J-S92022-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GUY WILLIAM SIMPSON
Appellant No. 626 WDA 2016
Appeal from the Judgment of Sentence March 30, 2016
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001446-2010
BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J.*
MEMORANDUM BY MOULTON, J.: FILED MAY 16, 2017
Guy William Simpson appeals from the March 30, 2016 judgment of
sentence entered in the Mercer County Court of Common Pleas following his
violation of probation. We affirm.
The trial court set forth the following factual and procedural history:
Simpson entered into a negotiated guilty plea on June 8,
2011 where he pl[e]d guilty to Theft by Unlawful Taking,
18 Pa.C.S. § 3921(a).1 The conviction arose out of an
incident where Simpson broke into three vehicles at Time
Warner Cable in Hermitage, and stole several items valued
at approximately $3,000. He was sentenced to three
years’ supervised probation consecutive to his existing
parole, and was ordered to pay $1[,]200 in restitution on
July 14, 2011. On October 15, 2016, while incarcerated,
Simpson was arrested for assaulting another inmate at The
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S92022-16
Mercer County Jail. At Simpson’s Gagnon[1] II hearing on
February 11, 2016, he admitted to a probation violation
due to the new conviction, and the Court revoked his
probation. On March 30, 2016, the Court resentenced
Simpson to pay the same $1,200 in restitution and
undergo imprisonment for two to four years in a state
correctional facility.
1
Simpson was also charged with Burglary (18
Pa.C.S. § 3502), Criminal Trespass (18 Pa.C.S. §
3503), and Theft from a Motor Vehicle (18 Pa.C.S. §
3934), however these charges were disposed of as
part of the Guilty Plea/Nol[le] Pros agreement.
Opinion Pursuant to Pa.R.A.P. 1925(a), 6/16/16, at 1-2. On April 7, 2016,
Simpson filed a motion to modify sentence, which the trial court denied that
same day. On April 28, 2016, Simpson filed a timely notice of appeal.
Simpson raises the following issues on appeal:
I. The trial court erred when it issued a manifestly
excessive and clearly unreasonable resentence to Simpson
by resentencing him to 2-4 years in the state penitentiary.
II. The trial court erred when it failed to consider other
rehabilitative alternatives for Simpson, specifically the
state motivational boot camp program.
Simpson’s Br. at 5.
Simpson challenges the discretionary aspects of his sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super. 2011). Before we address a discretionary challenge, we
must determine:
____________________________________________
1
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
-2-
J-S92022-16
(1) whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant’s brief includes
a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary
aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence
is appropriate under the sentencing code.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).
Simpson filed a post-sentence motion and a timely notice of appeal
and included in his brief a concise statement of reasons relied upon for
allowance of appeal pursuant to Pennsylvania Rule of Appellate Procedure
2119(f). We must therefore determine whether he raises a substantial
question for our review.
We evaluate whether a particular issue raises a substantial question on
a case-by-case basis. Commonwealth v. Dunphy, 20 A.3d 1215, 1220
(Pa.Super. 2011). A substantial question exists where a defendant raises a
“plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa.Super. 2013) (quoting
Commonwealth v. Naranjo, 53 A.2d 66, 72 (Pa. 2002)).
In his statement of reasons relied upon for allowance of appeal,
Simpson maintains that he raises a substantial question because the
sentence is excessive and was unnecessary to vindicate the authority of the
court. Simpson’s Br. at 11. Simpson’s bald excessiveness claim, by itself,
-3-
J-S92022-16
does not raise a substantial question. Commonwealth v. Fisher, 47 A.3d
155, 159 (Pa.Super. 2012). Further, the trial court imposed a sentence of
confinement for a probation violation because Simpson committed a new
criminal offense, not to vindicate the court’s authority.2 See Order, 2/11/16
(noting Simpson admitted to a probation violation “in that he has a new
conviction” and finding that, because of the probation violation, Simpson’s
probation was revoked). Accordingly, because the court did not impose the
sentence to vindicate the court’s authority, Simpson’s claim does not raise a
substantial question. Cf. Commonwealth v. Crump, 995 A.2d 1280, 1282
(Pa.Super. 2010) (“The imposition of a sentence of total confinement after
the revocation of probation for a technical violation, and not a new
criminal offense, implicates the ‘fundamental norms which underlie the
sentencing process’”) (quoting Commonwealth v. Sierra, 752 A.2d 910,
913 (Pa.Super. 2000)) (emphasis added).
