Com. v. Checchia, L.

J-S41033-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LANCE EVERETT CHECCHIA :
:
Appellant : No. 110 MDA 2017

Appeal from the Judgment of Sentence December 19, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003356-2009

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LANCE EVERETT CHECCHIA :
:
Appellant : No. 111 MDA 2017

Appeal from the Judgment of Sentence December 19, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000409-2016

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 02, 2017

Appellant, Lance Everett Checchia, appeals from the judgments of

sentence entered in the Berks County Court of Common Pleas, following the

revocation of his probation. We affirm.

The relevant facts and procedural history of this case are as follows.

_____________________________

*Retired Senior Judge assigned to the Superior Court.
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Appellant entered a negotiated guilty plea on September 24, 2009, to

robbery at docket no. 3356-2009. The court immediately sentenced

Appellant to a term of one (1) to three (3) years’ imprisonment, followed by

a consecutive term of four (4) years’ probation. On January 9, 2016, police

arrested Appellant and charged him with, inter alia, tampering with physical

evidence and possession of drug paraphernalia at docket no. 0409-2016.

Appellant entered a negotiated guilty plea on April 4, 2016, to tampering

with physical evidence and possession of drug paraphernalia. That same

date, the court sentenced Appellant to concurrent one (1) year terms of

probation on both offenses, to be served consecutive to Appellant’s

probation at docket no. 3356-2009.

Appellant signed written instructions on October 18, 2016, which

detailed the terms and conditions of his probation. From October 19, 2016,

to October 26, 2016, Appellant committed several technical violations of his

probation. Specifically, Appellant was not home on October 19, 2016, at

8:35 a.m. for the initial home visit. Later that evening, Appellant’s

probation officer conducted a curfew check at 10:30 p.m., and Appellant was

not home. On October 25, 2016, Appellant failed to report to his probation

officer as instructed. The next day, Appellant’s probation officer conducted a

curfew check at 9:10 p.m., and Appellant was not home. Appellant’s mother

informed the probation officer that Appellant had moved out of the home on

October 23, 2016, which was in direct violation of his probation. The

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probation officer searched the home and did not find any of Appellant’s

belongings. As a result, the Pennsylvania Board of Probation and Parole

(“Board”) charged Appellant with changing his residence without the written

permission of parole supervision staff and failing to maintain regular contact

with parole supervision staff. The court held a Gagnon II1 hearing on

December 19, 2016. At the hearing, Appellant entered an open guilty plea

to violating the terms of his probation. The court revoked Appellant’s

probation at docket nos. 3356-2009 and 0409-2016, and immediately

sentenced Appellant to an aggregate term of two (2) to four (4) years’

imprisonment. Appellant filed post-sentence motions on December 23,

2016, which the court denied. On January 12, 2017, Appellant timely filed

notices of appeal. The court ordered Appellant on January 19, 2017, to file a

concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b)

at docket no. 0409-2016, and ordered Appellant on January 24, 2017, to file

a concise statement at docket no. 3356-2009. Appellant timely complied on

January 26, 2017.

Appellant raises three issues for our review:

WHETHER APPELLANT’S SENTENCE OF TWO TO FOUR
YEARS TO BE SERVED CONCURRENTLY WITH TERMS OF
ONE TO TWO YEARS AND SIX TO TWELVE MONTHS IN A
STATE CORRECTIONAL INSTITUTION WAS MANIFESTLY
EXCESSIVE, CLEARLY UNREASONABLE, AND CONTRARY
____________________________________________

1
Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656
(1973).

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TO THE FUNDAMENTAL NORMS UNDERLYING THE
SENTENCING CODE, GIVEN THE TECHNICAL NATURE OF
THE VIOLATIONS AS WELL AS…APPELLANT’S MENTAL
HEALTH AND REHABILITATIVE NEEDS?

WHETHER APPELLANT’S SENTENCE OF TWO TO FOUR
YEARS TO BE SERVED CONCURRENTLY WITH TERMS OF
ONE TO TWO YEARS AND SIX TO TWELVE MONTHS IN A
STATE CORRECTIONAL INSTITUTION WAS MANIFESTLY
EXCESSIVE, CLEARLY UNREASONABLE, AND CONTRARY
TO THE FUNDAMENTAL NORMS UNDERLYING THE
SENTENCING CODE, WHERE THE COURT IMPOSED A
SENTENCE BASED ON THE SENTENCING
RECOMMENDATION FOR STABILIZING THE MENTAL
HEALTH NEEDS OF APPELLANT MADE BY OFFICERS FROM
THE PENNSYLVANIA BOARD OF PROBATION AND PAROLE
AND THE BERKS COUNTY ADULT PROBATION AND PAROLE
OFFICE WITHOUT ADDRESSING A PROSPECTIVE TIMELINE
FOR THIS TREATMENT?

