J-S68015-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TONY DELGADO,
Appellant No. 515 EDA 2015
Appeal from the Judgment of Sentence Entered January 15, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013657-2011
BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 30, 2015
Appellant, Tony Delgado, appeals from the judgment of sentence of an
aggregate term of 2 to 5 years’ imprisonment, imposed after the court
revoked his term of probation based on technical violations. Appellant
challenges the discretionary aspects of his sentence. We affirm.
The trial court summarized the relevant facts and procedural history of
this case in its Pa.R.A.P. 1925(a) opinion, as follows:
On February 22, 2012, Appellant was found guilty of criminal
trespass as a felony of the third degree, as well as theft by
unlawful taking and receiving stolen property as misdemeanors
of the third degree by the [H]onorable Charles Ehrlich. Prior to
sentencing, Judge Ehrlich ordered a Presentence Investigation
and Mental Health Evaluation.
On April 24, 2012, Judge Ehrlich sentenced Appellant to 11½ to
23 months[’] incarceration, followed by 3 years[’] probation on
the criminal trespass, and no further penalty on the 2 remaining
charges. Thereafter, Judge Ehrlich relinquished jurisdiction and
the case was referred to Mental Health Court (MHC). On June
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28, 2012, Appellant was formally entered into MHC. As is
procedure in MHC, Appellant was scheduled for status of mental
health and treatment hearings at regular intervals to monitor his
compliance and progress.
On February 27, 2013, Appellant was paroled to Gaudenzia
North Broad. On March 31, 2013, Appellant failed to appear for
Court and a violation hearing was scheduled. At the June 13,
2013 violation hearing, it was reported that Appellant had been
discharged from Gaudenzia North Broad for testing positive for
drugs on two separate occasions, and for leaving the facility
without permission. Following the hearing, Appellant was found
in technical violation, his probation/parole was revoked, and a
new sentence of 11½ to 23 months[’] confinement followed by 4
years[’] reporting probation, with immediate parole, was
implemented. On June 26, 2013, Appellant was released to NET
Frankford and Fresh Start Recovery House. On August 15,
Appellant was not in compliance with the conditions of his
program and received a jury box sanction. On October 23,
2013, Appellant was taken into custody after the director at
Fresh Start informed Appellant’s probation officer that Appellant
was being discharged for non-compliance. Appellant remained in
custody until January 23, 2014, when he was paroled to the
Homeward Bound program.
On May 28, 2014, Appellant’s probation officer received a call
from Appellant’s recovery coach at Homeward Bound indicating
that Appellant had failed to attend his treatment appointment on
May 23, 2014. It was also reported that Appellant was
scheduled to be in attendance five days a week, but would only
show up three days a week. In addition, when Appellant was in
attendance, he would sleep through the group sessions, and
walk in and out of groups. On June 11, 2014, Appellant’s
probation officer received a report from his Homeward Bound
case manager that Appellant had tested positive for cocaine. On
June 12, 2014, Appellant absconded from the program and failed
to appear at the July 17, 2014 [MHC] hearing. A bench warrant
was issued and Appellant was taken into custody on October 4,
2014. A forthwith mental health evaluation was ordered and a
violation hearing was scheduled. At the hearing, Appellant’s
case manager testified to the aforementioned events and
Appellant’s probation summary was entered into evidence. On
January 15, 2015, following the hearing, the Court found
Appellant in technical violation, revoked probation, and
sentenced Appellant to 2 to 5 years in state custody. Appellant’s
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Motion to [V]acate and Reconsider Sentence was denied without
a hearing. This appeal followed.
Trial Court Opinion (TCO), 4/13/15, at 1-3.
Herein, Appellant presents the following issues for our review: “Was
not the sentence of two to five years[’] total confinement manifestly
excessive and grossly disproportionate to [A]ppellant’s technical violations,
and was [it not] far in excess of what was necessary to foster [A]ppellant’s
rehabilitation?” Appellant’s Brief at 3.
Initially, we note that Appellant’s allegations relate to the discretionary
aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. 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 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).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations
and internal quotations omitted).
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Appellant has met the first prong of the four-part test by filing a timely
notice of appeal on February 17, 2015.1 However, the Commonwealth
argues that Appellant’s claims are not reviewable because he failed to
properly preserve the issues at sentencing or in a timely motion for
reconsideration. After careful review of the record, we are constrained to
agree with the Commonwealth. Appellant’s motion for reconsideration was
filed two weeks late, on February 9, 2015.2 See Pa.R.Crim.P. 708(E)
(providing that a post-sentence motion to modify a sentence imposed after
revocation shall be filed within ten days of the date of imposition); see also
Commonwealth v. Wrecks, 931 A.2d 717 (Pa. Super. 2007) (“An untimely
post-sentence motion does not preserve issues for appeal.”). On February
19, 2015, the trial court entered an order accepting the motion for
reconsideration nunc pro tunc; however, the trial court did not have
jurisdiction to do so, as the notice of appeal had been filed two days prior,
on February 17, 2015. See Pa.R.A.P. 1701(a) (providing that after an
appeal is filed, the trial court may no longer proceed in the matter).
____________________________________________
1
The revocation order from which Appellant appealed was entered on
January 15, 2015. Because 30 days from the date of the order fell on
Saturday, February 14, 2015, and Monday, February 16, 2015 was a court
holiday, the notice of appeal was due February 17, 2015. See 1 Pa.C.S. §
1908.
2
Appellant was informed at the revocation hearing of the 10-day time
requirement for filing a post-sentence motion. See N.T. Revocation Hearing,
1/15/15, at 19.
