J-S92007-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TIMOTHY ARTHUR NICHOLS,
Appellant No. 19 WDA 2016
Appeal from the Judgment of Sentence December 1, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011203-2008
BEFORE: SHOGAN, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 20, 2017
Appellant, Timothy Arthur Nichols, appeals from the judgment of
sentence entered following the revocation of his probation. We affirm.
The trial court set forth the procedural history of this case as follows:
On July 7, 2008, Appellant, Timothy Nichols, was charged
with Conspiracy/Forgery, Theft by Unlawful Taking and Receiving
Stolen Property. On July[] 21, 2009, Appellant entered a
negotiated guilty plea before this Court and was sentenced to
11.5 to 23 months incarceration and three years [of] consecutive
probation. This Court resentenced him to three years [of]
probation on October 9, 2012 after finding he had violated
probation. On January 13, 2015, Appellant again violated
probation and this Court reimposed its sentence of three years
[of] probation. On December 1, 2015, this Court found
Appellant to have violated probation and resentenced him to four
to eight years [of] incarceration. Appellant’s Post Sentence
Motion was denied on December 10, 2015.
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*
Retired Senior Judge assigned to the Superior Court.
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Trial Court Opinion, 5/18/16, at 2. This appeal followed. Both Appellant and
the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
I. WAS THE SENTENCE OF 4 TO 8 YEARS OF INCARCERATION
MANIFESTLY EXCESSIVE AND AN ABUSE OF DISCRETION
WHERE THE TRIAL COURT DID NOT CONSIDER THE
SUFFICIENCY OF SANCTIONS ALRERADY [sic] IMPOSED AND
THE AVAILABILITY OF COMMUNITY-BASED RESOURCES TO
ADDRESS MR. NICHOLS’ SERIOUS REHABILITATIVE NEEDS?
Appellant’s Brief at 4.
Appellant’s sole issue challenges the discretionary aspects of his
sentence. Appellant’s Brief at 13-14. Specifically, Appellant contends that
the trial court failed to properly consider Appellant’s rehabilitative needs
when it imposed a sentence of incarceration.
As this Court clarified in Commonwealth v. Cartrette, 83 A.3d 1030
(Pa. Super. 2013) (en banc), our scope of review following the revocation of
probation is not limited solely to determining the validity of the probation
revocation proceedings and the authority of the sentencing court to consider
the same sentencing alternatives that it had at the time of the initial
sentencing. Rather, it also includes challenges to the discretionary aspects
of the sentence imposed. Specifically, we unequivocally held that “this
Court’s scope of review in an appeal from a revocation sentencing includes
discretionary sentencing challenges.” Cartrette, 83 A.3d at 1034. Further,
as we have long held, the imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial court, which,
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absent an abuse of that discretion, will not be disturbed on appeal.
Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).
It is well settled that there is no absolute right to appeal the
discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d
800, 805 (Pa. Super. 2006). Rather, where an appellant challenges the
discretionary aspects of a sentence, the appeal should be considered a
petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d
155, 163 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to determine: (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.
[708]; (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, 42
Pa.C.S.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)). The determination of whether there is a substantial question is
made on a case-by-case basis, and this Court will grant the appeal only
when the appellant advances a colorable argument that the sentencing
judge’s actions were either: (1) inconsistent with a specific provision of the
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Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process. Sierra, 752 A.2d at 912-913.
Herein, the first three requirements of the four-part test are met,
those being that Appellant brought an appropriate appeal, raised the
challenge in a post-sentence motion, and included in his appellate brief the
necessary separate concise statement of the reasons relied upon for
allowance of appeal pursuant to Pa.R.A.P. 2119(f). Therefore, we next
determine whether Appellant raises a substantial question requiring us to
review the discretionary aspects of the sentence imposed by the trial court.
Appellant argues in his Pa.R.A.P. 2119(f) statement that the trial court
abused its discretion by imposing a sentence following the revocation of
probation that was unduly excessive and by failing to consider his
rehabilitative needs. Appellant’s Brief at 10-12. Essentially, Appellant
asserts that the sentencing court failed to properly consider factors set forth
under 42 Pa.C.S. § 9721(b).1 Thus, we conclude that in this instance,
Appellant has raised a substantial question. See Commonwealth v. Fullin,
892 A.2d 843, 847 (Pa. Super. 2006) (concluding that the appellant raised a
substantial question where it was alleged that the trial court failed to
consider the factors set forth in 42 Pa.C.S. § 9721(b)). Nevertheless, we
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1
The factors to be considered under 42 Pa.C.S. § 9721(b) include the
protection of the public and rehabilitative needs of the defendant.
Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006).
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conclude that Appellant is entitled to no relief on his claim, as the record
reveals that the court properly considered Appellant’s rehabilitative needs in
fashioning the sentence.
Again, we are mindful of our standard of review, which is as follows:
The 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. An abuse of discretion is more than an error in
judgment - a sentencing court has not abused its discretion
unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will.
Sierra, 752 A.2d at 913 (citations and quotation marks omitted).
With regard to our review of a sentence imposed following the
revocation of probation, we observe that, “[p]ursuant to 42 Pa.C.S.
§ 9771(b), when a defendant is found in violation of his probation, upon
revocation the sentencing alternatives available to the court shall be the
same as were available at the time of initial sentencing, due consideration
being given to the time spent serving the order of probation.”
