J-A07002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NATHAN ALLEN BIELSKI
Appellant No. 793 WDA 2016
Appeal from the Judgment of Sentence May 3, 2016
In the Court of Common Pleas of Armstrong County
Criminal Division at No(s): CP-03-CR-0000269-2008
BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED MAY 23, 2017
Appellant, Nathan Allen Bielski, appeals from the judgment of sentence
entered on May 3, 2016, wherein the trial court sentenced Appellant to two
to four years of imprisonment following the revocation of his probation. We
affirm.
The trial court recited the facts and procedural history of this case as
follows:
[Appellant] was charged by information filed July 29, 2008,
with one count of stalking, 18 Pa.C.S.A. § 2709.1(a)(1),
which is a felony of the third degree. [Appellant] pled guilty
to the stalking charge on September 8, 2008. [Appellant]
also pled guilty to stalking in a parallel case filed at Criminal
No. 2008-00270. On December 2, 2008, [Appellant] was
sentenced to a term of probation of 4 years, which was in
*Retired Senior Judge assigned to the Superior Court.
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the mitigated range of the sentencing guidelines.
[Appellant’s] sentence was to be served consecutively to the
sentence imposed at No. 2008-00270, which was for a term
of incarceration of 159 days to 2 years minus one day, with
159 days’ credit for time served.
On March 3, 2009, the Commonwealth filed a petition to
revoke [Appellant’s] parole based on [his] failure to comply
with certain conditions of parole. Although [the
Commonwealth] filed [the petition] at No. 2008-00269,
[Appellant] would have been on parole at No. 2008-00270
and would not have completed his maximum sentence as of
March 3, 200[9]. The petition was granted with
[Appellant’s] consent on March 24, 2009, and [Appellant]
was immediately re-paroled. [Appellant’s] parole at No.
2008-00270 was again revoked on June 1, 2010. The
revocation petition and adjudication was not filed at No.
2008-00269. [Appellant] thereafter filed two petitions
pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. § 9541 et seq., which were dismissed as
untimely. [Appellant] appealed the [PCRA c]ourt’s order
denying his second petition, after which he filed a third
[PCRA] petition, which the [PCRA c]ourt dismissed as
premature. The appeal ultimately was dismissed by [this]
Court on March 12, 2012 because of [Appellant’s] failure to
comply with Pa.R.A.P. 3517.
The Commonwealth filed a petition to revoke [Appellant’s]
probation on May 10, 2013, in which it alleged that
[Appellant] failed to pay costs, fines, and/or restitution,
failed to report to the probation department as directed,
and failed to report a change of address. With his consent,
the [trial c]ourt revoked [Appellant’s] probation on May 28,
2013, and re-sentenced him the same day to a term of
probation of 4 years.
The Commonwealth filed another revocation of probation
petition on May 11, 2015, in which it alleged that
[Appellant] had[:] 1) committed new offenses, 2) used
alcoholic beverages and/or controlled substances without a
prescription, and 3) failed to obtain permission to leave
Pennsylvania. The [trial c]ourt again revoked [Appellant’s]
probation on January 26, 2016, and he was resentenced on
May 3, 2016 [to two to four years of incarceration, with 201
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days of credit for time served.] The May 3, 2016 judgment
of sentence is the subject of the instant appeal.
Trial Court Opinion, 8/10/2016, at 1-3 (citations omitted; footnotes
incorporated).
Appellant filed a motion to modify his sentence on May 9, 2016. The
trial court denied relief on May 19, 2016. Appellant filed a pro se notice of
appeal on May 19, 2016. The trial court appointed counsel who requested
transcripts from the probation revocation hearing and subsequent
sentencing hearing. On July 18, 2016, the trial court ordered Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant complied timely on August 8, 2016. The trial
court issued an opinion on August 10, 2016.
