Com. v. Moore, E. (memorandum)

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J-S35015-14 NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. EBONY MOORE, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2109 MDA 2013 Appeal from the Judgment of Sentence November 13, 2013, Court of Common Pleas, Lycoming County, Criminal Division at No. CP-41-CR-0000856-2011 BEFORE: DONOHUE, WECHT and STRASSBURGER*, JJ. MEMORANDUM BY DONOHUE, J.: FILED JUNE 06, 2014 entence of 25 to 60 months of incarceration, entered following the revocation of a sentence of probation. Following our review, we affirm. this appeal: On July 25, 2011, [Moore] pled guilty to one count of Retail Theft, a felony of the third degree. On the same day, [Moore] was sentenced to [36] months of supervision with the Adult Probation Office of Lycoming County. A special condition of the supervision was that [Moore] was to attend and successfully complete the Drug Court Program. On November 30, 2011, [Moore] was detained in the Lycoming County Prison (Prison) for missing an appointment at West Branch Drug and Alcohol Abuse Commission (West Branch). On December 14, 2011, [Moore] was sanctioned [50] hours of community service. On January 4, 2012, [Moore] again missed *Retired Senior Judge assigned to the Superior Court. J-S35015-14 her scheduled counseling and was detained in the Prison. On January 11, 2012, [Moore] was sanctioned to [14] days in the Prison, a [60] day phase extension with the Drug Court program, and to attend an additional [90] meetings in ninety [90] days. On February 8, 2012, [Moore] missed another appointment with West Branch and was sanctioned with four [] consecutive Saturdays of community service. *** On November 13, 2013, following a Final IP Violation Theft sentence and re-sentenced her to twenty-five (25) months to five (5) years in a State Correctional Institution. The Court did not take further action under docket number 1224-2010. [Moore] filed a Post-Sentence Motion on November 14, 2013, which was denied by this Court. On November 27, 2013, the Defendant timely filed a Notice of Appeal[.] Trial Court Opinion, 1/30/14, at 1-2. Moore presents o court abused its discretion by imposing a manifestly unreasonable and excessive state sentence without considering the fundamental norms allenges to the discretionary aspects of sentencing do not entitle an appellant to review Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011) (citation omitted). An appellant challenging the discretionary aspects of his sentence mu satisfying a four-part test: (1) whether appellant has -2- J-S35015-14 filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether 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.A. § 9781(b). Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006). Id. As noted above, Moore filed a timely notice of appeal, and the record reveals that she preserved this issue by raising it in her post-sentence motion. She has included a statement pursuant to Pa.R.A.P. 2119(f) in her brief, in which she alleges that the sentence was inconsistent with the fundamental norms underlying the sentencing process because the trial of state pri question that her sentence is not appropriate under the Sentencing Code, See Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012), appeal denied, 63 A.3d 776 (Pa. 2013) (holding that appellant presents a substantial question so as to invoke our review when he alleges that trial court failed to consider relevant sentencing Our standard of review for sentencing claims is as follows: -3- J-S35015-14 Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will. More specifically, 42 Pa.C.S.A. § 9721(b) offers the following guidance to 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 § 9721(b). Thus, under 42 Pa.C.S.A. § 9721(b), a sentencing court must formulate a sentence individualized to that particular case and that particular defendant. Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013) (internal citations omitted). A trial court must adhere to certain requirements when imposing a sentence: [T]he court shall follow the general principle 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 case in which the court imposes a sentence for a felony or misdemeanor, modifies a sentence, resentences an offender following revocation of probation, county intermediate punishment or State intermediate punishment or resentences following remand, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed. -4- J-S35015-14 42 Pa.C.S.A. § 9721(b). Moore argues that the trial court did not address how the sentence contends that the sentence is nature and stemmed from her inability to pay court costs and fines and her Id. at 9-10. 1 The record reveals that Moore violated her probation by repeatedly failing to report to her probation officer, failing to participate in counseling, and producing a positive drug screen. N.T., 11/13/13, at 4-8. At the hearing, Moore claimed that she did not attend counseling sessions because she was unable to pay for them. Id. at 7-8. Moore had previously violated other probationary sentences, but was given community service and other Id. at 6. Between 2007 and November 2013, Moore was committed to the county prison 14 times. Id. At sentencing, the trial court extensive history of violations, and her unwillingness to take advantage of 1 de facto support for her claim that the sentence is sentencing guidelines do not apply to sentences imposed as a result of Commonwealth v. Ware, 737 A.2d 251, 255 (Pa. Super. 1999). -5- J-S35015-14 the more lenient sentences that had been imposed in the past, as well as her failure to take steps to avoid the technical violations, as proof that Moore is not amenable to an intermediate punishment sentence. See id. at 8, 10-11. For instance, the trial court stated, To me this is a complete attitude issue. This is[,] you to report. You used controlled substance [sic]. You month because I owe money to Mr. Whitman and Mr. Carn. Can you lower the payment? They do that. *** problems or in difficulties with payments if you reach your back on Anderson did and even what he said was looking upon the facts in the light most favorable to [Moore] all violations were technical in nature and that she did not commit new crimes and she did not relapse. So he chose to sentence you to county time based upon those two basically those two things saying nt you being sentenced to state prison. To me he gave you the last chance to stay in county by saying that now what am I faced with? I am faced with a relapse. I am faced with yet again absconding from where we have to say, enough is enough and as I said, I can hear you can pick and choose what you want to do[.] -6- J-S35015-14 I believe that to sentence you to anything different [than a period of incarceration] depreciates the seriousness of the just systematic probation, that Judge Anderson gave you a huge opportunity in May of 2012 and I believe based on your track record for the most part you squandered that Id. at 18, 24-25, 27. consider her rehabilitative needs. As evident from the quote above, the trial her numerous violations thereof, and was firmly of the mind that a sentence other than incarceration would not help Moore reform her ways.2 Furthermore, the trial court recognized that it was sentencing Moore on a conviction of retail theft graded as a third-degree felony, and it was aware of sentencing, as well as the statutory maximum. Id. at 2, 11-12, 25. The the gravity of the offense and whether there is a need for protection of the 2 To the extent that Moore is claiming that the trial court did not consider her need for rehabilitation related to a substance abuse problem, we cannot agree. On the contrary, the trial court concluded that Moore did not have a problem that would require admission into a rehabilitation program. When Moore asked the trial court about the possibility of rehab, the trial court pointed out that up to that point, Moore had steadfastly denied any substance abuse problems and stated that she was not using controlled Id. -7- J-S35015-14 public. We are satisfied that the trial court considered the factors it was required to consider pursuant to 42 Pa.C.S.A. § 9721(b). Having found no Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/6/2014 -8-

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