J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ALLISON RENEE CHERRY

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1293 MDA 2017

Appeal from the Judgment of Sentence August 10, 2017 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP

- 14

- CR

- 0001775

- 2013

BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY OTT, J.: FILED AUGUST 29, 2018

Allison Renee Cherry appeals from the judgment of sentence imposed

on August 10, 2017 in the Centre County Court of Common Pleas , following

her revocation from a county intermediate punishment (“IP” ) program. The

court sentenced Cherry to a term of 12 months to five years’ incarceration.

Cherry raises claims regarding the sufficiency of the evidence in sustaining

her IP violations and the discretionary aspects of her sentencing. Based on

the follo wing, we affirm.

On July 4, 2013, a State College police officer found Cherry passed out

in a gas station parking lot. The officer detected a strong odor of alcohol and

observed Cherry to have bloodshot eyes and slurred speech. She admitted

she had been drinking and she performed unsatisfactorily on the field sobrietyJ

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tests. Video surveillance from the gas station confirmed that Cherry was

driving. Cherry was taken to the hospital and after agreeing to a blood draw,

the results revealed her blood alcoh ol content was 0.226%. See generally

,

Affidavit of Probable Cause, 8/12/2013. She was charged with various crimes

related to the incident and on January 23, 2014, she pled guilty to driving

under the influence of alcohol (“DUI”)

. 1 On March 27, 2014, the court

sentenced Cherry to a term of five years’ IP in the Centre County DUI Court

program.

Since that time

, Cherry committed numerous violations of her IP

sentence and received five notices of those violations in the form of written

warnings on April 8, 2015, August 25, 2015, September 21, 2015, October

13, 2015, and June 28, 2017. 2 Subsequently, on July 31, 2017, Cherry

_________________ __________ ______ ____ _______

1 See 75 Pa.C.S. § 3802(c).

2 With respect to each violation notification, the court did not revoke Cherry’s

IP but did warn of potential ramifications for misconduct . As to her first violation, the court imposed a sanction of one month of enhanced curfew compliance/electronic monit oring. As to her second violation, the court instructed Cherry to follow her plan of action until she could be placed in a rehabilitation facility. Subsequently, on August 27, 2015, the court issued an order, requiring that Cherry attend and successfully complete an inpatient treatment program at Pyramid Healthcare. With respect to her third violation, Cherry received a sanction of one month of enhanced curfew compliance/electronic monitoring, followed by 60 days of Transdermal Alcohol Detection. Cherry did not receive any new sanctions with regard to her remaining violations.J

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received her sixth notice of violations. No sanctions were imposed at the time,

but she was notified of a revocation hearing

.

At the conclusion of the revocation hearing 3 on August 10, 2017, the

court found Cherry violated conditions #1, #2, #4, #10, and #11 of her IP

sentence . The court explained its determination as follows:

[T] his Court revoked [Cherry]’s Intermediate Punishment

be cause it found that [she] had violated Conditions 1, 2, 4, 10,

and 11 of the Intermediate Punishment. DUI Condition 1 states that [Cherry] had to comply with all municipal, county, state, and federal criminal laws, as well as provisions of the Vehicle Cod e, Controlled Substance, Drug, Device, and Cosmetic Act, and the Liquor Code. It was alleged that [Cherry] violated DUI Condition 1 when she pled guilty to a Public Drunkenness and Similar Misconduct charge for incidents occurring on August 23, 2015. [Ch erry] also allegedly violated Condition 2, In

- Home Detention/Electronic Monitoring, by lea ving her residence on February 22, 2015 without authorization. [Cherry] allegedly violated Condition 4, Leaving the Commonwealth Without Permission, when she travell ed to the Carolinas from July 25

- 29, 2017 without permission.

[Cherry] allegedly violated condition 10, Abstention from Alcohol/Non

- Prescribed Drugs on several occasions. First[,] she admitted to having alcoholic beverages on August 15, 21, and 22,

of 2 015. Several alcoholic beverages/empty alcoholic beverage containers were found at her appr oved residence on June 27, 2017 allegedly violating Condition 10. [Cherry] allegedly violated condition 10 when she tested positive for EtG (alcohol). She

admitte d that she had consumed alcoholic beverages at an establishment selling alcohol on April 30, 2017 and June 26, 2017.

