J-S30040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLENA KEGLER
Appellant No. 2175 EDA 2015
Appeal from the Judgment of Sentence June 23, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0400351-2005
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 02, 2016
Appellant Charlena Kegler appeals from the judgment of sentence
entered on June 23, 2015 in the Philadelphia County Court of Common Pleas
following the revocation of her probation. We find Appellant waived her
discretionary aspects of sentencing claim and affirm the judgment of
sentence.
The trial court set forth the following factual and procedural history:
[Appellant] was arrested [on] July 28, 2000 for forging
checks at area banks. Shortly after her arrest, she
disappeared and her whereabouts remained unknown for
nearly the next five years. On May 19, 2005, [Appellant]
finally appeared before [the c]ourt and pled guilty to
[f]orgery,[1] graded as a felony of the third degree.
Pursuant to her negotiated sentence, [the c]ourt sentenced
her to two years reporting probation. [Appellant] was
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1
18 Pa.C.S. § 4101(a)(1).
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ordered to seek and maintain employment, stay out of
trouble with the law, and pay all fines, costs, and
restitution.
Subsequently, [Appellant] absconded from supervision and
wanted cards were issued on July 18, 2005. She was
apprehended by authorities more than two years later on
October 31, 2007, and a court date was scheduled for
December 7, 2007. On that date, [Appellant] appeared
briefly in the courtroom but disappeared before her case
was called. Wanted cards were issued once again.
[Appellant] remained at large until she was arrested a year
and a half later on July 25, 2009. She appeared before
[the c]ourt on August 20, 2009, at which time [the c]ourt
found her to be in technical violation of her sentence for
absconding from supervision. [The c]ourt revoked her
probation and sentenced her to 11 1/2 to 23 months
county incarceration plus 5 years reporting probation.
[Appellant] was ordered to complete a drug treatment
program, enroll in job training, complete parenting classes,
earn her GED, and pay costs, fines and restitution at a rate
of $25 per month.
On February 18, 2010, [Appellant] was paroled to an
intensive residential drug and mental health treatment
program at Gaudenzia House. Upon completing this
program, [Appellant] was instructed to enroll in outpatient
drug treatment. On January 3, 2012, she provided her
probation officer with a certificate of completion from
Gaudenzia outpatient services; however, she tested
positive for PCP, marijuana and benzodiazepine use.
Throughout the summer of 2012, [Appellant] continued to
test positive for drug use. Her probation officer provided
her with referrals to dual diagnosis outpatient treatment
centers[,] but she never enrolled. On September 27,
2012, [Appellant] admitted herself to the psychiatric unit
of Hahnemann University Hospital. She was discharged on
October 2, 2012 and immediately absconded from
supervision. Her whereabouts remained unknown until she
was arrested [on] May 7, 2015, after she violated a
Protection From Abuse order (PFA).
On June 23, 2015, [Appellant] appeared before [the c]ourt
for her second violation hearing. First, [the c]ourt
reviewed [Appellant’s] criminal history since her first
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appearance before [the c]ourt in 2005. Defense counsel
asked that [the c]ourt order a presentence investigation
report as well as a forthwith mental health evaluation,
arguing that [Appellant’s] mental health problems were
undiagnosed and that she was apprehended by authorities
after she tried to commit suicide and not because she
violated a PFA. [The c]ourt denied that request, finding
that [Appellant’s] mental health issues were already well
known, as she received dual diagnosis treatment while at
Gaudenzia House and her probation officer gave her
numerous referrals to dual diagnosis outpatient treatment
centers. [Appellant] chose not to enroll herself in these
programs. (N.T.[,] 6/23/15, p. 2 -12).
Defense counsel then insisted that a forthwith psychiatric
evaluation was necessary, although she admitted that she
had barely spoken with [Appellant] prior to the violation
hearing beyond asking [Appellant] two questions about her
arrest. [The c]ourt then conducted an on-the-record
colloquy, asking [Appellant] her age, education, history of
mental illness, medication use, and whether she
understood why she was in court. [Appellant] responded
that she understood she was in court because she was not
reporting to her probation officer, had absconded from
supervision and had been using drugs. [Appellant]
explained that she attempted suicide in March 2015, and
as a result, received inpatient treatment in a mental health
facility where she was prescribed the drug Haldol and later
Risperdal. Based upon this colloquy, [the c]ourt
determined that a forthwith psychiatric evaluation was
unnecessary, that [Appellant] was in fact assisting her
lawyer, and that [Appellant] was competent to proceed
with the violation hearing. Id. at 13-18.
