J-A24010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHELBY DARLIN CASPER
Appellant No. 1096 WDA 2016
Appeal from the Judgment of Sentence June 28, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0006331-2013
CP-02-CR-0009079-2012
BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 9, 2017
Shelby Darlin Casper appeals from the June 28, 2016 judgment of
sentence entered in the Allegheny County Court of Common Pleas following
her revocation of probation. We affirm.
The trial court set forth the history of this case as follows:
On December 6, 2012, . . . Casper, pled guilty at CC
201209079 [(“CC 2012”)] to one count each of Criminal
Conspiracy (Burglary), Theft by Unlawful Taking and
Receiving Stolen Property.[1] This Court sentenced her to
three years probation at the Conspiracy count and no
further penalty at the remaining counts. On September
25, 2013, [Casper] pled guilty at CC 201306331 [(“CC
2013”)] to one count of Possession of Firearm with Altered
Manufacturer’s Number, one count of Possession of a
Controlled Substance with Intent to Deliver (PWID), one
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1
18 Pa.C.S. §§ 903, 3921(a), and 3925(a), respectively.
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count of Possession of a Controlled Substance, two counts
of Recklessly Endangering Another Person and one count
of Possession of Drug Paraphernalia.[2] This Court
sentenced [Casper] on the Possession of Firearm with
Altered Manufacturer’s Number count to two years of
Intermediate Punishment with 3 years of concurrent
probation at the PWID count, and no further penalty at the
remaining charges.
On February 4, 2014, this Court found [Casper] to have
violated probation at [CC 2012] by virtue of her new
conviction at [CC 2013] and resentenced her to a new
three[-]year term of probation. On June 30, 2015, this
Court found [Casper] to be a technical violator of her
probation at both cases. This Court revoked and
reimposed probation again at [CC 2012], and took no
action at [CC 2013]. On June 28, 2016, after a third
violation hearing, this Court found [Casper] to be a
technical violator of her conditions of probation and
resentenced her at [CC 2012] to one to two years
incarceration and [gave her credit for time served]. At [CC
2013], this Court imposed a period of incarceration of 42
to 100 months with three years consecutive probation.
Opinion, 3/10/17, at 2 (“1925(a) Op.”).
Casper timely filed her notice of appeal.3 On appeal, she raises the
following issue: “Did the trial court fail to adequately consider and apply all
of the relevant sentencing criteria, including the protection of the public, the
gravity of the offense/violation, and especially Ms. Casper’s character and
____________________________________________
2
18 Pa.C.S. § 6110.2(a), 35 P.S. §§ 780-113(a)(30), 780-113(a)(16),
18 Pa.C.S. § 2705, and 35 P.S. § 780-113(a)(32), respectively.
3
On July 19, 2016, Casper filed a post-sentence motion nunc pro tunc.
The trial court granted nunc pro tunc relief but did not rule on the motion.
Because this is a revocation sentence, the 30-day appeal period is not tolled
and Casper had to file her notice of appeal within the required 30 days. See
Pa.R.Crim.P. 708(E). Therefore, Casper’s notice of appeal, filed on July 28,
2016, is timely.
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rehabilitative needs, as required under 42 Pa.C.S.A. § 9721(b) (Sentencing
generally; general standards)[?]” Casper’s Br. at 6 (full capitalization
omitted).
Casper is challenging the discretionary aspects of her 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). Before we address such a challenge, we first
determine:
(1) whether the appeal is timely; (2) whether [a]ppellant
preserved his issue; (3) whether [a]ppellant’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 [S]entencing [C]ode.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).
Casper filed a timely notice of appeal, preserved her claim in a timely
post-sentence motion, and included in her brief a concise statement of
reasons relied upon for allowance of appeal pursuant to Pennsylvania Rule of
Appellate Procedure 2119(f). Additionally, Casper’s claim that her sentence
is excessive in light of the technical violations of her probation raises a
substantial question. See Malovich, 903 A.2d at 1253 (“[A] claim that a
particular probation revocation sentence is excessive in light of its underlying
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technical violations can present a question that we should review.”).
Accordingly, we will review the merits of her claim.
“Sentencing is a matter vested within the discretion of the trial court
and will not be disturbed absent a manifest abuse of discretion.”
