J-S48022-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LARRY SERRANO-GOMEZ
Appellant No. 56 MDA 2014
Appeal from the Judgment of Sentence December 6, 2013
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0002469-2012
BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.***
MEMORANDUM BY JENKINS, J.: FILED OCTOBER 03, 2014
Appellant Larry Serrano-
judgment of sentence of 2½-
arole and
probation within a one year period. We affirm.
On November 8, 2012, appellant pled guilty to three counts at
information number 2469-2012: one count of defiant trespass1, one count of
disorderly conduct2 and one count of making, and repairing and/or selling
offensive weapons3. The court sentenced appellant to time served to 12
____________________________________________
***
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 3503.
2
18 Pa.C.S. § 5503.
3
18 Pa.C.S. § 904.
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imprisonment plus one year of probation on the offensive weapons charge.
The court ordered the sentences on all three counts to run concurrently.
On the same date (November 8, 2012), appellant pled guilty at
information number 2481-2012 to five counts: three counts of simple
assault (second degree misdemeanor)4, one count of drug paraphernalia5
and one count of stalking6. On all counts except the drug paraphernalia
count, the court sentenced appellant to concurrent terms of time served to
n. On the drug
paraphernalia count, the court sentenced appellant to one year of probation
to run concurrently with the other counts. All sentences ran concurrently
with the sentences imposed at number 2469-2012.
The aggregate sentence on both informations was time served to 23
Appellant violated his parole by failing to attend scheduled
appointments with his parole/probation officer on January 17, 2013, January
29, 2013, and February 6, 2013. Accordingly, on May 2, 2013, at
information number 2469-2012, the Honorable Joseph Madenspacher
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4
18 Pa.C.S. § 2701.
5
35 P.S. § 780-113(32).
6
18 Pa.C.S. § 2709.1.
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revoked but continued7 -3 of number 2469-
2469-2012 in place.
At information number 2481-2012, Judge Madenspacher revoked
parole on counts 1-3 and 5 and sentenced appellant to the balance of his
maximum sentence. Judge Madenspacher also revoked probation on count
4 of information number 2481-2012 and sentenced appellant to time served
in counts 1-3 and 5 in place.
On June 28, 2013, appellant appeared before the Honorable David
Ashworth due to failing a drug test for opiates on May 15, 2013. Judge
Ashworth revoked parole on counts 1-3 of information number 2469-2012
and sentenced appellant to the balance of his maximum sentence, and he
parole on counts 1-5 of information number 2481-2012 and sentenced
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7
simultaneo
since the only sentencing option available upon revocation of parole is
recommitment to serve the balance of the initially imposed term of
imprisonment. Commonwealth v. Kalichak, 943 A.2d 285, 290
then immediately reparoled him. Ultimately, our uncertainty about Judge
fect the outcome of this appeal, since
sentence imposed at a subsequent revocation hearing was manifestly
excessive. See pp. 6-11, infra.
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-
2012 ran concurrently with his sentence at number 2469-20128.
On September 17 and 18, 2013, appellant engaged in threatening and
assaultive behavior while in residential treatment at a drug rehabilitation
clinic (Nuestra Clinica), which he was attending as a condition of his
sentence at the above informations. Due to these incidents, the clinic
discharged appellant from further treatment.
On October 31, 2013, appellant appeared at a revocation hearing
before the Honorable Dennis Reinaker. Judge Reinaker continued the
proceedings pending a pre-sentence investigation.
On December 6, 2013, Mr. Caldero, an employee at the clinic, testified
that on September 16, 2013, appellant made intimidating comments to
other participants in the program. N.T., !2/6/13, p. 5. Mr. Caldero testified
that on September 17, 2013, appellant threatened a 63 year old participant
and took the television remote control from him. Id., pp. 6-7. A younger
participant came to the older participant's defense, and appellant began a
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8
parole, we infer from the
record that Judge Ashworth permitted appellant to return to the street
instead of recommitting appellant to prison. We make this inference
because just 2 ½ months after appearing before Judge Ashworth, appellant
committed the violation discussed below that resulted in his revocation
hearing before Judge Reinaker on December 6, 2013 and the sentence
presently before us for review.
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physical altercation with the younger participant and ripped a towel bar from
the bathroom wall to use against him. Id., pp. 8-12. On September 18,
2013, appellant returned to Nuestra Clinica to retrieve his belongings after
learning that he was discharged unsuccessfully from the program. Id., pp.
9-10. Inside the office, he became aggressive towards Mr. Caldero and then
toward another counselor. Appellant was told to leave, and when he
refused, the police came, but he continued to act aggressively in police
presence. Id., pp. 10-11.
Judge Reinaker sentenced appellant as follows:
On information 2481[-
revoked, and he is sentenced to the unexpired
balance on Counts 1, 2, 3, 4 and 5. [Appellant] will
be paroled effective immediately without petition on
that information.
On information 2469[-]2012, on Counts 1 and 2,
sentenced to the unexpired balance. Again, he will
be paroled effective immediately without petition on
Counts 1 and 2. With regard to Count 3,
n are
revoked. He is sentenced to a period of
incarceration of not less than 2 ½ nor more than 5
years. He is to be given credit for any time served
that he has served to date with regard to this
violation. The sentence on Count 3 of information
2469[-]2012 begins today.
Id., p. 20.
On December 13, 2013, appellant filed a timely motion to modify
sentence. The court never ruled on his motion to modify. On January 3,
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2014, he filed a timely notice of appeal9. Both appellant and the trial court
complied with Pa.R.A.P. 1925.
