J-S21037-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHARLES R. SPAULDING, JR., :
:
Appellant : No. 1427 WDA 2016
Appeal from the Judgment of Sentence August 24, 2016
in the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001750-2013
BEFORE: LAZARUS, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MAY 30, 2017
Charles R. Spaulding, Jr. (Appellant) appeals from the August 24, 2016
judgment of sentence entered after the revocation of his probation. We
affirm.
On April 8, 2014, Appellant entered into a negotiated guilty plea to one
count of sexual abuse of children. According to the affidavit of probable
cause, Appellant, a 19-year-old male at the time, had posed as a minor
female on Facebook and sent a friend request to a 17-year-old female, which
she accepted. Appellant and the minor female exchanged cell phone
numbers. Appellant requested nude photographs of the minor female, and
also sent a photograph of a vagina to the minor female. The minor female
then recognized the phone number as being Appellant’s, ended
communication, and reported the incident to the police. When police
* Retired Senior Judge assigned to the Superior Court.
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searched Appellant’s cell phone, they found photographs of nude females
who were under the age of 18. On July 28, 2014, Appellant was sentenced
to 41 days to two years less one day of incarceration, to be followed by
three years of probation. Having served the 41 days of incarceration prior to
sentencing, Appellant was paroled immediately.
On July 27, 2016, the State Board of Probation and Parole issued a
detainer for Appellant. Appellant admitted to technical violations of his
probation. At the sentencing hearing, the Commonwealth set forth the
following summary of the technical violations.
[Appellant] was not permitted to have access to the
internet but he chose to go on Facebook. He had sexual
communications with a juvenile female. This included pictures.
Also, he was supposed to attend sex offender treatment as
a form of his therapy to help himself get better and he failed to
appear for that as well.
So, the Commonwealth’s position is that [Appellant] is a
registered sex offender, he gets out, he accesses the internet
and essentially finds another juvenile female that could
potentially be another victim. And so we believe, at this point,
society does need [to be] protected.
N.T., 8/24/2016, at 14-15.
On August 24, 2016, Appellant was resentenced to two to four years of
incarceration. Appellant filed a motion to modify his sentence, which was
denied on September 2, 2016. Appellant filed timely a notice of appeal, and
both Appellant and the trial court complied with Pa.R.A.P. 1925.
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On appeal, Appellant argues that the “trial court erred when it issued a
manifestly excessive and clearly unreasonable resentence to [Appellant] by
resentencing him to 2-4 years in the state penitentiary.” Appellant’s Brief at
6.
Appellant challenges the discretionary aspects of his sentence. We
consider his issue mindful of the following.
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.
Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
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
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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. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
Here, Appellant filed a notice of appeal after preserving the issue by
filing a motion to modify sentence. Further, Appellant’s brief contains a
statement pursuant to Pa.R.A.P. 2119(f), arguing that his sentence was
excessive. Appellant’s Brief at 11-13.
“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.”
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010)
(internal quotation marks omitted). This Court has held that “[a]n argument
that the trial court imposed an excessive sentence to technical probation
violations raises a substantial question.” Commonwealth v. Schutzues, 54
A.3d 86, 98 (Pa. Super. 2012). Accordingly, we will review the merits of
that claim.
Regarding prison sentences imposed following the revocation of
probation, the Sentencing Code provides as follows:
The court shall not impose a sentence of total confinement upon
revocation unless it finds that:
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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). “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.”
Crump, 995 A.2d at 1283. In the instant case, the trial court offered a
thorough summary of its rationale for resentencing Appellant at the hearing.
See N.T., 8/24/2016, at 14-18 (pointing out concerns such as the fact
Appellant did not complete sex offender treatment, he possessed a
smartphone with internet access, and had contact with minors).
In addition, the trial court offered the following explanation for its
sentence.
The [trial court] resentenced [Appellant] after revoking his
probation for multiple probation violations, one of which was
failing to complete a required sexual offender program.
[Appellant] also admitted to creating fake Facebook accounts
posing as a minor female and engaging in illicit sexual
communications with other minor females. Due to these
multiple violations, the [trial court] found that [Appellant] was
not amenable to supervision.
Trial Court Opinion, 11/14/2016.
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Because the trial court’s findings are supported by the record and
evidence thoughtful considerations by the trial court about the specific needs
of Appellant, we conclude that the trial court did not abuse its discretion in
sentencing Appellant. Probation has proven to be ineffective in rehabilitating
Appellant, and a prison sentence is necessary to help Appellant with
treatment as well as vindicate the authority of the court and protect the
public. See, e.g., Commonwealth v. Hoover, 909 A.2d 321, 324 (Pa.
Super. 2006) (holding that where Hoover was serving probation for driving-
under-the-influence convictions and became intoxicated in violation of the
terms of his probation, incarceration was warranted where Hoover “would be
difficult to supervise while on probation and posed a risk to the community
in that he was likely to commit new crime”). Accordingly, we discern no
abuse of discretion in the trial court’s decision to sentence Appellant to two
to four years of imprisonment.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/2017
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