
Act (delivery of crack cocaine): 1½-5 years SCI; (count 2)
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Conspiracy to deliver cocaine: 1½–5 years SCI.4 Id. The
sentences were made concurrent to each other but consecutive
to the sentence imposed on 5477-2012. Id. On 4410-2013,
Theft by Unlawful Taking, [Appellant] was placed on concurrent
probation for one year.5 Id. [Appellant’s] sentences on all
counts were within the standard range of the sentencing
guidelines. See Sentencing Guidelines Worksheets.6
3
35 P.S. § 780-113(a)(30), 18 Pa. C.S.A. § 7512(a),
and 18 Pa. C.S.A. § 903 respectively.
4
35 P.S. § 780-113(a)(30) and 18 Pa. C.S.A. § 903
respectively.
5
18 Pa. C.S.A. § 3921(a).
6
[Appellant’s] guidelines were as follows: On 5477-
2012: (count 1) delivery of cocaine: Offense Gravity
Score (“OGS”): 6; Prior Record Score (“PRS”): 5;
Standard Range Sentence (“SRS”): 21-27 months;
(count 2) criminal use of communication facility;
OGS: 5; PRS: 5; SRS: 12-18 months; (count 3)
conspiracy to deliver cocaine: OGS: 6; PRS: 5; SRS:
21-27 months. On 3845-2013: (count 1) delivery of
cocaine; OGS: 5; PRS: 5; SRS: 12-18 months;
(count 2) conspiracy to deliver cocaine: OGS: 5;
PRS: 5; SRS: 12-18 months. On 4410-2013 (count
1) theft by unlawful taking: OGS: 1; PRS: 5; SRS:
RS-6 months. See Sentencing Guidelines
Worksheets; (N.T.S. at 5).
On the parole violation at 0236-2004, [Appellant’s] parole
was immediately terminated and she was sentenced as follows:
(count 1) Burglary: 3 ½-10 years SCI; (count 2) Conspiracy to
commit burglary: 3 ½-10 years SCI.7 (N.T.S. at 27). The
sentences were made concurrent to each other and concurrent
to the sentences imposed on 5477-2012, 3845-2013 and 4410-
2013. Id. The aggregate sentence on all criminal dockets
resulted in a prison sentence of not less than 3½ years nor more
than 10 years in the state correctional institution. Id. at 25.
[Appellant] did not receive credit for any time served on the
parole violation sentence, because that credit was applied to the
sentences imposed on the new criminal charges for which
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[Appellant] remained incarcerated without posting bail. Id. at
27.
7
[Appellant’s] original split sentence was as follows:
(count 1) Burglary: 1 ½ to 3 years SCI plus 7 years
of consecutive probation; (count 2) Conspiracy to
commit burglary: 10 years probation concurrent to
count 1; (count 3) Theft by Unlawful Taking: merged
for sentencing purposes. See Sentencing Order.
These sentences were below the standard range of
the sentencing guidelines, which started at 24
months for the burglary offense. See Sentencing
Guidelines Worksheet.
On March 6, 2015, [Appellant] filed a Post-Sentence
Motion to Modify Sentence. In that Motion[, Appellant] did not
seek relief for the sentences imposed on the new criminal
charges, recognizing they were guideline sentences. See Post-
Sentence Motion to Modify Sentence. Rather, [Appellant]
requested a shorter sentence on the parole violation because all
time credit was attributed to the new criminal charges, and as a
result [Appellant] would remain incarcerated on the parole
violation beyond the date she would be paroled on the new
criminal charges. Id. This [c]ourt issued an Order on March 17,
2015 denying said Motion.8
8
When a parolee is incarcerated on new criminal
charges and does not post bail or has her bail
revoked, time spent in jail is not credited to the
parolee’s original sentence on re-commitment as a
convicted parole violator because the parolee was
not incarcerated solely on the Board’s warrant.