Commonwealth v. Crump, 995 A.2d 1280, 1284 (Pa. Super. 2010). When
imposing a sentence of total confinement after a probation revocation, the
sentencing court is to consider the factors set forth in 42 Pa.C.S. § 9771(c)
and 42 Pa.C.S. § 9721(b). Commonwealth v. Ferguson, 893 A.2d 735
(Pa. Super. 2006). Pursuant to Section 9771(c), a court may sentence a
defendant to total confinement after a revocation of probation if one of the
following conditions exists:
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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. § 9771(c); Commonwealth v. Coolbaugh, 770 A.2d 788 (Pa.
Super. 2001).
A sentencing court need not undertake a lengthy discourse for its
reasons for imposing a sentence or specifically reference the statute in
question, but the record as a whole must reflect the sentencing court’s
consideration of the facts of the crime and character of the offender.
Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006).
See also Commonwealth v. Fish, 752 A.2d 921, 924 (Pa. Super. 2000)
(reiterating that although a court is required to explain its reasons for
imposing sentence, it need not specifically cite or include the language of the
sentencing code; it must only demonstrate that the court had considered the
factors specified in the code.).
Appellant argues that the sentence of incarceration that he was
ordered to serve, which is within the statutory maximum, was not
appropriate under the Sentencing Code. In effect, Appellant contends that
the sentence failed to provide for the treatment needed to address
Appellant’s substance abuse issues.
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Our review of the record reflects that at the time of sentencing, the
court indicated that it had an updated presentence report that had been
completed on November 30, 2015, the day before Appellant’s probation
violation hearing and sentencing. N.T., 12/1/15, at 2. The presentence
report had been reviewed by Appellant and defense counsel, and no
additions or corrections were requested or necessary. Id. Also, our review
of the record reflects that the court summarized the pertinent history as
follows:
The primary issues here are that [Appellant] claims that he
wants help for his addiction, and yet he doesn’t comply with the
JRS[2] plan to get the help he needs.
He was released from the county jail on February 26 th,
2015, to reside at CORE,[3] through JRS, for a maximum of six
months.
He was behaviorally discharged three days later for
allegedly assaulting another inmate. He then began testing
positive for heroin, cocaine, marijuana, benzodiazepine, and we
detained him after that.
Id. at 2-3.
The court also heard from Appellant’s counsel, who offered mitigating
arguments on Appellant’s behalf, discussed Appellant’s need for additional
treatment, and suggested that an appropriate option was to incarcerate
Appellant in the county jail. N.T., 12/1/15, at 3-5. The record further
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2
“JRS” refers to Justice Related Services.
3
“CORE” refers to Capitalizing on Recovery Environment.
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reflects that the court heard Appellant’s explanation for failure to comply
with, and complete, various rehabilitative programs and his request for
leniency. Id. at 5-6.
In addition, prior to revoking Appellant’s probation and imposing a
sentence of incarceration, the trial court made the following comments
regarding Appellant’s attempts at rehabilitation:
You failed Mental Health Court. You failed Renewal. You
failed prior JRS plans and refused prior JRS plans. And I told
you back then, if you failed after completing Re-entry, that you
wouldn’t get any more chances, and then I did give you another
chance. And at this point in time, I just -- You know, actions
speak louder than words. You know, you have had zero
tolerance with me a couple of times. So I can’t see any other
option than to sentence you to a period of state incarceration,
and hope that incarceration at the state level will provide you
with other options. That’s all I got left.
N.T., 12/1/15, at 6-7.
In explaining the reasons for the sentence imposed, the trial court
offered the following discussion:
This Court, at Appellant’s third probation violation hearing on
December 1, 2015, noted that Appellant had failed out of Mental
Health Court. (VT 7) He failed at Renewal. Id. He failed prior
JRS plans and refused other JRS plans. Id. Lastly, he failed his
reentry plane [sic] at CORE by assaulting another resident. Id.
In all, Appellant failed approximately eight programs3 designed
to assist him in his rehabilitation. As Appellant is either unwilling
or unable to address his need for rehabilitation and treatment,
and his ongoing behavior demonstrates the community’s need to
be protected from him, this Court determined that incarceration
was necessary both because his conduct indicated that it is likely
that he will commit another crime if he is not imprisoned and to
vindicate the authority of the Court. The sentence imposed
reflects this Court’s determination that the community’s need to
be protected from Appellant and that his treatment needs cannot
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be met within the county or with short-term programs. Thus,
this Court did not err in imposing four to eight years [of]
incarceration.
3
For a fuller exposition on Appellant’s extensive
treatment history, his failures at various treatment
programs, and this Court’s stern warnings regarding
future consequences of Appellant’s aberrant
behavior, this Court would refer to the transcripts of
prior probation violation hearings. A detailed
accounting of Appellant’s multiple failed attempts at
rehabilitation is contained in the 11/30/15 Pre-
Sentence Report.
Trial Court Opinion, 5/18/16, at 5-6 (certain footnotes omitted).
Upon review, we discern no abuse of discretion. The court carefully
considered the appropriate factors, including Appellant’s history and need for
rehabilitation and treatment, when it imposed the prison sentence following
revocation. Accordingly, Appellant is entitled to no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2017
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