J-A08038-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JACOB M. KREIDER, :
:
Appellant : No. 1204 MDA 2014
Appeal from the Judgment of Sentence Entered June 20, 2014
in the Court of Common Pleas of Lancaster County,
Criminal Division, at No(s): CP-36-CR-0004095-2007
BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MAY 04, 2015
Jacob M. Kreider (Appellant) appeals from the judgment of sentence
entered following the revocation of his probation. We affirm.
The violation court summarized the underlying background of this
matter as follows.
On January 8, 2010, [Appellant] pled guilty to charges
of indecent assault (victim under 13 years of age) and
corruption of minors. On June 14, 2010, following a
hearing, [Appellant] was classified as a sexually violent
predator and sentenced in accordance with a proposed
plea agreement to concurrent sentences of three and one-
half years’ probation, and subject to certain sex offender
conditions. On August 13, 2010, [Appellant] was found in
violation of his probation due to his possession [of]
pornographic materials in violation of the sex offender
conditions applicable to his probation. [Appellant’s]
probation was revoked and he was resentenced on count 1
(indecent assault) to nine (9) months[’] to three (3) years’
incarceration, followed by two (2) years’ probation, and on
count 2 (corruption of minors) to a new period of five (5)
years’ probation, consecutive to count 1; the sex offender
*Retired Senior Judge assigned to the Superior Court.
J-A08038-15
conditions previously imposed remained conditions of
[Appellant’s] supervision. The sentences imposed were
affirmed by the Superior Court on November 15, 2011.
[Commonwealth v. Kreider, 38 A.3d 921 (Pa. Super.
filed November 15, 2011).]
Following a hearing on June 20, 2014, [Appellant] was
again found in violation of his probation for viewing and
possessing pornography.3 [Appellant] was found to be in
possession of one “American Curves” magazine which
portrayed partially nude women, several photographs
depicting partially nude females who appeared to be under
the age of 18 years, and two cellular phones displaying an
internet history of visits to pornographic websites. For
these violations, the court [revoked Appellant’s probation
and resentenced Appellant to an aggregate 3 ½ to 7 years’
incarceration].
[Appellant] filed a motion to modify sentence on June
30, 2014, and on July 18, 2014, filed a notice of appeal … .
______
3
[Appellant] served all three years of the
incarceration sentence imposed on count 1 and
was paroled from the State Correctional
Institution at Rockview on July 7, 2013. His
consecutive two year probation began that same
date and, but for the instant violation, was due to
expire on July 7, 2015, at which time the
consecutive five year probation sentence imposed
on count 2 would have commenced. [Appellant]
was serving his two year probation “split” on
count 1 at the time the instant violation occurred.
Trial Court Opinion, 9/30/2014, at 1-2 (unnecessary capitalization and some
footnotes omitted).1 Notably, the violation court did not rule on Appellant’s
1
By way of further background, testimony elicited at the violation hearing
indicated that Appellant’s probation officer found the items serving as the
basis for Appellant’s probation violation in conducting a search of Appellant’s
residence. N.T., 6/20/2014, at 4-7. The probation officer conducted the
-2-
J-A08038-15
post-sentence motion prior to Appellant filing his notice of appeal. Both
Appellant and the violation court complied with Pa.R.A.P. 1925.
Appellant asks this Court to consider whether the violation court
abused its discretion by imposing a sentence that is manifestly excessive
and unreasonable. Appellant’s Brief at 5. It is within this Court’s scope of
review to consider challenges to the discretionary aspects of an appellant’s
sentence in an appeal following a revocation of probation. Commonwealth
v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006). See also
Commonwealth v. Sierra, 752 A.2d 910, 912-13 (Pa. Super. 2000)
(stating that a claim that a sentence was manifestly excessive, when that
sentence was to total confinement at the statutory maximum following the
revocation of probation based on a technical violation, is a challenge to the
discretionary aspects of a sentence); Commonwealth v. Ahmad, 961 A.2d
884, 886 (Pa. Super. 2008) (“A challenge to an alleged excessive sentence
is a challenge to the discretionary aspects of a sentence.”).
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (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
search because his office had received a complaint from Children and Youth
Services (CYS) that there may have been contact between Appellant and
several juvenile females and that he had sent a picture of his genitalia to a
child’s phone. Id. at 5.
-3-
J-A08038-15
sentencing or in a motion to reconsider and modify sentence,
see Pa.R.Crim.P. 720; (3) whether appellant’s brief has 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, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citation
omitted).
