J-S11003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GARY BONNER, III,
Appellant No. 1369 WDA 2015
Appeal from the Judgment of Sentence August 5, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0012913-2012
BEFORE: OLSON, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED JUNE 20, 2017
Appellant, Gary Bonner, III, appeals from the judgment of sentence
entered on August 5, 2015 in the Court of Common Pleas of Allegheny
County, as made final by the denial of post-sentence motions. We affirm.
The trial court summarized relevant factual and procedural history in
this case is as follows.
[Appellant] was charged with [i]nvoluntary [d]eviate [s]exual
[i]ntercourse [(18 Pa.C.S.A. § 3123(a)(7))] and [u]nlawful
[c]ontact with a [m]inor [(18 Pa.C.S.A. § 6318.1)]. He
appeared before [the trial c]ourt on February 11, 2013 and,
pursuant to a plea agreement with the Commonwealth, pled
guilty to one (1) count of [s]tatutory [s]exual [a]ssault [(18
Pa.C.S.A. § 3122.1(a)(1))]. The remaining charge was
withdrawn. He was immediately sentenced to a term of
probation of five (5) years. No [p]ost-[s]entence [m]otions were
filed and no direct appeal was taken.
[Appellant] next appeared before [the trial c]ourt for review
hearings on May 6, 2013 and September 16, 2013. On both
*Former Justice specially assigned to the Superior Court.
J-S11003-17
occasions [Appellant] was noted to be out of compliance, but
[the trial c]ourt continued his probation with special conditions.
[Appellant] next appeared before [the trial c]ourt on August 5,
2015 for a violation hearing. At the conclusion of that hearing,
[Appellant’s] probation was revoked and [the trial c]ourt
imposed a term of imprisonment of one and one-half (1½) to
five (5) years. A timely [p]ost-[s]entence [m]otion was filed and
was granted in part as to the issue of credit for time served but
denied in all other respects on August 31, 2015.
Trial Court Opinion, 6/23/16, at 1-2. This timely appeal followed.1
Appellant raises three questions for our review:
Is the revocation sentence of one and one-half (1½) to five (5)
years of incarceration for a probation violation manifestly
excessive and an abuse of discretion in that the trial court failed
to consider, as it must, all required sentencing factors set forth
in the sentencing code, specifically, 42 Pa.C.S.A. § 9771(c), 42
Pa.C.S.A. § 9721(b), and 42 Pa.C.S.A. § 9725, including the
young age of [Appellant], his lack of a prior record, the technical
nature of his violations, and his strong family support?
Is the revocation of sentence manifestly excessive,
unreasonable, and an abuse of discretion where the trial court
failed to order a pre-sentence investigation report, failed to
provide reasons for not ordering said report, and, in fact, the
trial court denied defense counsel’s request to order and obtain a
report?
Is the revocation sentence manifestly excessive, unreasonable,
and an abuse of discretion where the trial court relied upon
incorrect information in imposing sentence?
Appellant’s Brief at 5.
In his brief, Appellant contends that the trial court abused its
discretion by imposing a manifestly excessive sentence that did not account
____________________________________________
1
Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
-2-
J-S11003-17
for the factors identified in 42 Pa.C.S.A. §§ 9721(b) (general standards in
imposing sentence), 9725 (criteria for imposing a sentence of total
confinement), and 9771(c) (limitation on sentences of total confinement
when revoking probation). Appellant also argues that the court abused its
discretion in failing to order a pre-sentence investigation report as provided
in Pa.R.Crim.P. 702. Lastly, Appellant claims the trial court relied upon
inaccurate information when it imposed sentence. These claims challenge
the discretionary aspects of Appellant’s sentence. See Commonwealth v.
Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010) (claim alleging that sentence
is excessive challenges discretionary aspects of punishment, not its legality),
appeal denied, 25 A.3d 328 (Pa. 2011).2
“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.” Commonwealth v. Clarke, 70 A.3d 1281,
1287 (Pa. Super. 2013) (citation omitted). Appellant does not have an
automatic right to appeal the discretionary aspects of his sentence. See 42
____________________________________________
2
Contrary to the trial court’s observation, see Trial Court Opinion, 6/23/16,
at 4 (noting that appellate review following revocation of probation is limited
to the validity of the revocation proceedings and the legality of a sentence),
our review of an appeal from a revocation sentence includes discretionary
sentencing challenges. See Commonwealth v. Cartrette, 83 A.3d 1030,
1034 (Pa. Super. 2013 (en banc). When considering discretionary
sentencing challenges, we review the entire certified record.
