J. S69022/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

CHELLY LONG, : No. 3465 EDA 2013

:

 Appellant :

Appeal from the Judgment of Sentence, October 31, 2013,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0002936-2011

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND STABILE, J. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 16, 2015

Chelly Long appeals from the judgment of sentence entered on 

October 31, 2013, following the second revocation of probation related to 

her June 28, 2011 negotiated guilty plea to the charge of retail theft, a third 

degree felony. We affirm. 

Appellant was arrested on January 17, 2011, after she stole a jacket 

valued at $1,250 from the Barash Fur and Leather Store in Philadelphia. 

She entered a negotiated guilty plea in Mental Health Court1and was 

sentenced to 3 to 23 months’ incarceration. She was paroled to a treatment

facility; but less than three weeks later, she left the program without 

 

1 Mental Health Court seeks to identify defendants who are prepared to 

accept a higher level of supervision in exchange for placement in an 

approved treatment facility outside of jail. On April 27, 2011, a 

psychological evaluation was conducted, and appellant was deemed eligible.
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authorization. On October 27, 2011, the trial court found appellant to be in 

technical violation of her parole; she was sentenced to back time, plus two 

years of reporting probation. 

After appellant was paroled a second time, she entered another 

treatment facility, but again absconded from the program on May 30, 2012. 

She was detained a year later after incurring another arrest for retail theft; 

this charge was withdrawn on July 11, 2013. Following a hearing on 

October 31, 2013, the trial court revoked appellant’s probation and imposed 

a sentence of 18 to 36 months’ incarceration. On November 12, 2013, 

appellant filed a timely petition for reconsideration of her sentence.2 

(Docket #7.) The petition was denied without a hearing on November 26, 

2013. Appellant filed a timely notice of appeal on December 2, 2013,3and 

complied with the trial court’s order to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. 

The trial court has filed an opinion. 

In this appeal, appellant challenges the discretionary aspects of her 

sentence after probation revocation. Preliminarily, we note that the 

imposition of sentence following the revocation of probation “is vested within 

 

2 The 10-day period to file this motion was extended one day because the 

10th day fell on Sunday, November 11, 2013. Pa.R.A.P., Rule 903(a), 

42 Pa.C.S.A.; 1 Pa.C.S.A. § 1908.

3 The 30-day appeal period is extended two days because the 30th day fell 

on Saturday, November 30, 2013. Pa.R.A.P., Rule 903(a), 42 Pa.C.S.A.; 

1 Pa.C.S.A. § 1908.
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the sound discretion of the trial court, which, absent an abuse of that 

discretion, will not be disturbed on appeal.” Commonwealth v. Smith, 669 

A.2d 1008, 1011 (Pa.Super. 1996). Moreover, upon revocation of probation, 

“a court possesses the same sentencing alternatives that it had at the time 

of initial sentencing.” Id. (citation omitted).

Where an appellant challenges the discretionary aspects of sentence, 

there is no automatic right to appeal; rather, appellant must petition for 

allowance of appeal pursuant to 42 Pa.C.S.A. §9781. Commonwealth v. 

Hanson, 856 A.2d 1254, 1257 (Pa.Super. 2004). 

Before we reach the merits of this [issue], 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. The third and fourth of 

these requirements arise because Appellant’s attack 

on his sentence is not an appeal as of right. Rather, 

he must petition this Court, in his concise statement 

of reasons, to grant consideration of his appeal on 

the grounds that there is a substantial question. 

Finally, if the appeal satisfies each of these four 

requirements, we will then proceed to decide the 

substantive merits of the case.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (citations 

omitted).
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Here, appellant preserved her claim in her motion for reconsideration,4

and filed a timely notice of appeal. Appellant has included in her brief a 

concise statement pursuant to Pa.R.A.P. 2119(f). Thus, we proceed to 

determine whether appellant has presented a substantial question that the 

sentence appealed from is not appropriate under the Sentencing Code.

The determination of whether a particular issue raises a substantial 

question is to be evaluated on a case-by-case basis. Commonwealth v. 

