J-S34040-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RANDY LEE KOPF, :
:
Appellant : No. 112 WDA 2018
Appeal from the Judgment of Sentence September 29, 2017
in the Court of Common Pleas of Venango County
Criminal Division at No(s): CP-61-CR-0000506-2017
CP-61-CR-0000792-2005
BEFORE: BOWES, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED: August 7, 2018
Randy Lee Kopf (Appellant) appeals from the September 29, 2017
judgment of sentence entered after a guilty plea at CR No. 506-2017, which
triggered the revocation of his probation at CR No. 792-2005, and the entry
of a new judgment of sentence in that case. We affirm.
The trial court summarized the procedural history as follows.
With respect to [Appellant’s] criminal case at CR No. 792-
2005, [Appellant] was found guilty by jury verdict of two
ungraded drug felonies and one ungraded drug-related
misdemeanor on June 12, 2006. The [trial c]ourt subsequently
sentenced [Appellant] on August 18, 2006[ to] an aggregate
sentence of 45 to 96 months’ incarceration and 60 months’
probation to run consecutive to the term of imprisonment
imposed.
… [Appellant] pled guilty to fleeing and eluding police… for
events that transpired on July 12, 2017. Because [Appellant]
accrued these new charges while still serving probation on his
*Retired Senior Judge assigned to the Superior Court.
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case at CR No. 792-2005, the [trial c]ourt revoked his probation
after having a Gagnon II[1] hearing on the matter on August 21,
2017. Thereafter, the [trial c]ourt sentenced [Appellant] for the
new offenses, which are docketed at CR No. 506-2017, as well
as for the probation revocation at CR No. 792-2005 on
September 29, 2017.
Trial Court Opinion, 12/6/2017, at 1-2 (record citations and footnote
omitted).
At CR No. 506-2017, the trial court sentenced Appellant to a term of 6
to 24 months’ imprisonment for fleeing and eluding. At his probation
revocation case, CR No. 792-2005, the trial court sentenced Appellant to a
term of incarceration of 12 to 24 months’ imprisonment for conspiracy to
commit possession with intent to deliver (PWID), to be served consecutive to
the period of incarceration imposed at CR No. 506-2017. Thus, Appellant’s
aggregate sentence was 18 to 48 months’ imprisonment.
Appellant filed a post-sentence motion alleging that the trial court
abused its discretion by failing to consider all relevant sentencing factors,
and by failing to run his sentences concurrently. Motion to Reconsider and
1
When a parolee or probationer is detained pending a revocation
hearing, due process requires a determination at a pre-
revocation hearing, a Gagnon I hearing, that probable cause
exists to believe that a violation has been committed. Where a
finding of probable cause is made, a second, more
comprehensive hearing, a Gagnon II hearing, is required before
a final revocation decision can be made.
Commonwealth v. Sims, 770 A.2d 346, 349 (Pa. Super. 2001) (citations
omitted).
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Modify Sentence, 10/6/2017, at ¶¶ 4, 5. The trial court issued an opinion on
December 6, 2017, denying Appellant’s motion. This timely-filed appeal
followed.2
On appeal, Appellant argues that the trial court “abused its discretion
by imposing a sentence without giving consideration to all the relevant
sentencing factors under 42 Pa.C.S.[ §] 9721(b), including [Appellant’s]
character and gravity of the offense[.]” Appellant’s Brief at 4.
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 [a] 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).
2 Appellant complied with Pa.R.A.P. 1925(b). The trial court complied with
Pa.R.A.P. 1925(a) by filing a statement referring this Court to its December
6, 2017 opinion.
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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.[] § 9781(b).
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
Appellant has satisfied the first three requirements: he timely filed a
notice of appeal; he sought reconsideration of his sentence in a post-
sentence motion; and his brief includes a Pa.R.A.P. 2119(f) statement.
Therefore, we now consider whether Appellant has raised a substantial
question for our review.
Appellant contends in his 2119(f) statement that the trial court “did
not adequately consider all of the relevant factors.” Appellant’s Brief at 8.
Such a claim does not present a substantial question for our review.
Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (“[A]
claim of inadequate consideration of mitigating factors does not raise a
substantial question for our review.” (citation and quotation marks
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omitted)). However, in his post-sentence motion, concise statement of
matters complained of on appeal, and the statement of the question
involved on appeal in his brief, Appellant has couched this claim in terms of
a failure to consider certain mitigating factors. See Motion to Reconsider
and Modify Sentence, 10/6/2017, at ¶ 5 (arguing that the trial court “abused
its discretion in that the court imposed a sentence without giving
consideration to all the relevant factors under 42 Pa.C.S.[ §] 9721(b)”);
Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of On Appeal,
2/5/2018 (stating same); Appellant’s Brief at 4 (stating same). Thus, to the
extent Appellant challenges the trial court’s failure to consider altogether
certain subsection 9721(b) factors, he has raised a substantial question, and
we will address the merits of his claim. See Commonwealth v. Derry, 150
A.3d 987, 995 (Pa. Super. 2016).
