J-S96009-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FREDRICK JAMES MIKELL,
Appellant No. 20 WDA 2016
Appeal from the Judgment of Sentence Entered December 1, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000976-2015
BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 23, 2017
Appellant, Fredrick James Mikell, appeals from the judgment of
sentence of 15 to 30 months’ incarceration, followed by 3 years’ probation,
imposed after Appellant committed several technical violations of a term of
probation he was then serving. Appellant solely argues that the court
fashioned an excessive revocation sentence and failed to consider his
rehabilitative needs. We affirm.
The facts underlying Appellant’s case are unnecessary to our
disposition of his appeal. The trial court briefly summarized the procedural
history of his case, as follows:
On July 15, 2015, Appellant … pled guilty to Escape.1 This
[c]ourt sentenced him to [18] months[’] intermediate
punishment ([h]ouse arrest) and [3] years[’] probation. On
December 1, 2015, this [c]ourt found Appellant to have violated
probation due to numerous technical violations and resentenced
him to [15] to [30] months[’] incarceration and [3] years[’]
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probation. Appellant’s Post[-]Sentence Motion was denied on
December 10, 2015. Appellant filed a Notice of Appeal on
December 30, 2015, and a [timely, Pa.R.A.P. 1925(b)] Concise
Statement of Errors Complained of on [Appeal on] January 26,
2016.
1
18 Pa.C.S. § 5121(a).
Trial Court Opinion (TCO), 5/13/16, at 2.
On appeal, Appellant presents one question for our review:
I. Was the sentence of 15 to 30 months of incarceration
manifestly excessive and an abuse of discretion where the court
did not consider the sufficiency of sanctions already imposed and
the availability of community-based resources to address
[Appellant’s] serious rehabilitative needs?
Appellant’s Brief at 4.
Appellant challenges the discretionary aspects of his sentence. It is
well-established that,
[c]hallenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must
invoke this Court's jurisdiction by satisfying a four-part test:
We 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. 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, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed.
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Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. Commonwealth v.
Paul, 925 A.2d 825, 828 (Pa. Super. 2007). 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.” Sierra, supra at 912–13.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
Here, Appellant filed a timely notice of appeal, properly preserved his
issue for our review, and included a Rule 2119(f) statement in his brief to
this Court. Therein, Appellant asserts that his sentence is excessive because
the court violated the requirements of 42 Pa.C.S. § 9721(b) by failing to
consider his rehabilitative needs. We conclude that this claim constitutes a
substantial question for our review. See Commonwealth v. Caldwell, 117
A.3d 763, 770 (Pa. Super. 2015), appeal denied, 126 A.3d 1282 (Pa. 2015)
(concluding that the appellant’s assertion that his sentence was excessive,
“together with his claim that the court failed to consider his rehabilitative
needs upon fashioning its sentence, presents a substantial question”). Thus,
we will address the merits of Appellant’s sentencing challenge.
Preliminarily, however, we note that:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
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exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Caldwell, 117 A.3d at 770 (citation omitted).
In challenging the trial court’s exercise of discretion in fashioning his
sentence, Appellant provides the following argument:
At the time of sentencing, the [t]rial [c]ourt rejected the
suggestion that [Appellant’s] rehabilitative needs would best be
met by the imposition of new periods of probation supervision
and continued counseling and treatment available in the
community. His compliance could have been closely monitored
by the probation officer to ensure the safety of the public and
appropriate professional treatment could have actually
effectuated a change in his continued antisocial behavior and
ensure[d] compliance with the term of probation supervision.
Appellant’s Brief at 13 (citation to the record omitted).
Appellant’s cursory argument fails to convince us that the trial court
abused its discretion in imposing his sentence. The trial court explains the
reasons underlying the term of incarceration it imposed, as follows:
Appellant presented at his initial sentencing hearing on this
charge as a repeat felony offender with a Prior Record Score of
5, the highest possible. Nevertheless, this [c]ourt gave
Appellant a significant sentencing break, which was an
opportunity for Appellant to establish his ability to conform his
behavior to the reasonable rules of society.
At the violation hearing less than four months later,
Appellant was delinquent in paying his electronic monitoring
fees, he had numerous window violations,[1] he tested positive
for cocaine and marijuana, and he had failed to complete
outpatient drug treatment. Rather than accept responsibility for
____________________________________________
1
The court’s use of the term ‘window violations’ seemingly refers to the fact
that, “[o]n multiple occasions, [Appellant] was out of range of the electronic
monitor for unapproved periods of time.” Commonwealth’s Brief at 13.
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his actions, he blamed his probation officer and his ankle
bracelet for his violations.[2] Appellant lied to this [c]ourt,
stating that he was discharged from drug treatment because he
was arrested. In fact[,] he was discharged for lack of
compliance and [was] arrested the following day. As Appellant
has ignored his need for rehabilitation and treatment, and his
ongoing behavior demonstrates the community’s need to be
protected from him, this [c]ourt determined that incarceration
was necessary both because his conduct indicated that it is likely
he will commit another crime if he is not imprisoned and to
vindicate the authority of the [c]ourt. Even so, in sentencing
Appellant in the mitigated range of the Sentencing Guidelines,
this [c]ourt gave Appellant the opportunity to reenter society as
quickly as his rehabilitation can be effectuated. This [c]ourt’s
sentence of confinement for a period of 15 to 30 month[s’] was
not excessive.
TCO at 5.
After reviewing the record in this case, the briefs of the parties, and
the discussion provided by the trial court in its opinion, we are convinced
that the court did not abuse its discretion in imposing Appellant’s sentence
of 15 to 30 months’ incarceration. Contrary to Appellant’s claim, the court
clearly considered his need for rehabilitation. However, the court ultimately
found that Appellant’s ongoing conduct, his refusal to accept responsibility
for his actions, his untruthful remarks to the court, and his decision not to
take advantage of the treatment opportunities that had previously been
presented to him, all demonstrated that Appellant is not currently amenable
to treatment outside of incarceration. The record supports that decision.
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2
More specifically, Appellant “blame[d] his [probation officer] for not
checking an ankle bracelet that he claimed was dysfunctional.” N.T.,
12/1/15, at 2.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/2017
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Com. v. Mikell, F.
Combined Opinion