J. S54036/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

HOLLY SHAUGHNESSY, :

:

Appellant : No. 655 EDA 2015

Appeal from the Judgment of Sentence February 5, 2015

In the Court of Common Pleas of Philadelphia County 

Criminal Division No(s).: CP-51-CR-0016015-2010

BEFORE: BOWES, PANELLA, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 21, 2015

Appellant, Holly Shaughnessy, appeals from the judgment of sentence 

entered in the Mental Health Court program of the Philadelphia Court of 

Common Pleas following the second revocation of her probation. Appellant 

argues her sentence of 31⁄2 to 10 years’ imprisonment is excessive because 

she committed only technical violations and her particular circumstances did 

not warrant a state sentence. We affirm.

On April 21, 2011, in the instant case, Appellant pleaded guilty to 

burglary1and received a sentence of 111⁄2 to 23 months’ imprisonment, to 

be followed by 6 years’ probation. “Appellant was ordered to be supervised 

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 3502(a).
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by the Mental Health Unit and was ultimately transferred to Mental Health 

Court (MHC) for supervision.” Trial Ct. Op., 5/11/15, at 1-2.

The trial court summarized the ensuing procedural history as follows. 

On September 1, 2011, Appellant pleaded guilty to simple assault and 

recklessly endangering another person,2and received a sentence of 111⁄2 to 

23 months’ imprisonment, “with parole to program once a bed [was] 

available,” to be followed by 2 years’ probation. “On December 8, 2011, 

Appellant was paroled to Gaudenzia Broad Street, a residential treatment 

facility.” Id. at 2.

As is procedure in MHC, Appellant was scheduled for status 

of mental health and treatment hearings at regular 

intervals to monitor [her] compliance and progress. 

Appellant did make strides toward her discharge, but 

admitted to [the] probation [department] that she violated 

house rules by having intercourse with other patients that 

resulted in loss of privileges on August 21, 2012.

By the September 28, 2012 hearing date, Appellant 

became compliant at the program, and on March 10, 2013, 

she moved to a recovery house . . . .

It was reported that on the June 10, 2013 status 

hearing date, Appellant tested positive for crack cocaine. 

She was placed on weekly reporting with probation-with a 

90 day black out at Women Walking in Victory, her 

treatment and housing facility. On July 8, 2013, [the] 

probation [department] learned that Appellant was 

dismissed from the program for initiating an argument, she 

was required to serve several jury box sanctions[3], and 

 

2 18 Pa.C.S. §§ 2701, 2705.

3 A jury box sanction, usually imposed for a minor infraction, requires the 

defendant to observe court proceedings for a specified amount of time.
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later approved to stay with her brother, Mike 

Shaughnessy.

On August 16, 2013, Appellant tested positive for 

opiates. In response, Appellant provided a copy of 

discharge paperwork from Temple Hospital for alleged back 

pain that showed she was given prescriptions for Vicodin 

and Motrin. Appellant stated that her brother held the 

medication because of her drug history. However, when 

[the] probation [department] contacted her brother, he 

claimed Appellant never told him she was prescribed 

anything and didn’t give him any prescriptions to hold. 

Subsequently, Appellant was a given custody sanction for 

the positive drug screen and for being dishonest in her 

response to the Court. On November 15, 2013, Appellant 

was instructed to enroll in an inpatient program after 

another positive drug test.

On April 16, 2013, Appellant was compliant and 

received a completion certificate for the Dialectical 

Behavioral Therapy (DBT) group. On June 6, 2013, 

Appellant tested positive again for opiates, and was given 

a two week custody sanction. On October 31, 2013, 

Appellant was compliant with treatment program.

On January 09, 2014, Appellant tested positive for 

opiates, and was ordered to serve a week custody sanction 

on January 30, 2014. On March 13 and April 17, 2014, 

Appellant was compliant with program.

On June 19, 2014, Appellant tested positive for opiates, 

and served jury boxes and a weekend sanction. On June 

30, 2014, probation received a call from Appellant who 

stated she got high in an attempt to commit suicide. 

Arrangements were made with her case management team 

for her to report to Community Treatment Team (CTT) on 

July 1, 2014. However, on July 17, 2014, Appellant failed 

to attend her pain management appointment. Appellant 

relapsed on cocaine and heroin, and was served two jury 

box sanctions.

