Com. v. Rodriguez, C.

• Court: Superior Court of Pennsylvania
• Decided: September 21, 2018
• Docket: 3913 EDA 2017
• Status: Unpublished

Opinion

J-S48014-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHRISTINA RUIZ-RODRIGUEZ : : Appellant : No. 3913 EDA 2017

Appeal from the Judgment of Sentence November 3, 2017 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0003946-2011

BEFORE: DUBOW, J., MURRAY, J., and PLATT, J.*

JUDGMENT ORDER BY DUBOW, J.: FILED SEPTEMBER 21, 2018

Appellant, Christina Ruiz-Rodriguez, appeals from the November 3,

2017 Judgment of Sentence entered in the Bucks County Court of Common

Pleas following the revocation of her probation. We affirm.

The facts of this matter are largely immaterial to our disposition. On

August 29, 2011, Appellant entered a guilty plea to Burglary and Criminal

Conspiracy to Commit Burglary.1 That same day, the trial court sentenced

Appellant to time served to 23 months’ incarceration for the Burglary

conviction and a consecutive term of two years’ probation for the Conspiracy

conviction. As a condition of her sentence, the court required Appellant to

obtain a drug and alcohol evaluation and comply with all treatment

recommendations. The court immediately paroled Appellant to a recovery

house in Philadelphia. ____________________________________________

1 18 Pa.C.S. § 3502(a) and 18 Pa.C.S. § 903, respectively. ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S48014-18

Over the course of the following 6 years, Appellant violated the terms

of her probation with a number of technical violations and one direct violation

resulting from a prostitution arrest in Philadelphia. Ultimately, on November

3, 2017, the revocation court sentenced Appellant to 18 to 36 months’

incarceration.

On November 13, 2017, Appellant filed a Petition for Reconsideration of

Sentence. In her Petition, she alleged that, at the time of sentencing, the

revocation court “believed that there were no alternatives but to serve the

sentence in the state correctional facility.” Petition, 11/13/17, at ¶ 4.

Appellant, thus, requested the opportunity to “present additional information

as to possible long-term in-patient treatment programs available in

Pennsylvania . . . based on new information that was not available at

sentencing.” Id. at ¶¶ 5-6. Notably, Appellant did not raise a challenge to

the discretionary aspects of her sentence.

Following a hearing, the revocation court denied Appellant’s Petition on

November 28, 2017. This timely appeal followed. Both Appellant and the

revocation court complied with Pa.R.A.P. 1925.

Appellant raises the following issue on appeal:

Whether the trial court abused its discretion by imposing a sentence of total incarceration of eighteen (18) to thirty-six (36) months upon the Appellant for violating her probation for being discharged from an inpatient drug treatment facility while experiencing a crisis pregnancy when the facility prohibited her from receiving her prescribed mental health medication in addition to being assaulted by another participant in that program?

Appellant’s Brief at 4.

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Appellant’s issue challenges the discretionary aspects of her sentence.

See Commonwealth v. Rhoades, 8 A.3d 912, 918 (Pa. Super. 2010) (a

claim that the court failed to consider mitigating factors challenged the

discretionary aspects of the defendant’s sentence). Challenges to the

discretionary aspects of sentencing do not entitle an appellant to review as of

right, and a challenge in this regard is properly viewed as a petition for

allowance of appeal. 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki,

522 A.2d 17, 18 (Pa. 1987); Commonwealth v. Sierra, 752 A.2d 910, 12

(Pa. Super. 2000). An appellant challenging the discretionary aspects of his

sentence must satisfy a four-part test. We evaluate: (1) whether Appellant

filed a timely notice of appeal; (2) whether Appellant preserved the issue at

sentencing or in a motion to reconsider and modify sentence; (3) whether

Appellant’s brief includes a concise statement of the reasons relied upon for

allowance of appeal; and (4) whether the concise statement raises a

substantial question that the sentence is appropriate under the Sentencing

Code. Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa. Super.

2013). An appellant must articulate the reasons the sentencing court’s actions

violated the Sentencing Code. Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010); Sierra, 752 A.2d at 912–13.

In the instant case, Appellant did not preserve her challenge to the

discretionary aspects of her sentence at sentencing or in her Petition for

Reconsideration of Sentence. In particular, Appellant did not raise any claim

alleging an abuse of the sentencing court’s discretion; identify how or in what

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manner the court violated the sentencing code; allege that her sentence was

excessive or unreasonable; or allege that the court failed to consider any

required sentencing factor, or improperly weighed evidence. As noted supra,

Appellant merely sought reconsideration for the opportunity to present

“additional information as to possible long-term in-patient treatment

programs” as an alternative to a sentence in the state correctional facility.

Petition at ¶¶ 4-5. Given this fatal oversight, Appellant has waived her issue

on appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”)

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/21/18

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