On appeal, Appellant presents the following issues for our review:
I. Where [Appellant’s] probation is revoked and he is
sentenced to a term of incarceration of 2-4 years in [s]tate
[p]rison and the sentencing court fails to state on the record
the reasons for imposing that sentence in violation of 42
Pa.C.S.A. § 9721(b), did the sentencing court abuse its
discretion?
II. Where [Appellant’s] probation is revoked and he is
sentenced to a term of confinement and the sentencing
court fails to consider and state on the record the
sentencing factors set forth in 42 Pa.C.S.A. § 9771(c), did
the sentencing court abuse its discretion?
Appellant’s Brief at 8.
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Both of Appellant’s claims challenge the trial court’s discretion in
imposing his sentence and we will review them together. Our standard of
review is as follows:
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, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
* * *
When imposing sentence, a court is required to consider the
particular circumstances of the offense and the character of
the defendant. In considering these factors, the court
should refer to the defendant's prior criminal record, age,
personal characteristics and potential for rehabilitation.
An appellant is not entitled to the review of challenges to
the discretionary aspects of a sentence as of right. Rather,
an appellant challenging the discretionary aspects of his
sentence must invoke this Court's jurisdiction. We
determine whether the appellant has invoked our
jurisdiction by considering the following four factors:
(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).
What constitutes a substantial question must be evaluated
on a case-by-case basis. A substantial question exists only
when the appellant advances a colorable argument that the
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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. A claim that a sentence is manifestly excessive
might raise a substantial question if the appellant's Rule
2119(f) statement sufficiently articulates the manner in
which the sentence imposed violates a specific provision of
the Sentencing Code or the norms underlying the
sentencing process.
* * *
The sentencing court may, in an appropriate case, deviate
from the guidelines by fashioning a sentence which takes
into account the protection of the public, the rehabilitative
needs of the defendant, and the gravity of the particular
offense as it relates to the impact on the life of the victim
and the community. In doing so, the sentencing judge
must state of record the factual basis and specific reasons
which compelled him or her to deviate from the guideline
ranges. When evaluating a claim of this type, it is necessary
to remember that the sentencing guidelines are advisory
only.
Commonwealth v. Kearns, 150 A.3d 79, 84–86 (Pa. Super. 2016)
(internal citations and quotations omitted).
Here, Appellant preserved his sentencing issues in a post-sentence
motion to modify his sentence, filed a timely notice of appeal, and included a
statement pursuant to Pa.R.A.P. 2119(f) in his appellate brief. Moreover,
Appellant has presented a substantial question for our review. See
Commonwealth v. Derry, 150 A.3d 987 (Pa. Super. 2016) (the sentencing
court's failure to consider the statutory sentencing factors under 42
Pa.C.S.A. § 9721(b) presents a substantial question to review the
discretionary aspects of sentences imposed for violations of probation; a
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claim that a sentence is manifestly excessive and constitutes too severe a
punishment raises a substantial question). Thus, we proceed to the merits
of Appellant’s claims.
In his first issue presented, Appellant contends, “[t]he record is devoid
of any notion that the sentencing court considered any of the factors set
forth in Section 9721(b), i.e., confinement 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.” Appellant’s Brief at 19-20. In his second issue, Appellant
claims, “the record is devoid of information showing the [trial] court
considered the sentencing factors under 42 Pa.C.S.A. § 9771(c) in
sentencing [Appellant] to total confinement for violating probation.” Id. at
22. More specifically, Appellant avers he was not convicted of another
crime. Id. He also argues that a sentence of total confinement was not
necessary to vindicate the authority of the court or because he was likely to
commit another crime as all of his probation revocations, two prior
revocations and the one at issue, were for technical violations. Id. at 22-25.
Under 42 Pa.C.S.A. § 9721(a), in determining the sentence to be
imposed, the trial court shall consider and select one of seven options,
including a sentence of total confinement, and may impose it consecutively
or concurrently to other sentences. See 42 Pa.C.S.A. § 9721(a)(4). The
trial court is required to consider a sentence that “is consistent with the
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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.” Id.
