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

v.
GINA MARIA MARCHESE,

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 39 MDA 2017 Appeal from the Judgment of Sentence Entered December 12, 2016

In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP

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CP

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- 2015 BEFORE: DUBOW, J., RANSOM, J., and STRASSBURGER, J. * MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 11, 2017 Appellant, Gina Marchese, appeals from the Judgment of Sentence 1 entered following the revocation of her probation. Appellant challenges the discretionary aspects of her sentence, arguing that, in imposing an aggregate term of two to five years’ imprisonment, the violation of probation

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* Retired Senior Judge assigned to the Superior Court.

1 Appellant purports to appeal from the “Order” entered December 12, 2016. However, an appeal does not lie from an Order revoking probation because it is not a final order. See Commonwealth v. Heilman , 876 A.2d 1021, 1026 (Pa. Super. 2005). Generally, a criminal defendant may only appeal from a Judgment of Sentence, which constitutes a final order for purposes of Pa.R.A.P. 341. Id. For clarity, the VOP court revoked Appellant’s probation and imposed a new sentence on December 1, 2016. This Order and Ju dgment of Sentence was not filed and entered on the docket until December 12, 2016. Here, although the same Order revoked Appellant’s probation and imposed a new sentence, this document is properly considered a Judgment of Sentence. We have changed the c aption from “Order” to “Judgment of Sentence” accordingly.J

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(“VOP”) court imposed an excessi ve and unreasonable sentence. After careful review, we affirm on the basis of the VOP court’s April 24, 2017 Opinion. The facts, as gleaned from the VOP court’s Pa.R.A.P. 1925(a) Opinion, are as follows. On October 16, 2015, Appellant entered a guilty pl ea at docket No. CP

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- 2015 to one count of Theft by Unlawful Taking. 2 The trial court imposed a sentence of 12 months’ probation. On November 9, 2015, Appellant entered a guilty plea at docket No. CP

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- 2015 to one count of Harassme nt and two counts of Disorderly Conduct. 3 The trial court imposed a term of 12 months’ probation on each count to run consecutively to each other for an aggregate term of 36 months’ probation. While serving her probationary sentence under the trial court’ s supervision, police cited Appellant for summary offenses, including Harassment and Disorderly Conduct for calling 911 repeatedly without reporting an emergency and calling other individuals throughout the night. On November 1, 2016, after conducting a 6 0

- day mental health diagnostic evaluation of Appellant while in state custody, Psychologist Lisa Marie

____________________ ________________________ 2 18 Pa.C.S. § 3921.

3 18 Pa.C.S. § 2709 and 18 Pa.C.S. § 5503, respectively.J

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Hagerman submitted a mental health report to the court. On December 1, 2017, the trial court, sitting as the VOP court, conducted a VOP hearing. After c onsideration of Appellant’s recent police contacts, her new summary offenses, and Appellant’s concession that she violated her probation, the VOP court found Appellant had violated her probation. The court resentenced Appellant to an aggregate term of two to five years’
incarceration. 4 Appellant filed a Motion to Reconsider her VOP sentence on December 8, 2016, which the VOP court denied on December 14, 2016. Appellant filed a timely Notice of Appeal. Both Appellant and the VOP court complied with Pa.R.A .P. 1925. Appellant presents one issue for our review: 1. Whether the [VOP] court abused its discretion at [Appellant’s VOP] hearing by imposing a manifestly excessive and unduly harsh sentence[?] Appellant’s Brief at 4. Appellant avers that the VOP court ’s sentence was excessive and unreasonable. Appellant’s Brief at 8. Initially, we note that Appellant’s claim implicates the discretionary aspects of sentencing. See Commonwealth v. Hornaman , 920 A.2d 1282, 1283

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____________________ ________________________ 4 The VOP court imposed a term of two to five years’ incarceration on Appellant’s Theft by Unlawful Taking conviction at docket No. CP

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- 2015. The VOP court imposed no further punishment on the remaining three counts at docket No. CP

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(concluding that a c laim that trial court imposed an excessive and unreasonable sentence implicated a discretionary aspect of sentence)

. Challenges to the discretionary aspects of sentence are not appealable as of right. Commonwealth v. Leatherby , 116 A.3d 73, 83 (Pa. Super. 2015). Rather, an appellant challenging the sentencing court’s discretion must invoke this Court’s jurisdiction by satisfying a four