[Cherry] allegedly violated Condition 11, Entering an Establishment that Sells Alcohol. [Cherry] allegedly violated

condition 11 after s he admitted that she was at Indigo Night Club/Bar drinking alcohol on August 21 and 22 of 2015. [Cherry] also admitted to violating condition 11 on April 30, 2017 and June

_________________ __________ ______ ____ _______

3 Gagnon v. Scarpelli , 411 U.S. 778 (1973).J

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26, 2017 by drinking alcohol at Pickles Bar. In total [Cherry]

received six notifi cations of violations for the incidents listed above since entering the DUI Court Program by Court Order of March 27,

2014.

Trial Court Opinion, 10/6/2017, at 1

- 2. The court then revoked Cherry’s IP

sentence and imposed a term of 12 months to 5 years in state correctional

institution. This timely appeal follows. 4

In her first argument, Cherry challenges the sufficiency of the evidence

regarding her revocation, complaining the court should not have revoked her

IP sentence based on her prior conduct in 20 15 because those violations had

been previously subject to court sanctions , and therefore, the double jeopardy

clause 5 applies

. See Cherry’s Brief 15. Specifically, she states:

The double jeopardy clause of the constitution does not preclude, as double punishment, a second sentencing where there

have been violations of a condi tional sentence like probation or intermediate punishment. Double jeopardy does not preclude the remand for a new revocation hearing where a reviewing court has

determined that the evidence presented at the first revocation hearing was insufficient to sustain the violation.

It does not follow, as the Commonwealth suggests, that principles grounded in double jeopardy do not apply to the revocation process. Collateral estoppel bars the Commonwealth

_________________ __________ ______ ____ _______

4 On August 17, 2017 , the trial court ordered Cherry to file a concise statement of errors complained of on appeal pursuant to Pa.R.A. P. 1925(b). Cherry filed a concise statement on September 1 , 201 7 . The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on October 6, 2017

.

5 See Commonwealth v. Wilson

, 1 47 A.3d 7, 13 (Pa. Super. 2016) (“ The

double jeopardy clause of the Pennsylvania Constitution prohibits retrial of a defendant when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of denying him a fair trial .”) ( citation omitted)

.J

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from revoking parole based on conduct for which the probationer was tried and acquitted prior to the violation hearing. It also invalidates a probation violation based solely on a new conviction that is subsequently vacated on appeal.

Res judicata differs from colla teral estoppel only in that the latter contemplates different adjudicative forums while the former contemplates identical adjudicative forums. Res judicata recognizes the sanctity of final judgment on a litigated claim and
protects the rights of the parties by barring the re

- litigation of that claim in a subsequent proceeding in the same forum. In the context of probation and parole, it has been used by the Commonwealth Court to bar a second revocation hearing where

the Parole Board found insufficient evidence of the claim at the first hearing.

In the instant matter, revoking Ms. Cherry’s intermediate punishment based on the 2015 conduct was barred by res judicata . Unarguably, she was served with a notification of

violations for the 2015 conduct and a final determination was made by the court that sanctions short of revocation and re

sentencing was appropriate punishment for that conduct.

Id. at 15

- 17 (ci tations omitted).

We are guided by the following:

A challenge to the sufficiency of the evidence is a question of law subject to plenary review. We must determine whether the

evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the

Commonwealth as the verdict winner, is sufficient to support all

elements of the offenses. A reviewing court may not weigh the

evidence or substitute its judgment for that of the trial court.

Commonwealth v. Perr eault

, 930 A.2d 553, 558 (Pa. Sup er. 2007)

(citations and int ernal quotations omitted)

, appeal denied

, 945 A.2d 169 (Pa.

2008)

.J

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“ Revocation of a probation sentence is a matter committed to the sound

discretion of the trial court and that court ’ s decision will not be disturbed on

appeal in the absence of an error of law or an abuse of discretion.” Id

. 6

When assessing whether to revoke probation, the trial court must
balance the interests of society in preventing future criminal

conduct by the defendant against the possibility of rehabilitating

t he defendant outside of prison. In order to uphold a revocation
of probation, the Commonwealth must show by a preponderance

of the evidence that a def endant violated his probation.

