J-S75020-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LARAINE ROTHWELL
Appellant No. 112 EDA 2016
Appeal from the Judgment of Sentence December 7, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0007523-2013
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LA’RAINE LYNITE ROTHWELL
Appellant No. 113 EDA 2016
Appeal from the Judgment of Sentence December 7, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0005252-2011
BEFORE: BOWES, J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED OCTOBER 12, 2016
La’Raine Rothwell appeals from the December 7, 2015 judgment of
sentence entered in the Court of Common Pleas of Delaware County
J-S75020-16
following a violation of her intermediate punishment.1 We affirm.
On March 6, 2008, when Rothwell was arrested on charges of retail
theft,2 she already possessed a lengthy criminal history that included seven
retail theft convictions. She pled guilty and the trial court sentenced her to
imprisonment followed by probation.
On June 28, 2011, Rothwell was again arrested on charges of retail
theft as well as resisting arrest.3 She pled guilty and the trial court
sentenced her to 3 to 23 months’ imprisonment followed by 2 years’
probation.
On October 26, 2013, Rothwell was arrested on charges of robbery,4
simple assault,5 retail theft, and receiving stolen property.6 On March 13,
2014, the trial court sentenced Rothwell to 24 months’ county intermediate
punishment7 with the condition that she stay away from J.C. Penney and
____________________________________________
1
The sentences were imposed at two docket numbers: CP-23-CR-
0007523-2013 and CP-23-CR-0005252-2011.
2
18 Pa.C.S. § 3929(a)(1).
3
18 Pa.C.S. § 5104.
4
18 Pa.C.S. § 3701(a)(1)(iv).
5
18 Pa.C.S. § 2701(a)(1).
6
18 Pa.C.S. § 3925(a)(1).
7
See 42 Pa.C.S. § 9804 (authorizing and describing county
intermediate punishment programs).
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enter a mental health treatment program. On that same date, the trial court
found her in violation of her probation on the 2008 and 2011 charges. The
trial court sentenced Rothwell to a new term on both dockets: one year of
probation for the 2008 charges and two years’ probation for the 2011
charges, to run concurrently with the sentence imposed for the 2013
charges.
Rothwell failed to comply with the conditions of her intermediate
punishment. The trial court described Rothwell’s actions during the following
months as follows:
[Rothwell] failed to participate in education, treatment and
rehabilitation programs. She did not cooperate with her
therapist. After testing positive for cocaine, she was
ordered to attend meetings but failed to do so. She was
hostile and resistant to treatment. She used her cell
phone during group sessions. She continued to test
positive for cocaine. She twice obtained prescriptions for
Tylenol with codeine and once for Percocet despite the fact
the she was not permitted to take any narcotics. She
agreed to bring the Percocet pills to the Probation
Department but failed to do so, claiming that her sister
had flushed them down the toilet.
1925(a) Op. at 2.
On November 24, 2015, the trial court held a Gagnon II8 hearing
and, after considering all of the evidence and recommendations, found
Rothwell in violation of her intermediate punishment. For the 2011 charges,
____________________________________________
8
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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the trial court sentenced Rothwell to 24 to 84 months’ imprisonment. For
the 2013 charges, it sentenced her to an additional 1 to 2 years’
imprisonment, to be served consecutively.9
After Rothwell’s petitions for reconsideration were denied, she filed a
timely notice of appeal. Both Rothwell and the trial court complied with
Pennsylvania Rule of Appellate Procedure 1925. Rothwell raises the
following issue on appeal:
Whether the sentences handed down in these matters per
the orders of December 7, 2015 were harsh and excessive
under the circumstances since the record is abundantly
clear that a probationary period was a viable alternative to
the actual term of imprisonment imposed.
Appellant’s Br. at 7.
Rothwell challenges 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 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.”
____________________________________________
9
The trial court issued its final sentencing order on December 7, 2015.
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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.
Rothwell 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). We must now determine whether she has
raised a substantial question that the sentence is inappropriate under the
sentencing code and, if so, review the merits.
We evaluate whether a particular issue raises a substantial question on
a case-by-case basis. Commonwealth v. Dunphy, 20 A.3d 1215, 1220
(Pa.Super. 2011). A substantial question exists where a defendant raises a
“plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa.Super. 2013) (citation
and internal quotation omitted). “[C]laims that a penalty is excessive and/or
disproportionate to the offense can raise substantial questions.”
Commonwealth v. Malovich, 903 A.2d at 1247, 1253 (Pa.Super. 2006).
Moreover, “a claim that a particular probation revocation sentence is
excessive in light of its underlying technical violations can present a question
that we should review.” Id.
