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March 26, 2026 Get Citation Alerts Download PDF Add Note

Com. v. McCloskey, K.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 1554 EDA 2025
• Precedential Status: Non-Precedential

• Judges: Dubow

• Opinion

• Authorities (1)

• Cited By (0)

• Summaries (0)

• Similar Cases (2.7K)

• PDF

Lead Opinion

                        by Dubow

J-S44018-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KRISTEN MCCLOSKEY :
:
Appellant : No. 1554 EDA 2025

Appeal from the Judgment of Sentence Entered May 15, 2025
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0001381-2023

BEFORE: LAZARUS, P.J., DUBOW, J., and SULLIVAN, J.

MEMORANDUM BY DUBOW, J.: FILED MARCH 26, 2026

Appellant, Kristen McCloskey, appeals from the May 15, 2025 judgment

of sentence entered in the Monroe County Court of Common Pleas following

the revocation of her probation. Appellant argues that the violation of

probation (“VOP”) court abused its discretion when it sentenced her to 14 days

to 24 months less a day of incarceration. After careful review, we vacate the

judgment of sentence and remand for a new sentencing hearing.

On February 2, 2024, Appellant pled guilty to Retail Theft. 1 On April 17,

2024, the trial court sentenced Appellant to one year of probation. On April

9, 2025, the Commonwealth filed a petition alleging that Appellant had

violated her probation. The Commonwealth alleged Appellant had missed

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1 18 Pa.C.S. § 3929(a)(1).
J-S44018-25

three office appointments and made a signed admission to the use of

methamphetamines in June 2024.

On May 15, 2025, the court held a VOP hearing. The Commonwealth

presented testimony from two probation officers: Officer Shannon McCracken

and Officer Jennifer Dalton. Officer McCracken testified that in June 2024,

Appellant admitted that she had used methamphetamine and that Appellant

went to methadone treatment around the time of this admission. Officer

Dalton confirmed that Appellant admitted in writing to methamphetamine use

in June 2024. Officer McCracken also testified that Appellant had missed three

office appointments in April 2024, January 2025, and March 2025. Officer

McCracken did not talk to Appellant about her reason for missing the April

2025 appointment. Officer McCracken testified that Appellant missed the

January 2025 appointment because Appellant said she had forgotten about it.

Officer McCracken testified that Appellant missed the March 2025 appointment

because Appellant had an issue with her car and asked to reschedule the

appointment, but the probation officer declined the request.

Appellant testified that she had begun treatment for substance abuse

after her June 2024 admission to methamphetamine use, was compliant with

treatment, and had documentation that she had consistently tested negative

for drug use. She testified that this substance abuse treatment was ongoing.

Further, she explained that she had missed the three appointments, which

required a two-hour drive from Philadelphia to Stroudsburg, due to

transportation issues while she was experiencing homelessness.

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J-S44018-25

At the conclusion of the hearing, the court revoked Appellant’s probation

and resentenced her to 14 days to 24 months less a day of incarceration. The

court also ordered Appellant to undergo a comprehensive drug and alcohol

evaluation and comply with all recommendations for treatment. This timely

appeal followed.2 Appellant and the VOP court complied with Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

1. Whether the VOP court imposed an illegal sentence because it
   either failed to make a finding on any circumstance that
   overcomes the presumption against incarceration outlined in
   42 Pa.C.S.[] § 9771(c)(1) and otherwise did not have sufficient
   evidence to so find, particularly considering the lack of
   evidence that the Appellant could not be diverted from total
   confinement through less restrictive means?

2. Whether the VOP court imposed an illegal sentence and failed
   to follow the recidivist philosophy intended by the legislature’s
   graduated sentencing sanctions in 42 Pa.C.S.[] § 9771(c)(2)
   when it stacked technical violations in Appellant’s first
   probation violation hearing and resentenced Appellant under
   42 Pa.C.S.[] § 9771(c)(2)(iii) instead of imposing the 14-day
   maximum period for a first technical violation hearing and
   allowing Appellant an opportunity to reform?

Appellant’s Br. at 4.

Preliminarily, we acknowledge that “in an appeal from a sentence

imposed after the court has revoked probation, we can review the validity of

the revocation proceedings, the legality of the 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).

---

2 On May 21, 2025, Appellant filed an unopposed motion for parole, which the

court granted on May 28, 2025.

-3-
J-S44018-25

“[A] claim that a court failed to follow the limitations imposed by [S]ection

9771(c) is a challenge to the legality of a sentence and thus not subject to

issue preservation requirements.” Commonwealth v. Seals, __ A.3d __,

2025 WL 4234323 at *1 (Pa. Super. filed Feb. 17, 2026) (en banc).

Under Section 9771(c), the VOP court may impose a sentence of total

confinement only if the Commonwealth “establishes one of the enumerated

exceptions to the presumption against total confinement of technical probation

violators[.]” Id. at *11. “In other words, without the fulfillment of statutory

preconditions, [S]ection 9771(c) strips the sentencing court of its customary

authority to exercise discretion in sentencing.” Id. Relevant to this appeal,

Subsection 9771(c)(1)(F) requires a finding that the technical violation

“involved an intentional and unexcused failure to adhere to recommended

programming or conditions on three or more separate occasions and the

defendant cannot be safely diverted from total confinement through less

restrictive means.” 42 Pa.C.S. § 9771(c)(1)(F) (emphasis added). 3

In Appellant’s first issue, she states that there was no evidence that

Appellant could not be “safely diverted from total confinement by less

restrictive means,” a finding required by Section 9771(c)(1)(F). Appellant’s

Br. at 26-27. She argues that the evidence instead showed the opposite

because Appellant had almost fully completed the term of her probation, “had

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3 While the VOP court did not specify which provision of Subsection 9771(c)(1)

applied to Appellant’s technical violations at the hearing, its 1925(a) opinion
quotes from 9771(c)(1)(F). VOP Ct. Op., 8/6/25, at 7.

-4-
J-S44018-25

been diverted from drug use a year before, and was at most experiencing

some temporary transportation issues to appointments.” Id. at 27-28.

Our review of the transcript of Appellant’s sentencing hearing

demonstrates that the VOP court made no finding on the record as to why

Appellant could not be safely diverted from total confinement by less

restrictive means. The court stated on the record only that:

I’m not coming back here on a [] probation violation. I’m not
playing -- this game is played once. [A]nd when I extend
probation, I’m going to get the same argument from you and if
she’s non-compliant with probation, it makes it very difficult to
hold her accountable without all of the hurdles that we have to
jump through. When really what she needs is perhaps more
intensive help at that point. Maybe not now, but at that point. I
don’t want to set her back, that’s why I’m asking these questions.
But there’s gotta be some accountability. You don’t get to pick
and choose when you report to probation. You’re either on
supervision and it’s your first priority or it’s not.

N.T. Sent’g at 25-26.

In its 1925(a) opinion, the VOP court explained that it sentenced

Appellant “based upon the numerous separate violations[.]” VOP Ct. Op. at

1. It appears, therefore, that the court imposed confinement because

Appellant violated her probation conditions. However, Section 9771(c)(1)(F)

also requires a finding that “the defendant cannot be safely diverted from total

confinement through less restrictive means[,]” which is distinct from the

finding of “an intentional and unexcused failure to adhere to recommended

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J-S44018-25

programming or conditions[.]” We are, thus, constrained to vacate the

judgment of sentence and remand for a new sentencing hearing. 4

Judgment of sentence vacated. Case remanded. Jurisdiction

relinquished.

Date: 3/26/2026

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4 Given our disposition, we do not address Appellant’s remaining issue.

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