J-S10045-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN LAROCCO
Appellant No. 2452 EDA 2016
Appeal from the Judgment of Sentence dated July 7, 2016
In the Court of Common Pleas of Carbon County
Criminal Division at No(s): CP-13-CR-0000743-2010
BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.
MEMORANDUM BY SOLANO, J.: FILED MAY 12, 2017
Appellant John Larocco appeals from the judgment of sentence
imposed after the trial court revoked his probation. He contends that his
sentence is manifestly excessive. We affirm.
In 2010, Appellant was charged with eighteen counts of burglary,1 as
well as numerous other related offenses. According to Appellant, he
committed the burglaries to support his drug addiction. Appellant’s Brief at
5. In 2012, he pleaded guilty to five counts of burglary and was sentenced
to a total of three to six years of incarceration, followed by five years of
special probation.2 The special provisions of probation included that
____________________________________________
1
18 Pa.C.S. § 3502.
2
The sentences were as follows: 12-24 months’ incarceration, followed by 5
years’ probation (Count 3); 12-24 months’ incarceration (Count 6)
(Footnote Continued Next Page)
J-S10045-17
Appellant was to undergo a mental health evaluation within sixty days and
to have a “zero tolerance” threshold for possession, control, and
consumption of alcoholic beverages and non-prescribed medication. On
October 27, 2014, after having completed his minimum sentence, Appellant
was paroled. As conditions of his parole, Appellant was required, among
other things, to abstain from drug possession and use, as well as to undergo
a mental health evaluation within sixty days.
While on parole, in April of 2015, Appellant was charged with several
criminal offenses after he left the scene of a traffic accident and the agent
investigating the accident found marijuana in Appellant’s home. Appellant
also (1) had contact with another drug offender (his girlfriend), (2) tested
positive for heroin twice in 2016, and (3) failed to obtain the required mental
health evaluation. N.T., 5/27/16, at 6-11.
On March 9, 2016, Agent Kiley Sock of the Pennsylvania Board of
Probation and Parole filed a motion to revoke Appellant’s special probation
based on Appellant’s positive test for heroin.3 Appellant waived his Gagnon
_______________________
(Footnote Continued)
(consecutive); 12-24 months’ incarceration (Count 7) (consecutive); 12-24
months’ incarceration (Count 15) (concurrent); and 12-24 months’
incarceration (Count 18) (concurrent).
3
Appellant’s probation had not yet begun. However, Appellant “does not
dispute that his probation could be revoked prior to him beginning it.”
Appellant’s Brief at 13 n.1 (citing Commonwealth v. Hoover, 909 A.2d
321, 323 (Pa. Super. 2006)).
-2-
J-S10045-17
I hearing, and the trial court held a Gagnon II hearing on May 27, 2016.4
Agent Sock testified regarding Appellant’s conduct since his release in
October of 2014, and recommended a state sentence because:
[Appellant] was given multiple upon multiple opportunities
to succeed. He was placed in several positions to succeed
by state parole. And all the time that was given to him to
adjust to society and to getting himself on track, he
disregarded it all. He never took any advice from the
agent to proceed based on – from the beginning with the
____________________________________________
4
We have explained the probation/parole revocation procedure as follows:
“At the preliminary [Gagnon I] hearing, a probationer or
parolee is entitled to notice of the alleged violations of probation
or parole, an opportunity to appear and to present evidence in
his own behalf, a conditional right to confront adverse witnesses,
an independent decisionmaker, and a written report of the
hearing.” Gagnon v. Scarpelli, [411 U.S. 778, 786 (1973)]
. . . . Thus, the Gagnon I hearing is similar to the preliminary
hearing afforded all offenders before a Common Pleas Court
trial: the Commonwealth must show probable cause that the
violation was committed.
The Gagnon II hearing entails, or may entail, two decisions:
first, a “consideration of whether the facts determined warrant
revocation.” “The first step in a Gagnon II revocation decision
. . . involves a wholly retrospective factual question: whether the
parolee [or probationer] has in fact acted in violation of one or
more conditions of his parole [or probation].” Gagnon v.
Scarpelli, supra, 411 U.S. at 784 . . . . It is this fact that must
be demonstrated by evidence containing “probative value.”
“Only if it is determined that the parolee [or probationer] did
violate the conditions does the second question arise: should the
parolee [or probationer] be recommitted to prison or should
other steps be taken to protect society and improve chances of
rehabilitation?” [Id.]
Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000) (some
citations omitted).
-3-
J-S10045-17
criminal offenses all the way that we upgraded to heroin
use.
