J-S66025-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAWN GHEZZI
Appellant No. 580 WDA 2015
Appeal from the Judgment of Sentence March 4, 2015
In the Court of Common Pleas of Jefferson County
Criminal Division at Nos: CP-33-CR-0000081-2012; CP-33-CR-0000374-
2012; CP-33-CR-0000675-2006
BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED JANUARY 20, 2016
Appellant, Shawn Ghezzi, appeals from the March 4, 2015 judgment of
sentence imposing an aggregate five to ten years of incarceration upon
revocation of three separate probation sentences. We affirm.
On January 17, 2007, at docket number 675 of 2006, Appellant pled
guilty to one count of burglary (18 Pa.C.S.A. § 3502). The trial court
sentenced Appellant to three months to two years of county incarceration
followed by one year of probation. On December 22, 2009, the trial court
revoked Appellant’s probation and imposed a sentence of five years of
intermediate punishment, including six months of county incarceration.
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*
Retired Senior Judge assigned to the Superior Court.
J-S66025-15
On August 15, 2012, at docket number 81 of 2012, Appellant pled
guilty to one count of theft by unlawful taking (18 Pa.C.S.A. § 3921). Also
on August 15, 2012, Appellant pled guilty to fleeing or attempting to elude
police (75 Pa.C.S.A. § 3733) at docket number 374 of 2012. In light of
these offenses, the trial court revoked Appellant’s intermediate punishment
and imposed a sentence of one to two years of state incarceration followed
by five years of probation. At docket numbers 81 and 374 of 2012, the trial
court imposed five years of probation concurrent with one another and with
the revocation sentence at number 675 of 2006. On February 17, 2015,
after a Gagnon II1 hearing, the trial court found Appellant violated a
condition of his probation requiring him to refrain from assaultive behavior.
On March 4, 2015, the trial court revoked Appellant’s probation at all three
aforementioned docket numbers. At number 675 of 2006, the trial court
imposed five to ten years of state incarceration with credit for time served.
At numbers 81 and 374 of 2012, the court imposed sentences of three to
seven years of incarceration, concurrent to one another and to the sentence
at number 675 of 2006. Appellant filed a timely post-sentence motion on
March 11, 2015. The trial court denied that motion on March 13, 2015. This
timely appeal followed.
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1
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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Appellant argues the trial court abused its sentencing discretion by
imposing too severe a sentence.2 To preserve a challenge to the trial court’s
sentencing discretion, an appellant must (1) preserve the issue in a post-
sentence motion; (2) file a timely notice of appeal; (3) include in the
appellate brief a Pa.R.A.P. 2119(f) concise statement of the reasons relied
upon for allowance of appeal; and (4) present a substantial question for
review. Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013),
appeal denied, 76 A.3d 538 (Pa. 2013). Appellant has complied with the
first three of these requirements. We must therefore determine if
Appellant’s Pa.R.A.P. 2119(f) statement presents a substantial question for
review.
Appellant’s Pa.R.A.P. 2119(f) statement alleges, “the sentence was
manifestly unreasonable under the circumstances of this case and the
probation violation, such that it constitutes too severe a punishment, and
that the Court’s reasons for the sentence did not justify the severity.”
Appellant’s Brief at 8. An allegation that the trial court failed to provide an
on-the-record explanation of its sentence raises a substantial question.
Commonwealth v. Simpson, 829 A.2d 334, 337 (Pa. Super. 2003). We
will therefore review the merits of Appellant’s argument.
The following law governs our review:
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2
We note with disapproval that the Commonwealth has failed to file a brief.
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It is well settled that the proper standard of review when
considering whether to affirm the sentencing court’s
determination is an abuse of discretion. An abuse of discretion is
more than a mere error of judgment; thus, a sentencing court
will not 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. An abuse of
discretion may not be found merely because an appellate court
might have reached a different conclusion. Indeed, as we
explained in Walls, there are significant policy reasons
underpinning this deferential standard of review:
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review is that the
sentencing 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. Simply stated, the sentencing
court sentences flesh-and-blood defendants and the nuances of
sentencing decisions are difficult to gauge from the cold
transcript used upon appellate review. Moreover, the sentencing
court enjoys an institutional advantage to appellate review,
bringing to its decisions an expertise, experience, and judgment
that should not be lightly disturbed. Even with the advent of
sentencing guidelines, the power of sentencing is a function to
be performed by the sentencing court. Thus, rather than cabin
the exercise of a sentencing court’s discretion, the guidelines
merely inform the sentencing decision.