Commonwealth v. Walls, 926 A.2d 957, 961 n.1 (Pa. 2007).
-3-
J-S11003-17
Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for
permission to appeal the discretionary aspects of his sentence. Id.
As this Court explained:
To reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903;
(2) whether the issue was properly preserved at sentencing or in
a motion to reconsider and modify sentence, Pa.R.Crim.P. [708];
(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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007); see also
Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008) (“when
a court revokes probation and imposes a new sentence, a criminal defendant
needs to preserve challenges to the discretionary aspects of that sentence
either by objecting during the revocation sentencing or by filing a
post-sentence motion”). In this case, Appellant filed a timely notice of
appeal and properly preserved his claims in a post-sentence motion.
Appellant’s brief also contains a statement pursuant to Pa.R.A.P. 2119(f).
Thus, we turn to whether the appeal presents a substantial question.
As we have explained:
The determination of whether a particular case raises a
substantial question is to be evaluated on a case-by-case basis.
Generally, however, in order to establish that there is a
substantial question, the appellant must show actions by the
sentencing court inconsistent with the Sentencing Code or
contrary to the fundamental norms underlying the sentencing
process.
-4-
J-S11003-17
Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal
citations omitted).
In his Rule 2119(f) statement, Appellant contends that: 1) the trial
court failed to consider and weigh the relevant factors set forth in 42
Pa.C.S.A. § 9721(b); 2) the record does not meet the criteria for imposing
total confinement as a revocation sentence; 3) the trial court imposed an
unreasonable sentence in that it failed to place sufficient reasons for its
sentence on the record; 4) the trial court refused to obtain a pre-sentence
investigation report without explaining the reasons for its refusal on the
record; and, 5) the trial court relied upon factually erroneous information in
imposing its sentence. Appellant’s Brief at 16-18. This Court recently
reaffirmed that a defendant presents a substantial question for review where
he challenges the revocation court’s failure to consider the factors found in
§ 9721(b). See Commonwealth v. Derry, 2016 WL 6776292, *6 (Pa.
Super. Nov. 15, 2016); see also Commonwealth v. Cartrette, 83 A.3d
1030, 1042-1043 (Pa. Super. 2013) (en banc) (in appeal from violation of
probation sentence, substantial question presented by claim that sentencing
court did not consider appropriate sentencing factors found in § 9721(b)).
Moreover, this Court has held that a substantial question is raised where the
trial court fails to consider a defendant’s individualized needs.
Commonwealth v. Serrano, 2015 WL 6776287, *2 (Pa. Super. Nov. 15,
2016). We have also determined that “a claim that a particular probation
revocation sentence is excessive in light of its underlying technical violations
-5-
J-S11003-17
can present a question that we should review.” Commonwealth v.
Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006) (citation omitted). Lastly,
we have said that a sentencing court’s failure to state adequate reasons for
dispensing with a pre-sentence report raises a substantial question. See
Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011).
Accordingly, we now turn to the merits of Appellant's sentencing claims.
In sentencing Appellant, the trial court was required to “consider the
general principles and standards of the Sentencing Code.” Commonwealth
v. Russell, 460 A.2d 316, 322 (Pa. Super. 1983). Section 9721 expresses
these general principles in the following manner:
the sentence imposed should call for 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.
42 Pa.C.S.A. § 9721(b). In addition, 42 Pa.C.S.A. § 9771(c) permits the
trial court to impose a sentence of total confinement in order to vindicate its
authority. 42 Pa.C.S.A. § 9771(c).
Here, the trial court imposed Appellant’s original probationary
sentence and subsequently presided over review hearings on May 6, 2013
and September 16, 2013.3 The court’s lengthy involvement in this case,
together with its statements on the record, demonstrate an ample basis
____________________________________________
3
Despite Appellant’s failure to comply with the conditions of his probation,
the court continued his supervision on these prior occasions.
-6-
J-S11003-17
from which to infer that the court was thoroughly familiar with Appellant’s
history, character, rehabilitative needs, and conduct while on supervision.