N.T., 5/27/16, at 12.
Appellant testified that he participated in a drug treatment program in
prison, and when he was released, he initially elected to continue treatment.
However, his attendance became “sporadic.” Agent Sock helped Appellant
get a job, but Appellant quit that job because he did not think it paid
enough. Appellant was unemployed for a month and a half, and then got a
seasonal job. At some point, his drug use escalated from marijuana to
opiates.5 Agent Sock helped Appellant get admitted into another drug
treatment program, but Appellant stopped attending because he “didn’t
believe it was the right program for [him].” Appellant did not dispute that
he violated the terms of his supervision by using heroin or that he needed to
go back to state prison. N.T., 5/27/16, at 28-35, 37-38.
At the conclusion of the May 27, 2016 hearing, the trial court found
that Appellant violated the terms of his supervision and deferred sentencing
to give further consideration to issues that had been raised. N.T., 5/27/16,
at 48. The trial court expressed its desire to impose a sentence that would
not only punish Appellant for his violations, but also “get him the help he
needs.” Id. at 40.
____________________________________________
5
When he committed the burglaries, Appellant was using Xanax and
marijuana. N.T., 5/27/16, at 32.
-4-
J-S10045-17
On July 7, 2016, the trial court held another hearing. At that time, the
Commonwealth recommended a sentence of (1) five to ten years’ of
incarceration, or (2) three and one-half to seven years of incarceration,
followed by special probation; Appellant’s counsel suggested one to two or
two to four years of incarceration, and stated Appellant’s desire to “limit the
amount of special probation.” N.T., 7/7/16, at 3. The trial court imposed a
sentence of two and one-half to five years’ incarceration, followed by two
years of special probation. The court said it had given “serious thought over
the last several weeks as to what would be appropriate in [Appellant’s] case
[,] taking into consideration what the violations were.” Id. at 4. The court
expressed concern that Appellant had not been on parole long when the
violations occurred, and observed that Appellant’s prior participation in drug
treatment programs had been unsuccessful. Id. at 5.
On July 15, 2016, Appellant filed a timely petition to reconsider his
sentence.6 The trial court, without expressly granting reconsideration,
scheduled a hearing for September 19, 2016. On August 5, 2016, Appellant
filed a timely notice of appeal.7
____________________________________________
6
“Amotion to modify a sentence imposed after a revocation shall be filed
within 10 days of the date of imposition. The filing of a motion to modify
sentence will not toll the 30-day appeal period.” Pa.R.Crim.P. 708(E).
7
On August 8, 2016, Appellant filed a pro se motion to modify sentence. At
a hearing on August 30, 2016, Appellant and counsel agreed that, due to the
filing of a notice of appeal, the trial court lacked jurisdiction over both the
(Footnote Continued Next Page)
-5-
J-S10045-17
Appellant raises the following issue:
Whether the Trial Court abused its discretion when it imposed a
manifestly excessive sentence of total confinement of two-and-
a-half to five years followed by two years of consecutive
probation that was based only on an alleged technical violation
that Appellant tested positive for opiates in violation of zero
tolerance.
Appellant’s Brief at 4.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right.” Commonwealth v. Glass, 50 A.3d 720,
726 (Pa. Super. 2012), appeal denied, 63 A.3d 774 (Pa. 2013). Before we
reach the merits of Appellant’s issue, we must determine whether:
(1) the appeal is timely; (2) Appellant preserved his issue; (3)
Appellant’s brief includes a concise statement of the reasons
relied upon for allowance of an appeal with respect to the
discretionary aspects of his sentence[], as required by Rule
2119(f) of the Pennsylvania Rules of Appellate Procedure; and
(4) that concise statement raises a substantial question that the
sentence[] [was] inappropriate under the Sentencing Code.
Commonwealth v. Flowers, 149 A.3d 867, 870 (Pa. Super. 2016).
Here, Appellant has satisfied the first three requirements: he filed a
timely appeal; preserved his issue in his July 15, 2016 petition for
reconsideration of sentence and his Pa.R.A.P. 1925(b) statement; and
included a Rule 2119(f) statement in his brief. The trial court concluded,
and the Commonwealth argues, that Appellant failed to raise a substantial
question. We disagree. “An argument that the trial court imposed an
_______________________
(Footnote Continued)
counseled and pro se petitions. Thus, both petitions were denied on that
basis. Trial Ct. Op., 10/6/16, at 3-4.
-6-
J-S10045-17
excessive sentence to technical probation violations raises a substantial
question.” Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa. Super.