- part test: “(1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue w as 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.[] § 9781(b).” Id. (citation omitted). Appellant met the first three requirements of the above test. We thus consider whether Appellant has presented a substantial question in her Pa.R.A.P. 2119(f) Statement. An appellant raises a “substantial question” when she “sets forth a plausible argument that the sentence violates a provision of the [S]entencing [C]ode or is contrary to the fundamental norms of the sentencing process.” Commonwealth v. Crump , 995 A.2d 1280, 1282 (Pa. Super. 2010) (citation omitted). In her Pa.R.A.P. 2119(f) Statement, Appellant summarily claims that the VOP court imposed a manifestly excessive VOP sentence of two to five years’ incarceration. Appellant’s Brief at 8. Appella nt argues that the VOPJ

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court’s sentence constituted an abuse of discretion given “the mitigating factors, such as [Appellant’s] mental health and borderline intellectual functioning [. . .] in addition to considerable depression anxiety.” Id. “A claim th at a sentence is manifestly excessive such that it constitutes too severe a punishment raises a substantial question.” Commonwealth v. Kelly , 33 A.3d 638, 640 (Pa. Super. 2011). See also Commonwealth v. Ferguson , 893 A.2d 735, 737 (Pa. Super. 2006) (concl uding that a claim that a sentence is manifestly excessive presents a “substantial question” for review). Thus, we will review the merits of Appellant’s claim. 5 In an appeal from a probation revocation order, “[o]ur standard of review is limited to determ ining the validity of the probation revocation proceedings and the authority of the sentencing court to consider the same sentencing alternatives that it had at the time of the initial sentencing.” Commonwealth v. Hoover , 909 A.2d 321, 322

- 23 (Pa. Super. 2006) (citing 42 Pa.C.S. § 9771(b)). “Revocation of a probation sentence is a matter committed to the sound discretion of the trial court and that court’s

____________________ ________________________ 5 Appellant’s argument that the sentencing court failed to consider mitigating factors does not present a s ubstantial question appropriate for our review. See Commonwealth v. Hanson , 856 A.2d 1254, 1257

- 58 (Pa. Super. 2004); Commonwealth v. Griffin , 804 A.2d 1, 9 (Pa. Super. 2002) (citing Commonwealth v. Williams , 562 A.2d 1385, 1388 (Pa. Super. 1989) ( en banc ) (concluding that an allegation that the sentencing court did not adequately consider various factors is, in effect, a request that this court substitute its judgment for that of the lower court in fashioning a defendant’s sentence)). To the extent Appel lant argues that the trial court failed to consider various mitigating factors, we will not consider these arguments.J

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decision will not be disturbed on appeal in the absence of an error of law or an abuse of discretio n.” Commonwealth v. Colon , 102 A.3d 1033, 1041 (Pa. Super. 2014) (citation and quotation omitted). “A probation violation is established whenever it is shown that the conduct of the probationer indicates the probation has proven to have been an ineffecti ve vehicle to accomplish rehabilitation and not sufficient to deter against future antisocial conduct.” Id. (citation and quotation omitted). The Honorable Mark F. Lovecchio has authored a comprehensive, thorough, and well

- reasoned Pa.R.A.P. 1925(a) Opini on, with references to relevant facts of record, including numerous facts contained in Appellant’s mental health evaluation, and citations to relevant case law. After a careful review of the parties’ arguments and the record, we discern no abuse of discre tion or error of law and we affirm on the basis of that Opinion. VOP Court Opinion, filed 4/24/17, at 2

- 6 (recounting the factors it took into consideration, including, inter alia , Appellant’s “mental health issues and intellectual functioning[,]” prior d rug abuse, ongoing alcohol abuse, her failures at previous treatment attempts, her long history of non

- compliance with supervision, and Appellant’s future risk of violent and predatory behaviors). The parties are directed to attach a copy of the VOP court’ s April 24, 2017 Pa.R.A.P. 1925(a) Opinion to all future filings. Judgment of Sentence affirmed. Judge Ransom joins the memorandum.J

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Judge Strassburger files a Concurring Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/11/2017Circulated 07/31/2017 11:30 AM