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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES KEYS,
Appellant No. 1761 WDA 2015
Appeal from the Judgment of Sentence October 7, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008520-2013
BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 30, 2016
Appellant James Keys appeals from the judgment of sentence entered
in the Court of Common Pleas of Allegheny County, following revocation of
his probation. The judgment of sentence entered on October 7, 2015, was
rendered final by the denial of Appellant’s post-sentence motion on
October 20, 2015. We affirm.
The trial court recounted the relevant history as follows:
In this case, [Appellant] originally pled guilty to one count
of robbery on December 11, 2013. On March 31, 2014, he was
sentenced to a term of imprisonment of not less than nine
months nor more than 18 months followed by three years’
probation. On October 7, 2015, [Appellant] appeared before this
[c]ourt to address allegations that he violated the terms of his
probation due to a conviction on July 7, 2015 for terroristic
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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threats and criminal mischief. The conviction stemmed from
[Appellant’s] actions on December 23, 2014 when he threatened
to kill his ex-paramour and flattened tires of her automobile.
[Appellant] attempted to physically assault his ex-paramour but
was stopped from doing so by his 12 year-old son. He was
sentenced to a term of imprisonment of not less than three
months nor more than six months. On that date, this [c]ourt
revoked [Appellant’s] probation and imposed a term of
incarceration of not less than 18 months nor more than 48
months followed by three years’ probation. This appeal followed.
Trial Court Opinion, 1/19/16, at 1–2.
Appellant raises the following issue on appeal: “Was the sentence of
eighteen to [forty-eight] months of incarceration, manifestly excessive and
an abuse of discretion, where the court did not consider the availability of
community-based resources to address Mr. Keys’ serious rehabilitative
needs?” Appellant’s Brief at 7 (full capitalization omitted).
As presented, Appellant challenges the discretionary aspects of his
sentence. See Commonwealth v. Rhoades, 8 A.3d 912, 915 (Pa. Super.
2010) (an appellant’s claim that his sentence is excessive implicates the
sentence’s discretionary aspects). This Court has held that our scope of
review in an appeal “from a revocation sentencing includes discretionary
sentencing challenges.” Commonwealth v. Cartrette, 83 A.3d 1030, 1034
(Pa. Super. 2013). Nonetheless, Appellant’s challenge to the discretionary
aspect of his sentence does not entitle him to review as of right.
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011) (citation
omitted). Rather, before this Court can address such a discretionary
challenge, an appellant must satisfy a four-part test:
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(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.
Id.
Appellant herein filed a timely notice of appeal and preserved his issue
in a post-sentence motion to reconsider his sentence. Additionally,
Appellant’s brief includes a concise statement of reasons relied upon for
allowance of appeal with respect to the discretionary aspects of his sentence
pursuant to Pa.R.A.P. 2119(f). Appellant’s Brief at 12. Thus, we turn to
whether Appellant presents a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d
526, 533 (Pa. Super. 2011). 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. Commonwealth v. Swope, 123 A.3d 333, 338 (Pa.
Super. 2015) (quoting Prisk, 13 A.3d at 533).
We conclude that Appellant’s assertion that the trial court failed to
consider his rehabilitative needs resulting in an excessive sentence raises a
substantial question. See Commonwealth v. Baker, 72 A.3d 652, 662
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(Pa. Super. 2013) (finding, inter alia, assertion that trial court failed to
account for an appellant’s rehabilitative needs was substantial question
suitable for review). Accordingly, we grant Appellant’s petition for allowance
of appeal and address the merits of his claim.
Appellant’s allegation that the sentencing court did not consider that
his rehabilitative needs would be best served by community-based resources
is contradicted by the transcript of the probation revocation proceeding. At
the hearing, a representative from Allegheny County Adult Probation, Ashley
Lynn, related that Appellant had been previously paroled to Justice Related
Services “Pyramid’s 3/4 house.” N.T., 10/7/15, at 17. She recalled that
when Appellant discovered that his stay at the Pyramid house could extend
beyond thirty days, “he was very agitated, very disrespectful with staff.” Id.
Ms. Lynn further informed the court: “There were allegations from the
program that [Appellant] had been cheating his medications, snorting his
medications, not following program rules. [Appellant] threatened to leave
the program. When [Appellant] was confronted about these, he advised that
Probation would never find him.” Id.
After considering the testimony and entertaining argument of counsel,
the sentencing court stated: “I did read the presentence report and I did
read that [Appellant] threatened to leave [the Pryamid 3/4 house]. . . .
And, indeed, after the [c]ourt addressed him, [Appellant] left and got on the
phone and said he didn’t care what the [c]ourt said. . . . [Appellant]
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indicated he won’t follow the rules.” N.T., 10/7/15, at 20. After the court
announced that it was imposing a term of incarceration, it addressed
Appellant: “I will not agree with a sentence that allows you to walk out the
door and you can do whatever you want.” Id. at 23–24.
The sentencing court further explained its reasons in its opinion filed
pursuant to Pa.R.A.P. 1925(a) why community-based resources would not
address Appellant’s rehabilitative needs:
The record in this case supports the sentence imposed by
this [c]ourt. This [c]ourt considered the presentence report. The
presentence report and the probation officer at the revocation
hearing set forth a history of [Appellant’s] non-compliance with
various jail programs and [Justice Related Services] plans during
his original incarceration on this case. [Appellant] was recorded
on a jail telephone boasting that he would not follow this [c]ourt’s
orders. This [c]ourt is particularly concerned that [Appellant] has
disregarded this [c]ourt’s admonition that he not have contact
with his ex-paramour. This [c]ourt had made such a provision a
condition of the probation imposed in the underlying terroristic
threats offense that caused his probation to be violated. Nothing
less than a sentence of total confinement is appropriate in this
case because [Appellant] is an actual, physical threat to his ex-
paramour. Considering [Appellant’s] brazen willingness to defy
court orders, this [c]ourt was not willing to risk the safety of
[Appellant’s] ex-paramour by imposing a non-custodial sentence
that provided for mental health treatment. This [c]ourt
recognized that [Appellant] may have mental health issues and
may [require] treatment but due to his conscious, repeated
decisions to avoid taking medication, this [c]ourt believed that
rehabilitation and treatment should occur while [Appellant] was
incarcerated and under the security of a prison. In sum, this
[c]ourt imposed the sentence it did because of [Appellant’s]
refusal to follow court directives and the risk of danger he posed
to his ex-paramour.
Trial Court Opinion, 1/19/16, at 4–5.
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Thus, it is evident that the sentencing court considered Appellant’s
prior efforts at rehabilitation supervised by community-based resources to
be unsatisfactory. The court also noted Appellant’s statement that he
intended to defy the orders of the court. For these reasons, the sentencing
court determined that Appellant’s rehabilitative needs would be better
addressed while serving a term of incarceration. We discern no abuse of
discretion in the sentencing court’s decision.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2016
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