Commonwealth v. Alls house

, 3 3 A.3d 31, 37 (Pa. Super. 2011) (quotation

marks and citations omitted)

, appeal denied

, 49 A.3d 441 (Pa. 2012)

. “ A

probation violation is established whenever it is shown that the conduct of the

probationer indicates the probation has proven to have been an ineffective

vehicle to accomplish rehabilitation and no t sufficient to deter against future

antisocial conduct.” 7 Commonwealth v. Ortega

, 995 A.2d 879, 886 (Pa.

S uper. 2010)

, appeal denied

, 20 A.3d 1211 (Pa. 2011)

. “ A trial court does

not necessarily abuse its discretion in imposing a seemingly harsh post

revocation sentence where the defendant originally received a lenient

_________________ __________ ______ ____ _______

6 This Court has previously held the revocation of a county intermediate punishment sentence is equivalent to the revocation of probation. See Commonwealth v. Philipp , 709 A.2d 920, 921 (Pa. Super. 1998); see also

Commonwealth v. Melius , 100 A.3d 682, 685

- 686 (Pa. Su per. 2014).

7 “[T]he reason for revocation of probation need not necessarily be the

commission of or conviction f or subsequent criminal conduct. Rather, this

Court has repeatedly acknowledged the very broad standard that sentencing

courts must use in determi ning whether probation has been violated[.]”

Commonwealth v. Ortega

, 995 A.2d at 886 (citations an d internal quotations omitted).J

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sentence and then failed to adhere the conditions imposed on him.”

Commonwealth v. Schutzues

, 54 A.3d 86, 99 (Pa. Super. 2012) (citation

omitted)

, appeal denied

, 67 A.3d 796 (Pa. 2013) . Lastly, “technical violations

are sufficient to trigger the revocation of probation. ” Commonwealth v.

Sierra

, 752 A.2d 910, 912 (Pa. Super. 2000) (citation omitte d).

Pursuant to 42 Pa.C.S. § 9773, a trial court may “revoke a sentence of

county intermediate punishment upon proof of a violation of specific conditions

of the sentence.” 42 Pa.C.S. § 9773(b). Additionally, Subsection (c) requires

that before doing so, the trial court must conduct a hearing “at which the court

shall consider the record of the initial sentencing proceeding as well as the

conduct of the defendant while serving a sentence of county intermediate

punishment.” 42 Pa.C.S. § 9773(c). See also Pa.R.Crim.P. 708 (violation of

probation, intermediate punishment, or parole: hearing and disposition).

Moreover, because Cherry argues the doctrine s of collateral estoppel

and res judicata apply , we note: Both doctrines "preclud[e] parties from

contesting matters that they have had a full and fair opportunity to litigate."

Tay lor v. Sturgell , 553 U.S. 880, 892 (2008) (internal quotation marks and

citations omitted). Collateral estoppel “ means simply that when an issue of

ultimate fact has once been determined by a valid and final judgment, that

issue cannot again be litigated between the same parties in any future

la wsuit.” Commonwealth v. Castro , 856 A.2d 178, 181

- 82 (Pa. Super.

2004 )

. “ Under res judicata , a final judgment on the merits of an actionJ

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precludes the parties or their privies from relitigating issues that were or could

have b een raised in that action[.]” In re Stevenson , 40 A.3d 1212, 1222

(Pa. 2012), quoting Allen v. McCurry , 49 U.S. 90, 94 (1980).

Here, the court explained its rationale for revoking Cherry’s IP sentence

as follows:

This Court found that the preponderance of evidence presented supported the allegations that [Cherry] violated [] Conditions 1, 2, 4, 10, [and] 11. This Court notes, with heartfelt regret, that [Cher ry] was unable to follow the DUI Court Conditions despite [Cherry] receiving leniency on many opportunities in the hopes of rehabilitat ion. The six notices of

violation s demonstrate that [Cherry] had continuously struggled

with rehabilitation while involv ed in the Intermediate Punishment.

The evidence before the Court demonstrated that Intermediate Punishment was no longer a viable means of rehabilitating [Cherry] and therefore revocation was in order.

