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[U] Commonwealth v. Davis

Superior Court of Pennsylvania

February 11, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
BONNIE LOUISE VONSTEIN DAVIS, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence May 10, 2013, Court of Common Pleas, Bedford County, Criminal Division at No. CP-05-CR-0000237-2012.

Joseph D. Seletyn, Esq.

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and PLATT, JJ. [*]

MEMORANDUM

DONOHUE, J.

Appellant, Bonnie Louise Vonstein Davis ("Davis"), appeals from the judgment of sentence entered on May 10, 2013 following her guilty plea to the crime of driving under the influence – highest rate of alcohol, 75 Pa.C.S.A. § 3802(c). On appeal, Davis contends that the trial court abused its discretion in refusing to grant her application to participate in an intermediate punishment program. For the reasons that follow, we affirm.

The trial court offered the following apt summary of the relevant procedural background of this case:

On March 11, 2013, [ Davis] pled guilty to one count of Driving Under the Influence to the Highest Rate blood alcohol level as a second offense in the past ten years. Pursuant to the plea agreement, the remaining charges were to be nolle prossed and sentencing was open to the [c]ourt's discretion. On May 10, 2013, after reviewing a Pre-Sentence Investigation, we imposed a sentence of nine (9) months to twenty-three (23) months in the Bedford County Jail followed by three (3) years probation, with intensive alcohol supervision requirement including an alcohol detection anklet. At the sentencing hearing, counsel for [ Davis] neglected to bring to our attention that [ Davis] had made application for participation in the Bedford County Intermediate Punishment Program. As a result, we did not address the Intermediate Punishment Program at sentencing. [ Davis] subsequently filed a Post-Sentence Motion requesting that the [ c]ourt admit [ Davis] into the Intermediate Punishment Program. We held a hearing on May 14, 2013, and denied relief.

Trial Court Opinion, 8/ 13/ 2013, at 1- 2.

On appeal, Davis presents the following issue for our consideration and determination:

Given that the lower court ignored her current offense while it repeatedly cited [ Davis's] past offense as justification for denying her entry into the Bedford County Intermediate Punishment Program, which she was eligible for, while the past offense was already accounted for in her Prior Record Score, did the court abuse its discretion in denying her admission to the Program?

Davis's Brief at 4.

Davis challenges the discretionary aspects of her sentence. A challenge to the discretionary aspects of a sentence "must be considered a petition for permission to appeal, as the right to appeal from the discretionary aspects of sentencing is not absolute." Commonwealth v. Long, 831 A.2d 737, 750 (Pa.Super. 2003). Two requirements must be met before we will review this challenge on its merits. First, Davis must " set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence." Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 513 Pa. 508, 512, 522 A.2d 17, 19 (1987). Davis's appellate brief contains a 2119(f) Statement, and therefore she has met the first requirement.

Second, Davis must show, "that there is a substantial question that the sentence imposed is not appropriate under this chapter." 42 Pa.C.S.A. § 9781(b); Commonwealth v. Urrutia, 653 A.2d 706, 710 (1995), appeal denied, 541 Pa. 625, 661 A.2d 873 (1995). Davis claims that the trial court considered an impermissible factor in its sentencing decision. This Court has held that a claim that the sentence is excessive because the trial court relied on impermissible factors raises a ...


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