J-A31039-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KAITLYN CHRISTINE CANOY,
Appellant No. 884 MDA 2015
Appeal from the Judgment of Sentence April 23, 2015
in the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0002460-2013
BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JANUARY 05, 2016
Appellant, Kaitlyn Christine Canoy, appeals from the judgment of
sentence entered on April 23, 2015, following the revocation of her
probation. On appeal, Appellant challenges the discretionary aspects of her
sentence. For the reasons discussed below, we affirm the judgment of
sentence.
We take the underlying facts and procedural history in the matter from
the trial court’s July 20, 2015 opinion and our independent review of the
certified record.
On April 10, 2014, Appellant pleaded guilty to charges of retail theft
and theft by unlawful taking. The charges arose from Appellant’s theft of
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*
Retired Senior Judge assigned to the Superior Court.
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items from Kohl’s Department Store on three occasions between August and
November 2012, and the theft of prescription narcotics from her
grandmother. (See Trial Court Opinion, 7/20/15, at 2). The trial court
sentenced Appellant to a term of twelve months’ county probation.
On February 5, 2015, the trial court revoked Appellant’s probation
based upon her positive drug test and failure to conform to the rules of
probation. (See N.T. Revocation Hearing, 2/05/15, at 2-6). The trial court
sentenced Appellant to nine months’ intermediate punishment (IP), with the
first four months to be served on work release. (See Trial Ct. Op., at 1).
On April 23, 2015, a second revocation hearing took place after
Appellant was found in possession of stolen property. (See N.T. Revocation
Hearing, 4/23/15, at 2-3). The trial court sentenced Appellant to thirty-six
months’ IP, with the first six months restricted to the Dauphin County
Prison. (See Trial Ct. Op., at 1).
On May 4, 2015, Appellant filed a post-sentence motion, which the
trial court denied on May 8, 2015. The instant, timely appeal followed. On
May 21, 2015, the trial court ordered Appellant to file a concise statement of
errors complained of on appeal. See Pa.R.A.P. 1925(b). Appellant timely
filed her Rule 1925(b) statement on May 26, 2015. On July 20, 2015, the
trial court filed an opinion. See Pa.R.A.P. 1925(a).
On appeal, Appellant raises the following question for our review:
Whether the trial court erred in denying Appellant’s [p]ost-
[s]entence [m]otion where her sentence was excessive and
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unreasonable and constitutes too severe a punishment in light of
the alleged gravity of the offense, Appellant’s rehabilitative
needs, and what is needed to protect the public?
(Appellant’s Brief, at 5).
On appeal, Appellant challenges the discretionary aspects of her
sentence.1 In Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super.
2013) (en banc), an en banc panel of this Court held that “this Court’s scope
of review in an appeal from a revocation sentencing includes discretionary
sentencing challenges.” Cartrette, supra at 1034. Thus, Appellant’s claim
is properly before us.
The right to appeal the discretionary aspects of a sentence is not
absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.
2004), appeal denied, 860 A.2d 122 (Pa. 2004). When an appellant
challenges the discretionary aspects of the sentence imposed, she must
present “a substantial question as to the appropriateness of the sentence[.]”
Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)
(citations omitted). An appellant must, pursuant to Pennsylvania Rule of
Appellate Procedure 2119(f), articulate “a colorable argument that the
sentence violates a particular provision of the Sentencing Code or is contrary
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1
We note that Appellant preserved her discretionary aspects of sentence
claim by filing a timely post-sentence motion for reconsideration of
sentence. See McAfee, infra at 275.
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to the fundamental norms underlying the sentencing scheme.”
Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)
(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If
an appellant’s Rule 2119(f) statement meets these prerequisites, we
determine whether a substantial question exists. See Commonwealth v.
Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied,
759 A.2d 920 (Pa. 2000). “Our inquiry must focus on the reasons for which
the appeal is sought, in contrast to the facts underlying the appeal, which
are necessary only to decide the appeal on the merits.” Id. (emphases in
original).
Here, Appellant has included a Rule 2119(f) statement in her brief.
(See Appellant’s Brief, at 8-9). In it, Appellant argues that the sentence
was excessive and unreasonable and constitutes too severe a punishment
because her grandmother is in failing health and her father has heart
troubles. (See id. at 9). This claim raises a substantial question. See
Commonwealth v. Swope, 123 A.3d 333, 339-40 (Pa. Super. 2015).
[T]he imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial court,
which, absent an abuse of that discretion, will not be disturbed
on appeal. . . . Once probation has been revoked, a sentence of
total confinement may be imposed if any of the following
conditions exist: (1) the defendant has been convicted of
another crime; or (2) the conduct of the defendant indicates that
it is likely that [s]he will commit another crime if [s]he is not
imprisoned; or, (3) such a sentence is essential to vindicate the
authority of court.
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Commonwealth v. Edwards, 71 A.3d 323, 327 (Pa. Super. 2013), appeal
denied, 81 A.3d 75 (Pa. 2013) (citations omitted).
Here, as discussed above, this was Appellant’s second revocation of
probation. Further, Appellant’s suspension from the work release program
was for the same type of theft activity that led to her underlying conviction.
(See N.T. Revocation Hearing, 4/23/15, at 3-5). Thus, Appellant has twice
demonstrated her inability to conform to the requirements of probation and
IP. (See Trial Ct. Op., at 3-4). Moreover, Appellant’s assertion that various
members of her family were in poor health is completely irrelevant to the
question of her rehabilitative needs. Lastly, Appellant’s sentence was well
within the statutory limits.2 (See id.). Thus, the record amply supports
Appellant’s sentence of IP with the first six months restricted to the Dauphin
County Prison, and her claim that the sentence was unreasonable is
frivolous. See Edwards, supra at 327.
Further, even if this were not the case, Appellant’s argument consists
of boiler-plate citation to case law and a single paragraph argument that
simply reiterates her claim at the revocation hearing regarding the poor
health of her grandmother and father and concludes with the statement that
the trial court erred in denying her motion for modification. (See Appellant’s
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2
We note that the sentencing guidelines do not apply to sentences imposed
following a revocation of probation. See Commonwealth v. Williams, 69
A.3d 735, 741 (Pa. Super. 2013), appeal denied, 83 A.3d 415 (Pa. 2014)
(citation omitted).
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Brief, at 10-12). It is settled that “we do not accept bald assertions of
sentencing errors. Rather, Appellant must support [her] assertions by
articulating the way in which the court’s actions violated the sentencing
code.” Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
2006) (citation omitted). Appellant failed to do so. (See Appellant‘s Brief,
at 10-12). Appellant’s issue does not merit relief. See Malovich, supra at
1252.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/5/2016
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