Regarding 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:
(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.
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42 Pa.C.S. § 9771(c). Moreover, in addition to these considerations, a trial
court must also consider the factors set forth in subsection 9721(b) when
imposing a sentence following the revocation of probation. Derry, 150 A.3d
at 995. That subsection provides, in relevant part, that when imposing a
judgment of sentence,
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. … In every case in
which the court imposes a sentence for a felony or
misdemeanor, modifies a sentence, resentences an offender
following revocation of probation, county intermediate
punishment or State intermediate punishment or resentences
following remand, 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.
42 Pa.C.S. § 9721(b).
Instantly, Appellant contends that the trial court abused its discretion
by failing to consider his character and the gravity of the offense at the time
of sentencing. Appellant’s Brief at 4.
During the hearing, [Appellant] made a statement
enumerating the reasons his life had changed for the better
including relocation, marriage, his home, a good job. That all
was jeopardized when [Appellant] had his medical issues [and
was] prescribed pain medication [that] opened the door to
relapse. Although the court had a lengthy discourse with
[Appellant] relating to his desire for treatment, rehabilitative
needs were all that were taken into account. The court did not
take into account his great strides that were made by
[Appellant] in aiming his life in a better direction nor did the
court consider [that] the new offense was a misdemeanor, a far
cry from the offense of 2005. The rehabilitative needs
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considered by the court were only available in state prison. No
consideration was given to county programs. Alternatively, the
court could have went [sic] a less restrictive route. A shorter
sentence would expedite his re-entrance into society where
[Appellant] could resume his successful reintegration into the
community. A sentence on CR 506-2017 that was concurrent
with the sentence at CR 792-2005 would have accomplished
this.[3] [Appellant] demonstrated that he was amenable to
probation because he had been released from jail since 2012 and
the Commonwealth did not seek to revoke hi[s probation] until
he incurred new charges in 2017.
Appellant’s Brief at 10 (citation to exhibit omitted).
At the time Appellant was sentenced, the trial court stated that it was
imposing a sentence of total confinement because Appellant “has been
convicted of new crimes” and such a sentence “is necessary to vindicate the
authority of the court.” N.T., 9/29/2017, at 29. The trial court engaged in
an extensive dialogue with Appellant about his rehabilitative needs and
efforts, and recommended in Appellant’s sentencing order that he be placed
in SCI Mercer’s therapeutic community as soon as possible. Id. at 22-26,
3Appellant’s contention that the trial court abused its discretion by imposing
consecutive sentences does not raise a substantial question.
A court’s exercise of discretion in imposing a sentence
concurrently or consecutively does not ordinarily raise a
substantial question. Rather, the imposition of consecutive
rather than concurrent sentences will present a substantial
question in only the most extreme circumstances, such as where
the aggregate sentence is unduly harsh, considering the nature
of the crimes and the length of imprisonment.
Commonwealth v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015) (citations
and quotation marks omitted).
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29. In addition, the trial court explained in its opinion denying Appellant’s
post-sentence motion that the court considered the relevant sentencing
factors.
[W]e also considered [Appellant’s] character and gravity of the
offense in addition to considering [Appellant’s pre-sentence
investigation report (PSI)]. With respect to [Appellant’s]
character, the record of the sentencing hearing reflects that we
read a letter written by [Appellant’s] wife regarding [Appellant’s]
character, we considered the statement made by Attorney Bolton
on [Appellant’s] behalf, and the statement made by [Appellant]
on his own behalf. …
Further, as is customary for all our sentencing
proceedings, the [trial c]ourt generated a Pennsylvania
Commission on Sentencing Guideline Sentencing Form based on
the information contained in [Appellant’s] PSI prior to convening
[Appellant’s] sentencing hearing.
Trial Court Opinion, 12/6/2017, at 8 (record citations omitted).
Moreover, the trial court had the benefit of Appellant’s PSI report at
the time of sentencing. Id. at 14-15. “[W]here the sentencing judge had
the benefit of a [PSI] report, it will be presumed that he or she was aware of
the relevant information regarding the defendant’s character and weighed
those considerations along with mitigating statutory factors.”
Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016).
Based on the foregoing, we conclude that the trial court considered all
relevant sentencing factors and did not abuse its discretion in sentencing
Appellant. Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2018
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