J-S56015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

STEPHANIE LYNN ECK,

Appellant No. 1990 MDA 2015

Appeal from the Judgment of Sentence Entered October 5, 2015

In the Court of Common Pleas of Clinton County

Criminal Division at No(s): 

CP-18-CR-0000097-2015

CP-18-CR-0000508-2014

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 16, 2016

Appellant, Stephanie Lynn Eck, appeals from the judgment of sentence 

of an aggregate term of 24 to 168 months’ incarceration, imposed after she 

pled guilty in two separate cases to two counts of retail theft, graded as 

third-degree felonies.1 On appeal, Appellant raises one issue challenging the 

discretionary aspects of her sentence. We affirm.

The facts underlying Appellant’s convictions are not pertinent to the 

present appeal. In regard to the procedural history of this case, we note 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 Under 18 Pa.C.S. § 3929(b)(1)(iv), retail theft constitutes a third-degree 

felony “when the offense is a third or subsequent offense, regardless of the 

value of the merchandise.”
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that Appellant entered open guilty pleas to the above-stated charges on 

March 26, 2015. A pre-sentence investigation report (PSI) was ordered by 

the trial court, and sentencing was scheduled for June 15, 2015. However, 

on that date, Appellant failed to appear and a bench warrant was issued for 

her arrest. 

Appellant was apprehended approximately three months later, and her 

sentencing hearing was conducted on October 5, 2015. At the close of that 

proceeding, the court sentenced Appellant to consecutive terms of 12 to 84 

months’ incarceration for each of her retail theft convictions. Thus, her 

aggregate sentence is 24 to 168 months’ incarceration. The court also 

directed that Appellant be eligible for the Recidivism Risk Reduction 

Incentive (RRRI) Act, 61 Pa.C.S. §§ 4501-4512, after serving a minimum of 

9 months’ incarceration. 

Appellant filed a timely post-sentence motion for reconsideration of her 

sentence. After conducting a hearing on that motion, the court subsequently 

denied it on October 27, 2015. Appellant filed a timely notice of appeal, and 

also timely complied with the trial court’s order to file a Pa.R.A.P. 1925(b) 

concise statement of errors complained of on appeal. Herein, she presents 

one issue for our review:

1. Did the [t]rial [c]ourt commit error in sentencing Appellant in 

the Aggravated Range despite the fact that [Appellant’s] crimes 

were de minimis, [Appellant] had tremendous remorse, and the 

[c]ourt’s rationale for said aggravated range sentences had 

nothing to do with the underlying facts of the instant case?

Appellant’s Brief at 4.
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Appellant’s issue 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. 

Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant 

challenging the discretionary aspects of his sentence must 

invoke this Court's jurisdiction by satisfying a four-part test:

We 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. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 

2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). 

Objections to the discretionary aspects of a sentence are 

generally waived if they are not raised at the sentencing hearing 

or in a motion to modify the sentence imposed. 

Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 

2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

The determination of what constitutes a substantial question 

must be evaluated on a case-by-case basis. Commonwealth v. 

Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial 

question exists “only when the appellant advances a colorable 

argument that the sentencing judge's actions were either: (1) 

inconsistent with a specific provision of the Sentencing Code; or 

(2) contrary to the fundamental norms which underlie the 

sentencing process.” Sierra, supra at 912–13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting 

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

Here, Appellant has met the first two prongs of the test for obtaining 

review of her discretionary-aspects-of-sentencing claim. In regard to the 
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third and fourth prongs, Appellant has presented a Rule 2119(f) statement in 

her brief. Therein, she asserts, in pertinent part, that,

[t]he [t]rial [c]ourt’s sentence, favoring consecutive rather than 

concurrent terms, was unreasonable as follows: [Appellant’s] 

crimes were non-violent and de minimis; she owes restitution, 

which cannot be easily paid from prison; and Appellant is an 

addict in need of treatment, not incarceration.

Therefore, there are substantial questions as to the 

appropriateness of the sentence imposed. Pursuant to Pa.R.A.P. 

2119(f), Appellant would respectfully request that this Honorable 

Court concur in the conclusion that there are substantial 

questions as to the appropriateness of the sentence.

Appellant’s Brief at 8.

We initially note our displeasure with Appellant’s failure to cite any

legal authority supporting her assertion that her discretionary-aspects-ofsentencing claim amounts to a substantial question for our review. 

Nevertheless, we will deem Appellant’s Rule 2119(f) statement as presenting 

a “plausible argument” that her aggravated-range sentence of 24 to 168 

months’ incarceration “is clearly unreasonable,” where that sentence was 

imposed for non-violent, retail-theft offenses. Commonwealth v. Dodge, 

77 A.3d 1263, 1271 (Pa. Super. 2013). Accordingly, we will review the 

merits of Appellant’s sentencing claim. In doing so, we bear in mind that,

[t]he proper standard of review when considering whether to 

affirm the sentencing court's determination is an abuse of 

discretion. ... [A]n abuse of discretion is more than a mere error 

of judgment; thus, a sentencing court will not have abused its 

discretion unless the record discloses that the judgment 

exercised was manifestly unreasonable, or the result of 

partiality, prejudice, bias or ill-will. In more expansive terms, our 

Court recently offered: An abuse of discretion may not be found 

merely because an appellate court might have reached a 
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different conclusion, but requires a result of manifest 

unreasonableness, or partiality, prejudice, bias, or ill-will, or 

such lack of support so as to be clearly erroneous.