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Moreover, Appellant failed to raise any objection to the sentence imposed at
the revocation hearing. See N.T. Revocation Hearing at 16-20.
Even if these issues were properly preserved, we are further precluded
from reviewing Appellant’s claims because he failed to raise a substantial
question to meet the final requirement of the four-part test outlined above.
As we explained in Moury:
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. 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.
Moury, 992 A.2d at 170 (citations and internal quotations omitted).
Appellant contends that his sentence is excessive and unreasonable,
as it is grossly disproportionate to his violations, and further contends that
his sentence far exceeds what is necessary to foster his rehabilitation.
Appellant’s Brief at 12. However, “a bald assertion that Appellant’s sentence
was excessive, devoid of supporting legal authority does not present a
substantial question,” and therefore, is not reviewable by this Court.
Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012).
Moreover, we have stated that “ordinarily, a claim that the sentencing court
failed to consider or accord proper weight to a specific sentencing factor
does not raise a substantial question.” Commonwealth v. Berry, 785 A.2d
994, 996-97 (Pa. Super. 2001) (internal citation omitted; emphasis in
original). Specifically, there is ample precedent to support a determination
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that a claim that the trial court failed to consider an appellant’s rehabilitative
needs fails to raise a substantial question. See Commonwealth v.
Coolbaugh, 770 A.2d 788, 793 (Pa. Super. 2001) (citing Commonwealth
v. Mobley, 581 A.2d 949, 952 (1990) (holding that a claim that sentence
failed to take into consideration the defendant’s rehabilitative needs and was
manifestly excessive did not raise a substantial question where sentence was
within statutory guidelines and within sentencing guidelines));
Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa. Super. 1997)
(concluding that a claim that a trial court failed to appropriately consider an
appellant’s rehabilitative needs does not present a substantial question).
In his second claim, Appellant asserts that his sentence does not
comply with 42 Pa.C.S. § 9771(c), which expressly limits the sentencing
court’s authority to impose a sentence of total confinement upon revocation
to the following circumstances:
(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 response, we first note that this claim is also waived due to
Appellant’s failure to properly preserve it at the revocation hearing or in a
timely motion for reconsideration. However, were we to address the merits
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of this final issue raised by Appellant, we would conclude that the claim is
without merit.
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. To constitute an abuse of
discretion, the sentence imposed must either exceed the
statutory limits or be manifestly excessive. In this context, an
abuse of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias,
or ill will, or arrived at a manifestly unreasonable decision.
***
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.
Commonwealth v. Perry, 883 A.2d 599, 602-603 (Pa. Super. 2005)
(citations omitted). We further note that “where a sentence is within the
standard range of the guidelines, Pennsylvania law views the sentence as
appropriate under the Sentencing Code.” Commonwealth v. Griffin, 65
A.3d 932, 937 (Pa. Super. 2013).
Here, Appellant argues that his actions did not fall within any of the
categories listed in 42 Pa.C.S. § 9771(c) and, therefore, incarceration is
impermissible. Appellant’s Brief at 16. However, the statute provides that,
if the original offense was punishable by total confinement, such a penalty is
available to a revocation court when one of the above enumerated
circumstances is found. 42 Pa.C.S. § 9771. As the court explained in its
Pa.R.A.P. 1925(a) opinion,
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Appellant’s behavior … demonstrated to the [c]ourt that he had
not benefitted from probation and the services provided during
his probation. Appellant failed to comply with the conditions of
his sentence despite the [c]ourt giving him informal sanctions
before violating him a second time. It became obvious that
Appellant was unable to conform his behavior.
TCO at 6. Based on the foregoing, it was reasonable for the trial court to
impose a sentence of total confinement to vindicate the court’s authority.
See 42 Pa.C.S. § 9771(c)(3).
Moreover, Appellant’s sentence is well within the standard range of
guidelines. The trial court provided a detailed explanation of the sentencing
guidelines and its reasoning for the sentence imposed in the following
portion of its Rule 1925(a) opinion:
Upon revoking a defendant’s probation, a court has available to
it essentially all the sentencing alternatives that existed at the
time of the initial sentencing, limited only by the maximum
sentence that it could have imposed originally at the time of the
probationary sentence. Appellant was found guilty of criminal
trespass as a third degree felony which carries a maximum
penalty of 7 years[’] incarceration. Therefore, Appellant’s
sentence of 2 to 5 years[’] incarceration with credit for time
served, is well below the maximum. Moreover, technical
violations can support revocation and a sentence of incarceration
where such violations are flagrant and indicate an inability to
reform. Commonwealth v. Allshouse, 2009 PA Super 47, 969
A.2d 1236, 1241 (Pa. Super. Ct. 2009). In light of Appellant’s
continued non-compliance with the conditions of his sentence
and the rules of MHC, the sentence was appropriate. The
assertion that Appellant’s sentence is grossly disproportionate
for failing to tailor it to his individual circumstances is without
any support in the record. Appellant failed to attend treatment
meetings, was non-compliant with staff, and tested positive for
cocaine. In addition, this was Appellant’s second revocation as a
result of non-compliance. In total, Appellant was placed in three
different treatment facilities under MHC supervision, but was
discharged from each for his non-compliance and positive drug
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tests. Appellant absconded from his last treatment facility, and
failed to appear at the following [c]ourt listing.
TCO at 4-5.
After careful review of the record, we ascertain no abuse of discretion
by the trial court. Thus, even had Appellant preserved his issues for our
review, we would not afford him sentencing relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2015
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