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[U] Commonwealth v. Stevens

Superior Court of Pennsylvania

February 13, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CARRIE STEVENS, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence April 3, 2013 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000389-2004, CP-33-CR-0000390-2004

BEFORE: FORD ELLIOTT, P.J.E., BOWES, and WECHT, JJ.

MEMORANDUM

BOWES, J.

Carrie Stevens appeals from the April 3, 2013 judgment of sentence of three to seven years incarceration that was imposed after she was found to be in violation of the terms of her probation that was imposed at two different criminal action numbers. We affirm.

Appellant was charged at criminal action number 389-2004 with public nuisance graded as a second-degree misdemeanor. The criminal complaint alleged that for six weeks Appellant committed a public nuisance in that she allowed "her dog to run at large outside the confines of her property after repeated requests to confine the dog and after several Non-traffic Citations issued for past violations[.]" Criminal complaint, 5/13/04, at 2. Additionally, her dog had "repeatedly chased nearby residents" and "frightened the residents and their guests." Id. The affidavit accompanying the complaint specified that, since the beginning of April 2004, Appellant maintained a large dog at 426 North 4th Street, Reynoldsville, and permitted that dog to roam the neighborhood. The dog had growled and acted hostile toward people who were afraid of being attacked. The dog also chased residents and their guests on numerous occasions. One neighbor reported that the dog came onto his property, snarled and bared his teeth at him, and would not allow him to move. Another person was held hostage in his vehicle for ten minutes by the growling animal. Additionally, the mail carrier had experienced problems delivering the mail to Appellant's residence due to the dog's hostility. A dog law enforcement officer received several complaints about the dog and issued Appellant three non-traffic citations.

At criminal action number 390-2004, Appellant was accused of endangering the welfare of a child, a first-degree misdemeanor. On May 22, 2004, Appellant left her three-year-old son outside by himself. He was walking down the middle of North 4th Street when a neighbor retrieved him and police were called. Appellant obtained her son while the police officer was on the scene. Police were informed at that time that, on a prior occasion, the boy had been walking down the middle of the street unaccompanied. On another unspecified date, the child was outside and unclothed. A Reynoldsville police officer was summoned to the scene, and he had to enter Appellant's residence to gain her attention, as she appeared to have been sleeping.

On October 11, 2004, Appellant pled guilty to both offenses. She received two years probation for public nuisance conditioned on no dog ownership during that two years. She received a sentence of five years probation with parenting classes on the child endangerment charge. The probationary terms were imposed concurrently. On October 5, 2006, a bench warrant was issued for Appellant's arrest due to the fact that she had violated the terms of her probation. In January 2013, after Appellant was located in Florida, she was extradited to Pennsylvania.

At Appellant's Gagnon I hearing, Clearfield County Probation Officer Steven Gillespie testified as follows. He was Appellant's probation officer when she was originally sentenced. Appellant reported to him on a fairly regular basis until June 20, 2006. Appellant did not report thereafter. Without permission, Appellant left Pennsylvania and began to reside in Florida. On April 3, 2013, the trial court concluded that Appellant had violated the terms of her probation and that a sentence of imprisonment was warranted in order to vindicate its authority. 42 Pa.C.S. § 9771(c).[1] At criminal action 390-2004, Appellant received two and one-half to five years incarceration. At criminal action number 389-2004, a sentence of six months to two years imprisonment, consecutive to the other sentence, was imposed. The trial court recommended that Appellant be considered for participation in the Motivational Boot Camp Program but indicated that she was ineligible for the RRRI program.

Appellant filed a motion for reconsideration on April 10, 2013, and this timely appeal on May 2, 2013. Appellant raises a single contention: "Whether the Trial Court committed an abuse of discretion by resentencing the appellant to two consecutive sentences aggregating to a minimum of three (3) years to a maximum of seven (7) years in a State Correctional Institution given the severity of the probation violation and the original charges." Appellant's brief at 4. Specifically, she maintains that her sentence was "excessive and disproportionate given the severity of the probation violations, and the original charges." Id. at 7. She also argues that the court "failed to state adequate reasons on the record for the sentences imposed." Id.

Appellant's claims that her sentence was excessive and that the trial court failed to state adequate reasons for its imposition both related to the discretionary aspects of the sentence imposed.[2]

"There is no absolute right to appeal when challenging the discretionary aspect of a sentence." Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super.2010); 42 Pa.C.S. § 9781(b). Rather, an "[a]ppeal is permitted only after this Court determines that there is a substantial question that the sentence was not appropriate under the sentencing code." Crump, supra at 1282. In determining whether a substantial question exists, this Court does not examine the merits of the sentencing claim. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (Pa.1987).
In addition, "issues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discretionary aspect of a sentence is waived." Commonwealth v. Kittrell, 19 A.3d 532, 538 (Pa.Super.2011). Furthermore, a defendant is required to preserve the issue in a court-ordered Pa.R.A.P. 1925(b) concise statement and a Pa.R.A.P. 2119(f) statement. Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa.Super. 2012).

Commonwealth v. Cartrette, 2013 WL 6821398, (Pa.Super. 2013) (en banc).

In the present case, Appellant did file a motion for reconsideration of the sentence. However, she did not raise therein the issues that she now raises on appeal. Specifically, in her motion for reconsideration, Appellant asked that the sentences be imposed concurrently rather than consecutively, and that she be made eligible for the RRRI program. Motion for Reconsideration, 4/10/13, at ¶¶ 5, 6. Hence, her present sentencing claims are not preserved for appeal. Cartrette, supra. Judgment of sentence affirmed.

Judgment Entered.


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