J. S27040/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
EFREN DANDRADE, :
:
Appellant : No. 2617 EDA 2014
Appeal from the Judgment of Sentence August 5, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division No(s).: CP-39-CR-0003585-2008
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 21, 2015
Appellant, Efren Dandrade, appeals from the judgement of sentence
entered in Lehigh County Court of Common Pleas following the trial court’s
revocation of his probation. He challenges the discretionary aspects of his
sentence. We affirm.
We adopt the recitation of facts and procedural history as set forth by
the trial court. Trial Ct. Op., 10/13/14, at 1-2. We add the following.
During Appellant’s July 15, 2014 Gagnon II hearing,1 he stipulated to
violating terms of his probation by failing to comply with verbal or written
*
Former Justice specially assigned to the Superior Court.
1
Gagnon v. Scarpelli, 411 U.S. 778 (1973). At a Gagnon II hearing, “the
Commonwealth is required to establish that the defendant [violated] his
parole/probation.” Commonwealth v. Stafford, 29 A.3d 800, 801 n.1 (Pa.
Super. 2011).
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instructions and failing to remain drug-free. N.T. Gagnon II Hr’g, 7/15/14,
at 2-3. At that hearing, the trial court revoked Appellant’s probation. Order,
7/15/14. It scheduled a sentencing hearing for August 5, 2014. Id. The
trial court ordered a presentence investigation report (“PSI”) with
calculations of credit for time served and available maximum sentence. Id.
The trial court sentenced Appellant to sixteen to thirty-six months’
imprisonment with a Recidivism Risk Reduction Incentive (RRRI) minimum of
twelve months. Order, 8/7/14. On August 15, 2015, Appellant filed a timely
motion to modify his sentence. The trial court denied the motion on August
19, 2014. This timely appeal followed.2 Appellant filed a timely court-
ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal and
the trial court filed a responsive opinion.
On appeal, Appellant challenges discretionary aspects of his sentence.
He raises the following issue for our review: “DID THE LOWER COURT ERR
BY IMPOSING A DISPROPORTIONATE SENTENCE BASED UPON THE NATURE
OF THE VIOLATION AND BY FAILING TO PROPERLY CONSIDER THE
REQUISITE STATUTORY FACTORS, THUS IMPOSING AN EXCESSIVE
2
“An appellant whose revocation of probation sentence has been imposed
after a revocation proceeding has 30 days to appeal [the] sentence from the
day [the] sentence is entered, regardless of whether or not [he or] she files
a post-sentence motion.” Commonwealth v. Parlante, 823 A.2d 927, 929
(Pa. Super. 2003) (citing Pa.R.Crim.P. 708(D)).
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SENTENCE CONTRARY TO THE FUNDAMENTAL NORMS OF THE SENTENCING
PROCESS?” Id. at 4.
Appellant argues the trial court abused its discretion. He contends the
following. “[T]he Sentencing Court manifestly abused its discretion by
imposing a sentence of total confinement for relatively non-serious technical
violations . . . .” Id. The trial court failed to properly consider factors in 42
Pa.C.S. § 9721(b) during sentencing. Id. at 14. “[T]here is no indication on
the record that the public needs to be protected from [him]” and his
rehabilitative needs are unmet by his sentence. Id. at 15.
This Court has stated,
discretionary aspects of [an appellant’s] sentence are not
appealable as of right. Rather, an appellant challenging
the sentencing court’s discretion 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 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.A. § 9781(b).
Commonwealth v. Leatherby, ___ A.3d ___, ___, 2015 WL 1788797 at
*7 (Pa. Super. April 21, 2015) (some citations omitted).
Instantly, Appellant timely filed this appeal, preserved the issue of a
disproportionate or excessive sentence by objecting during sentencing and in
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his post-sentence motion, and included a statement in his brief which
conforms with Pa.R.A.P. 2119(f).3 See Appellant’s Brief at 10. Accordingly,
we ascertain whether Appellant has raised a substantial question.
Leatherby, 2015 WL 1788797 at *7.
“A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013)
(punctuation omitted), appeal denied, 91 A.3d 161 (Pa. 2014).
