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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 
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following a violation of her intermediate punishment.1 We affirm.

On March 6, 2008, when Rothwell was arrested on charges of retail 

theft,2she 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,5retail 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-CR0007523-2013 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 

____________________________________________

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