Com. v. Gary, A.

J-S65012-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

ANDREW GARY,

Appellant No. 2382 EDA 2014

Appeal from the Judgment of Sentence July 22, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010899-2008

BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 10, 2015

Andrew Gary (Appellant) appeals from the July 22, 2014 judgment of

sentence of 11½ to 23 months’ incarceration, followed by 3 years’ reporting

probation. This sentence was imposed after the court revoked Appellant’s

probationary sentence, which had resulted from his negotiated guilty plea to

the charge of corruption of minors. Appellant contends that the court

abused its discretion in sentencing him to total confinement as it violates 42

Pa.C.S. § 9771(c). We affirm.

The trial court set forth the procedural history of this case, stating as

follows:
On March 16, 2010, [Appellant] entered a negotiated
guilty plea on the charge of Corruption of Minors under 18
Pa.C.S. § 6301(a)(1), a misdemeanor of the first degree, before
the Honorable Lisa M. Rau. [Appellant] was sentenced to five
years reporting probation to be supervised by the Sex Offender's
Unit of the Philadelphia Probation and Parole Department.
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On April 3, 2014, a bench warrant was issued for
[Appellant] when he failed to report to his probation officer. On
July 22, 2014, this Court conducted a violation hearing, revoked
[Appellant’s] probationary sentence and imposed a new sentence
of eleven and one-half to twenty-three months of incarceration,
followed by three years[’] consecutive reporting probation. A
[Forensic Intensive Recovery] evaluation was ordered with
[Appellant] to comply with all recommendations.

On July 30, 2014, [Appellant] filed a Motion for
Reconsideration of Sentence. On August 12, 2014, [Appellant]
filed a Notice of Appeal. On August 15, 2014, the Court declined
to address [Appellant’s] Motion for Reconsideration because the
matter was under appeal. On September 4, 2014, [Appellant]
filed a Statement of Errors Complained of on Appeal….

Trial Court Opinion (TCO), 3/17/15, at 1-2. The court further explained that

at the revocation hearing, Appellant’s probation officer testified about

technical violations, including a positive drug screen, Appellant’s admission

about his affiliation with a street gang, and his failing to report to his

probation officer.

Specifically, in its opinion, the court addressed the evidence presented

at the revocation hearing and on what information it based its imposition of

a sentence of incarceration.

At the July 22, 2014 hearing, the [c]ourt considered
[Appellant’s] record, prior sentence, and conduct while on
probation, all of which were undisputed. See N.T., July 22, 2014
at 2-10. The [c]ourt considered that [Appellant] failed a drug
screen on March 20, 2014. Id. at 10. The [c]ourt learned that
[Appellant’s] gang affiliation with the Latin Kings was confirmed
by his tattoos and his own statements that he was a member.
Id. at 3. The [c]ourt also considered that in 2010, [Appellant’s]
probationary sentence on an unrelated case was revoked and he
was given a state sentence of incarceration by the Honorable
Jeffery Minehart. Id. at 5.

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Additionally, this [c]ourt considered that [Appellant’s]
failure to report was prompted by his probation officer's
erroneous statement that [Appellant] was required to register as
a sex offender. Id. at 6. Rather than address this issue,
[Appellant] stopped reporting to his probation officer. Id. at 6-7.
The [c]ourt further considered [Appellant’s] history of substance
abuse, his age at the time of the instant offense, and his
allocution. Id. at 6-9.

TCO at 5-6. Thus, based upon this information and the probation officer’s

recommendation, the court revoked Appellant’s probationary sentence and

imposed the new sentence of incarceration.

On appeal, Appellant presents one issue for our review: “Did not the

lower court abuse its discretion where it sentenced [A]ppellant to total

confinement in violation of the requirements of 42 Pa.C.S.A. § 9771(c)?”

Appellant’s brief at 3.1

Initially, we note our standard for reviewing Appellant’s discretionary

aspects of sentencing challenge.

Our standard of review is well settled. Sentencing is a matter
vested within the discretion of the trial court and will not be
disturbed absent a manifest abuse of discretion.
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1
We note that Appellant preserved this issue in his post-sentence motion,
although he filed a notice of appeal prior to the court’s decision on that
motion. See Pa.R.Crim.P. 708(E) (directing that a motion to modify a
sentence imposed after a revocation of probation “will not toll the 30-day
appeal period”); see also Comment to Pa.R.Crim.P. 708 (stating that under
Rule 708(E), “[a]ny appeal must be filed within the 30-day appeal period
unless the sentencing judge within 30 days of the imposition of sentence
expressly grants reconsideration or vacates the sentence”) (citing
Commonwealth v. Coleman, 721 A.2d 798, 799 n.2 (Pa. Super. 1998);
Pa.R.A.P. 1701(b)(3)).

