Appeal from the Judgment of Sentence November 19, 2012 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000963-2011, CP-41-CR-0000420-2008
BEFORE: BOWES, WECHT, and PLATT, [*] JJ.
Jack Larue Howlett appeals from the judgment of sentence of one and one-half to four years incarceration that was imposed in criminal action number CP-41-CR-0000420-2008 on November 19, 2012, and the consecutive judgment of sentence of six to twelve months incarceration imposed simultaneously at criminal action number CP-41-CR-0000963-2011. These sentences were the result of the revocation of intermediate punishment that Appellant was accorded in each case. We affirm.
In the 2008 action, Appellant was charged with possession with intent to deliver a controlled substance ("PWID"), delivery of a controlled substance, possession of a controlled substance, criminal conspiracy, and criminal use of a communication facility. The charges arose from an undercover investigation during which Appellant transferred cocaine to a confidential informant. On October 13, 2009, Appellant, who had a prior record score of three, pled guilty to PWID. He received twenty-four months probation, which was below the guideline recommendations. One of the conditions of Appellant's probation was that he had to abstain from using illegal drugs. In March 2011, his probation officer received information that Appellant was violating that condition by using heroin and that he had been admitted to a drug treatment facility. Against medical advice, Appellant thereafter left that institution. In April, 2011, Appellant gave a urine sample to his probation officer that tested positively for heroin.
In June 2011, Appellant was charged with possession of heroin and drug paraphernalia at CP-41-CR-0000963-2011. The court therefore revoked Appellant's probation in the 2008 case and sentenced Appellant to intermediate punishment under the intermediate punishment program
("IPP"). It conditioned continuation of intermediate punishment upon Appellant's successful completion of a treatment regimen named the Drug Court Program.
Thereafter, on September 14, 2011, Appellant pled guilty to both offenses charged in the 2011 action, and he was sentenced to a consecutive term of twelve months of intermediate punishment under IPP supervision that likewise was conditioned on completion of the Drug Court Program. Refraining from use of illegal drugs was a condition of both the terms of the IPP and the Drug Court Program.
On February 2012, Appellant voluntarily committed himself to Divine Providence Hospital as he had suicidal ideations. That facility administered a drug test, which was positive for the presence of cocaine. After Appellant left the hospital, he was detained for violating intermediate punishment. The court deferred ruling on revocation pending a mental health evaluation by Dr. Terri Calvert. In July 2012, Appellant provided his probation officer with a urine sample that established that he was under the influence of opiates. He was then found to be in violation of the intermediate punishment imposed at both criminal cases. The court deferred sentencing pending an additional evaluation from Dr. Calvert.
At the November 19, 2012 sentencing on the violations, the court outlined that the following facts informed its decision. Appellant, who was fifty-two years old, had a long history of drug use that began when he was twelve years old. When he was admitted to Divine Providence Hospital, Appellant conceded that "he had chronic drug use and had, in the past sold drugs." N.T. 11/19/12, at 6. His wife displayed a history of drug abuse, as well as his brother, who died from a cocaine-induced heart attack. Since April 4, 1991, Appellant had been committed to county prison fifteen times. Dr. Calvert concluded that Appellant's mental health issues, which included anxiety and non-specific bipolar disorder, were secondary to his drug use and would diminish if he ceased that activity. Appellant's probation officer recommended an aggregate sentence with respect to both actions of two and one-half to seven years imprisonment.
The sentencing court concurred that state incarceration was necessary, explaining: "I'm absolutely convinced that you need to be re-incarcerated because if not, you'll continue to use, and you'll continue to commit other offenses. I'm convinced as well that what we've tried up to this point hasn't worked" and that "we've exhausted the resources that are available here [at the county level]." Id. at 30. The court thus concluded that Appellant was unable to voluntarily cease drug use based on his extensive history. The court imposed a state sentence two to five years imprisonment, with credit for time served. The court justified its sentence as follows: "I think it's appropriate under the circumstances. I think it reflects the fact that, you know, you've continued to use, and you've not taken advantage of the opportunities. Plus, I think to some extent, the resources in the state, to the extent you choose to take advantage of them, will help you." Id. at 31.
In this appeal, Appellant complains that "the sentencing court abused its discretion by imposing a manifestly unreasonable and excessive state sentence without considering the fundamental norms underlying the sentencing process." Appellant's brief at 6. Appellant's contention relates to the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not guarantee an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.Super. 2000). An appellant challenging the discretionary aspects of his sentence must ...