In imposing sentence, the court noted Appellant’s multiple technical
violations, including his possession of a cellular telephone with internet
access capabilities, his failure to report and maintain contact with his
probation officer for three months, his failure to report for drug screenings,
his discharge from sex offender treatment, and his failure to make payments
towards fines and costs. “Technical violations can support revocation and a
sentence of incarceration when such violations are flagrant and indicate an
inability to reform.” Commonwealth v. Carver, 923 A.2d 495, 498 (Pa.
Super. 2007). Based upon the record before us, we are satisfied that the
trial court considered Appellant’s personal characteristics in fixing the
challenged sentence and that the court possessed sufficient grounds upon
which to conclude that a sentence of total confinement was essential to
vindicate its authority in the face of Appellant’s repeated transgressions.
We are not persuaded by the arguments Appellant offers in support of
relief. Initially, Appellant contends that the trial court ignored the relevant
sentencing factors set forth in 42 Pa.C.S.A. § 9721(b) in that it failed to
mention Appellant’s youth, graduation from high school, work experience,
acceptance of responsibility, family supports, and rehabilitative needs. See
Appellant’s Brief at 23-24. Although Appellant is correct that § 9721(b)
directs the trial court to consider certain factors and place the reasons for its
sentence on the record, our Supreme Court recently held that, following
-7-
J-S11003-17
revocation, a sentencing court need not undertake lengthy discourse
regarding its punishment or specifically mention the statutes in question.
Commonwealth v. Pasture, 107 A.3d 21, 28 (Pa. 2014) (“[w]hen
sentencing is a consequence of the revocation of probation, the trial judge is
already fully informed as to the facts and circumstances of both the crime
and the nature of the defendant”). Here, Appellant’s multiple technical
violations, committed after receiving lenient treatment following prior
noncompliance, were clearly the basis for the sentence imposed by the trial
court. Under these circumstances, we see no reason to withdraw the
deference traditionally owed to the sentencing court or to vacate Appellant’s
revocation sentence.
Appellant next argues that the trial court failed to impose an
individualized sentence and violated Pa.R.Crim.P. 702(A)(2)(a) in refusing,
without explanation, to order a pre-sentence report prior to Appellant’s
revocation sentencing. See Pa.R.Crim.P. 702(A)(2) (“The sentencing judge
shall place on the record the reasons for dispensing with the pre-sentence
investigation report if the judge fails to order a pre-sentence report” where
“incarceration for one year or more is a possible disposition under the
applicable sentencing statutes[.]”). Appellant argues that he is entitled to
resentencing because of this omission by the court.
This Court has provided “some latitude in how th[e requirement in
Rule 702] is fulfilled.” Commonwealth v. Carrillo–Diaz, 64 A.3d 722, 726
(Pa. Super. 2013). Indeed, our case law does not require a pre-sentence
-8-
J-S11003-17
report in all instances. Commonwealth v. Goggins, 748 A.2d 721 (Pa.
Super. 2000) (en banc). Instead, the critical inquiry is whether the
sentencing court was “[informed] of comprehensive information to make the
punishment fit not only the crime but also the person who committed it.”
Carrillo–Diaz, 64 A.3d at 725 (quotation omitted).
We are convinced that the trial court was sufficiently aware of the
unique facts of the case to render an individually tailored punishment. The
sentencing court here demonstrated a working knowledge of Appellant's
character, background, and his response to supervisory programs.
Moreover, while Appellant points to a lengthy list of factors that would be
included in a pre-sentence report (see Appellant’s Brief at 30-31), many of
the factors were brought to the court’s attention by both defense counsel
and Appellant’s probation officer. Under these circumstances, we conclude
that this claim merits no relief.
Appellant’s final claim is that the trial court relied on inaccurate
information in imposing its revocation sentence. First, Appellant argues the
trial court erroneously believed that he maintained contact with the victim
for a significant period of time when, in fact, the basis for his plea was that
he engaged in a single proscribed sexual act. Second, Appellant points out
that, contrary to the court’s statement, the conditions of his probation did
not always preclude him from having access to computers. He notes that he
was permitted to use computers as part of his schoolwork when he originally
commenced supervision. That exemption was removed, however, once
-9-
J-S11003-17
Appellant graduated from high school. Upon review, we conclude that any
alleged misstatements by the court were fleeting in nature and wholly
unrelated to the core issues pertaining to the character, frequency, and
extent of Appellant’s undisputed violations of the terms of his probation.
Thus, Appellant’s final claim merits no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/20/2017
- 10 -