Defense counsel recommended a [forensic intensive
recovery (“FIR”)] evaluation for dual diagnosis treatment
and that [Appellant] receive supervision from the Mental
Health Unit. If [the c]ourt chose to impose a term of
incarceration, defense counsel asked that a county
sentence be imposed, that [Appellant] undergo drug
treatment and eventually enter a work release program
where she could earn her GED. Id. at 18-19.
The Commonwealth argued that [Appellant] absconded
from supervision three times over the last 10 years, and
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that all of the local and county resources had proved
unsuccessful at helping [Appellant] rehabilitate herself.
The Commonwealth recommended a state sentence. Id.
at 19 -20.
[Appellant] spoke next on her own behalf. She apologized
for thumbing her nose at the [c]ourt and acknowledged
that she needed help. She asked for a long-term
treatment program and requested that she serve any term
of incarceration in the county jail so she could be close to
her family. Id. at 20.
[The c]ourt found [Appellant] in technical violation for
absconding from supervision, testing positive for drug use,
and not completing any of the terms and conditions of her
sentence. [The c]ourt noted that [it] had reviewed
[Appellant’s] treatment summary from Gaudenzia House,
dated May 11, 2014,[2] and that at that time, [Appellant]
had been diagnosed with bipolar disorder, depression, and
polysubstance abuse of Xanax, alcohol and PCP. [The
c]ourt terminated Appellant’s parole and revoked her
probation. [Appellant] was sentenced to 2 1/2 to 5
years[’] state incarceration, with credit for time served.
[The c]ourt recommended that [Appellant] serve her
sentence at SCI-Chester where she could receive dual
diagnosis treatment. [The c]ourt ordered Defendant to
complete parenting classes, earn her GED, and enroll in
job training. [Appellant] was deemed Recidivism Risk
Reduction Incentive (RRRI) eligible.
Opinion, 10/8/2015, at 1-4 (“1925(a) Opinion”). On July 23, 2015,
Appellant filed a timely notice of appeal. Both Appellant and the trial court
complied with Pennsylvania Rule of Appellate Procedure 1925.
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2
At sentencing, Appellant’s attorney stated Appellant provided
documentation from Gaudenzia and that she was at Gaudenzia from
February 11, 2014 to May 12, 2014. N.T., 6/23/2015, at 6.
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Appellant raises the following issue on appeal:
Did not the probation revocation court violate the tenets of
the Sentencing Code by sentencing [A]ppellant to a 2 1/2
to 5 year term of total confinement for technical violations
only, where [A]ppellant had not been convicted of a crime
for ten years, where the court did not take into
consideration [A]ppellant’s rehabilitative needs and
declined to order a pre-sentence investigation or mental
health evaluation even though [A]ppellant’s last pre-
sentence investigation report was from 2009 and she had
recently been diagnosed with severe mental illnesses and
had attempted suicide?
Appellant’s Brief at 3. This issue challenges the discretionary aspects of
Appellant’s sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super.2011) (quoting Commonwealth v. Sierra, 752 A.2d 910,
912 (Pa.Super.2000)). Before this Court can address a discretionary
challenge, we must engage in a four-part analysis to determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant’s brief includes
a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary
aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence
is appropriate under the sentencing code.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super.2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super.2006)); see
also Allen, 24 A.3d at 1064. To preserve a challenge to the discretionary
aspects of a sentence, an appellant must raise the issue “in a post-sentence
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motion or by presenting the claim to the trial court during the sentencing
proceedings.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042-43
(Pa.Super.2013) (quoting Commonwealth v. Kittrell, 19 A.3d 532, 538
(Pa.Super.2011)). “Absent such efforts, an objection to a discretionary
aspect of a sentence is waived.” Id.
Although Appellant filed a timely notice of appeal and her appellate
brief contains a statement of reasons relied upon for allowance of appeal
pursuant to Pennsylvania Rule of Appellate Procedure 2119(f), she failed to
file a post-sentence motion or object to the sentence at the sentencing
hearing. Because she failed to file a post-sentence motion or object at the
sentencing hearing, her claim challenging the discretionary aspects of her
sentence is waived. Cartrette, 83 A.3d at 1042-43.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/2/2016
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Com. v. Kegler, C.
Combined Opinion