The first issue complained of by [Cherry] concerning Conditions 1 and 2 is that the incidents occurred at least two years ago. This statement demonstrates that [Cherry] had difficulty adhering to the Conditions of the Intermediate Punishment for several years. This was further evidence that Intermediate

P unishment was not a viable means of rehabilitating [Cherry] and

therefore revocation was in order.

The second issue complained of by [Cherry] concerning Conditions 1 and 2 is that [she] already suffered court sanctions

for the conduct at the time. This a rgument seems to implicate collateral estoppel as the argument being asserted by [Cherry]. Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated be tween the same parties in any

future lawsuit. Ashe v. Swenson , 397 U.S. 436, 443 (1970).

Sanctions are a part of the Intermediate Punishment and are an appropriate condition since they are intended to effectuate rehabilitation and reintegration into soci ety. The sanctions allow the Court to discipline a [probationer] without having to revoke the Intermediate Punishment. The sanction process starts whenJ

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the DUI team discovers a [probationer] violated a condition of the

Intermediate Punishment. Then the DUI team meets with this Court to discuss whether the violation requires a sanction and if so what sanction should the Court issue. Then on the day of the

DUI Court the DUI team initiates the discussion of the violation.

The [probationer] then has an opp ortunity to respond before the sanction is issued. The sanctioning process for DUI Court is not a judicial one but an administrative one. There is not an ultimate fact which has been determined by a valid and final judgment in the DUI Court sanctioning p rocess which would trigger collateral estoppel. Furthermore these violations demonstrate that the DUI Court had tried to be lenient in the past in order for the rehabilitation to succeed but [Cherry] was not able to comply with

the Conditions and therefor e the Intermediate Punishment was

revoked.

...

Assuming arguendo, [Cherry]’s violations of Conditions 1, 2, and 4 were not proper for consideration, this Court would still have grounds for finding revocation was in order for the violations of

Conditions 10 and 11. [Cherry] admitted to entering an establishment that sells alcohol, admitted to consuming alcohol,

and alcohol was found at her residence. These violations alone

demonstrate that Intermediate Punishment was not a viable means of rehabilitating [C herry] and therefore revocation was in

order.

Trial Court Opinion, 10/6/2017, at 3

- 5.

We agree with the court’s sound rationale.

The Double Jeopardy Clause does not provide the defendant with

the right to know at any specific moment in time what the exac t
limit of his punishment will turn out to be

. Congress has established many types of criminal sanctions under which the defendant is unaware of the precise extent of his punishment for significant periods of time, or even for life, yet these sanctions
have not been considered to be violative of the Clause. Thus, there is no double jeopardy protection against revocation of probation and the imposition of i mprisonment . (citation omitted).

There are other situations where probation may be revoked and

sen tence of imprisonment imposed. (citations omitted).J

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-

Commonwealth v. Mysnyk , 527 A.2d 1055, 1056

- 10 57 ( Pa. Super. 1987)

(italics in original)

, appeal denied

, 538 A.2d 498 (Pa. 1987)

.

Here, Cherry’s 2015 violations of Conditions 1 and 2 , and resulting

sanctions, were not being relitigated by the trial court during the August 10,

2017, revocation hearing. Moreover, the Commonwealth was not pursuing

these claims for a second time but rather, was requesting the trial court to

consider Cher ry’s multiple failures to adhere to the conditions of her IP in

determining whether or not to revoke it

. 8 N.T., 8/10/2017, at 3

- 4 , 7

- 8

.

Additionally , as noted by the trial court, these sanctions were administrative

in nature

, not criminal , and based on t he circumstances, it was evident that

Cherry was incapable of following simple DUI Court conditions despite

receiving numerous leniency opportunities. 9 Cherry’s arguments concerning

collateral estoppel and res judicata do not persuade us otherwise.

Never theless, as the trial court found, even if the prior violations were

not proper for review, it would still have grounds for finding revocation based

on the fifth and sixth violations of Conditions 4, 10, and 11 in 2017

. 10 The

_________________ __________ ______ ____ _______

8 With respect to the first four violations, there were no formal proceedings, resulting in revocation. The court ei ther ordered Cherry to one

- month periods of enhanced curfew compliance/electronic monitoring, placement at a rehabilitation facility, or imposed no sanction.

