J-S81038-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JENNIFER RAE HURD :
:
Appellant : No. 1041 MDA 2018
Appeal from the Judgment of Sentence Entered April 16, 2018
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0000254-2017
BEFORE: STABILE, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 26, 2019
Appellant, Jennifer Rae Hurd, appeals from the judgment of sentence
entered in the Court of Common Pleas of Adams County after she pleaded
guilty to Driving Under the Influence of Alcohol (“DUI”), highest rate of
alcohol, in violation of 75 Pa.C.S.A. § 3802(c). Herein, she challenges the
discretionary aspects of her sentence. We affirm.
The pertinent facts and procedural history are as follows:
On September 19, 2017, Appellant appeared before [the trial
court] and entered a plea of guilty to amended count 2 of the
criminal information, DUI, highest rate of alcohol in violation of §
3802(c) of the Vehicle Code as a misdemeanor of the first degree
and third offense for mandatory sentencing purposes. In
accordance with 75 Pa.C.S.a. § 3804(c)(3), Appellant faced a
twelve month mandatory minimum sentence. Appellant’s plea
was pursuant to a plea agreement which recommended a
sentence of sixty months county intermediate punishment with
twelve months[’] restrictive intermediate punishment. During the
plea colloquy [the trial court] explained to the Appelalnt tha the
twelve months of restrictive punishment consisted of eight months
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S81038-18
at the Adams County Work Release Facility and four months on
electronic monitoring, house arrest.1 Sentence was scheduled for
November 16, 2017, to allow Appellant to undergo an assessment
to determine her eligibility for an intermediate punishment
sentence.
1 The Adams County Intermediate Punishment Plan, effective
January 1, 2015, sets forth a recommendation that the restrictive
period will be divided two thirds at the Adams County work release
facility and one-third house arrest with electronic monitoring.
On November 14, 2017, sentencing counsel for Appellant filed a
Sentencing Memorandum requesting [that the trial court] impose
an intermediate punishment sentence with a minimal amount of
jail time and a lengthy period of time on house arrest, based on
Appellant’s medical issues. Appellant required surgery for a total
hip replacement of her right hip and Appellant was also being
treated for multiple sclerosis. Appellant’s treatment for multiple
sclerosis included specific required medication. Appellant’s
counsel confirmed that the medical provider at the Adams County
Adult Correctional Complex could provide Appellant with her
prescribed medication if incarcerated at the Adams County Adult
Correctional Complex. [The trial court] also received and
reviewed supplemental character letters to the Sentencing
Memorandum, also dated November 14, 2017.
On November 1, 2017, at the request of Appellant with no
objection from the Commonwealth, sentence was continued until
April 16, 2018 to afford Appellant the opportunity to undergo hip
replacement surgery prior to sentence.
On April 16, 2018, Appellant appeared with sentence counsel for
sentence. Appellant filed a Supplemental Sentencing
Memorandum with [the trial court] on April 11, 2018, which
provided information [to the trial court] concerning Appellant’s
diagnosis of multiple sclerosis. Prior to sentence it was confirmed
that Primecare Medical, the medical provider for Adams County
Adult Correctional Complex, would provide the necessary
medication to Appellant concerning her treatment for multiple
sclerosis. During the sentencing hearing Appellant’s counsel
advised [the trial court] that other than multiple sclerosis,
Appellant was not dealing with any medical issues at that time,
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but had not undergone surgery for the hip replacement.
Appellant’s counsel requested a restrictive intermediate
punishment sentence with more time on house arrest and a lesser
period of incarceration at the work release facility of the Adams
county Adult Correctional Complex. This request was based on
Appellant’s medical issues and Appellant’s employment in
Lancaster County. [The trial court] sentenced Appellant to sixty
months intermediate punishment with 12 months’ restrictive
intermediate punishment, [the latter consisting of] eight months
at the Adams County Adult Correctional Complex work release
facility and four months on house arrest with electronic
monitoring.