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Commonwealth v. Johnson, 967 A.2d 1001 (Pa. Super.
2009). An abuse of discretion requires the trial court to have
acted with manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support so as to be clearly
erroneous. Commonwealth v. Walls, 592 Pa. 557, 926 A.2d
957 (2007). It is also now accepted that in an appeal following
the revocation of probation, it is within our scope of review to
consider challenges to both the legality of the final sentence and
the discretionary aspects of an appellant's sentence.
Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super.
2006).

…

We note that there is no absolute right to appeal when
challenging the discretionary aspect of a sentence.
Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super.
2008). Appeal is permitted only after this Court determines that
there is a substantial question that the sentence was not
appropriate under the sentencing code. Id. at 886. A
substantial question is raised when the appellant 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. Id.

When a challenge to the discretionary aspect of a sentence
is raised, an appellant must provide a separate statement
specifying where the sentence falls in the sentencing guidelines,
what provision of the sentencing code has been violated, what
fundamental norm the sentence violates, and the manner in
which it violates the norm. Pa.R.A.P. 2119(f).

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010).

Here, Appellant has included a Rule 2119(f) statement in his brief,

asserting that the revocation court violated the express provisions of the

Sentencing Code, namely, 42 Pa.C.S. § 9771(c). Specifically, Appellant

contends that “[t]he court imposed a sentence of total confinement following

[A]ppellant’s technical probation violation absent any of the prerequisites

listed in Section 9771(c).” Appellant’s brief at 7. We conclude that

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Appellant’s assertion presents a substantial question for our review. See

Crump, 995 A.2d at 1282 (considering as a substantial question the

appellant’s claim that the court abused its discretion by imposing a sentence

of total confinement for technical violation of probation). See also

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000) (stating

that “a substantial question is presented when a sentence of total

confinement, in excess of the original sentence, is imposed as a result of a

technical violation of parole or probation.”).

Now, we turn to the merits of Appellant’s appeal, recognizing that:

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. Smith, 447 Pa. Super. 502, 669
A.2d 1008, 1011 (Pa. Super. 1996). 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.” Commonwealth v.
Smith, 543 Pa. 566, 571, 673 A.2d 893, 895 (1996).

Sierra, 752 A.2d at 913.

Appellant acknowledges that “a sentencing court has all the sentencing

alternatives available to it after a probation revocation as it did originally[.]”

Appellant’s brief at 9. See also Commonwealth v. Coolbaugh, 770 A.2d

788, 792 (Pa. Super. 2001) (“[T]he sentencing guidelines do not apply to

sentences imposed as a result of … probation revocations.”). However,

Appellant contends that the court erred by imposing a term of incarceration

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for technical probation violations without considering the factors set forth in

42 Pa.C.S. § 9771(c). That statue states in pertinent part:

(c) Limitation on sentence of total confinement.—The court
shall not impose a sentence of total confinement upon revocation
unless it finds that:

(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.

42 Pa.C.S. § 9771(c). In discussing section 9771, the Sierra Court

recognized “that the legislature [gave] particular consideration to the

appropriateness of sentences of total confinement following revocation of

probation.” Sierra, 752 A.2d at 913.

In this case, based on what was considered when Appellant was

sentenced to a term of incarceration, including inter alia, Appellant’s record,

conduct on probation, drug test failure, and gang affiliation, the court

concluded that:

Here, the record reflects that the [c]ourt considered
[Appellant’s] background, character and rehabilitative needs
after weighting the evidence. The [c]ourt concluded that it was
likely that [Appellant] would commit another crime if he
remained at liberty based upon [Appellant’s] technical violations,
criminal history and prior probation revocation.

TCO at 6. Our review of the record reveals support for these findings and

conclusions. Moreover, these findings are enough upon which to determine

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that, unless incarcerated, Appellant would likely commit another crime. See

Commonwealth v. Cappellini, 690 A.2d 1220, 1225-26 (Pa. Super. 1997)

(stating that “continued drug use, combined with his resistance to treatment

and supervision, is enough to make a determination that, unless

incarcerated, appellant would in all likelihood commit another crime”).2

Thus, we conclude that section 9771(c)(2) was satisfied. Appellant is not

due any relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/10/2015

____________________________________________

2
We also note that as in Cappellini, where the appellant admitted to using
cocaine, Appellant here also was found to have used illegal drugs in that he
failed a drug screen on March 20, 2014.

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