9 It merits repeating that Cherry committed six violations since her sentencing

in March of 2014.

10 Cherry’s counsel admitted to her conduct supporting those violations. See N.T., 8/10/2017, at 7.J

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court acted within its provinc e when it determined that IP did not satisfy

Cherry’s rehabilitative needs. See Allshouse

, supra

. Furthermore, it merits

mention that when Cherry signed her “Centre County DUI Court Program

–

Conditions of In

- Home Detention/Electronic Monitoring,” she agreed to the

following:

I acknowledge that the Intermediate Punishment Program/In

home Detention Program has been explained to me, and I have been advised that under the law, the Court may at any time, for cause, revoke or modify any condition of your Int ermediate

Punishment Sentence.

I realize I am subject to arrest and incarceration, for cause, by the Centre County Probation Department. The Court may, if it sees fit, revoke my Intermediate Punishment Sentence and impose an appropriate sentence.

N.T., 8/10/2017, Exhibit

- Centre County DUI Court Program

– Conditions of

In

- Home Detention/Electronic Monitoring, 6/24/2014, at unnumbered 2. 11

Accordingly, we conclude the trial court properly revoked Cherry’s IP

sentence

, and her first argument fails.

In he r second argument, Cherry contends that her sentence is

excessive. Cherry’s Brief at 18. S pecifically, s he states:

Absent the summary public drunkenness conviction and [the] 2015 technical violations, the [trial] court articulated that the April

2017 con duct of entering a bar, consuming, and possessing alcoholic beverages “... alone demonstrated that Intermediate

_________________ __________ ______ ____ _______

11 In her written guilty plea colloquy, Cherry indicated that she understood her DUI offense carried a possible maximum prison term of five years, her simple assault offense carried a possible maximum prison term of two years, and that her DUI offense had a mandatory minimum sentence of one year.

See Written G uilty Plea Colloquy, 3/13/2014, at unnumbered 2.J

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Punishment was not a viable means of rehabilitating [Cherry] and therefore revocation was in order.” This reasoning ignores the

fact that at the time of the relapse it deemed her continued outpatient counseling sufficient to address this brief relapse. One is left with the inescapable conclusion that she was not “disingenuous” in her [concise statement] and she was revoked

because that vacation sh e took with her girlfriend was the last straw for her probation officer. There were no allegations of other violations during this [sic] four days in July.

No one challenged her testimony she retained her sobriety. There was nothing in the 2017 violati ons which would indicate that it was likely that she would commit a future crime. There was no allegations of operating an automobile during the entire course of her intermediate punishment. There was no challenge to testimony that she had a good job tha t she would lose if sent to state prison.

Cherry’s Brief at 19

- 20 (record citation omitted)

. 12 Cherry’s complaint

challenges the discretionary aspects of h er sentence.

"[T]his Court’s scope of review in an appeal from a revocation

sentencing includes discretionary sentencing challenges.” Commonwealth

v. Cartrette , 83 A.3d 1030, 1034 (Pa. Super. 2013) ( en banc ). Furthermore,

“ [t]here is no absolute right to appeal when challenging the discretionary aspect of a sentence.” Commonwe alth v. Crump

, 995 A.2d 1280, 1282 (Pa. Super. 2010); 42 Pa.C.S. § 9781(b). Rather, an “ [a]ppeal is permitted only after this Court determines

that there is a substantial question that the sentence was not appropri ate under the sentencing code.” Crump, supra at 1282.

In determining whether a substantial question exists, this Court

doe s not examine the merits of the sentencing claim.

Commonwealth v. Tuladziecki

, 513 Pa. 508, 522 A.2d 17 (Pa. 1987).

_________________ __________ ______ ____ _______

12 In her Rule 2119(f) statement, Cherry maintains that the trial court “abused its discretion in sentencing her to an excessive sentence of state incarceration based on mere technical violations of supervis ion.” Cherry’s Brief at 12.J

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- In addition, “ issues challenging the discretionary aspects of

a sentence must be raised in a post

- sentence motion or by presenting the claim to the trial court dur ing the sentencing proceedings. Absent such efforts, an objection to a discretionary
aspect of a sentence is waived .” Commonwealth v. Kittrell

, 2011 PA Super 60, 19 A .3d 532, 538 (Pa. Super. 2011). Furthermore, a defendant is required to preser ve the issue in a
court

- ordered Pa.R.A.P. 1925(b) concise statement and a
Pa.R.A.P. 2119(f) statement. Commonwealth v. Naranjo

, 2012

PA Super 183, 53 A. 3d 66, 72 (Pa. Super. 2012).