Even if Simpson’s claims raised a substantial question, we would
conclude that they lacked merit. “Sentencing is a matter vested within the
discretion of the trial court and will not be disturbed absent a manifest abuse
of discretion.” Crump, 995 A.2d at 1282. “An abuse of discretion requires
____________________________________________
2
The Sentencing Code provides that a trial court “shall not impose a
sentence of total confinement upon revocation unless it finds that: (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).
-4-
J-S92022-16
the trial court to have acted with manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.” Id.
The Sentencing Code requires a trial court to impose a sentence that is
“consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b); see
Commonwealth v. Walls, 926 A.2d 957, 962 (Pa. 2007). Further, “[u]pon
revoking probation, a sentencing court may choose from any of the
sentencing options that existed at the time of the original sentencing,
including incarceration.” Commonwealth v. Colon, 102 A.3d 1033, 1044
(Pa.Super. 2014); 42 Pa.C.S.A. § 9771(b). “[T]he trial court is limited only
by the maximum sentence that it could have imposed originally at the time
of the probationary sentence.” Id. (quoting Commonwealth v. Infante,
63 A.3d 358, 365 (Pa.Super. 2013)). In addition,
[I]n all cases where the court resentences an offender
following revocation of probation . . . the court shall make
as a part of the record, and disclose in open court at the
time of sentencing, a statement of the reason or reasons
for the sentence imposed [and] [f]ailure to comply with
these provisions shall be grounds for vacating the sentence
or resentence and resentencing the defendant.”
Commonwealth v. Cartrette, 83 A.3d 1030, 1040–1041
(Pa.Super.2013) (internal quotations omitted); 42 Pa.C.S.
§ 9721(b). “A trial 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
-5-
J-S92022-16
consideration of the facts of the crime and character of the
offender.” Crump, 995 A.2d at 1282–1283.
Id. (alterations in original).
Here, the trial court stated at the time of sentencing:
Your childhood was difficult. You have some mental health
diagnoses. You were using alcohol and marijuana when
out in the past.
I note three juvenile arrests, two adjudications; seventeen
adult arrests, fifteen convictions. You’ve been paroled and
placed on probation and there have been violations.
You also have thirty-four Motor Vehicle Code arrests or
violations, twenty-seven resulted in . . . convictions. You
do have a variety of theft offenses in your past. You have
a prior record for Simple Assault. There was also – you
had a [protection from abuse order] against you at one
time. You were in state prison.
Your inmate adjustment summary from the jail was poor.
You had one major misconduct, four minor, and three 24-
hour tickets.
You pl[e]d guilty in this case in June of 2011 before Judge
Fornelli. He sentenced you to probation in July of 2011.
You had a parole violation in 2014, but you weren’t
revoked. You had a parole violation in 2015, not revoked.
You had a parole violation[3] in which you were revoked
and brings us here today.
...
[A]gain, I note that your last offense was while
incarcerated in the county jail.
You don’t have much of a work history.[4]
____________________________________________
3
Simpson was before the trial court for a probation violation.
4
Simpson and the trial court discussed Simpson’s work history, which
included working at: Family Christian Store for three years; Foot Locker for
(Footnote Continued Next Page)
-6-
J-S92022-16
...
There’s certainly a strain of violence throughout your
history.
I do need to consider the impact of the crime on the
victim. Although this was back in 2007, certainly when
someone is a victim of theft [that] affects them, affects
their business.
...
I have to consider the impact of the offense on the
community. Again, people need to be secure in their own
belongings, their place of work, and you destroy that when
you commit a crime such as you did.
I have to consider whether I need to protect the
community. Given your long history, . . . I believe you will
be – violate the law again and I believe that your – any
treatment or rehabilitation can best be served in state
penitentiary.
N.T., 3/30/16, at 15-19.
The trial court did not abuse its discretion, and the sentence of 2 to 4
years’ incarceration is not excessive. The trial court considered the facts of
the crime and Simpson’s character, and considered the protection of the
public, “the gravity of the offense as it relates to the impact on the life of the
victim and on the community,” and Simpsons’ rehabilitative needs. See 42
_______________________
(Footnote Continued)
one year, before he was fired; Labor Ready for three months; Destination XL
for approximately four months, after which he lost his job because he was
arrested; and Dillon’s for approximately nine months, after which he was
fired due to a non-violent altercation. Simpson also informed the court that
for three months he was a stay-at-home father.
-7-
J-S92022-16
Pa.C.S. § 9721(b). Further, the trial court stated its reasons for imposing
the sentence on the record.5
Judge of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2017
____________________________________________
5
Simpson’s second issue maintains that the trial court erred by not
sentencing Simpson to boot camp, which he had requested in his motion to
modify sentence. Simpson, however, waived this issue because he did not
raise this issue in his Rule 2119(f) statement.
-8-