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Rothwell maintains that her sentence was harsh and excessive under
the circumstances. She claims that the trial court (1) imposed a term of
total confinement without properly assessing the criteria set forth in 42
Pa.C.S. § 9725, and (2) sentenced Rothwell to a term that was inconsistent
with the punishment necessary to protect the public and to meet her
rehabilitative needs. Appellant’s Br. at 10. These claims raise a substantial
question. See Commonwealth v. Cartrette, 83 A.3d 1030, 1042
(Pa.Super. 2013) (“In his 2119(f) statement, Appellant argues that the trial
court’s sentence is not consistent with the gravity of his violation, the need
for public protection, or his needs for rehabilitation. . . . [W]e find this
argument raises a substantial question.”).10 Because Rothwell’s concise
statement raises a substantial question, we will address 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). “An
abuse of discretion requires the trial court to have acted with manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
____________________________________________
10
In addition, Rothwell raises a substantial question because the trial
court sentenced her to total confinement following technical violations of
probation. Appellant’s Br. at 8; see Commonwealth v. Colon, 102 A.3d
1033, 1043 (Pa.Super. 2014) (“Appellant’s claim that the trial court
sentenced him to a term of total confinement based solely on a technical
violation raises a substantial question for our review.”).
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support so as to be clearly erroneous.” Id. “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.
Rothwell argues that the trial judge’s “discretion to incarcerate
[Rothwell] was limited by the standards codified in section 9725.”
Appellant’s Br. at 17. She contends that the trial court erred because there
was an alternative treatment available to address her rehabilitative needs
and that the sentence of 3 to 9 years’ imprisonment was excessive. We
disagree.
A review of the record shows that the trial court appropriately
considered “the protection of the public, [the] gravity of offense in relation
to impact on victim and community, and [Rothwell’s] rehabilitative needs.”
42 Pa.C.S. § 9721(b). In doing so, the trial court noted:
[Rothwell] is guilty of repeated flagrant violations that . . .
evidence a resistance to reform. She is afflicted with
mental illness, but she refuses to take appropriate steps to
combat her drug addiction, which only exacerbates her
mental illness. She either cannot or will not stay clear of
intoxicating substances. She repeatedly tested positive for
cocaine. She obtained prescription medications and then
refused to surrender them. She refused to participate in
group counseling and a 12-step program. She declined to
cooperate with a drug counselor. Each time she returned
to court, she asked for another chance, and she promised
to obey.
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Faced with a string of empty promises, this Court had no
option other than to place her in prison, where she will
have diminished access to recreational drugs and where
the authorities can prevail upon her at every turn to at
least attend meetings and counseling sessions. They can
lead her to water; whether or not she actually takes a
drink from the well of recovery is in her own hands. The
current regimen is doing her no good. A prison sentence
can only drive home the urgency of her situation and the
necessity of becoming clean and sober.
1925(a) Op. at 5.11
The trial court did not abuse its discretion in imposing the 3-to-9-year
sentence. Although inpatient treatment was an alternative, the trial court
was not required to sentence Rothwell to such treatment.12 “The sentencing
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11
In her brief, Rothwell admits that she “clearly failed to embrace the
multiple opportunities she was presented” and that she could not “argue that
revocation from her intermediate punishment sentence was not warranted.”
Appellant’s Br. at 17.
12
In addition, the trial court did not err in imposing a term of total
confinement following Rothwell’s technical violation. Section 9771(c) states:
The court shall not impose a sentence of total confinement
upon revocation unless it finds that:
(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). The trial court found that such a sentence was
essential to vindicate the authority of the court, because it had to “ensure
that the rules have some meaning” and if it did not impose this sentence
“defendants and others so inclined [would] believe that the Probation
(Footnote Continued Next Page)
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court was in the best position to evaluate [Rothwell’s] character and [her]
defiance or indifference.” Malovich, 903 A.2d at 1254. As noted above, the
trial court found that Rothwell repeatedly violated the terms of her
probation. In addition, Rothwell “demonstrated a complete lack of interest
in rehabilitation.” 1925(a) Op. at 6. She tested positive multiple times for
cocaine; failed to appear for or participate in meetings; would obtain
prescription narcotics from other sources when she was not allowed to take
those substances; displayed a disrespectful attitude toward her therapists;
and used her cell phone during meetings. Id. at 2-3.
The trial court further found that Rothwell had violated the terms of
her probation on multiple occasions, that such violations indicated an
inability to reform, and that Rothwell failed to avail herself of the
opportunities presented to her. The trial court found that a term of
imprisonment was the best avenue to address Rothwell’s drug addiction,
noting that she required something “less voluntary” than the treatment she
received at the Mental Health Court. 1925(a) Op. at 3. It further noted that
the prison provides drug and alcohol treatment and that Rothwell would be
able to move to a halfway house after completing her term. The sentence
imposed by the trial court was appropriate considering Rothwell’s history.
Judgment of sentence affirmed.
_______________________
(Footnote Continued)
Department’s rules are meaningless and are meant to be broken.” 1925(a)
Op. at 5. This was not an abuse of discretion.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2016
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Com. v. Rothwell, L.
Combined Opinion