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010). “A
sentencing court need not undertake a lengthy discourse for its reasons for
imposing a sentence or specifically reference the statute in question, but the
record as a whole must reflect the sentencing court’s consideration of the
facts of the crime and character of the offender.” Id. at 1283.
Upon revocation of probation, a trial court may impose a sentence of
total confinement if any of the following requirements are met: “(1) the
defendant has been convicted of another crime; or (2) the conduct of the
defendant indicates that it is likely that he will commit another crime if he is
not imprisoned; or (3) such a sentence is essential to vindicate the authority
of the court.” 42 Pa.C.S. § 9771(c). “[T]he sentencing alternatives
available to the court shall be the same as were available at the time of
initial sentencing, due consideration being given to the time spent serving
the order of probation.” 42 Pa.C.S. § 9771(b).
Casper claims that the trial court abused its discretion in imposing an
aggregate term of 54 to 124 months’ incarceration plus 3 years of probation.
Casper contends that the sentence was manifestly unreasonable because
revocation was based solely on technical violations; the trial court failed to
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consider the protection of the public, the gravity of the offense, and Casper’s
rehabilitative needs; and the trial court ignored key mitigating evidence.
Here, the trial court found:
This Court considered numerous factors in sentencing
[Casper], including two Pre-Sentence reports. The
Pennsylvania Supreme Court has held:
Where pre-sentence reports exist, we shall
continue to presume that the sentencing judge
was aware of relevant information regarding
the defendant’s character and weighed those
considerations along with mitigating statutory
factors . . . [.] Having been informed by the
pre-sentence report, the sentencing court’s
discretion should not be disturbed.
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).
The hearing on June 28, 2016 was [Casper]’s third
violation of probation hearing. She refused to participate
in a Justice Related Services (“JRS”) program and has
been unable or unwilling to maintain mental health
treatment compliance. She twice removed her ankle
bracelet. She displayed a defiant attitude toward
probation supervision and this Court. She was placed in
alternative housing for a therapeutic intervention three
times and was sent back to jail each time for program
violations. She used marijuana daily, with her last date of
usage being the date of her arrest. Yet, she denied having
drug problems. She has repeatedly demonstrated through
her words and her conduct that she is either unwilling or
unable to be supervised in the community or to follow the
reasonable rules of society.
The sentence imposed was designed to afford [Casper]
the opportunity to receive necessary and appropriate
mental health and drug and alcohol treatment which she
repeatedly failed to avail herself of while under community
supervision or in alternative housing. Further, the
sentence affords her the opportunity to either earn parole
at her minimum or remain detained until she demonstrates
stability, maturity and the ability to follow rules. Thus, this
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Court did not err in sentencing her to time served on the
2012 case and a standard range period of incarceration of
42 to 100 months with three years consecutive probation
on the 2013 gun and drug case.
1925(a) Op. at 6-7 (some internal citations omitted). We find no abuse of
discretion.
Further, the trial court thoroughly stated on the record its reasons for
imposing its sentence:
THE COURT: . . . This is her third violation of probation
hearing. She has never had JRS but she doesn’t want it.
She says she can do this on her own. I can’t order her to
be medication compliant. Without JRS, I don’t feel that I
can continue to have probation supervise her in the
community. I don’t know what else to say but on a third
violation on a Felony 2 burglary of a gun[ shop], second
violation on a Felony 2. She twice removed her ankle
bracelet. She has displayed a terrible defiant attitude and
carries an Axis II diagnosis. If you’re asking me to give her
another chance at probation, I don’t think I’m going to be
willing to do that without some support.
...
THE COURT: Ms. Casper, don’t waste my time. Do you
want to cooperate with the JRS plan if they accept the
referral or not?
THE DEFENDANT: Would that mean I would go to another
program?
THE COURT: I don’t know what JRS would recommend
until they accept you and meet with you and come up with
a plan.
THE DEFENDANT: I don’t want to go to another program.
So no.
...
THE COURT: All right. I’m not going to refer her to JRS.
She’s not going to cooperate with it. Her attitude
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continues to be terrible. She believes she should be able
to dictate to me what she needs and what she’ll do or not
do and I won't accept that.
...