2012), appeal denied, 67 A.3d 796 (Pa. 2013). Because Appellant has
raised a substantial question, we will consider the merits of his sentencing
claim.
Our standard of review is deferential:
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.
Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000) (quotation
marks and citations omitted). When probation is revoked, “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.” 42 Pa.C.S. § 9771(b). Total confinement
may be imposed only if:
(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.
Id. § 9771(c). Our Supreme Court has explained:
-7-
J-S10045-17
[A] trial court does not necessarily abuse its discretion in
imposing a seemingly harsher post-revocation sentence where
the defendant received a lenient sentence and then failed to
adhere to the conditions imposed on him. In point of fact, where
the revocation sentence was adequately considered and
sufficiently explained on the record by the revocation judge, in
light of the judge’s experience with the defendant and awareness
of the circumstances of the probation violation, under the
appropriate deferential standard of review, the sentence, if
within the statutory bounds, is peculiarly within the judge’s
discretion.
Commonwealth v. Pasture, 107 A.3d 21, 28-29 (Pa. 2014) (internal
citation omitted).
Appellant “does not dispute that he violated [his] probation or that
incarceration was necessary based upon his conduct on supervision.”
Appellant’s Brief at 13. Rather, he contends that his sentence is “manifestly
excessive because it was based on a technical violation that was the result of
his drug addiction.” Id. at 14. Although Appellant’s heroin use was the
basis for the revocation, Appellant concedes that the trial court could
consider his other conduct “to determine whether total confinement was an
appropriate sentence.” Id. at 15.
The trial court explained the reasons for Appellant’s sentence as
follows:
Based upon the testimony given at the . . . hearings on
May 27, 2016 and July 7, 2016, this Court concluded that
[Appellant]’s initial bout in state prison had not been sufficient
insofar as his drug rehabilitation was concerned, as [Appellant]
had failed several urine tests. The testimony established
[Appellant] had graduated from a pill addiction to a heroin
addiction, his work history after his release from prison was
sporadic, and his drug and alcohol treatment attendance had
-8-
J-S10045-17
become increasingly infrequent. By [Appellant]’s own admission,
he agreed another state sentence was necessary and would
benefit him in his recovery. Considering all these factors, this
Court sentenced [Appellant] to a term of incarceration that it
believed would be in [Appellant]’s best interest and of a
sufficient length to help [Appellant] overcome his drug addiction.
Trial Ct. Op. at 7-8 (footnotes omitted). We discern no abuse of discretion.
The trial court explained that its sentence was based on Appellant’s lack of
success on parole and need for further rehabilitation. We also note that the
sentence imposed was only slightly higher than the two to four years
suggested by Appellant’s counsel, see N.T., 7/7/16, at 3, and was well
below the statutory maximum for Appellant’s crime. See 18 Pa.C.S. §
1103(1) (setting 20-year maximum for felony of the first degree).
Appellant’s reliance on Commonwealth v. Parlante, 823 A.2d 927
(Pa. Super. 2003), is misplaced. In Parlante, this Court held that the trial
court abused its discretion in imposing a sentence of four to eight years of
incarceration after revoking Parlante’s probation. Id. at 928. While on
probation for possession of illegal drugs and three counts of forgery,
Parlante committed technical and substantive violations. Id. One of the
violations was underage drinking two days before Parlante’s twenty-first
birthday. Id. at 928 n.1. We vacated the four-to-eight-year prison
sentence because the trial court “based Parlante’s sentence solely on the
fact that her prior record indicated that it was likely that she would violate
her probation in the future but failed to consider other important factors.”
Id. at 930.
-9-
J-S10045-17
Unlike in Parlante, Appellant does not contend that the trial court
failed to consider important factors. Indeed, the record indicates that the
trial court carefully considered not only the gravity of Appellant’s offense,
but also Appellant’s rehabilitative needs. See N.T. 5/27/16, at 40; N.T.,
7/7/16, at 5, 8; Trial Ct. Op. at 7-8. Moreover, Appellant’s case is factually
distinguishable from Parlante. Appellant’s initial crime, burglary (a felony
of the first degree, for which he could have received a maximum sentence of
twenty years), was more serious than Parlante’s crimes of forgery and drug
possession. Moreover, the sentence Appellant received, two-and-one-half to
five years’ imprisonment, was less than Parlante’s sentence of four to eight
years. In sum, based upon our review of the record, we hold that the lower
court did not abuse its discretion in sentencing Appellant.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2017
- 10 -