The lone issue raised in this appeal is whether Judge Reinaker abused
his discretion by imposing a sentence of 2½-
raises a discretionary
challen
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011) (citing
Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.Super.2000)). An
appellant must satisfy a four-
when challenging the discretion aspects of a sentence:
(1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence
appealed from is not appropriate under the
Sentencing Code.
Allen, 24 A.3d at 1064.
Appellant filed a timely notice of appeal, preserved the issue in post-
sentence motions, and included a statement of reasons pursuant to Rule
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9
A motion to modify a sentence imposed after revocation of probation does
not toll the 30 day appeal period. Pa.R.Crim.P. 708(D). Thus, although
appeal, his appeal was still timely.
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2119(f) in his brief. We must therefore determine whether his issue raises a
substantial question.
question is to be evaluated on a case-by- Commonwealth v.
Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011) (quoting Commonwealth v.
Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)). A substantial question exists
where a defendant raises a plausible argument that the sentence violates a
provision of the sentencing code or is contrary to the fundamental norms of
the sentencing process. Id. (quoting Commonwealth v. Titus, 816 A.2d
251, 255 (Pa.Super.2003)).
Appellant argues his sentence is contrary to the fundamental norms of
probation. Appellant writes:
Defendant was discharged from a drug and alcohol
treatment facility for fighting with another resident.
No criminal charges were filed. Defendant claimed to
be the victim of retaliation. Defendant received a cut
requiring hospital treatment. The other resident was
not injured. The court's sentence exceeded by far
the recommendation of the probation department,
which was 6 months.
Brief for Appellant, p. 14. Since Judge Reinaker imposed the maximum term
of imprisonment (2½-5 years) for technical violations of probation, we agree
that appellant raises a substantial question. Commonwealth v. Sierra,
752 A.2d 910, 913 (Pa.Super. 2000) ("the imposition of Sierra's sentence of
total confinement, at the statutory maximum for her underlying offense,
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following revocation of probation for a technical parole/probation violation -
and not for a new criminal offense - is, on its face, so disproportionate as to
implicate the fundamental norms which underlie the sentencing process
(internal citations omitted).
But although appellant raises a substantial question, Judge Reinaker
acted within his discretion by imposing a term of 2½-5 years of
imprisonment. is a matter vested within the discretion of the
trial court and will not be disturbed absent a manifest abuse of discretion
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super.2010) (citing
Commonwealth v. Johnson,
of discretion requires the trial court to have acted with manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
Id. (citing Commonwealth v.
Walls, 926 A.2d 957 (Pa.2007)).
reasons for imposing a sentence or specifically reference the statute in
question, but the record as a whole must reflect the sentencing court's
Crump, 995 A.2d at 1283 (citing Commonwealth v. Malovich, 903 A.2d
124 -
sentence report, it is presumed that the court is aware of all appropriate
Commonwealth v. Ventura, 975
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A.2d 1128, 1134 (Pa.Super.2009) (citing Commonwealth v. Devers, 519
Pa. 88, 101 102, 546 A.2d 12, 18 19 (1988)).
his Rule 1925(a) opinion:
After violating his probation on April 3, 2013[,]
[appellant] was directed to complete a mental health
evaluation and complete any treatment deemed
necessary as one condition of sentence. On
September 17th and 18th of 2013, [appellant] was
found to be in violation of his probation based upon
two incidents which resulted in him being discharged
from Nuestra Clinica's residential treatment facility.
The basis for the discharge was assaultive and
threatening behavior. . .There were no criminal
charges filed as a result of this discharge. As of
October 13, 2013 (the date of the Probation Violation
Hearing), [appellant] committed three probation
violations in total. . .A pre-sentence investigation
report was ordered and sentencing took place on
December 6, 2013.
Prior to sentencing the Court considered, in detail,
the pre-sentence report as well as the sentencing
guidelines and penalties authorized. At sentencing,
the Court listened to both the comments of
[appellant] and the arguments of counsel...After
listening to defense counsel's arguments, the Court
was made aware of and took into consideration
numerous factors including [appellant]'s familial
background and mental health issues. . .Further,
defense counsel provided the Court with information
pertaining to [appellant]'s parental
responsibilities...The Court properly considered all of
the above factors and fashioned an individualized
sentence appropriate for [appellant]. As such, the
total confinement sentence in this case was imposed
following the commission of three probation
violations within a six month period. This sentence
was necessary to vindicate the Court's authority and
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is essential to prevent [appellant] from offending
again.
Trial Court Opinion, pp. 3-4 (citations omitted). Since appellant committed
three violations of parole and probation within a short time period, and since
Judge Reinaker reviewed his pre-sentence report and held a comprehensive
revocation hearing before imposing sentence, we find that Judge Reinaker
acted within his discretion in sentencing appellant.
One technical detail deserves mention. Normally, the only sentencing
option available upon revocation of parole is recommitment to serve the
balance of the initially-imposed term of incarceration. Kalichak, supra, 943
probation at the same time, even before the defendant has begun to serve
the probationary period of the sentence. See Commonwealth v. Ware,
737 A.2d 251, 253-254 (Pa.Super.1999). When resentencing a defendant in
such a situation, like a straight probation violation resentencing, the court
has the same sentencing options that existed at the time of the original
sentencing. Id., 737 A.2d at 254. As a matter of form, it might have been
impose full
(4) resentence him to a new term of imprisonment which, when combined
with the parole back time, equaled 2 ½ - 5 years of imprisonment. Id.
Nevertheless, we see no need to remand for resentencing along these lines,
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statutory limits, and appellant received credit for all time served.
Judgment of sentence affirmed.
Judge Donohue joins in the memorandum.
Judge Platt concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/3/2014
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