J-S34014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
TAMARRA GEARY
Appellant No. 3128 EDA 2016
Appeal from the Judgment of Sentence September 8, 2016 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0000001-2008 CP-46-CR-0000202-2008 CP-46-CR-0003995-2009 CP-46-CR-0004056-2009
BEFORE: BOWES, SOLANO, AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED MAY 23, 2017
Tamarra Geary appeals from the judgment of sentence of twelve to
twenty-four months incarceration, plus three years probation imposed after
the court found her in violation of probation. We affirm.
Appellant was arrested in 2009 and charged with access device fraud,
forgery, identity theft, tampering with public records, and other related
offenses, stemming from multiple occasions where she obtained, or
attempted to obtain, merchandise using false identification and stolen credit
cards. On March 13, 2013, she entered into an open guilty plea to a single
count of access device fraud and one count of tampering with public records.
* Retired Senior Judge specially assigned to the Superior Court. J-S34014-17
The remaining charges were nolle prossed. The court imposed a sentence of
time served to twenty-three months at each count, to run consecutively,
followed by three years of probation. Appellant received credit for time
served and was granted immediate parole.
While serving her probationary sentence, Appellant allegedly violated a
Protection From Abuse Order (“PFA”). In order to avoid punishment,
Appellant fled.1 As a result, she failed to meet her reporting requirements or
pay her fines and restitution for a period of two years. Appellant waived her
right to a Gagnon I hearing, and the court held a Gagnon II hearing on
September 8, 2016. At that hearing, Appellant stipulated to a technical
violation for failing to report, and thereafter, the court revoked her
probation. The court then imposed an aggregate sentence of twelve to
twenty-four months incarceration, plus three years probation.
Appellant filed a timely petition for reconsideration of sentence on
September 12, 2016. Before the court responded to Appellant’s petition,
she filed a timely notice of appeal on September 29, 2016.2 Appellant
complied with the court’s order to file a Rule 1925(b) concise statement of
____________________________________________
1 Although a hearing was scheduled on Appellant’s alleged PFA violation, the complaining witness did not appear, and the prosecution withdrew the charges. 2 The trial court ultimately filed an order denying Appellant’s petition for reconsideration on October 12, 2016.
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matters complained of on appeal, and the court filed its Rule 1925(a)
opinion. This matter is now ready for our review.
Appellant presents one question for our consideration: “[Appellant]
asserts that the sentences imposed were manifestly harsh and excessive and
not in conformity with the sentencing code and the holding in the
Pennsylvania Supreme Court holding (sic) in Comonwealth v. Cottle[, 426
A.2d 598 (Pa. 1981)].” Appellant’s brief at 7.
When considering an appeal from a sentence imposed after the court
has revoked probation, we may review “the validity of the revocation
proceedings, the legality of sentence imposed following revocation, and any
challenge to the discretionary aspects of the sentence imposed.”
Commonwealth v. Wright, 116 A.3d 133, 136 (Pa.Super. 2015).
Appellant raises a challenge to the discretionary aspects of her
sentence. When reviewing such a challenge, we are informed by the
following standard of review: “[s]entencing 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.” Commonwealth v. Zirkle,
107 A.3d 127, 132 (Pa.Super. 2014) (citation omitted). Further, “the right
to appellate review of the discretionary aspects of a sentence is not
absolute, and must be considered as a petition for permission to appeal.” In
order to invoke this Court’s jurisdiction:
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[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal; (2) whether the issues were properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether appellant’s brief has a fatal defect; and (4) whether there is a substantial question that the sentence appealled from is not appropriate under the Sentencing Code.
Id.
Instantly, Appellant filed a timely notice of appeal and a timely petition
for reconsideration of her sentence. In that petition, she contended her
sentence was excessive since she is the mother of a seven-year-old
daughter, she has been gainfully employed, and, other than fleeing, she did
not otherwise violate her probation. Appellant has also attached a Rule
2119(f) concise statement of reasons relied upon for allowance of appeal
generally raising the same claim. Thus, Appellant has preserved her
challenge and we need only consider whether she has raised a substantial
question that her sentence was inappropriate under the sentencing code.