Cartrette

, at 1042.

A review of the record reveals that while Cherry filed a timely notice of

appeal, and included in her appellate brief a statement of reasons relied upon

for appeal pursuant to Tuladziecki

, supra , and Pa.R.A.P. 2119(f), she did

not raise any objections to the sentence at sentencing and she did not file a

post

- sentence motion for reconsideration. However, there is no indication in

the record that the trial court advised her of those post

- sentence rights when

she was sentenced following the revocation of her IP. See N.T., 8/10/201 7,

at 15

- 16. Therefore, we decline to find waiver on this basis. See

Commonwealth v. Patterson , 940 A.2d 493, 498 (Pa. Super. 2007) (“The

courts of this Commonwealth hav e held that a court breakdown occurred in

instances where the trial court, at the time of sentencing , either failed to

advise Appellant of his post

- sentence and appellate rights or misadvised

him.”)

, appeal denied

, 960 A.2d 838 (Pa. 2008)

. Therefore, we must

determine whether s he has raised a substantial question justifying our review.

A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specificJ

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provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura , 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied , 987 A.2d 161 (Pa. 2009)

(c i tation omitted). An allegation that the trial court failed to consider the

requirements of Section 9771(c) before imposing a sentence of total

confinement raises a substantial question that the sentence imposed was

“inconsistent with a specific provision of the Sentencing Code.” Id. Moreover,

“a claim th at a particular probation revocation sentence is excessive in light

of its underlying technical violations can present a question that we should

review.” Commonwealth v. Malovich , 903 A.2d 1247, 1253 (Pa. Super.

2006) (citation omitted)

. Accordingly, we proceed to an evaluation of Cherry’s

claim on appeal.

The Sentencing Code provides that, similar to the revocation of a

probationary sentence, when a trial court revokes a county intermediate

punishment sentence, “the sentencing alternative s available to the court shall

be the same as the alternatives available at the time of initial sentencing.” 42

Pa.C.S. § 9773(b). Moreover, Section 9771(c) precludes a trial court from

imposing a sentence of total confinement upon revocation of probatio n unless

the court finds one or more of the following:

(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; orJ

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(3) such a sentence is essential to vindicate the authority of the

court.

42 Pa.C.S. § 9771(c).

In explaining Cherry’s sentence, the court stated:

The final issue complained of on Appeal concerns whether the Court abused its discretion in sentencing [Cherry] for going on a short vacation without first receiving written permission. [Cherry] travelled to the Carolinas from July 25

- 29,2017 without permission from her probation officer. This violation was one of many considered by the Court including the violation of Conditions 10 and 11. It would be disingenuous to state that this Court sentenced [Cherry] to state incarceration for a sh ort vacation without receiving permission when there was evidence of other

violations before the Court.

Trial Court Opinion, 10/6/2017, at 5.

We find no abuse of discretion. “ Technical violations can support

revocation and a sentence of incarceration when such violations are flagrant

and indicate an inability to reform. ” Commonwealth v. Carver , 923 A.2d

495, 498 (Pa. Super. 2007). Cherry’s conduct has repeatedly demonstrated

that a term of imprisonment was essential to vindicate the authority of the

court. While focusing on the incidents that took place in 2017, Cherry

committed multiple, new violations, which broke three c onditions of her IP

sentence. Even after Cherry received her fifth warning concerning her

violations, she still violated the terms for a sixth time within a one month

period. It is evident from the record that Cherry was not taking advantage of

the oppor tunities given to her by the trial court, including inpatient treatment

program, she was not reforming her behavior, and she had a clear disregardJ

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for the authority of the court when she left the state without informing her

probation officer. Accordingly, the trial court did not abuse its discretion in

sentencing Cherry to a period of total confinement with regard to her IP

revocation. Therefore, Cherry’s discretionary aspects of sentencing claim

fails.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 08/29/2018