Commonwealth v. Perry, 32 A.3d 232, 236-37 (Pa. 2011) (internal
citations and quotation marks omitted) (quoting Commonwealth v. Walls,
926 A.2d 957, 961-62 (Pa. 2007)).
The sentence on appeal resulted from probation violations, and not
new convictions. Under these circumstances, a sentence of total
confinement is appropriate if “the conduct of the defendant indicates that it
is likely that he will commit another crime if he is not imprisoned” or “such a
sentence is essential to vindicate the authority of the court.” 42 Pa.C.S.A.
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§ 9771(c)(2), (3). An offender’s repeated failures to reform his conduct
while out of prison can justify a sentence of total incarceration.
Commonwealth v. Malovich, 903 A.2d 1247, 1254 (Pa. Super. 2006).
Likewise, the sentencing court is in the best position to observe an offender’s
“character, defiance, and indifference” when determining the length of a
sentence of incarceration after revocation. Id.
Appellant argues his sentence is too severe because his probation
violations involved throwing “objects around the house of his mother” and
failing to pay fines and costs. Appellant’s Brief at 10. Appellant’s revocation
sentence did not result from the commission of a new offense. Appellant
argues a sentence of county incarceration and anger management would
have been appropriate. Id. at 11. Appellant also argues the trial court
failed to explain the reasons for the five to ten year sentence.
The sentencing court stated that it was aware of Appellant’s criminal
background, including his history of resentencing. N.T. Sentencing, 3/4/15,
at 6. The court noted Appellant engaged in a “temperamental outburst” at
his mother’s house, where he lived. Id. at 7. During that outburst,
Appellant was throwing things, and the sentencing court described the
outburst as “potentially dangerous.” Id. at 7, 12. The sentencing court did
not believe, based on Appellant’s history, that he was amenable to
treatment. Id. at 9. Appellant appeared in front of the sentencing court as
both a juvenile and adult offender, and the court noted that Appellant has
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repeatedly reoffended when out of prison. Id. at 11. The court believed
Appellant was capable of further outbursts during which he might injure
somebody. Id. at 9.
Furthermore, the trial court believed a lengthy sentence of
incarceration was necessary to vindicate the authority of the court, given
Appellant’s history of reoffending. Id. at 9-10. The court noted that
Appellant was becoming emotional during the sentencing hearing. Id. at 12.
The court stated:
Let me tell you what I’m observing. Stop talking. I know
what you’re going to say. Everyone in this courtroom is saying,
Shawn is getting a little off tilt. And that’s something you need
to control for the safety of the community, for the safety of your
family and your child. And that’s why I’m giving you this
sentence because, obviously, you haven’t matured. You didn’t
get into programming when you were on the street and had the
opportunity.
So the best chance is for you to go down to state prison
and not sit there and go, well, I’ll wait for my time to see if I’ll
get paroled because they’re putting a lot of people out the door.
It’s getting into the right program to find way [sic] to control
your temperament and to be patient and do programming when
you’re out on street [sic] so that you can get back into the
community. [. . .] [Y]ou’ve got to get your temper under
control.
Id. at 13.
In summary, the record does not support the Appellant’s argument
that the sentencing court failed to explain its sentence. The court found that
incarceration was necessary to vindicate its authority and to protect the
community, in accord with § 9771(c)(2) and (3). The court believed a
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lengthy sentence would give Appellant time to obtain treatment and learn to
control his temper. As we stated in Malovich, the sentencing court is in the
best position to make these observations. Malovich, 903 A.2d at 1254.
This is especially so where, as here, the trial court has presided over the
offender as both a juvenile and as an adult. The court sufficiently explained
both its decision to incarcerate Appellant and its decision to impose a
lengthy period of incarceration. Based on all of the foregoing, we discern no
abuse of discretion. We therefore affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2016
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