Martin v. Pennsylvania Bd. of Prob. & Parole,
840 A.2d 299, 305 (Pa. 2003). The period of pretrial
confinement is credited to the sentence received
upon conviction of new criminal charges, unless the
parolee is acquitted or no new sentence is imposed
for a conviction on the new charges. Id. “[W]here
an offender is incarcerated on both a Board detainer
and new criminal charges, all time spent in
confinement must be credited to either the new
sentence or the original sentence.” Id. at 309
(emphasis added). See also Commonwealth v.
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Schutzues, 54 A.3d 86 (Pa. Super. 2012); 42 Pa.
C.S.A. § 9760(4).
Trial Court Opinion, 5/1/15, at 1-4.
Appellant then filed this timely appeal. Both Appellant and the trial
court have complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
1. Did the court impose an unreasonable sentence which
contravenes the policy underlying the Sentencing Code where
the sentence is manifestly unreasonable, focuses solely on the
[Appellant’s] prior record without considering any mitigating
factors, and is not an individualized sentence?
Appellant’s Brief at 4.
Appellant argues that the trial court abused its discretion in imposing
the sentences in this case. Specifically, Appellant contends that the
sentences imposed were harsh and excessive in light of the factors which
should have been considered by the sentencing court.
It is well settled that there is no absolute right to appeal the
discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d
800, 805 (Pa. Super. 2006). Rather, an appellant’s appeal should be
considered to be a petition for allowance of appeal. Commonwealth v.
W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
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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.
[708 & 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.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)). Objections to the discretionary aspects of a sentence are generally
waived if they are not raised at the sentencing hearing or in a motion to
modify the sentence imposed. Id. (citing Commonwealth v. Mann, 820
A.2d 788 (Pa. Super. 2003)).
In Commonwealth v. Reeves, 778 A.2d 691 (Pa. Super. 2001), we
reaffirmed the principle articulated in Commonwealth v. Jarvis, 663 A.2d
790 (Pa. Super. 1995), wherein this Court observed that, although
Pa.R.Crim.P. 1410 (presently Rule 720) characterizes post-sentence motions
as optional, the rule expressly provides that only issues raised in the trial
court will be deemed preserved for appellate review. Applying this principle,
the Reeves Court held that an objection to a discretionary aspect of a
sentence is waived if not raised in a post-sentence motion or during the
sentencing proceedings. See Commonwealth v. Parker, 847 A.2d 745
(Pa. Super. 2004) (holding challenge to discretionary aspect of sentence was
waived because appellant did not object at sentencing hearing or file post-
sentence motion). See also Pennsylvania Rule of Criminal Procedure 708
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Comment (discussing proper preservation of issues challenging discretionary
aspect of sentence imposed following revocation hearing).
Whether a particular issue constitutes a substantial question about the
appropriateness of a sentence is a question to be evaluated on a case-by-
case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001). As to what constitutes a substantial question, this Court does not
accept bald assertions of sentencing errors. Commonwealth v. Malovich,
903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the
reasons the sentencing court’s actions violated the sentencing code. Id. “A
substantial question will be found where the defendant advances a colorable
argument that the sentence imposed is either inconsistent with a specific
provision of the Sentencing Code or is contrary to the fundamental norms
underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d
1128, 1133 (Pa. Super. 2009) (citations omitted).
Herein, the first requirement of the four-part test is met because
Appellant brought a timely appeal. However, Appellant partially met the
second requirement because she only challenged in her post-sentence
motion the discretionary aspects of sentence in relation to the sentence
imposed for her parole violation. In her post-sentence motion, Appellant
asserted that the sentencing court should have considered assorted
mitigating circumstances, including her chaotic childhood, limited education,
mental health issues, substance abuse, and health conditions, rather than
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her lengthy criminal history in fashioning her parole revocation sentence.
See “Post Sentence Motion to Modify Sentence,” 3/6/15, at 1-3. Ultimately,
Appellant stated the following at the conclusion of her post-sentence motion:
12. The modification of the sentence to allow for an earlier
parole date on the parole violation sentence would still serve
the retribution phase of the sentence and send a message to the
community concerning the seriousness of [Appellant’s] offenses
and the dangers of substance abuse for people like [Appellant]
who continue to commit crimes because of their addiction.