The record reflects that Appellant timely filed a notice of appeal and
that Appellant preserved this issue by including it in his motion for
reconsideration of his sentence. Moreover, Appellant has included in his
brief a statement pursuant to Pa.R.A.P. 2119(f). We now turn to whether
Appellant has presented a substantial question for our review.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d
825, 828 (Pa. Super. 2007). “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.” Griffin, 65 A.3d at 935 (citation and quotation marks
omitted).
In his 2119(f) statement, Appellant contends that “his sentence is
inappropriate under the Sentencing Code” because he “received a statutory-
maximum sentence of 3½ to 7 years for a technical violation of his
probation.” Appellant’s Brief at 13. Appellant also alleges in his 2119(f)
-4-
J-A08038-15
statement that the violation court considered an improper factor in
sentencing Appellant. Appellant’s Brief at 15-16. Each of these claims
raises a substantial question. See Commonwealth v. Colon, 102 A.3d
1033, 1043 (Pa. Super. 2014) (concluding that the appellant’s “claim that
the trial court sentenced him to a term of total confinement based solely on
a technical violation raises a substantial question for our review”);
Commonwealth v. Downing, 990 A.2d 788, 792 (Pa. Super. 2010)
(concluding that the appellant’s “claim the trial court relied on an improper
factor raises a substantial question permitting review”).
We analyze Appellant’s claims mindful of the following.
The imposition of sentence following the revocation
of probation is vested within the sound discretion of
the trial court, which, absent an abuse of that
discretion, will not be disturbed on appeal. An abuse
of discretion is more than an error in judgment—a
sentencing court has not abused its discretion unless
the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will.
In determining whether a sentence is manifestly
excessive, the appellate court must give great
weight to the sentencing court’s discretion, as he or
she is in the best position to measure factors such as
the nature of the crime, the defendant’s character,
and the defendant’s display of remorse, defiance, or
indifference.
Upon revoking probation, a sentencing court may choose
from any of the sentencing options that existed at the time of
the original sentencing, including incarceration. [U]pon
revocation [of probation] ... the trial court is limited only by the
maximum sentence that it could have imposed originally at the
-5-
J-A08038-15
time of the probationary sentence. However, 42 Pa.C.S.[]
§ 9771(c) provides that once probation has been revoked, a
sentence of total confinement may only be imposed if any of the
following conditions exist:
(1) the defendant has been convicted of another
crime; or
(2) the conduct of the defendant indicates that it is
likely that he will commit another crime if he is not
imprisoned; or
(3) such a sentence is essential to vindicate the
authority of the court.
In addition, in all cases where the court resentences an
offender following revocation of probation ... the court shall
make as a part of the record, and disclose in open court at the
time of sentencing, a statement of the reason or reasons for the
sentence imposed [and] [f]ailure to comply with these provisions
shall be grounds for vacating the sentence or resentence and
resentencing the defendant. A trial court need not undertake a
lengthy discourse for its reasons for imposing a sentence or
specifically reference the statute in question, but the record as a
whole must reflect the sentencing court’s consideration of the
facts of the crime and character of the offender.
Colon, 102 A.3d at 1043-44 (citations and quotation marks omitted).
Finally, we note that “[t]echnical violations can support revocation and a
sentence of incarceration when such violations are flagrant and indicate an
inability to reform.” Commonwealth v. Carver, 923 A.2d 495, 498 (Pa.
Super. 2007).
As stated above, Appellant first claims that the revocation court
abused its discretion in imposing the statutory maximum sentence solely
based on a technical violation. Appellant essentially argues that the
-6-
J-A08038-15
violation was not flagrant and did not indicate an inability to reform, as
Appellant viewed—but did not download—adult pornography on three dates,
and “[h]e was attempting to discuss his slipping up with his probation
office[r].” Appellant’s Brief at 20-21.
The violation court set forth the reasons for its sentence as follows.
Based on not just the stipulation as to the actual basis for
the violation, but also based upon the testimony in support of
the capias and petition for same, which are now part of this
record, I find that the violation has occurred.
I understand the distinction between the activities which
led to the search of [Appellant’s] residence and I understand
that those are not the basis of the violation. They do, however,
inform the [c]ourt’s judgment on the appropriate sentence to
impose in this matter.
What I have here is, essentially, a troubled period of
supervision from almost the beginning and this by a man who
had previously been under supervision, shortly violated, served
the maximum on a state sentence[], has had the benefit of more
than one review with his state parole agent of the state of sex
offender conditions, what is permitted and what is prohibited.