[On September 25, 2014, a] violation of probation 

hearing was conducted and Appellant was found to be in 

violation of her probation for [the three June and July] 
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positive tests for opiates . . . . Appellant was 

sentenced . . . to 111⁄2 to 23 months of incarceration plus 8 

years of reporting probation with immediate parole to 

Divine Light Recovery House.

On December 12, 2014, [the] probation [department] 

received a call from CTT stating Appellant was discharged 

from Divine Light Recovery House due to taking another 

resident’s suboxone. On December 16, 2014, Appellant 

was instructed to report to probation for detention, which 

occurred without incident.

Id. at 2-4 (paragraph breaks added).

The trial court conducted the instant violation of probation hearing on 

February 5, 2015. It found her in technical violation for suboxone use, 

revoked her probation, and immediately imposed a new sentence of 31⁄2 to 

10 years’ imprisonment. Appellant filed a timely post-sentence motion, 

which was denied. Appellant then filed the instant appeal and complied with 

the court’s order to file a Pa.R.A.P. 1925(b) statement of errors complained 

of on appeal.

On appeal, Appellant argues the trial court abused its discretion in 

imposing a sentence of total confinement, where there was “clear evidence 

that [she] exhibited the ability to be amenable to treatment and probation, 

as well as her avoidance of criminal activity.” Appellant’s Brief at 9. 

Appellant avers she incurred “only technical violations,” which “consisted of 

sporadic behavioral problems and opiate abuse relating to a drug addiction 
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that [she] has had tremendous difficulty overcoming.”4 Id. at 16, 17. She 

contends she “has, several times, demonstrated the ability to succeed in 

treatment and comply with the rules of probation, . . . was not a danger to 

the community, was proving she was not likely to commit another crime, 

and obviously requires significant help and continuous treatment for her 

addiction.” Id. at 18. Appellant maintains “her particular circumstances did 

not warrant a state sentence,” and the court’s imposition of a state sentence 

“places ‘form over substance.’” Id. at 16. Appellant also alleges the 

sentence is improper under Subsection 9771(c)(3) of the Sentencing Code, 

which allows for a probation-revocation sentence of total confinement when 

it “is essential to vindicate the authority of the court.”5 42 Pa.C.S. § 

9771(c)(3). Instead, she claims, “[i]ncarceration is purely punitive in this 

scenario and will not foster [her] rehabilitative process.” Appellant’s Brief at 

19. We hold no relief is due.

Preliminarily, we note Appellant preserved this issue in her postsentence motion, has included a Pa.R.A.P. 2119(f) statement in her 

appellate brief, and has raised a substantial question for our review. See 

 

4 Appellant also describes her technical violation as “a relapse in the form of 

using the suboxone of another facility resident.” Appellant’s Brief at 18.

5 Subsections 9771(c)(1) and (2) allow for a sentence of total confinement 

upon revocation of probation where “the defendant has been convicted of 

another crime” and the defendant’s conduct “indicates that it is likely that he 

will commit another crime if he is not imprisoned.” 42 Pa.C.S. § 9771(c)(1)-

(2). Appellant states that neither of these subsections are applicable. 

Appellant’s Brief at 9.
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Commonwealth v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (stating 

defendant must raise discretionary aspect of sentencing issue either during 

sentencing proceedings or in post-sentence motion, and in Pa.R.A.P. 2119(f) 

statement); Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 

2010) (stating, “The imposition of a sentence of total confinement after the 

revocation of probation for a technical violation, and not a new criminal 

offense, implicates the ‘fundamental norms which underlie the sentencing 

process,’” and finding substantial question raised). Accordingly, we find 

Appellant has preserved her discretionary aspect of sentencing issue for our 

review. See Tobin, 89 A.3d at 666; Crump, 995 A.2d at 1282.

We consider the relevant standard of review:

[A] trial court has broad discretion in sentencing a 

defendant, and concomitantly, the appellate courts utilize a 

deferential standard of appellate review in determining 

whether the trial court abused its discretion . . . .

. . . At initial sentencing, all of the rules and procedures 

[for a court’s] discretionary sentencing authority [apply]. 