Appellant argues that the court imposed an excessive sentence that
does not reflect the seriousness of her violation, and that it failed to consider
circumstances that militated in favor of a lighter sentence. In particular,
Appellant notes that during her probationary period she worked in home
healthcare and did not incur any direct probation violations. She
emphasizes that she is the mother of a young daughter, and that she
specifically asked the court to consider that relationship in fashioning her
sentence. Appellant analogizes her case to the Supreme Court’s decision in
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Cottle, supra, and concludes that, similar to the appellant therein, a
sentence of confinement was too harsh in light of her marked rehabilitation
while on probation.
Before we discuss Cottle, supra, we must first determine whether
Appellant’s claim presents a substantial question for our review. We
determine whether an appellant has proposed a substantial question on a
case-by-case basis. Commonwealth v. Popielarcheck, 151 A.3d 1088,
1093 (Pa.Super. 2016). In addition, we note that a “substantial question
exists only when the appellant advances a colorable argument that the
sentencing judge’s actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Id. (citation omitted).
At the outset, we observe that Appellant’s argument, on its face,
appears to raise a substantial question. For example, she avers that the
“trial court sentenced [Appellant] to an excessive sentence that failed to
address an essential component of [her] rehabilitative needs,” and then sets
forth numerous examples of her circumstances that should have motivated
the court to impose a lesser sentence. Appellant’s brief at 20-22. We have
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J-S34014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
TAMARRA GEARY
Appellant No. 3128 EDA 2016
Appeal from the Judgment of Sentence September 8, 2016 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0000001-2008 CP-46-CR-0000202-2008 CP-46-CR-0003995-2009 CP-46-CR-0004056-2009
BEFORE: BOWES, SOLANO, AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED MAY 23, 2017
Tamarra Geary appeals from the judgment of sentence of twelve to
twenty-four months incarceration, plus three years probation imposed after
the court found her in violation of probation. We affirm.
Appellant was arrested in 2009 and charged with access device fraud,
forgery, identity theft, tampering with public records, and other related
offenses, stemming from multiple occasions where she obtained, or
attempted to obtain, merchandise using false identification and stolen credit
cards. On March 13, 2013, she entered into an open guilty plea to a single
count of access device fraud and one count of tampering with public records.
* Retired Senior Judge specially assigned to the Superior Court. J-S34014-17
The remaining charges were nolle prossed. The court imposed a sentence of
time served to twenty-three months at each count, to run consecutively,
followed by three years of probation. Appellant received credit for time
served and was granted immediate parole.
While serving her probationary sentence, Appellant allegedly violated a
Protection From Abuse Order (“PFA”). In order to avoid punishment,
Appellant fled.1 As a result, she failed to meet her reporting requirements or
pay her fines and restitution for a period of two years. Appellant waived her
right to a Gagnon I hearing, and the court held a Gagnon II hearing on
September 8, 2016. At that hearing, Appellant stipulated to a technical
violation for failing to report, and thereafter, the court revoked her
probation. The court then imposed an aggregate sentence of twelve to
twenty-four months incarceration, plus three years probation.
Appellant filed a timely petition for reconsideration of sentence on
September 12, 2016. Before the court responded to Appellant’s petition,
she filed a timely notice of appeal on September 29, 2016.2 Appellant
complied with the court’s order to file a Rule 1925(b) concise statement of
____________________________________________
1 Although a hearing was scheduled on Appellant’s alleged PFA violation, the complaining witness did not appear, and the prosecution withdrew the charges. 2 The trial court ultimately filed an order denying Appellant’s petition for reconsideration on October 12, 2016.
-2- J-S34014-17
matters complained of on appeal, and the court filed its Rule 1925(a)
opinion. This matter is now ready for our review.
Appellant presents one question for our consideration: “[Appellant]
asserts that the sentences imposed were manifestly harsh and excessive and
not in conformity with the sentencing code and the holding in the
Pennsylvania Supreme Court holding (sic) in Comonwealth v. Cottle[, 426
A.2d 598 (Pa. 1981)].” Appellant’s brief at 7.
When considering an appeal from a sentence imposed after the court
has revoked probation, we may review “the validity of the revocation
proceedings, the legality of sentence imposed following revocation, and any
challenge to the discretionary aspects of the sentence imposed.”
Commonwealth v. Wright, 116 A.3d 133, 136 (Pa.Super. 2015).