However, the imposition of a sentence of total confinement upon the
revocation of probation is governed separately by 42 Pa.C.S.A. § 9771,
which states:
(c) Limitation on sentence of total confinement.—The 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.A. § 9771(c).
This Court has concluded that when a trial court imposes a sentence of
total confinement upon the revocation of probation, it must consider both
Sections 9721 and 9771:
Section 9771(c) mandates a [violation of probation (VOP)]
court's consideration of additional factors at sentencing not
addressed by Section 9721(b). Consequently, a VOP court is
not confined to only consider the factors set forth in Section
9721(b), that is, it is not cabined by Section 9721(b).
Instead, a VOP court must also consider the dictates of
Section 9771(c), given the unique aspects of VOP sentences
not applicable when a court issues the initial sentence.
Derry, 150 A.3d at 994 (emphasis omitted).
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In this case, just prior to sentencing, the trial court stated:
[…Y]ou say that you’ve only been here once before on this
case. But, there was a revocation [petition] filed on or
about March 3, 2009, at this case number. There was a
[p]etition to [r]evoke [p]robation filed on May 10, 2013,
alleging that you failed to report a change of address, failed
to report to probation, failed to maintain a payment of fines
and costs. [The trial court] granted both of those petitions.
A third petition was filed at this number on May 1, 2015.
And, there again, you were alleged to have violated the
criminal statutes, failed to refrain from the use, possession,
transportation, [and] consumption of alcoholic beverages
and failed to obtain permission prior to leaving the state.
So, you are saying that you’ve only been here once is
simply not consistent with the record. Warrants were
issued for you. And, that’s how you were brought back.
You were originally sentenced [] in the mitigated range on
these charges, if [] recall[ed]. But, you managed to
continue to violate and [] the adult probation office has
been more than patient.
And your statement here today [] simply reiterates [this].
You have no insight. You feel everything is somebody else’s
fault, that it’s not you. It’s the world. [] Unfortunately, you
have too much history with the [c]ourt here.
[The trial court] finds that you are not amenable to
supervision. And continued violations simply manifest your
indifference toward complying with the [trial c]ourt’s
condition[s]. So, perhaps the Department of Corrections
[(DOC)] can get you the help that you need in order to
avoid re-incarceration. [The trial court] concur[s] with the
parole officer’s conclusion that the DOC is better suited to
address your legal and addiction issues. All right. []
(Sentence given)
N.T., 5/3/2016, at 13-14.
Based upon all of the foregoing, we discern no abuse of discretion in
sentencing Appellant. The trial court focused primarily on Appellant’s
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rehabilitative needs, cataloguing the number of times the trial court imposed
probation and the subsequent revocations for non-compliance. The trial
court outright stated, as required under Section 9721, that Appellant has
consistently shown he is not amenable to rehabilitation through probation.
The trial court also expressed its concern that Appellant flaunted his
indifference to his prior sentences by not taking probation seriously and that
a term of incarceration was necessary to vindicate its authority under
Section 9771. The trial court considered both Sections 9721 and 9771 and
stated its reasons for the imposition of a sentence of total confinement.
Thus, we discern no abuse of discretion.
Finally, prior to sentencing, the trial court had the benefit of an
updated, pre-sentence investigation report dated March 2, 2016. Id. at 4-5.
Appellant confirmed that the information contained therein was accurate.
Id. at 5. When a sentencing court has the benefit of a pre-sentence
report, we must presume that the sentencing judge was aware of, and duly
considered, any mitigating information contained therein. See
Commonwealth v. Raven, 97 A.3d 1244, 1254 n.12 (Pa. Super. 2014),
citing Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988). The record
reflects that the sentencing court considered Appellant’s individual
circumstances before imposing a sentence of total confinement after
properly revoking his probation. Accordingly, Appellant is not entitled to
relief.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2017
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Com. v. Bielski, N.
Combined Opinion