J

- A24010

- 17

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

SHELBY DARLIN CASPER

Appellant No. 1096 WDA 2016

Appeal from the Judgment of Sentence June 28 , 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP

- 02

- CR

- 0006331

- 2013 CP

- 02

- CR

- 0009079

- 2012

BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 9, 2017
Shelby Darlin Casper appeals from the June 28, 2016 judgment of
sentence entered in the Allegheny County Court of Common Pleas following
her revocation of probation. We affirm.
The trial court set forth the history of this case as follows:

On December 6, 2012,

. . . Casper, pled guilty at CC 201209079 [(“CC 2012”)] to one count each of Criminal Conspiracy (Burglary), Theft by Unlawful Taking and Receiving Stolen Property. [ 1 ] This Court sentenced her to three years probation at the Conspiracy count and no further pena lty at the remaining counts. On September 25, 2013, [Casper] pled guilty at CC 2013 0633 1 [(“CC 2013”)] to one count of Possession of Firearm with Altered Manufacturer’s Number, one count of Possession of a Controlled Substance with Intent to Deliver (PWID ), one

____________________________________________

1 18 Pa.C.S. §§ 903, 3921(a), and 3925(a), respectively.J

- A24010

- 17

- 2

- count of Possession of a Controlled Substance, two counts of Recklessly Endangering Another Person and one count of Possession of Drug Paraphernalia. [ 2 ] This C ourt sentenced [Casper] on the Possession of Firearm with Altered Manufacturer’s Number c ount to two years of Intermediate Punishment with 3 years of concurrent probation at the PWID count, and no further penalty at the remaining charges.
On February 4, 2014, this Court found [Casper] to have violated probation at [CC 2012] by virtue of her n ew conviction at [CC 2013] and resentenced her to a new three[

- ] year term of probation. On June 30, 2015, this Court found [Casper] to be a technical violator of her probation at both cases. This Court revoked a n d reimposed probation again at [CC 2012], and took no action at [CC 2013]. On June 28, 2016, after a third violation hearing, this Court found [Casper] to be a technical violator of her conditions of probation and resentenced her at [CC 2012] to one to two years incarceration and [gave her credit for time served]

. At [CC 2013], this Court imposed a period of incarceration of 42 to 100 months with three years consecutive probation. Opinion, 3/10/17, at 2 (“1925(a) Op.”).
Casper timely filed her notice of appeal. 3 On appeal, she raises the

follo wing issue: “Did the trial court fail to adequately consider and apply all

of the relevant sentencing criteria, including the protection of the public, the

gravity of the offense/violation, and especially Ms. Casper’s character and

____________________________________________

2 18 Pa.C.S. § 6110.2(a), 35 P. S. § § 780

- 113(a)(30), 780

- 113(a)(16 ), 18 Pa.C.S. § 2705, and 35 P.S. § 780

- 113(a)(32), respectively.

3 On July 19, 2016, Casper filed a post

- sentence motion nunc pro tunc

. The trial court granted nunc pro tunc relief but did not rule on the motion. Because this is a revocation sentence, the 30

- day appeal period is not tolled and Casper had to file her notice of appeal within the required 30 days. See Pa. R.Crim .P. 708(E). Therefore, Casper’s notice of appeal, filed on July 28, 2016, is timely.J

- A24010

- 17

- 3

-

rehabilitative needs, a s required under 42 Pa.C.S.A. § 9721(b) (Sentencing
generally; general standards)[?]” Casper’s Br. at 6 (full capitalization

omitted).

Casper is challenging 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 such a challenge, we first

determine:

(1) whether the appeal is timely; (2) whether [a]ppellant preserved his issue; (3) wh ether [a]ppellant’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 approp riate under the [S]entencing [C]ode.

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

Commonwealth v. Malovich , 903 A.2d 1247, 1250 (Pa.Super. 2006)).

Casper 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). Additionally, Casper’s claim that her sentence

is excessive in light of the technical violat ions of her probation raise s a
substantial question. See Malovich , 903 A.2d at 1253 (“[A] claim that a

particular probation revocation sentence is excessive in light of its underlyingJ

- A24010

- 17

- 4

-

technical violations can present a question that we should review.”).

Accordingly, we will review 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 ). “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 ch aracter of the offender.” Id. at 1283.