Appellant raises a challenge to the discretionary aspects of her
sentence. When reviewing such a challenge, we are informed by the
following standard of review: “[s]entencing 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.” Commonwealth v. Zirkle,
107 A.3d 127, 132 (Pa.Super. 2014) (citation omitted). Further, “the right
to appellate review of the discretionary aspects of a sentence is not
absolute, and must be considered as a petition for permission to appeal.” In
order to invoke this Court’s jurisdiction:
-3- J-S34014-17
[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal; (2) whether the issues were properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether appellant’s brief has a fatal defect; and (4) whether there is a substantial question that the sentence appealled from is not appropriate under the Sentencing Code.
Id.
Instantly, Appellant filed a timely notice of appeal and a timely petition
for reconsideration of her sentence. In that petition, she contended her
sentence was excessive since she is the mother of a seven-year-old
daughter, she has been gainfully employed, and, other than fleeing, she did
not otherwise violate her probation. Appellant has also attached a Rule
2119(f) concise statement of reasons relied upon for allowance of appeal
generally raising the same claim. Thus, Appellant has preserved her
challenge and we need only consider whether she has raised a substantial
question that her sentence was inappropriate under the sentencing code.
Appellant argues that the court imposed an excessive sentence that
does not reflect the seriousness of her violation, and that it failed to consider
circumstances that militated in favor of a lighter sentence. In particular,
Appellant notes that during her probationary period she worked in home
healthcare and did not incur any direct probation violations. She
emphasizes that she is the mother of a young daughter, and that she
specifically asked the court to consider that relationship in fashioning her
sentence. Appellant analogizes her case to the Supreme Court’s decision in
-4- J-S34014-17
Cottle, supra, and concludes that, similar to the appellant therein, a
sentence of confinement was too harsh in light of her marked rehabilitation
while on probation.
Before we discuss Cottle, supra, we must first determine whether
Appellant’s claim presents a substantial question for our review. We
determine whether an appellant has proposed a substantial question on a
case-by-case basis. Commonwealth v. Popielarcheck, 151 A.3d 1088,
1093 (Pa.Super. 2016). In addition, we note that a “substantial question
exists only when the appellant advances a colorable argument that the
sentencing judge’s actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Id. (citation omitted).
At the outset, we observe that Appellant’s argument, on its face,
appears to raise a substantial question. For example, she avers that the
“trial court sentenced [Appellant] to an excessive sentence that failed to
address an essential component of [her] rehabilitative needs,” and then sets
forth numerous examples of her circumstances that should have motivated
the court to impose a lesser sentence. Appellant’s brief at 20-22. We have
previously held that a substantial question exists where a party combines an
excessiveness claim “together with [a] claim that the court failed to consider
[a defendant’s] rehabilitative needs and mitigating factors upon fashioning
its sentence[.]” Commonwealth v. Swope, 123 A.3d 333, 340 (Pa.Super.
-5- J-S34014-17
2015). However, the mere assertion that the court erred in a certain way is
not talismanic, and we must consider the substance of Appellant’s argument
in addition to the statement of her claim when determining whether a
substantial question was raised.
Instantly, although Appellant asserts that her sentence is excessive
because the court failed to consider her rehabilitative needs, the content of
her argument centers upon the court’s failure to consider her mitigating
circumstances, i.e., her consistent employment, her lack of other probation
violations, and her maternal obligations. Appellant’s brief does not set forth
her rehabilitative needs or how the court failed to address them in imposing
its sentence. Rather, Appellant focuses on her particular circumstances and
stresses how those circumstances rendered her sentence excessive. We
have consistently held that a claim that the court did not give proper
consideration to mitigating factors does not raise a substantial question.3
See Commonwealth v. Kane, 10 A.3d 327, 335-336 (Pa.Super. 2010)
(stating, “[t]hat claim, that the court gave inadequate consideration to ____________________________________________
3 Additionally, we note that the court premised Appellant’s sentence primarily on its judgment that her conduct indicated that she was likely to reoffend if not imprisoned, and that the sentence was essential to vindicate the authority of the court. Trial Court Opinion, 11/1/16, at 2; N.T. Hearing, 9/8/16, at 21-22; 42 Pa.C.S. § 9771(c). We find these factors compelling in evaluating Appellant’s sentence of incarceration. Thus, even if Appellant had raised a substantial question, the reasons underlying the court’s sentence are consistent with the protection of the public, and we discern no abuse of discretion in that respect. See 42 Pa.C.S. § 9721(b).
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certain mitigating factors, does not raise a substantial question.”). Hence,
we do not reach the merits of Appellant’s appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/23/2017
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