The imposition of a sentence of total confinement after the
revocation of probation for a technical
violation . . . implicates the fundamental norms which
underlie the sentencing process. Additionally, a
substantial question that the sentence was not appropriate
under the Sentencing Code may occur even where a
sentence is within the statutory limits.
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010)
(quotation marks and citations omitted). “[A]rguments that the sentencing
court failed to consider the factors proffered in 42 Pa.C.S. § 9721 . . .
present a substantial question.” Dodge, 77 A.3d at 1272 n.8. Appellant
3
This Court has held that a “Rule 2119(f) statement must specify where the
sentence falls in relation to the sentencing guidelines and what particular
provision of the Code is violated . . . .” Commonwealth v. Goggins, 748
A.2d 721, 727 (Pa. Super. 2000) (en banc). Appellant’s 2119(f) statement
failed to include a statement of where his sentence fell within the sentencing
guidelines. Appellant’s Brief at 10. However, as the Commonwealth did not
argue a defect in his Rule 2119(f) statement, we decline to find waiver on
these technical grounds. See Dodge, 77 A.3d at 1271.
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sufficiently alleges his sentence is disproportionate to the technical nature of
his probation violations and that the trial court failed to consider the factors
in 42 Pa.C.S. § 9721. We therefore find Appellant has raised a substantial
question. Dodge, 77 A.3d at 1272 n.8; Crump, 995 A.2d at 1282.
Our standard of review is as follows:
Sentencing is a matter vested in the sound
discretion of the sentencing judge, and a sentence
will not be disturbed on appeal absent a manifest
abuse of discretion. An abuse of discretion is more
than just an error in judgment and, on appeal, the
trial court will not be found to have abused its
discretion unless the record discloses that the
judgment exercised was manifestly unreasonable,
or the result of partiality, prejudice, bias, or ill-will.
More specifically, 42 Pa.C.S.A. § 9721(b) offers the
following guidance to the trial court’s sentencing
determination:
[T]he sentence imposed should call for
confinement that is consistent with the protection
of the public, the gravity of the offense as it
relates to the impact on the life of the victim and
on the community, and the rehabilitative needs of
the defendant.
Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa. Super. 2012) (some
citations omitted).
“Subsequent to revocation of probation, the sentencing court has
available to it all the options permissible at the time of initial
sentencing . . . .” Crump, 995 A.2d at 1285.
Under 42 Pa.C.S. § 9771(c), a court may sentence a
defendant to total confinement subsequent to revocation of
probation if any of the following conditions exist: 1. the
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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
this court.
Id. at 1282-83 (citing 42 Pa.C.S. § 9771(b)). This court declined to find an
abuse of discretion when “continued drug use, combined with [the
appellant’s] resistance to treatment and supervision, [was] enough to make
a determination that, unless incarcerated, appellant would in all likelihood
commit another crime.” Commonwealth v. Capellini, 690 A.2d 1220,
1225 (Pa. Super. 1996).
Further,
[w]here pre-sentence reports exist, we shall continue to
presume that the sentencing judge was aware of relevant
information regarding the defendant's character and
weighed those considerations along with mitigating
statutory factors. . . . Having been fully informed by the
presentence report, the sentencing court’s discretion
should not be disturbed. This is particularly true . . . in
those circumstances where it can be demonstrated that
the judge had any degree of awareness of the sentencing
considerations, and there we will presume also that the
weighing process took place in a meaningful fashion.
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Therefore, to
determine whether the trial court weighed the factors in 42 Pa.C.S.
§ 9721(b) during sentencing, we must presume the trial court reviewed the
PSI. Id.
First, we analyze whether the trial court abused its discretion by
imprisoning Appellant following revocation of probation. We find it did not.
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Here, as in Capellini, Appellant failed to pursue the rehabilitative goals of
probation. N.T., 7/15/14, at 3-4; see Capellini, 690 A.2d at 1225-26. The
record as a whole shows the trial court weighed Appellant’s risk of recidivism
as well as whether incarceration was “essential to vindicate the authority” of
the court. See 42 Pa.C.S. § 9771(b); see Crump, 995 A.2d at 1285. It
concluded that Appellant’s probation violations were “technical violations,
but [his] history . . . under probation and parole . . . leads me to believe the
only thing that [he] may take seriously is to go to state prison for some
time.” N.T., 8/5/14, at 13. We therefore decline to find the trial court
abused its discretion by imprisoning Appellant for the remainder of the
maximum sentence available on his original crime. Crump, 995 A.2d at
1283; Capellini, 690 A.2d at 1225-26.