WHEREFORE, [Appellant] respectfully requests that this
Honorable Court modify the sentence by reducing the
parole violation sentence to a remaining term of
imprisonment that will allow [Appellant] to be paroled on the
parole violation at the same date as the minimum sentence for
the new charges. This sentence would highlight the seriousness
of these offenses, and such a sentence would afford [Appellant
the] opportunity to address her serious medical issues upon an
earlier release.
Id. at 3 (emphasis added). Therefore, we limit our review to this claim.1
Regarding the third requirement of the test, we observe that Appellant
included in her appellate brief the necessary separate concise statement of
the reasons relied upon for allowance of appeal pursuant to Pa.R.A.P.
2119(f). Therefore, we will next determine whether Appellant raises a
substantial question requiring us to review the discretionary aspects of the
sentence imposed by the sentencing court.
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1
To the extent that Appellant now presents additional challenges to the
discretionary aspects of sentencing with regard to the sentences imposed
upon Appellant for her “new charges,” such claims are waived due to
Appellant’s failure to present them in her post-sentence motion. Reeves.
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In her Pa.R.A.P. 2119(f) statement, Appellant claims that the
sentencing court failed to properly consider the factors set forth in 42
Pa.C.S. § 9721(b). Appellant’s Brief at 8-10.2 Appellant claims that the trial
court simply relied upon the gravity of the offense and failed to consider
other circumstances in imposing a sentence upon Appellant in the standard
range of the sentencing guidelines. Considering this claim to be an
allegation that the sentencing court failed to consider factors set forth under
42 Pa.C.S. § 9721(b), we conclude that, in this instance, Appellant has
raised a substantial question. See Commonwealth v. Fullin, 892 A.2d
843, 847 (Pa. Super. 2006) (concluding that the appellant raised a
substantial question where it was alleged that the trial court failed to
properly consider the factors set forth in 42 Pa.C.S. § 9721(b)).
Accordingly, because Appellant has stated a substantial question, we will
address this claim on appeal.
It is undisputed that sentencing is a matter vested in the sound
discretion of the sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. Fullin, 892 A.2d at 847. In
this context, an abuse of discretion is not shown merely by an error in
judgment. Id. Rather, the appellant must establish, by reference to the
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2
We note that the factors to be considered under 42 Pa.C.S. § 9721(b)
include the protection of the public, gravity of offense in relation to impact
on victim and community, and rehabilitative needs of the defendant.
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record, that the sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias, or ill will, or arrived at a
manifestly unreasonable decision. Id.
Indeed, the sentencing judge has broad discretion in determining the
proper penalty, and this Court accords the sentencing court great deference,
as it is the sentencing court that is in the best position to view the
defendant’s character, displays of remorse, defiance, or indifference and the
overall effect and nature of the crime. Commonwealth v. Walls, 926 A.2d
957, 961 (Pa. 2007) (quotations and citations omitted). 3 As previously
stated, when imposing a sentence, the sentencing court must consider “the
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3
The Walls Court instructed the following:
In making this “unreasonableness” inquiry, the General
Assembly has set forth four factors that an appellate court is to
consider:
(d) Review of the record.—In reviewing the record the appellate
court shall have regard for:
(1) The nature of the 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 pre-sentence
investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
Walls, 926 A.2d at 963.
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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(b). As we have stated, “a court is
required to consider the particular circumstances of the offense and the
character of the defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10
(Pa. Super. 2002). “In particular, the court should refer to the defendant’s
prior criminal record, his age, personal characteristics and his potential for
rehabilitation.” Id.
Appellant asserts that, in fashioning her sentence, the sentencing
court failed to consider properly Appellant’s personal character and physical
condition. Appellant’s Brief at 11-14. Appellant alleges that the sentencing
judge had a “personal agenda” regarding Appellant’s criminal behavior. Id.
at 12.