However, it is a different matter when a defendant 

reappears . . . following a violation . . . of a probationary 

sentence. For example, . . . contrary to when an initial 

sentence is imposed, the Sentencing Guidelines do not 

apply, and the revocation court is not cabined by Section 

9721(b)’s requirement that “the sentence imposed should 

call for confinement that is consistent with the protection 

of the public, the gravity of the offense as it relates to the 

impact on the life of the victim and on the community, and 

the rehabilitative needs of the defendant.” 42 Pa.C.S. § 

9721.

. . . [U]pon revoking probation, the trial court is limited 

only by the maximum sentence that it could have imposed 

originally at the time of the [initial] sentence, although . . . 
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the court shall not impose a sentence of total confinement 

unless it finds that:

* * *

(3) such a sentence is essential to vindicate the 

authority of the court.

42 Pa.C.S. § 9771(c)[(3)].

Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014) (some 

citations omitted). This Court has stated, “A trial court does not necessarily 

abuse its discretion in imposing a seemingly harsh post-revocation sentence 

where the defendant originally received a lenient sentence and then failed to 

adhere the conditions imposed on him.” Commonwealth v. Schutzues, 54 

A.3d 86, 99 (Pa. Super. 2012), appeal denied, 67 A.3d 796 (Pa. 2013).

At the instant violation of probation and sentencing hearing, 

Appellant’s counsel stated Appellant has had “many successes, as well as . . 

. challenges” under the court’s probation, and “is an addict and . . . needs 

treatment.” N.T., 2/5/15, at 9. Counsel requested “as short a sentence as 

possible, so that we can get her reconnected with CTT . . . and back into 

treatment as soon as possible.” Id. The Commonwealth conceded 

Appellant “was doing well in 2012,” but summarized her various infractions. 

Id. at 10-13. The Commonwealth argued, “[S]he has been given almost . . 

. 5 years of this program[, has] been in numerous placements, has the 

highest level of case management services provided in . . . Philadelphia,” 

and “has gotten more chances than the average individual, with [the court] 
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consistently putting treatment first . . . and not giving . . . as much 

sanctions[.]” Id. at 15, 16. The Commonwealth recommended a sentence 

of ten to twenty years’ imprisonment. Id. at 16.

In imposing the sentence of 3 1⁄2 to 10 years, the court considered “the 

Commonwealth’s recitation of the many listings of this case” and 

“emphasize[d] the number of opportunities” Appellant had in the MHC 

“program, including jury box sanctions, weekend sanctions, weeks 

sanctions—none of which seemed to have really hit home with” her. Id. at 

20. The court stated, “I clearly believe that a state sentence is warranted, 

given the number of opportunities, the county sentences that [Appellant 

has] already been given. And it’s clear that none of those have worked to 

vindicate the authority of this Court.” Id. at 21. The court recommended 

that Appellant receive drug, alcohol, and mental health treatment while 

incarcerated. Id.

We hold the court did not abuse its discretion in imposing sentence. 

After careful review of the violation of probation hearing transcript, the trial 

court’s opinion, and both parties’ appellate briefs, we note there is no 

dispute over the procedural history in this case over the course of 

Appellant’s probationary terms. Instead, Appellant’s challenge is to the 

court’s ultimate conclusion that her transgressions surpassed her 

compliance. Contrary to Appellant’s claim, we find the trial court did state 

its reasons for imposing a sentence of total confinement under Subsection 
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9771(c)(3)—that Appellant has not succeeded in rehabilitation despite 

numerous opportunities by the court. See 42 Pa.C.S. § 9771(c)(3); N.T. at 

21. Furthermore, because this was a violation of probation sentence, the 

trial court was not required to consider the safety of the community or her 

rehabilitative needs.6 See Pasture, 107 A.3d at 27-28; Appellant’s Brief at 

18. We do, however, reiterate the court’s recommendation that Appellant 

continue to receive drug, alcohol, and mental health treatment in prison. 

For the forgoing reasons, we find no abuse of discretion. See 

Pasture, 107 A.3d at 27-28; Schutzues, 54 A.3d at 99.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/21/2015

 

6 Appellant also argues: “That Section 9721(b) does not apply to a violation 

of probation hearing is wrong.” Appellant’s Brief at 12. Such a policy and 

legislative issue is beyond this panel’s review.