THE COURT: Please assume that I’ve read both
presentence reports and the Behavior Clinic evaluation
because I have. I’m aware that she has mental health
needs. I cannot force her to receive treatment for them.
...
THE COURT: She only wants [treatment] on her terms and
I can’t promise her that. I won’t waste resources sending
her to JRS with the anticipation they are going to
recommend a dual diagnosis treatment program which she
told me she doesn’t think will do any good and hasn’t done
any good in the past and she won’t do. Is that right?
THE DEFENDANT: Yes.
N.T., 6/28/16, at 3-5, 13, 16.
Casper further argues that the trial court failed to consider key
mitigating evidence, such as her mental health treatment and medication,
employment history, and family support. The record, however, belies her
claims. At the revocation hearing, trial court stated, “I'm aware that she has
mental health needs. I cannot force her to receive treatment for them.” Id.
at 16. The trial court gave Casper every opportunity to accept treatment,
which she repeatedly declined. Further, the following exchange occurred:
THE COURT: We’re not talking about alternative housing.
What we’re talking about is a program through JRS.
THE DEFENDANT: I don’t understand what that means.
What’s the difference?
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THE COURT: There are a number of programs such as
Pyramid, private programs that JRS may recommend for
you.
THE DEFENDANT: They are all rehab and I don’t have a
drug problem.
THE COURT: Let’s just go forward. She doesn’t have a
drug problem in her estimation. She’s declining services.
What am I going to do?
...
THE COURT: Let me read from the Behavior Clinic
evaluation which is based on her report. [Casper]
reported that she started using marijuana at age 13,
alcohol at age 14, opiates at age 15. She used marijuana
daily, and alcohol and opiates occasionally. The last use of
marijuana and opiates was on the date of the arrest and
the use of alcohol probably a few days before that. This is
a person who by all data reported would be considered
high risk for drug dependence. And the Behavior Clinic, in
fact, indicates []cannabis use disorder in remission,
secondary to controlled environment. Opioid use disorder
in remission, secondary to controlled environment.
...
THE COURT: . . . So I’m not going to play any games here,
Ms. Casper. You seem to want to speak for yourself. Tell
me what you want me to do.
THE DEFENDANT: I don’t know.
THE COURT: You’ve heard your options. Consider a JRS
plan that will likely include an inpatient treatment
somewhere or I have a presentence report and I’m
prepared to resentence you here on both cases. It’s up to
you.
THE DEFENDANT: I guess I’ll do the JRS.
THE COURT: What I’m telling you is assume the worst.
It’s likely to be an inpatient treatment program. A dual
diagnosis inpatient treatment program. If you’re unwilling
to do that and seriously do that, then tell me that now
because there is no point in wasting our judicial resources.
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I’m encouraging you to do it. I’ve already done everything
I can do short of that for you.
THE DEFENDANT: I guess I don’t have a choice.
THE COURT: You have a choice.
THE DEFENDANT: I mean, I would rather do that than do
10 years. So I guess I’m going to have to do that even
though it’s obviously not beneficial to me whatsoever.
Id. at 7-9, 12-13. Additionally, the record reflects that the trial court was
aware of and considered Casper’s family support, see id. at 10-11, and had
the benefit of two pre-sentence reports, see Devers, 546 A.2d at 18.
Finally, we disagree with Casper’s contention that the trial court did
not consider the protection of the public, the gravity of the offense, and her
rehabilitative needs. The trial court stated that Casper continuously violated
her probation, refused every opportunity given to receive treatment, and
that “[w]ithout JRS, I don’t feel that I can continue to have probation
supervise her in the community.” N.T., 6/28/16, at 3. Further, as discussed
above, the trial court thoroughly considered her rehabilitative needs.
A trial court is “in the best position to evaluate [an a]ppellant’s
character and . . . defiance or indifference.” Malovich, 903 A.2d at 1254.
Given the trial court findings regarding Casper’s defiant attitude, her
repeated violations of probation, and her unwillingness to participate in
rehabilitation treatment, we cannot conclude that her sentence was
manifestly unreasonable. See id.
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Because the record shows that the sentence imposed was essential to
vindicate the authority of the court under 42 Pa.C.S. § 9771(c)(3), and the
trial court fully stated its reasons on the record, we conclude it did not abuse
its discretion in imposing its sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2017
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