J-A31043-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KELVIN M. JACKSON, JR.,
Appellant No. 610 MDA 2015
Appeal from the Judgment of Sentence March 6, 2015
in the Court of Common Pleas of Lancaster County
Criminal Division at Nos.: CP-36-CR-0000828-2014
CP-36-CR-0002604-2013
BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JANUARY 21, 2016
Appellant, Kelvin M. Jackson, Jr., appeals from the judgment of
sentence imposed on March 6, 2015 after revocation of his probation and
parole. Appellant argues that an aggregate sentence of two and one-half to
five years’ incarceration was manifestly excessive and an abuse of the
court’s discretion. We affirm.
The trial court aptly summarized the history of this case as follows:
On Docket 2604-2013, [Appellant] was charged with two
counts of aggravated assault and one count of possession of a
firearm by a minor.[1] On December 17, 2013, [Appellant] pled
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
See 18 Pa.C.S.A. §§ 2702(a)(4), 6110.1(a) respectively
J-A31043-15
guilty to two counts of recklessly endangering another person[2]
and the possession of a firearm by a minor charge. [Appellant]
received a sentence of time served to [twenty-three] months[’
incarceration] on each of the reckless endangerment counts, to
be run concurrent, and to a consecutive term of three years of
probation for the possession of a firearm by a minor. On Docket
0828-2014, [Appellant] was charged with DUI general
impairment, intentional possession of a controlled substance by
a person not registered, false identification to law enforcement
officer, minor prohibited from operating with any alcohol in
system, purchase of an alcoholic beverage by a minor, driving
while operating privilege is suspended or revoked, and driving on
roadways laned for traffic.[3] On June 18, 2014, [Appellant]
pled guilty to all charges on [D]ocket 0828-2014. [Appellant]
received a sentence of [seventy-two] hours to [six] month[s’
incarceration] on the DUI count, one year probation each on the
intentional possession and false identification charges, to be
concurrent with incarceration, and [a] fine and costs on the
summary charges.
[Appellant] failed to report to his regularly scheduled
probation appointments. A capias was issued on July 30, 2014.
An amendment was issued on August 7, 2014 to include a
violation based on [Appellant’s] new criminal charges. . . . On
September 25, 2014, an amendment was issued to include a
new set of criminal charges, including fleeing or attempting to
elude police, receiving stolen property, recklessly endangering
another person, reckless driving, traffic control signal, and
driving on a suspended license. . . . On December 12, 2014,
[Appellant] proceeded to the probation violation hearing before
this court. [Appellant] stipulated that he violated his parole and
the court found [him] in violation of his probation. Accordingly,
the court revoked his parole. As there was a possibility of a
state prison sentence, the court directed the adult probation and
parole office to prepare a pre-sentence investigation [report
(PSI)]. . . .
____________________________________________
2
See 18 Pa.C.S.A. § 2705.
3
See 75 Pa.C.S.A. § 3802(a)(1), 35 P.S. § 780-113(a)(16), 18 Pa.C.S.A. §
4914(a), 75 Pa.C.S.A. § 3718(a), 18 Pa.C.S.A. § 6308(a), 75 Pa.C.S.A. §§
1543(a), 3309(1) respectively.
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(Trial Court Opinion, 5/08/2015, at 1-3) (footnotes and unnecessary
capitalization omitted).
On March 6, 2015, with the benefit of the PSI, the court sentenced
Appellant to an aggregate sentence of not less than two and one-half nor
more than five years’ incarceration. (See N.T. Sentencing, 3/06/15, at 15-
16). The court denied Appellant’s timely post-sentence motion on April 1,
2015. This timely appeal followed.4
Appellant raises one question for our review:
I. Was an aggregate sentence of two and one-half to five
years[’] incarceration for violations of probation and parole
manifestly excessive and an abuse of the court’s discretion?
(Appellant’s Brief, at 4).
Appellant’s issue challenges the discretionary aspects of his sentence.
This Court has concluded that a challenge to a discretionary sentencing
matter after revocation proceedings is within the scope of its review.
Such a challenge to the discretionary aspects of a sentence is
not appealable as of right. Rather, Appellant must petition for
allowance of appeal pursuant to 42 Pa.C.S.A. § 9781.
Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super.
2004).
Before we reach the merits of this [issue], we
must engage in a four part analysis to determine:
(1) whether the appeal is timely; (2) whether
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4
Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on May 4, 2015. See Pa.R.A.P.
1925(b). The court filed its opinion on May 8, 2015. See Pa.R.A.P.
1925(a).
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Appellant preserved his issue; (3) whether
Appellant’s brief includes a concise statement of the
reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a
substantial question that the sentence is appropriate
under the sentencing code. The third and fourth of
these requirements arise because . . . [Appellant]
must petition this Court, in his concise statement of
reasons, to grant consideration of his appeal on the
grounds that there is a substantial question. Finally,
if the appeal satisfies each of these four
requirements, we will then proceed to decide the
substantive merits of the case.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super.
2013)[, appeal denied, 77 A.3d 1258 (Pa. 2013)] (citations
omitted); see also Commonwealth v. Kalichak, 943 A.2d
285, 289 (Pa. Super. 2008) (“[W]hen a court revokes probation
and imposes a new sentence, a criminal defendant needs to
preserve challenges to the discretionary aspects of that new
sentence either by objecting during the revocation sentencing or
by filing a post-sentence motion.”) [(citation omitted)].
Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014),
appeal denied, 109 A.3d 678 (Pa. 2015).
Here, Appellant has properly preserved his issue by filing a post-
sentence motion for reconsideration of sentence, which the trial court
denied, and a timely appeal. Appellant’s brief contains a Rule 2119(f)
concise statement of reasons. (See Appellant’s Brief, at 9-10). In it,
Appellant argues that the sentence “was manifestly excessive and an abuse
of the court’s discretion . . . [and] that the court failed to consider his
rehabilitative potential, as required by 42 Pa.C.S.[A.] § 9721, and focused
exclusively on the gravity of the parole violations and their impact on the
community.” (Id. at 9). This claim raises a substantial question. See
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Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015) (holding
that claim sentence was unduly excessive together with claim court failed to
consider rehabilitative needs and mitigating factors in fashioning sentence,
presents substantial question). Accordingly, we will review Appellant’s
question.
Our standard of review of an appeal from a sentence imposed
following the revocation of probation is well-settled: “Revocation of a
probation sentence is a matter committed to the sound discretion of the trial
court and that court’s decision will not be disturbed on appeal in the absence
of an error of law or an abuse of discretion.” Colon, supra at 1041 (citation
omitted). Additionally,
Upon revoking probation, a sentencing court may choose from
any of the sentencing options that existed at the time of the
original sentencing, including incarceration. 42 Pa.C.S.A. §
9771(b). “[U]pon 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.”
Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super.
2013) (internal quotation marks and citations omitted).
However, 42 Pa.C.S.A. § 9771(c) provides that once probation
has been revoked, a sentence of total confinement may only 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 the court.
42 Pa.C.S.A. § 9771(c).
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Id. at 1044.
Here, the record reveals that Appellant stipulated that he violated his
probation. (See N.T. Probation Violation Hearing, 12/12/14, at 2-3). In
addition, at the sentencing hearing, the court considered Appellant’s age,
maturity, his education and work history, his prior criminal record, his prior
parole violations, the PSI, the penalties authorized by the legislature, the
character and statements of Appellant, and Appellant’s need for
psychotherapy and drug and alcohol counseling. (See N.T. Sentencing
Hearing, 3/06/15, at 13-15). Ultimately, the court decided that
“[i]ncarceration is warranted because a lesser sentence would depreciate the
seriousness of his behavior, the seriousness of his prior record, and the fact
that he continues to commit significant criminal violations.” (Id. at 15).
Furthermore, we note that the sentence imposed was below the maximum
sentence that the court could have imposed at Appellant’s initial sentencing.
See Colon, supra at 1044.
Upon review, we discern no error of law or abuse of discretion. See
Colon, supra at 1041. The record amply supports that the trial court
considered the appropriate factors in determining that revocation and a
sentence of incarceration was warranted. Accordingly, Appellant’s issue
does not merit relief.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/21/2016
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