We now must determine whether the trial court failed to properly
consider the sentencing objectives enumerated in 42 Pa.C.S. § 9721(b). We
find it did not. During Appellant’s probation revocation proceeding, the trial
court considered Appellant’s positive drug screens and failure to appear for
ordered drug treatment. N.T., 7/15/14, at 3-4. The trial court later
reviewed Appellant’s PSI on the record. N.T., 8/5/14, at 10. In addition,
the trial court adopted the PSI’s sentencing recommendations. See id. at
12. Because the trial court considered the PSI on the record, and keeping in
mind it adopted the sentencing recommendations therein, we must not
disturb the trial court’s decision. See Devers, 546 A.2d at 18.
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In its responsive opinion, the trial court concluded,
[i]n this case, the sentence Appellant received is
appropriate and was fully warranted under the
circumstances. This was Appellant’s fourth violation.
Every time he has been released from incarceration, he
has violated the terms of his sentence. He demonstrated
an unwillingness to comply with the terms of his
incarceration and parole. Appellant also has a very
lengthy [criminal] record . . . which strongly indicates that
he is likely to commit another crime . . . . The Court also
considered Appellant’s rehabilitative needs, and based on
his performance while on parole and probation,
confinement is more appropriate as a rehabilitative setting.
Trial Ct. Op. at 5. Based on a review of the record as a whole, we find the
trial court did not abuse its discretion. No relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2015
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IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
vs. No. 3585 I 2008
2617 EDA 2014
EFRAIN DANDRADE,
Appellant
October 6, 2014
Douglas G. Reichley, J.
1925(a) Opinion
Efrain Dandrade, Appellant, appeals from a judgment of sentence following a Gagnon II
hearing during which he conceded that he violated his probation for failing to remain drug free
and failing to follow written and verbal instructions. Appellant was resentenced to serve sixteen
to thirty months in state prison. Appellant contends this sentence is excessive and challenges the
discretionary aspects of the Court's sentence. For the reasons set forth herein, the sentence was
proper and lawful and Appellant's judgment of sentence should be affirmed.
Factual and Procedural History
On November 6, 2008, Appellant entered into negotiated guilty pleas on Fleeing or
Attempting to Elude a Police Officer, 1 graded as a Felony of the Third Degree, Theft by
Unlawful Taking,2 graded as a Misdemeanor of the First Degree, Receiving Stolen Property.'
graded as a Misdemeanor of the First Degree, Conspiracy to Theft by Unlawful Taking," graded
as a Misdemeanor of the First Degree, Recklessly Endangering Another Person.' graded ag a
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Misdemeanor of the Second Degree, and Driving While Operating Privilege is Suspended or
Revoked,6 a summary offense.
On December 8, 2008, the Honorable William H. Platt sentenced Appellant to twelve
months less one day to twenty-four months less one day in Lehigh County Prison, followed by
one year on probation and a fine.
On August 2, 2009, Appellant was paroled. However, his parole was revoked following a
violation hearing on August 13, 2010. Judge Platt remanded Appellant to serve the balance of his
sentence, followed by one year on probation.
On August 16, 2011, following a Gagnon II hearing, the Honorable Lawrence J. Brenner
found Appellant had again violated his parole and probation. Judge Brenner remanded Appellant
to serve the balance and he reimposed the one-year probationary period. Appellant was paroled
on October 15, 2011.
Appellant appeared before the undersigned on January 24, 2012 for a third Gagnon II
hearing. At that point, the Court revoked the parole portion of the sentence and remanded
Appellant to serve the balance. The Court also revoked the probationary period and resentenced
Appellant to twelve months less one day to twenty-four months less one day in Lehigh County
Prison with a consecutive one year probationary period. The new sentence aggregated with the
balance to send Appellant to state prison.
On November 15, 2012, Appellant paroled from state prison. He completed the parole
portion of his sentence.