I also believe … that [Appellant is] intelligent and …
know[s] exactly what is and what is not allowed, and for [him]
to say in a small rooming house that [he] just didn’t realize [he]
brought Exhibit 1 and Exhibit 2[2] back from upstate and that
[he] didn’t even realize that they were in the apartment, I find to
be not credible at all because [he] know[s] exactly what [he
has] in that small space.
The sites that [he was] visiting, as I recall from the first
violation hearing, which was also based on possession of
pornography, indicates to me that [Appellant has] learned
nothing, [he] wish[es] no degree of rehabilitation, and that [his]
2
Exhibit 1 consisted of the photographs found in Appellant’s possession, and
Exhibit 2 was the “American Curves” magazine.
-7-
J-A08038-15
desire to indulge [his] interest and perversions become
paramount and that notwithstanding active and ongoing sex
offender therapy, [his] therapy history does not give me
confidence in [his] ability or interest in committing to conforming
[his] behaviors to the law.
I believe, therefore, that based on these offenses, based
on the activities that led to the search of [his] residence, and
based on what was found in [his] residence, [Appellant] pose[s]
an extreme danger to the community.
N.T., 6/20/2014, at 25-26.
Upon review, we discern no abuse of discretion.3 The record
demonstrates that the violation court considered the appropriate sentencing
criteria and reasonably concluded that probation was ineffective in
rehabilitating Appellant and would not be in society’s best interest.
Moreover, it is evident from the transcript as cited above and the violation
court’s opinion that the court believed total confinement was necessary to
vindicate its authority. See Trial Court Opinion, 9/30/2014, at 5 (explaining
that, in minimizing “his repeated failure to comply with the conditions of his
supervision[, Appellant] underscore[d] to the court his disinclination to
adhere to the rules or to invest his energies in rehabilitation”). Therefore,
Appellant is not entitled to relief on this basis.
3
In so doing, we stress that “[a]n abuse of discretion may not be found
merely because an appellate court might have reached a different
conclusion” than that reached by the trial court. Commonwealth v. Perry,
32 A.3d 232, 236 (Pa. 2011).
-8-
J-A08038-15
Further, we reject Appellant’s claim that the violation court considered
an improper factor in sentencing Appellant. Appellant argues that the
violation court impermissibly considered allegations from the CYS
investigation of Appellant.4 The record, however, belies this claim:
[THE COMMONWEALTH]: If I may clarify, the [c]ourt
mentioned the basis for the search in this case. I believe it’s
clear on the record, but I want to make sure that the basis for
the [c]ourt’s sentence is solely the allegations of pornography
and not the contact that was the basis for the search in this
case.
THE COURT: The basis for the violation is the
pornography. The basis for the sentence certainly is the
possession of the pornography.
It is permissible and, in fact, required that the [c]ourt
consider all matters relevant in sentencing, and since there was
no finding of contact, I am not sentencing on the basis that there
was contact.
I am sentencing, in part, on the basis of a somewhat
struggling, troubled history of supervision since [Appellant’s]
release. It is not the basis of it. The bas[i]s of it is just as
[Appellant] was last time in possession of pornography, he is,
4
In further support of his claim, Appellant argues that the violation court
impermissibly concluded that all of the materials serving as the basis for the
violation were pornographic in nature, including materials that the
Department of Corrections did not view as pornographic and permitted
Appellant to possess while he served his state sentence. To the extent this
argument can be interpreted as a challenge to the trial court’s consideration
of an improper factor, we likewise reject it. As noted by the violation court,
all of the items seized were prohibited materials under the conditions of
Appellant’s supervision. Trial Court Opinion, 9/30/2014, at 5. At Appellant’s
first violation hearing on August 13, 2010, the violation court informed
Appellant that, in addition to all other sex offender conditions, it was adding
the condition that it would be a violation if Appellant was in the possession
of any erotic texts, images, internet links, or text messages of any kind
involving any adult or child. N.T., 8/13/2010, at 23.
-9-
J-A08038-15
once again, in possession of pornography and, therefore, shows
no rehabilitation or immunity to it.
N.T., 6/20/2014, at 28-29. Thus, the violation court made clear that it was
sentencing Appellant on the basis that he was in possession of pornography.
Accordingly, Appellant’s claim is without merit.
Because Appellant has failed to demonstrate that he is entitled to
relief, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2015
- 10 -