The rationale behind such broad discretion and the 

concomitantly deferential standard of appellate review is that the 

sentencing court is in the best position to determine the proper 

penalty for a particular offense based upon an evaluation of the 

individual circumstances before it.

Moury, 992 A.2d at 169-70 (citation omitted).

Here, Appellant’s argument challenging her sentence consists of the 

following paragraph:

Appellant understands the very difficult burden that she 

faces here. However, it is readily apparent from the nature of 

the charges that they [were] not violent. It is further obvious 

that the charges involved in the instant matters are de minimis, 

as one case was for [theft of items worth] a value of $3.91 and 

the other for [items worth] $1.99. At sentencing, it was 

undisputed that Appellant would owe restitution and that she 

was a substance abuser. It bears noting that the 

Commonwealth believed that consecutive probationary 

sentences might be an appropriate disposition.[2] With due 

respect to the [t]rial [c]ourt, the sentences imposed herein 

result only in a delay in the payment of restitution with no 

noticeable gain to the Commonwealth or the community at large, 

as [] Appellant is a non-violent offender. The [c]ourt focused on 

____________________________________________

2

In support of this comment regarding the Commonwealth’s purported 

sentencing recommendation, Appellant cites to pages 14 to 15 of the 

sentencing hearing transcript. That portion of the transcript contains the 

court’s statement of its reasons for imposing Appellant’s sentence; nothing 

in those pages of the record suggests that the Commonwealth supported a 

probationary sentence in this case. Moreover, our review of the sentencing 

hearing transcript reveals that the Commonwealth “request[ed] the [c]ourt 

... consider [a] potential sentence in the [aggravated] range of 12 to 60 

months on each case to be served consecutive.” N.T. Sentencing, 10/5/15,

at 3. Consequently, Appellant’s statement that the Commonwealth 

supported a probationary term is not supported by the record.
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the punitive aspects of sentencing due to the [c]ourt’s frustration 

that [] Appellant did not appear for sentencing at the date and 

time that it was initially scheduled.

Appellant’s Brief at 9.

Our review of the record convinces us that Appellant’s challenge to her 

sentence is meritless, and that the court did not abuse its discretion in 

imposing aggravated-range, consecutive terms of incarceration. Notably, at 

the sentencing hearing, the court acknowledged the sentencing guideline 

ranges applicable to Appellant’s offenses. N.T. Sentencing at 13. It also 

stated that it “listened to the comments of the [Commonwealth], the 

comments of [defense counsel], and the comments of [Appellant].” Id. The 

court also stated that it reviewed and “considered all of the information that 

was set forth in the [PSI]” and it had “also reviewed a previous [PSI] that 

was completed on May 7 of 2012.” Id. at 13-14. The court then provided 

the following reasons for imposing Appellant’s sentence:

As noted, [Appellant] is 33 years of age, she’s single, she 

is the mother of three children. Although she attained her GED 

in 2010, she is and has remained unemployed for some period of 

time. Her criminal history includes a misdemeanor retail theft 

conviction in 2005, two misdemeanor 1 forgery convictions in 

2006, a misdemeanor theft by deception conviction in 2008, 

various motor vehicle code summary offenses, [and] two 

misdemeanor retail theft convictions in 2011. And she is now 

before the [c]ourt on the felony 3 retail theft charges.

[Appellant] has been on probation, she’s been revoked 

from probation on numerous occasions, she’s served time in the 

correctional facilities, all to no avail. It’s extremely clear to this 

[c]ourt that [Appellant] is not amenable to county supervision 

and that county supervision is not a sentencing option at this 

time. She’s also been incarcerated at the State level. She last 
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appeared in the State system in 2009. [Appellant] is eligible for 

RRRI if sentenced to a State Correctional Institution. 

The [PSI] confirms that [Appellant] is a drug user. I think 

the term used in the report was that she is an avid drug user. 

Her counsel disputes that, however, [counsel] does acknowledge 

that [Appellant] has a severe problem with Suboxone.

It does not appear to the [c]ourt that [Appellant] ever took 

responsibility for her actions, and [she] placed herself at a 

higher level priority than her three children.

[Appellant] was to be sentenced on June 15 after the 

[c]ourt had granted her a continuance to care for her children’s

dental needs. As thanks, [Appellant] failed to appear. The 

[c]ourt believes she changed her physical appearance and was 

just recently apprehended on a Bench Warrant.

Quite frankly, [Appellant] just doesn’t get it. She 

continues to steal. It’s clear that any sentence of probation or 

partial confinement will put [her] back in a position where she 

will continue to commit crimes. The time that [Appellant] has 

spent in custody did not aid her in her rehabilitation. [Appellant] 

is not capable of being a law abiding citizen, and a lengthy 

period of incarceration is the only solution to assist her in her 

rehabilitation.

Id. at 14-15.

The court clearly stated various factors that it weighed in deciding to 

fashion Appellant’s sentence. Pertinent to Appellant’s argument on appeal, 

nothing in the court’s rationale evinced that the court focused only on her 

failure to appear at the prior sentencing hearing. Additionally, it is obvious 

that the court took into account the nature of Appellant’s current offenses, 

and her drug-addiction issues. However, based on Appellant’s continued 

criminal behavior and probation violations, the court ultimately concluded 

that she is not amenable to rehabilitation. In sum, the court stated ample, 

and reasonable, grounds for imposing aggravated range, consecutive 
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sentences for each of Appellant’s retail-theft offenses. Accordingly, we 

ascertain no abuse of the court’s sentencing discretion. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/16/2016