J-S16006-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALBERT LEE DIXON
Appellant No. 1513 MDA 2014
Appeal from the Judgment of Sentence August 12, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001538-2011
CP-36-CR-0004119-2012
BEFORE: PANELLA, J., OLSON, J., and OTT, J.
MEMORANDUM BY PANELLA, J. FILED MAY 08, 2015
Appellant, Albert Lee Dixon, appeals from the judgment of sentence
imposed after the trial court revoked his participation in intermediate
punishment and sentence of probation. The only issue on appeal is whether
the sentence imposed was excessive, considering Dixon’s rehabilitative
needs. After careful review, we affirm.
In late 2012, Dixon entered two separate guilty pleas arising from
distinct criminal charges. Of relevance to this appeal, he first pled guilty to
two counts of accidents involving death or injury, and was sentenced to an
aggregate term of 5 years under county intermediate punishment. In the
relevant part of the second plea, Dixon pled guilty to one count of retail theft
and received a sentence of 2 years’ probation.
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On April 24, 2014, Dixon was charged with missing a probation
appointment, testing positive for drug use, and admitting to drug use. At
the subsequent violation hearing, the trial court found Dixon in violation of
the terms of the county intermediate punishment program as well as his
probation, and revoked both. After the preparation of a pre-sentence
investigation, the trial court sentenced Dixon to an aggregate term of
incarceration of three and one half to seven years. After the trial court
denied Dixon’s post-sentence motion, this timely appeal followed.
On appeal, Dixon argues that the trial court failed to consider the
necessary sentencing factors and that his sentence was excessive
considering his need for drug and alcohol rehabilitation. Dixon concedes
that this raises a challenge to the discretionary aspects of his sentence. See
Appellant’s Brief, at 11. Our review of revocation proceedings includes
review of the discretionary aspects of the sentence imposed. See
Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en
banc).
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted). When challenging the discretionary aspects
of the sentence imposed, an appellant must present a substantial question
as to the inappropriateness of the sentence. See Commonwealth v.
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Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be
met before we will review this challenge on its merits.” McAfee, 849 A.2d
at 274 (citation omitted). “First, an appellant must set forth in his brief a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence.” Id. (citation omitted).
“Second, the appellant must show that there is a substantial question
that the sentence imposed is not appropriate under the Sentencing Code.”
Id. (citation omitted). That is, “the sentence violates either a specific
provision of the sentencing scheme set forth in the Sentencing Code or a
particular fundamental norm underlying the sentencing process.” Tirado,
870 A.2d at 365 (citation omitted). We examine an appellant’s Rule 2119(f)
statement to determine whether a substantial question exists. See id. “Our
inquiry must focus on the reasons for which the appeal is sought, in contrast
to the facts underlying the appeal, which are necessary only to decide the
appeal on the merits.” Id. (citation omitted).
In the present case, Dixon’s appellate brief contains the requisite Rule
2119(f) concise statement, and, as such, is in technical compliance with the
requirements to challenge the discretionary aspects of a sentence. Dixon
argues in his Rule 2119(f) statement that the sentence imposed by the trial
court was excessive, and that the trial court failed to consider his need for
drug and alcohol rehabilitation, as required by 42 Pa.C.S.A. § 9721(b). This
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raises a substantial question for our review. See Commonwealth v.
Riggs, 63 A.3d 780, 786 (Pa. Super. 2012).
Here, the trial court had the benefit of a pre-sentence investigation
report (“PSI”), and we must presume that the trial court was aware of the
information contained therein and appropriately weighed it. See
Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa. Super. 2002). In fact, the
trial court indicated its familiarity with the contents of the PSI during
sentencing proceedings. See N.T., Sentencing, 8/12/14 at 6.
Dixon argues that the trial court indicated that it would impose a state
prison sentence prior to hearing or considering his evidence and arguments
at the sentencing proceedings. While this is technically true, Dixon does not
identify any evidence that he presented at sentencing that was not
contained in the PSI. Given that we are required to presume the trial court’s
familiarity with the contents of the PSI, and further, that the trial court in
this case explicitly indicated its familiarity with the PSI, we conclude that the
trial court considered Dixon’s rehabilitative needs in imposing sentence. In
addition, the trial court explicitly addressed Dixon’s rehabilitative needs just
prior to imposing sentence:
You’ve had plenty of opportunities [to rehabilitate yourself
through programs.] [Defense Counsel] is standing there this
morning telling me this most recent stretch, the reason you
didn’t do it is because you didn’t have the money. I don’t know
whether I believe that or not.
But you know what? You’ve had so many opportunities, over the
last 20 years, for the light bulb to go off; for somebody sitting in
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my position to really believe the kinds of things that you’re
saying here today, but there comes a point where that just
doesn’t fly. And I don’t know where that point is with you, other
than it was sometime a long, long time ago. It’s not today, Mr.
Dixon.
Somebody who has been in court 32 times before today, such as
you have, someone who, if I go back over your rap sheet, back
to the early 1990s, there’s almost not a single year since then
where there’s not a court appearance, a criminal court
appearance for you, not hardly a single year where you don’t
show up in front of somebody like me.
The point was a long time ago for you, Mr. Dixon. You’ve lost –
you’ve squandered the opportunities to get second chances.
You’re way beyond that now.
Id., at 8. This passage indicates that the trial court considered the
probability that Dixon could be successfully rehabilitated and determined
that such probability was very low. We cannot conclude that this reasoning
and determination constituted an abuse of the trial court’s discretion.
Dixon’s sole issue on appeal therefore merits no relief.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/8/2015
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