Upon revocation of probation , a trial court may impose a sentence of

total confinement if any of the following requirements are met : “ (1) the

defendant has been convicted of another crime; or (2) the conduct of th e
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). “ [T] he sentencing alternatives

available to the court s hall be the same as were available at the time of

initial sentencing, due consideration being given to the time spent serving

the order of probation .” 42 Pa.C.S. § 9771(b ).

Casper claims that the trial court abused its discretion in imposing an

aggregat e term of 54 to 124 months’ incarceration plus 3 years of probation.

Casper contends that the sentence was manifestly unreasonable because

revocation was based solely on technical violations; the trial court failed toJ

- A24010

- 17

- 5

-

consider the protection of the public , the gravity of the offense, and Casper’s

rehabilitative needs; and the trial court ignored key mitigating evidence.

Here, t he trial court found:

This Court considered numerous factors in sentencing [Casper], incl uding two Pre

- Sentence reports. The Penns ylvania Supreme Court has held:
Where pre

- sentence reports exist, we shall continue to presume that the sentencing judge was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors . . . [.] Having been informed by the pre
- sentence report, the sentencing court’s discretion should not be disturbed.

Commonwealth v. Devers , 546 A.2d 12, 18 (Pa. 1988). The hearing on June 28, 2016 was [Casper]’s third violation of probation hea ring. She refused to participate in a Justice Related Services (“JRS”) program and has been unable or unwilling to maintain mental health treatment compliance. She twice rem oved her ankle bracelet. She displayed a defiant attitude toward probation super vision and this Court. She was placed in alternative housing for a therapeutic intervention three times and was sent back to jail each time for program violations. She used marijuana daily, with her last date of usage being the date of her arrest. Yet, she denied having drug problems. She has repeatedly demonstrated through her words and her conduct that she is either unwilling or unable to be supervised in the community or to follow the reasonable rules of society.
The sentence imposed was designed to afford [Casper] the opportunity to receive necessary and appropriate mental health and drug and alcohol treatment which she repeatedly failed to avail herself of while under community supervision or in alternative hous ing. Further, the sentence affo rds h er the opportunity to either earn parole at her minimum or remain detained until she demonstrates stability, maturity and the ability to follow rules. Thus, thisJ

- A24010

- 17

- 6

- Court did not err in sentencing her to time served on the 2012 case and a standard range peri od of incarceration of 42 to 100 months with three years consecutive probation on the 2013 gun and drug case.
1925(a) Op. at 6

- 7 (some internal citations omitted). We find no abuse of

discretion.

Further, the trial court thoroughly stated on the record its reasons for

imposing its sentence:

THE COURT: . . . This is her third violation of proba tion hearing. She has never had JRS bu t she doesn’ t want it. She says she can do this on her own. I can’ t order her to be medication compliant. Witho ut JRS, I don’ t feel that I

can continue to have probation supervise her in the community. I don ’ t know what else to say but on a third

v iolation on a Felony 2 burglary of a gun [ shop] , second violation on a Felony 2. She twice removed her ankle bracelet. She has display e d a terrible defiant attitude and carries an Axis II diagnos is. If you ’ re asking me to give her anoth er chance at probation, I don ’ t think I’ m going to be willing to do that without some support.

. . . THE COURT: Ms. Casper, don ’ t waste my time. Do you want to cooperate with the JRS plan if they accept the referral or not?
THE DEFENDANT: Would that mean I would go to another program?

T HE COURT: I don’ t know what JRS would recommend until they accept you and meet with you and come up with a plan.

THE DEF ENDANT: I don’ t want to go to another program. So no.

. . . THE COURT: All right. I’ m not going to refer her to JRS. She ’ s not going to cooperate with it. Her attitudeJ

- A24010

- 17

- 7

- continues to be terrible. She believes she should be able to dictate to me what she n eeds and what she ’ ll do or not do and I won't accept that.

. . . THE COURT: Please assume that I’ ve read both presentence reports and the Behavior Clinic evaluation because I have. I’ m aware that she has mental health needs. I cannot force her to receive treatment for them.

. . . THE COURT: She only wants [treatment] on her terms and I can’ t promise her that. I won ’ t was te resources sending her to JRS with the anticipation they are going to

recom mend a dual diagnosis treatme nt progra m which she told me she doesn’ t think w ill do any good and hasn’ t done any goo d in the past and she won’ t do. Is that right?