WHETHER THE SENTENCING COURT ERRED AND ABUSED
ITS DISCRETION IN DENYING APPELLANT’S POST
SENTENCE MOTION FOR MODIFICATION OF SENTENCE,
WHERE SUCH DENIAL WAS CONTRARY TO THE GENERAL
PRINCIPLES UNDERLYING THE SENTENCING CODE, IN
THAT THE PROTECTION OF THE PUBLIC, THE GRAVITY OF
THE OFFENSE AS IT RELATES TO THE IMPACT ON THE
LIFE OF THE VICTIM AND THE COMMUNITY, AND
APPELLANT’S INDIVIDUAL REHABILITATIVE NEEDS WERE
NOT CONSIDERED?

(Appellant’s Brief at 6).

For purposes of disposition, we combine Appellant’s issues. Appellant

argues the court did not appropriately consider the statutory factors under

42 Pa.C.S.A. § 9721(b) when it sentenced Appellant. Appellant avers the

court’s consideration of Appellant’s technical violations of probation and the

Board’s recommendation of incarceration, without offering a true timeline or

plan for mental health treatment, failed to recognize Appellant’s individual

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rehabilitative needs. As a result, the court imposed an unreasonable and

excessive sentence that violated the fundamental norms underlying the

Sentencing Code. Appellant claims he admitted he needed treatment and

had been taking steps to address his mental health issues. Appellant asserts

the Board’s push for incarceration placed more emphasis on containment

than on treatment. Appellant further alleges the court did not properly

consider the protection of the public and the gravity of the offense as it

relates to the community. Appellant points out his technical violations did

not involve any threats, harm, or violence to the community, or any illegal,

destructive, or unstable behavior that gave rise for concern.

Next, Appellant argues his sentence of total confinement was improper

under 42 Pa.C.S.A. § 9771(c). In support of his argument, Appellant avers

he did not commit a new crime, his behavior at the time his probation was

revoked did not indicate that he was likely to commit another crime if he

were not imprisoned, and the sentence was not essential to vindicate the

court’s authority. Appellant claims his purely technical violations occurred

over the course of only a few days, and were not so excessive that a period

of imprisonment was essential to vindicate the court’s authority, even when

considering these violations collectively. Appellant maintains he has not

repeatedly violated the terms of his probation over an extended period and

did not have the benefit of mental health treatment court or an appropriate

treatment facility. For these reasons, Appellant asserts his sentence was

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excessive, unreasonable, and did not merit total confinement under Section

9771(c).

In a related argument, Appellant argues the court had the option of

committing Appellant to a treatment facility for rehabilitation instead of

prison. Appellant claims the Board’s contention that incarceration was

necessary to address Appellant’s rehabilitative needs was nonsensical in light

of 50 P.S. § 4410 of the Mental Health Act. Appellant asserts the court had

multiple opportunities to compel Appellant to seek treatment, which would

have satisfied both the court’s authority and addressed Appellant’s mental

health problems. Appellant maintains the court ignored the various

sentencing alternatives available. Appellant contends prison is incapable of

addressing his treatment needs at the same level as a mental health facility.

Appellant also suggests his commitment to prison for the explicit purpose of

receiving mental health treatment was tantamount to an involuntary

commitment. For these reasons, Appellant concludes his sentence was an

abuse of discretion and we should vacate and remand for resentencing. As

presented, Appellant challenges the discretionary aspects of his sentence.

See Commonwealth v. Cartrette, 83 A.3d 1031 (Pa.Super. 2013) (en

banc) (explaining claim sentencing court failed to consider Section 9721(b)

factors pertains to discretionary sentencing matters); Commonwealth v.

Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is

manifestly excessive challenges discretionary aspects of sentencing);

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Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal

denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating claim that sentencing

court failed to consider or did not adequately consider certain factors

implicates discretionary aspects of sentencing).

When reviewing the outcome of a revocation proceeding, this Court is

limited to determining the validity of the proceeding, the legality of the

judgment of sentence imposed, and the discretionary aspects of sentencing.

Cartrette, supra at 1033-34 (explaining appellate review of revocation

sentence includes discretionary sentencing challenges). Challenges to the

discretionary aspects of sentencing do not entitle an appellant to an appeal

as of right. Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.Super.

2000). Prior to reaching the merits of a discretionary aspects of sentencing

issue:

[W]e conduct a four-part analysis to determine: (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).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to the discretionary

aspects of sentence are generally waived if they are not raised at the

sentencing hearing or raised in a motion to modify the sentence imposed at

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that hearing. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.

2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003). “This failure

cannot be cured by submitting the challenge in a Rule 1925(b) statement.”

Commonwealth v. McAfee, 849 A.2d 270, 275, (Pa.Super. 2004), appeal

denied, 580 Pa. 695, 860 A.2d 122 (2004).

