Com. v. Ely, M.

J-A31044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MICHAEL ALLEN ELY,

Appellant No. 730 MDA 2015

Appeal from the Judgment of Sentence March 26, 2015
in the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0000489-2012

BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JANUARY 07, 2016

Appellant, Michael Allen Ely, appeals from the judgment of sentence

entered on March 26, 2015, following the revocation of his probation. On

appeal, Appellant challenges the discretionary aspects of sentence. For the

reasons discussed below, we affirm the judgment of sentence.

We take the underlying facts and procedural history in this matter

from the trial court’s July 9, 2015 opinion.

In 2011, Appellant . . . was arrested and charged with a
single count each of [o]bscene [m]aterials, [u]nlawful [c]ontact
or [c]ommunication [w]ith a [m]inor, and [c]orruption of
[m]inors.[1] The charges stemmed from him sending sexually
graphic text messages to the [sixteen-year-old] daughter of his
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa. C.S.A. §§ 5903(c)(1), 6318(a)(4), and 6301(a)(1), respectively.
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then girlfriend. In resolution of these charges, on June 27,
2013, Appellant entered into a negotiated guilty plea agreement
which resulted in [c]ounts 1 and 2 being withdrawn and
sentencing being deferred for purpose of a Megan’s Law
evaluation. On September 30, 2013, he was sentenced on
[c]ount 3 to a thirty[-]month term of probation. Appellant was
also ordered to refrain from contact with the victim and also
register as a sexual offender. In addition to the normal
conditions of county probation, [the trial court] ordered that he
undergo a sexual offender’s assessment by the Dauphin County
Probation [Office] to determine what, if any, treatment was
necessary.

Later, on March 25, 2015, Appellant appeared before [the
trial court] for the purpose of a revocation of probation hearing.
At the hearing it was established that he had been terminated
from his sex offender treatment program which was a condition
of his probation. Additionally, the Commonwealth represented
to the [trial court] that on December 17, 2014, Appellant had
been sentenced by the Hon. Todd A. Hoover to a twelve[-]month
term of probation on several new violations of the vehicle code
including counterfeit display documents, driving on a suspended
license, having a suspended registration, and illegal use of a
license plate.

At the revocation proceeding, [the trial court] heard
testimony from the county probation officer and Appellant
regarding the facts underlying the alleged probation violation. In
addition to being terminated from his sexual offenders treatment
program, he was accused of sending several text messages to
the victim, [twenty] years old at the time of the hearing, inviting
her to dinner and asking about the types of alcohol she likes.
Appellant still lives with the victim’s mother and has two
biological sons with her. The victim lives with her father
elsewhere.

Upon consideration of the facts presented, [the trial court]
found that he had violated the conditions of his probation and
sentenced him to a 2.5[-]5[-]year term of incarceration at [a]
state correctional institution. On March 2[6], 2015, Appellant
filed a [p]ost-[s]entence [m]otion requesting a downward
modification of his sentence which request was denied by order
dated April 8, 2015. On April 24, 2015, Appellant filed a [n]otice
of [a]ppeal to the Pennsylvania Superior Court. In compliance

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with [the trial court’s] order, on May 20, 2015, Appellant filed a
[s]tatement of [e]rrors [c]omplained of on [a]ppeal Pursuant to
Pa.RAP. 1925(b)[. The trial court filed an opinion on July 9,
2015. See Pa.R.A.P. 1925(a)].

(Trial Court Opinion, 7/09/15, at 1-3) (record citations and footnotes

omitted, emphasis added).

On appeal, Appellant raises the following question for our review:

Whether the trial court erred in denying Appellant’s [p]ost-
[s]entence [m]otion where his sentence was excessive and
unreasonable and constitutes too severe a punishment in light of
the alleged gravity of the offense, Appellant’s rehabilitative
needs, and what is needed to protect the public?

(Appellant’s Brief, at 5).

On appeal, Appellant challenges the discretionary aspects of his

sentence.2 In Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super.

2013) (en banc), this Court held that “[the] scope of review in an appeal

from a revocation sentencing includes discretionary sentencing challenges.”

Cartrette, supra at 1034. Thus, Appellant’s claim is properly before us.

The right to appeal the discretionary aspects of a sentence is not

absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

2004), appeal denied, 860 A.2d 122 (Pa. 2004). When an appellant

challenges the discretionary aspects of the sentence imposed, he must
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2
We note that Appellant preserved his discretionary aspects of sentence
claim by filing a timely post-sentence motion for reconsideration of
sentence. See McAfee, infra at 275.

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present “a substantial question as to the appropriateness of the sentence[.]”

Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)

(citations omitted). An appellant must, pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f), articulate “a colorable argument that the

sentence violates a particular provision of the [s]entencing [c]ode or is

contrary to the fundamental norms underlying the sentencing scheme.”

Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)

(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If

an appellant’s Rule 2119(f) statement meets these prerequisites, we

determine whether a substantial question exists. See Commonwealth v.

Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied,

759 A.2d 920 (Pa. 2000). “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. (emphases in

original).

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

(See Appellant’s Brief, at 8-10). In it, Appellant argues that the sentence

was excessive and unreasonable and constitutes too severe a punishment

because he had a reasonable explanation for his expulsion from the sex

offender treatment program, he attempted to pay the fines on his case, and

he participated in programming while incarcerated. This claim raises a

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substantial question. See Commonwealth v. Swope, 123 A.3d 333, 339-

40 (Pa. Super. 2015).

. . . [T]he 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. . . . Once probation has been 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, (3) such a sentence is essential to vindicate the
authority of court.

Commonwealth v. Edwards, 71 A.3d 323, 327 (Pa. Super. 2013), appeal

denied, 81 A.3d 75 (Pa. 2013) (citations omitted).

Here, as discussed above, despite being ordered not to do so,

Appellant engaged in lengthy contact with the underage victim of the crime

and implied that he would furnish alcohol to her. While on probation,

Appellant was sentenced on new criminal charges in a separate action.

Further, Appellant’s statement at the revocation hearing displayed an

attempt to minimize and excuse his deliberate contact with the victim. (See

N.T. Revocation Hearing, 3/25/15, at 4). Thus, Appellant has demonstrated

his inability to conform to the requirements of probation. (See Trial Ct. Op.,

at 1-3). Lastly, Appellant’s sentence was well within the statutory limits.3

(See id. at 4-5). Thus, the record amply supports Appellant’s sentence of
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3
We note that the sentencing guidelines do not apply to sentences imposed
following a revocation of probation. See Commonwealth v. Williams, 69
A.3d 735, 741 (Pa. Super. 2013), appeal denied, 83 A.3d 415 (Pa. 2014).

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total confinement, and his claim that the sentence was unreasonable is

frivolous. See Edwards, supra at 327.

Further, even if this were not the case, Appellant’s argument consists

of boiler-plate citation to case law and a single paragraph argument that

simply summarizes the testimony at the revocation hearing and concludes

with the statement that the trial court erred in denying his motion for

modification. (See Appellant’s Brief, at 11-13). It is settled that “we do not

accept bald assertions of sentencing errors. Rather, Appellant must support

his assertions by articulating the way in which the court’s actions violated

the sentencing code.” Commonwealth v. Malovich, 903 A.2d 1247, 1252

(Pa. Super. 2006) (citation omitted). Appellant failed to do so. (See

Appellant‘s Brief, at 11-13). Appellant’s issue does not merit relief. See

Malovich, supra at 1252.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/7/2016

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