THE DEFENDANT: Yes.
N.T., 6/28/16, at 3

- 5 , 13, 16

. Casper further argues that the trial court failed to consider key

miti gating evidence, such as her mental health treatment and medication,

employment history, and family support . The record, however, belies her

claim s

. At the revocation hearing, trial court stated, “ I'm aware that she has

mental health needs. I cannot for ce her to receive treatment for them. ” Id.

at 16. The trial court gave Casper every opportunity to accept treatment,

which she repeatedly declined. Further, the following exchange occurred :

THE COURT: We’ re not talking about alternative housing. What w e’ re talking about is a program through JRS.

THE DEFENDAN T: I don’ t understand what tha t means. What’ s the difference?J

- A24010

- 17

- 8

- THE COURT: There are a number of programs such as Pyramid, private programs that JRS may recommend for you. THE DEFENDANT: They are a ll rehab and I don ’ t have a drug problem.

THE COU RT: Let’s just go forward. She doe sn’t have a drug problem in her estima tion. She’s declining services. What am I going to do?

. . . THE CO URT: Let me read from the Beha vior Clinic evaluation which is based on her report. [Casper] reported that she started using marijuana at age 13, alcohol at age 14, opiates at age 15. She used marijuana daily, and alcohol and opiates occasion ally. The last use of marijuana and opiates was on the date of the arrest an d the use of alcohol probably a few days before that. T his is a person who by all data reported would be considered h igh risk for dr ug dependence. And the Behavior Clinic, i n fact, indicates [] cannabis use diso rder in remiss ion, secondary to con trolled environment. Opioid use diso rder in remission, secondary to controlled environment.

. . . THE COURT: . . . So I’ m not going to play any games here, Ms. Casper. You seem to want to speak for yourself. Tell me what you want me to do.

THE DEFENDANT: I don ’ t know.

THE COURT: You’ ve heard your options

. Consider a JRS plan that will likely include an inpatient treatment somewhere or I have a presentence report and I’ m prepared to resentence you here on both cases. It’ s up to you

. THE DEFENDANT: I guess I ’ ll do the JRS.

THE COURT: What I’m telling you is assume t he worst. It’ s likely to be an inpa tient treatment program. A dual diagnos is inpatient treatment program. If you ’ re unwilling to do that and seriously do that, then tell me that now because t here is no point in wasting our judicial resources.J

- A24010

- 17

- 9

- I ’ m encouraging you to do i t. I’ ve already done everything I can do short of that for you.

THE DEFENDANT: I guess I don’ t have a choice.

THE COURT: You have a choice.
THE DEFENDANT: I mean, I would rather do that than do 10 years. So I guess I’ m going to have to do that even though i t’ s obviously not beneficial to me whatsoever.

Id. at 7

- 9 , 12

- 13

. Additionally , t he record reflects that the trial court was

awa re of and considered Casper’s family support, se e id. at 10

- 11, and had

the benefit of two pre

- sentence reports, see Devers , 546 A.2d at 18.

Finally, we disagree with Casper’s contention that the trial court did

not consider the protection of the pu blic, t he gravity of the offense, and her

rehabilitative needs. The trial court stated that Casper continuously violated

her probation, refused every opportunity given to receive treatment, and

that “[w] itho ut JRS, I don’t feel that I can continue to have probat ion
supervise her in the community.” N.T., 6/28/16, at 3. Further, as discussed

above, the trial court thoroughly considered her rehabilitative needs

.

A trial court is “in the best position to evaluate [an a]ppellant’s

character and . . . defiance or indifference.” Malovich , 903 A.2d at 1254.
Given the trial court findings regarding Casper’s defiant attitude, her

repeated violations of probation, and her unwillingness to participate in

rehabilitation treatment, we cannot conclude t hat her sentence was

manifestly unreasonable. See id.J

- A24010

- 17

- 10

-

Because the record shows that the sentence imposed was essential to

vindicate the authority of the court under 42 Pa.C.S. § 9771(c) (3) , and the

trial court fully stated its reasons on the record, we co nclude it did not abuse

its discretion in imposing its sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/9/2017