In May of 2014, a fourth violation petition was filed against Appellant. He appeared for a
Gagnon II hearing on July 15, 2014. He conceded the allegations of the petition, acknowledging
that he failed to remain drng free and failed to follow written and verbal instructions. The
6 75 Pa.C.S.A. § 1543(a).
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specific factual allegations to which he conceded were failing to abide by a curfew and failing to
have a drug and alcohol evaluation when instructed. Following his concession, Appellant
requested a Presentence Investigation Report (PSI) be prepared.
Appellant was interviewed and a PSI was prepared by Adult Probation. On August 5,
2014, Appellant appeared before the undersigned where he was resentenced to sixteen to thirty-
six months in state prison, with a RRRI minimum of twelve months.
On August 15, 2014, Appellant filed a counseled Motion to Modify Sentence, which the
Court denied August 19, 2014.
On September 4, 2014, Appellant filed a Notice of Appeal challenging his sentence. He
was directed to serve a Concise Statement of Matters Complained of on Appeal on the Court,
and said Concise Statement was filed on September 25, 2014.
This Opinion follows.
Discussion
Appellant argues the Court abused his discretion by imposing a harsh and excessive
sentence. He claims his sentence was manifestly unjust and excessive and contrary to the
fundamental norms of the sentencing process. He also maintains it is disproportionate to what is
necessary to achieve consistency with the sentencing standards of the Sentencing Code.
As a general rule, trial courts are afforded broad discretion in sentencing. Commonwealth
v. Miller, 835 A.2d 377, 380 (Pa. Super. 2003); Commonwealth v. Mouzon, 812 A.2d 617, 621
(Pa. 2002). A sentence will not be disturbed absent an abuse of that discretion. Mouzon, 812
A.2d at 621 ( citing Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001 )). 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."
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Commonwealth v. Smith, 673 A.2d 893 (Pa. 1996) (quoting Commonwealth v. Lane, 424 A.2d
1325, 1328 (Pa. 1981 ».
The Supreme Court of Pennsylvania explained that"[ d]eference is accorded to the trial
court's pronouncement because of the perception that the trial court is in the best position to
determine the proper penalty for a particular offense based upon an evaluation of the individual
circumstances before it." Commonwealth v. Ward, 568 A.2d 1242, 1243 (Pa. 1990). Thus, a
sentence will not be disturbed unless it was manifestly excessive or outside the statutory limits.
Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa. Super. 1997). Sentencing judges are guided by
the general principles of protecting the public, weighing the gravity of the offense in relation to
its impact on the community and the life of the victim, and the defendant's rehabilitative needs.
42 Pa.C.S. §972l(b).
"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." Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001) (quoting
Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000)). The range of sentences
available to courts in resentencing following a revocation of probation are all of the sentencing
alternatives available at the time of the original sentencing. 42 Pa.C.S. § 9771(b).
"Upon sentencing following a revocation of probation, the trial court is limited only by
the maximum sentence that it could have imposed originally at the time of the probationary
sentence." Coolbaugh, 770 A.2d at 792 (citations omitted). Once probation is revoked, a
sentence of total confinement may 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,
4
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(3) such a sentence is essential to vindicate the authority of court
42 Pa.C.S. § 9771(c).
In this case, the sentence Appellant received is appropriate and was fully warranted under
the circumstances. This was Appellant's fourth violation. Every time he has been released from
incarceration, he has violated the terms of his sentence. He demonstrated an unwillingness to
comply with the terms of his incarceration and parole. Appellant also has a very lengthy record
stretching back to 1986 which strongly indicates that he is likely to commit another crime. A
period of probation following this revocation would have been inappropriate, and a lesser
sentence served in Lehigh County Prison would depreciate the seriousness of the offense. The
Court also considered Appellant's rehabilitative needs, and based on his performance while on
parole and probation, confinement is more appropriate as a rehabilitative setting.
Conclusion
For the reasons set forth herein, Appellant's sentence was appropriate following the
fourth violation on his case. His behavior while on supervision outside an institutional setting
demonstrates a consistent pattern of noncompliance with the supervisory requirements imposed
upon him. Confinement is warranted under all of the circumstances and the duration of the
sentence is proper. Accordingly, the Court respectfully recommends that Appellant's judgment
of sentence be affirmed.
By the Court:
5
Com. v. Dandrade, E.
Combined Opinion