On April 25, 2018, Kaitlyn Clarkson, Esquire entered her
appearance on behalf of Appellant. On April 26, 2018, Appellant
filed a Petition for Bail After Finding of Guilt Pursuant to
Pa.R.Crim.P. Rule 521, and a Motion to Modify Sentence. On May
30, 2018, [the trial court] granted Appellant’s Petition for Bail
After Finding of Guilt Pursuant to Pa.R.Crim.P. 521 and denied
Appellant’s Motion to Modify Sentence. On June 22, 2018,
Appellant filed her Notice of Appeal. By Order of Court dated June
25, 2018, [the trial court] directed Appellant to file a Concise
Statement of Matters Complained of on Appeal. Appellant timely
filed her Concise Statement on July 5, 2018.
Trial Court Opinion, 8/2/18, at 1-3.
Appellant presents one question for our consideration:
[Where] Hurd suffers from multiple sclerosis, COPD, and
degenerative disk disease, and requires hip surgery and a nose
reconstruction[, did] the trial court sentence [her] excessively in
ordering her to serve eight months in the Adams County
Correctional Complex [as part of the initial 12-month restrictive
setting portion of her 60-month IPP sentence]?
Appellant’s brief, at 4.
This Court has held:
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to appellate review as of right. Prior to
reaching the merits of a discretionary sentencing issue:
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[w]e 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.
[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. § 781(b).
Objections to the discretionary aspects of a sentence are generally
waived if they are not raised at the sentencing hearing or raised
in a motion to modify the sentence imposed at that hearing.
Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa.Super. 2006) (some
citations and punctuation omitted).
The Rule 2119(f) statement
must specify where the sentence falls in relation to the sentencing
guidelines and what particular provision of the Code is violated
(e.g., the sentence is outside the guidelines and the court did not
offer any reasons either on the record or in writing, or double-
counted factors already considered). Similarly, the Rule 2119(f)
statement must specify what fundamental norm the sentence
violates and the manner in which it violates that norm....
Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en
banc). “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.
Here, Appellant timely appealed, preserved the issue in her post-
sentence motion, and included a Pa.R.A.P. 2119(f) statement in the brief. See
Evans, 901 A.2d at 533. Further, Appellant asserts in her Rule 2119(f)
statement that she raises a substantial question that her sentence of
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incarceration was inappropriate where she claims the trial court failed to
consider her individual circumstances consisting of a disabling medical
diagnosis and her resultant need for nearly continuous physical assistance.
Even if we assume arguendo that Appellant’s claim raises a substantial
question, we observe 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. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the 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.
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa.Super. 2008) (citation
omitted). “Where pre-sentence reports exist, we shall . . . presume that the
sentencing judge was aware of relevant information [contained therein] and
weighed those considerations along with mitigating statutory factors. A pre-
sentence report constitutes the record and speaks for itself.”
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Moreover, a
challenge to a standard range sentence must show the sentence is “clearly
unreasonable” based on the circumstances of the case. Commonwealth v.
Coulverson, 34 A.3d 135, 146 (Pa.Super. 2011).
Here, the record confirms both the existence of a presentence
investigation report and the court’s repeated inquiry into Appellant’s medical
condition, as it asked both parties for pertinent medical updates and otherwise
articulated an awareness of her condition. N.T. 4/16/18, at 2-6. The court
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thereafter imposed a standard range sentence, to which Appellant filed a
motion for reconsideration of sentence. Again, at the hearing on Appellant’s
motion, the court demonstrated a consideration of the sentencing guidelines,
sentencing alternatives, and the likelihood that Appellant would receive
adequate attention to her needs in a medical facility at the prison. N.T.
5/15/18, at 11-13.
Given this record, we discern no merit to Appellant’s contention that the
court failed to give reasonable consideration to her individual medical needs
as they related to a sentence of incarceration. To that end, we adopt the trial
court’s rationale as expressed on pages 5-7 of its Pa.R.A.P. 1925(a) Opinion.
Accordingly, Appellant’s challenge to the discretionary aspects of her sentence
fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/26/2019
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Circulated 02/01/2019 09:12 AM
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