Maneval, 688 A.2d 1198, 1199-1200 (Pa.Super. 1997). In order to 

establish a substantial question, the appellant must show actions by the 

sentencing court inconsistent with the Sentencing Code or contrary to the 

fundamental norms underlying the sentencing process. Id.

In her Rule 2119(f) statement, appellant argues that her sentence was 

manifestly excessive and argues the trial court “failed to carefully consider 

the factors set forth in section 9721(b) and 9771(c).” (Appellant’s brief at 

12.) Specifically, she avers the trial court did not give adequate 

consideration to her rehabilitative needs presented at sentencing, she does 

not pose any threat to public safety, and the “incarcerative [sic] sentence” 

was unnecessary to vindicate the authority of the court. (Id. at 12-13.)

Initially, we are aware that the sentencing guidelines do not apply to 

VOP sentences; however, we note that appellant’s sentence would fall within 

 

4 Appellant also presented the issue in her court-ordered Pa.R.A.P. 1925(b) 

statement.
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the standard range of the sentencing guidelines.5 Maneval, 688 A.2d at 

1199-1200 (“Generally, if the sentence imposed falls within the sentencing 

guidelines, no substantial question exists.”), citing Commonwealth v. 

Johnson, 666 A.2d 690, 692 (Pa.Super. 1995). It is well settled that bald 

allegations of excessiveness will not suffice to grant merits review. 

Additionally, this court has determined an allegation that the sentencing 

court “failed to consider” or “did not adequately consider” various factors 

does not raise a substantial question that the sentence was inappropriate. 

Commonwealth v. Edwards, 71 A.3d 323, 330 (Pa.Super. 2013), quoting 

Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa.Super. 2011). As 

such, we find that appellant did not raise a substantial question on this 

claim; however, assuming, arguendo, that he had and we were to reach 

the merits of this issue, for the reasons set forth below, we would find the 

sentencing court did not abuse its discretion.

At the hearing, the court heard testimony as to appellant’s failure to 

cooperate with court-mandated treatment services. The court, who was 

familiar with appellant’s history and rehabilitative needs as it had ordered 

numerous mental health evaluations and had previously revoked probation 

for this exact behavior, noted that appellant has a history of non-compliance 

with treatment programs. (Notes of testimony, 10/31/13.) Our review of 

 

5 Retail theft, graded as a felony of the third degree, calls for a maximum 

penalty of seven years in prison.
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the sentencing transcript reveals that court ordered appellant to receive 

treatment for her medical and mental health needs. (Id. at 17.) Thus, no 

relief is due. 

Appellant also claims that the court failed to comply with 

Section 9771(c) of the Sentencing Code. This court has held that a trial 

court’s failure to comply with Section 9771(c) raises a substantial question. 

Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa.Super. 2006).

Section 9771(c) provides:

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.A. § 9771(c).

Despite appellant’s argument to the contrary, we find the record to be 

replete with support for the finding that the sentence imposed was proper. 

Immediately before imposing sentence, the court noted that this was 

appellant’s second violation of probation. (Notes of testimony, 10/31/13 at 

15.) 

As I reviewed the file and the history, it is clear that 

there [were] numerous opportunities given to 

[appellant] to participate in treatment to stop the 
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drugs. She left several programs. She didn’t appear 

in court. She just had a history of non-compliance 

and that coupled with the number of aliases -- I just 

think generally the conduct that she has been 

displaying, it is clear that I would say a sentence of 

probation will not serve the purpose.

Id. at 15-16 (see also trial court opinion, 3/28/14 at 4). Thus, the court 

found the sentence necessary to vindicate the court’s authority and because 

appellant’s behavior indicated a likelihood to commit future offenses. Even if 

appellant’s violations were only technical in nature, appellant has 

demonstrated an inability to reform under the supervision of probation. See 

Commonwealth v. Carver, 923 A.2d 495, 498 (Pa.Super. 2007) 

(concluding “technical violations can support revocation and a sentence of 

incarceration when such violations are flagrant and indicate an inability to 

reform.”). Based on these considerations, we find the court complied with 

Section 9771(c) when it sentenced appellant to total confinement following 

the revocation of probation, and as such, did not abuse its discretion. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/16/2015