When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);

Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth

the reasons relied upon for allowance of appeal furthers the purpose evident

in the Sentencing Code as a whole of limiting any challenges to the trial

court’s evaluation of the multitude of factors impinging on the sentencing

decision to exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103,

112 (Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895 (2009),

cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009).

A substantial question exists “only when the appellant advances a

colorable argument that the 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.” Sierra,

supra at 913. A claim of excessiveness can raise a substantial question as

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to the appropriateness of a sentence under the Sentencing Code, even if the

sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at

624. See, e.g., Commonwealth v. Malovich, 903 A.2d 1247 (Pa.Super.

2006) (stating defendant raised substantial question with respect to claim

that revocation sentence was excessive in light of underlying technical

probation violations). An allegation that the sentencing court failed to

consider a specific mitigating factor, however, generally does not raise a

substantial question. Commonwealth v. Berry, 785 A.2d 994 (Pa.Super.

2001) (holding claim that sentencing court ignored appellant’s rehabilitative

needs failed to raise substantial question).

“In general, 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.”

Commonwealth v. Hoover, 909 A.2d 321 (Pa.Super. 2006). Following the

revocation of probation, the court may impose a sentence of total

confinement if any of the following conditions exist: the defendant has been

convicted of another crime; the conduct of the defendant indicates it is likely

he will commit another crime if he is not imprisoned; or, such a sentence is

essential to vindicate the authority of the court. See 42 Pa.C.S.A. §

9771(c). The Sentencing Guidelines do not apply to sentences imposed

following a revocation of probation. Commonwealth v. Ferguson, 893

A.2d 735 (Pa.Super. 2006), appeal denied, 588 Pa. 788, 906 A.2d 1196

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(2006). “[U]pon sentencing following a revocation of probation, the trial

court is limited only by the maximum sentence that it could have imposed

originally at the time of the probationary sentence.” Commonwealth v.

Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001).

Pursuant to Section 9721(b), “the court shall follow the general

principle that 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). “[T]he

court shall make as 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.” Id. Nevertheless, “[a] sentencing court need not undertake a

lengthy discourse for its reasons for imposing a sentence….”

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal

denied, 608 Pa. 661, 13 A.3d 475 (2010). Rather, “the record as a whole

must reflect the sentencing court’s consideration of the facts of the crime

and character of the offender.” Id.

Instantly, Appellant raised the following issues in his post-sentence

motion:

9. With regard to the sentences imposed[, …Appellant]
avers that this Court sentenced [Appellant] to a greater
period of confinement than that which was 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 [Appellant].

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10. [Appellant] avers that a sentence of probation would
have been 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 [Appellant].

Wherefore, [Appellant] requests that this Honorable
Court hold a hearing to determine a sentence that would
be 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 [Appellant].

(Appellant’s Post-Sentence Motion, filed December 23, 2016, at 2-3).

Appellant’s claims on appeal are far more detailed, particularly as they

pertain to his mental health/rehabilitative needs and the court’s sentencing

alternatives.2 To the extent his remaining claims on appeal are reasonably

deducible from his post-sentence motions, we decline to waive them.

Moreover, in its opinion, the trial court set forth its reasons for the

sentence imposed. (See Trial Court Opinion, filed January 31, 2017, at 2-5)

(finding: court recognized Appellant’s serious need for mental health

treatment; Appellant previously failed to acquire treatment on his own

volition; incarceration was necessary to ensure Appellant actually received

treatment; court was not required to consider timeline for Appellant’s
____________________________________________

2
Appellant’s arguments for a “timeline” for mental health treatment, his
preference for a mental health facility over prison, the purely technical
nature of his probation violations in a short time, and against the need for a
sentence to vindicate the authority of the court are waived for purposes of
this appeal, even if the trial court addressed them in its Rule 1925(a)
opinion. See McAfee, supra; Mann, supra.

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treatment; additionally, period of incarceration was necessary to vindicate

court’s authority; Appellant’s violations, in aggregate, affronted court’s

authority; specifically, Appellant had not responded to progressive

sanctioning, failed to develop home plan, and appeared before probation

officer only once to address Appellant’s mental health issues; Appellant

failed to comply with evaluation to diagnose his mental health issues, as well

as numerous other technical violations; period of incarceration was

warranted as Appellant’s actions were affront to court’s authority; court

considered all relevant sentencing principles and found Appellant’s

rehabilitative needs were significant; incarceration was necessary in light of

Appellant’s serious mental health issues for safety of Appellant and

community; court also considered Appellant’s original offenses of robbery,

tampering with physical evidence, and possession of drug paraphernalia;

Appellant’s prior offenses and evidence of his serious mental health and

rehabilitative needs outweighed mitigating circumstances and justified period

of incarceration imposed). The record supports the court’s rationale.

Therefore, Appellant’s challenges to the discretionary aspects of his

sentences merit no relief. Accordingly, we affirm.

Judgments of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/2/2017

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