J-S80044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JONATHAN LEVONNE RODGERS
Appellant No. 631 MDA 2016
Appeal from the Judgment of Sentence February 11, 2016
in the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005983-2003
BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED JANUARY 03, 2017
Appellant, Jonathan Levonne Rodgers, appeals from the judgment of
sentence entered after the February 11, 2016 hearing in which the court
revoked his probation. We affirm.
On June 10, 2005, Appellant entered open guilty pleas in three cases.
In the instant matter, he entered an open plea to the charge of resisting
arrest and was sentenced to two years of special probation. 1 Several
months prior to the expiration of his probationary period, Appellant was
again arrested and charged with access device fraud, theft of property lost
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1
18 Pa.C.S. § 5104. In his other cases, Appellant entered guilty pleas to
robbery, 18 Pa.C.S. § 3701(a)(1)(iv), and received a sentence of two to
seven and one-half years of incarceration; and to obstructing the
administration of law, 18 Pa.C.S. § 5101, for which he received a sentence
of two years of probation, to run consecutively to his incarceration.
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by mistake, identity theft, theft by deception, and receipt of stolen
property.2
On February 11, 2016, Appellant entered a guilty plea to the identity
theft charges. The court imposed a sentence of three years of probation.
At this time, the court also conducted a Gagnon II3 hearing.
Appellant argued he was entitled to a probationary sentence, noting that: he
had remained arrest free from 2005 until 2015; he had started a
construction business that employed other offenders; and he had married
and had children. See Notes of Testimony (N. T.), 2/11/16, at 7-8.
Appellant suggested that he had accepted responsibility by pleading guilty
and offered to pay restitution. Id. Further, he argued that based on prison
delays, a state sentence with a minimum of ninety-four days would
transform into a one- to two-year sentence. Id.
The court found Appellant in violation of his probation and, despite
Appellant’s arguments, sentenced him to ninety-four days to two years of
incarceration, effective from the date of the hearing, with credit for ninety-
four days of time served.
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2
18 Pa.C.S. §§ 4106(a)(1)(ii), 3924, 4120(a), 3922(a)(1), and 3925(a),
respectively.
3
See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (concluding that due
process requires parolee be given a preliminary (Gagnon I) and final
(Gagnon II) hearing prior to parole revocation).
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Appellant timely filed a post-sentence motion challenging the
discretionary aspects of the court’s sentence. The court granted
reconsideration but, after a hearing, denied Appellant’s motion for relief.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement. The trial court issued a responsive opinion.
On appeal, Appellant raises a single issue:
Whether the trial court abused its discretion by imposing an
excessive sentence, relied solely on Appellant’s prior record
score and failed to consider the mitigating factors presented by
Appellant, including the gravity of the offense as it related to the
impact on the life of the victim and the community, the
rehabilitative needs of Appellant, and the protection of the
public.
Appellant’s Brief at 6.
Appellant challenges the discretionary aspects of his sentence, a
challenge which does not entitle him to review as of right. Commonwealth
v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011). Prior to addressing a
discretionary challenge, this Court engages in a four-part analysis: 1)
whether the appeal is timely; 2) whether Appellant preserved his issue; 3)
whether Appellant’s brief contains a concise statement of the reasons relied
upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f); and 4) whether
that statement raises a substantial question that the sentence is
inappropriate under the sentencing code. See Commonwealth v. Austin,
66 A.3d 798, 808 (Pa. Super. 2013); see also Pa.R.A.P. 2119(f).
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Appellant timely filed a notice of appeal, preserved his claim in a post-
sentence motion, and included in his brief an appropriate Pa.R.A.P. 2119(f)
statement. We must now determine whether he has raised a substantial
question that the sentence is inappropriate under the sentencing code, and if
so, review the merits.
A substantial question must be evaluated on a case-by-case basis.
Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003). A
substantial question exists only where the Appellant advances a colorable
argument that the sentencing judge’s actions were either inconsistent with a
specific provision of the Sentencing Code, or contrary to the fundamental
norms which underlie the sentencing process. Commonwealth v. Sierra,
752 A.2d 910, 913 (Pa. Super. 2000). A claim that a sentence is manifestly
excessive many raise a substantial question if Appellant’s Pa.R.A.P. 2119(f)
statement sufficiently articulates the manner in which the sentence was
inconsistent with the Code or contrary to its norms. Commonwealth v.
Mouzon, 812 A.2d 617, 627-28 (Pa. 2002).
In the instant case, Appellant asserts that the court’s imposition of a
sentence of time served to twenty-four months was manifestly excessive,
unreasonable, and contrary to the fundamental norms underlying the Code,
as the court failed to adequately consider the mitigating factors presented by
Appellant and focused solely on his prior record score. Additionally,
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Appellant asserts that the imposition of a maximum sentence was excessive
in nature, given the aforesaid mitigating factors. Appellant’s Brief at 14-15.
However, the record contains a recitation of those same
circumstances, both at the original Gagnon II hearing, and after the court
granted reconsideration and allowed further argument. Specifically, the
court did spend extensive time considering Appellant’s family, self-
employment and employer status. See N. T., 2/11/16, at 3-17; N. T.
4/7/16 at 3-10. It also considered Appellant’s prior record score of five, the
fact that one of his priors was a robbery, his technical violation in 2012, the
issuance of bench warrants in Appellant’s other cases, and that the instant
violation was for a new crime. See N. T., 4/7/16 at 8-11. The court also
noted Appellant’s argument regarding the potential delay in his release
raised speculative concerns. See N. T., 2/11/16 at 7, 11.
We cannot conclude, based on the record, that the sentencing court
failed to consider the aforesaid personal circumstances, ignored mandatory
factors under 42 Pa.C.S. § 9721(b), or in any other way imposed a harsh
and excessive sentence that was disproportionate to the underlying
violations and circumstances. Commonwealth v. Kalichak, 943 A.2d 285,
292 (Pa. Super. 2008). The court appropriately considered all factors
relevant to sentencing. Appellant has not raised a substantial question as a
matter of law, and thus, he is not entitled to relief.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2017
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