Our review of the record reflects that the sentencing court reviewed
Appellant’s presentence report, heard testimony from witnesses offered by
Appellant, accepted Appellant’s allocution and a letter from Appellant, and
heard argument from Appellant’s counsel prior to imposing Appellant’s
sentence. N.T., 2/24/15, at 6-16. In addition, at the time of sentencing,
the trial court gave a painstakingly detailed explanation for the sentence
imposed, which exhibited a thorough knowledge of Appellant’s multiple
mitigating factors, as well as the reasons for imposing the instant term of
incarceration. Id. at 18-24, 26.
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As the trial court aptly stated in its opinion dated May 1, 2015:
In the present case, the [c]ourt carefully considered all
information contained in the PSI Report before imposing
sentence on the parole violation. (N.T.S. at 18-19).14 The
[c]ourt then recognized that [Appellant] was not amenable to
treatment or rehabilitation outside a correctional facility, based
in large part on a total of twelve prior probation and/or parole
violations on all dockets. Id. at 21-23.15 Three such violations
occurred on these charges while [Appellant] was under Drug
Court supervision, and her fourth violation occurred only seven
days after she was released from jail on the third violation. Id.
at 9-10, 17, 22.16 This conduct clearly demonstrated that
repeated attempts to rehabilitate [Appellant] and treat her drug
addiction through probation and intensive supervision had been
unsuccessful.17
14
As previously noted, where the sentencing judge
has the benefit of a presentence investigation report
it will be presumed that the judge was aware of all
relevant information regarding a defendant’s
character, and weighed those considerations along
with mitigating factors. [Commonwealth v.]
Fowler, supra, 893 A.2d [758,] 766-[7]67[ (Pa.
Super. 2006)].
15
The [c]ourt also considered the nature and
circumstances of [Appellant’s] original charges for
which she was now on parole, where [Appellant] and
her co-conspirators committed a burglary and theft
by luring the victim out of his residence under a
ruse, entering the victim’s residence, and taking
cash and jewelry valued at $500. See PSI Report.
16
[Appellant’s] prior violations were based on new
criminal charges, moving from an approved
residence, repeated failures to appear for random
drug tests, and discharge from a drug treatment
facility for failure to appear. See PSI Report.
[Appellant] was afforded a tremendous break on the
three prior violations when she received probation or
a time served sentence on each occasion. (N.T.S. at
17, 22; PSI Report).
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17
In addition to her parole violation sentences,
[Appellant] received a break at the time of the guilty
plea when the sentence imposed was below the
standard range of the sentencing guidelines. See
Sentencing Order; Sentencing Guidelines Worksheet.
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 to the
conditions imposed on her. Commonwealth v.
Schutzues, 54 A.3d 86, 99 (Pa. Super. 2012); see
also Commonwealth v. Pasture, 107 A.3d 21, 28-
29 (Pa. 2014).
With convictions for new crimes involving the distribution
of cocaine, this [c]ourt found that [Appellant] is a danger to
society. (N.T.S. at 26). Furthermore, the [c]ourt noted that the
conduct of [Appellant] indicated she would likely commit another
crime if not incarcerated, based on her prior contact with the
court, new crimes, and failed attempts at rehabilitation. Id.
Additionally, [Appellant] has demonstrated total disregard for
her probation officer, this court, and the criminal justice system,
such that a state prison sentence was essential to vindicate the
authority of the court. Id.
Trial Court Opinion, 5/1/15, at 15-16.
Indeed, having thoroughly reviewed the record along with the opinion
of the sentencing court, we discern there is no indication that the sentencing
court ignored any relevant factors in fashioning the sentence. Accordingly, it
is our determination that there was no abuse of discretion on the part of the
sentencing court in imposing Appellant’s sentence within the standard range
of the sentencing guidelines. Hence, we conclude that Appellant’s claim
lacks merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2015
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