J-S34005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MICHAEL VERBISKI
Appellant No. 416 EDA 2016
Appeal from the Judgment of Sentence June 29, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003497-2009
BEFORE: BOWES, SOLANO, AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED JUNE 06, 2017
Michael Verbiski appeals the discretionary aspects of the sentence that
was imposed after he violated the terms of his probation. We affirm.
Based upon the following events, Appellant was charged with one
count of escape graded as a third-degree felony. On August 26, 1992,
Appellant was sentenced to eight to twenty years imprisonment after
pleading guilty to robbery. On May 5, 2008, he was accepted into the
Pennsylvania Department of Corrections pre-release program and was
transferred from state prison to Gaudenzia Philly House, Philadelphia.
Appellant had to remain at that location until he was paroled, pardoned,
transferred, or his sentence was completed. On January 16, 2009, Appellant
left the facility without authorization, and was later apprehended.
* Retired Senior Judge specially assigned to the Superior Court.
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On October 1, 2009, Appellant tendered a negotiated guilty plea herein
to the charge of escape in return for one and one-half to three years
confinement followed by three years of probation. After he began to serve
the probationary portion of this sentence, he was charged with violating its
terms. Specifically, in July 2014, Appellant pled guilty to driving under the
influence, simple assault, possession of a controlled substance, and
possession of an instrument of crime. On June 29, 2015, the trial court
found Appellant to be in direct violation of probation. Appellant waived the
preparation of a pre-sentence report, and the matter proceeded directly to
sentencing.
The Commonwealth asked for imposition of the statutory maximum
remaining after deduction for time served, but the court declined to impose
that sentence. It did conclude, however, that probation was not effective in
rehabilitating Appellant in light of his criminal history, and it sentenced him
to one and one-half to three years incarceration. Appellant filed a motion for
reconsideration maintaining that the trial court did not proffer adequate
reasons for its sentence, did not adequately weigh mitigating factors,
improperly failed to order a pre-sentence report, and violated the terms of
42 Pa.C.S. § 9771(c), which we set forth infra. The motion for
reconsideration was denied.
Appellant did not appeal at that time. His appellate rights were
reinstated pursuant to a timely filed PCRA petition. This appeal followed.
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Appellant complied with the court’s directive to file a Pa.R.A.P. 1925(b)
statement, wherein he repeated the assertions raised in his motion for
reconsideration of sentence and also claimed that the sentence was
excessive.
On appeal, Appellant raises one issue: “Did the Lower Court abuse its
discretion in sentencing the Appellant to a state sentence where the violation
of probation was due to the Appellant’s pleading guilty and accepting
responsibility for an array of minor crimes?” Appellant’s brief at 8. Initially,
we note that “in an appeal from a sentence imposed after the court has
revoked probation, we can review the validity of the revocation proceedings,
the legality of the sentence imposed following revocation, and any challenge
to the discretionary aspects of the sentence imposed.” Commonwealth v.
Wright, 116 A.3d 133, 136 (Pa.Super. 2015); see Commonwealth v.
Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en banc).
Appellant’s averment relates to the discretionary aspects of the
sentence imposed. As we observed in Commonwealth v. McLaine, 150
A.3d 70, 76 (Pa.Super. 2016) (citation omitted), “[a]n appellant is not
entitled to the review of challenges to the discretionary aspects of a
sentence as of right.”
Instead, prior to exercising our jurisdiction involving a challenge to the
discretionary aspects of a sentence, we must determine if an appellant has
satisfied the following four-part test:
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(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).
Id.
In the present case, the appeal is timely, the issue was preserved in a
post-sentence motion for reconsideration, and Appellant’s brief contains a
Pa.R.A.P. 2119(f) statement. Additionally, in that statement, Appellant
avers that the trial court did not articulate sufficient reasons for the sentence
imposed. “This Court has held that such a challenge to the sentence raises a
substantial question.” Commonwealth v. Simpson, 829 A.2d 334, 338
(Pa.Super. 2003). Accordingly, we grant allowance of appeal from the
discretionary aspects of the sentence imposed.
We now examine our standard of review:
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.
Commonwealth v. Shull, 148 A.3d 820, 831 (Pa.Super. 2016) (citation
omitted).
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In this case, we observe that the probation-violation court was
justified in imposing a sentence of total confinement. As articulated in 42
Pa.C.S. § 9771(c), there are limitations as to when imprisonment can be
imposed after a defendant violates probation. However, a sentence of
confinement is justified when the court finds any of the following “(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) (emphasis added). Since
Appellant was convicted of four other crimes, the sentence of imprisonment
was permitted under § 9771(c)(1).
We have reviewed the argument portion of Appellant’s brief, which
consists of a series of platitudes and a boilerplate outline of the general
principles applicable in the sentencing setting. We do note that Appellant
suggests that the sentencing guidelines apply herein, Appellant’s brief at 13;
this assertion is incorrect as the sentencing guidelines are inapplicable in the
violation-of-probation setting. Commonwealth v. Ferguson, 893 A.2d
735, 739 (Pa.Super. 2006) (“Sentencing Guidelines do not apply to
sentences imposed following a revocation of probation.”); 204 Pa. Code §
303.1(b) (“The sentencing guidelines do not apply to sentences imposed as
a result of the following: . . . revocation of probation[.]”). Appellant also
implies that the trial court considered an impermissible sentencing factor,
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Appellant’s brief at 14, but he fails to identify that factor, and our review of
the sentencing proceeding reveals none was employed by the court.
The only specific, applicable position presented by Appellant is that:
“In this matter, the Lower Court outlines some reasons for its sentence in its
opinion, however this reasoning was not revealed until the opinion. No such
reason[s] were enunciated at the sentencing itself.” Appellant’s brief at 15.
This assertion is contrary to the record. The court stated at sentencing:
All right. I certainly agree that [Appellant’s] chances –
unfortunately, I work every day with people trying to rehabilitate
them, but this man cannot be. But not knowing how much time
he served [prior to imposition of the sentence in question] and
recognizing the nature of the case in front of me, I’m not going
to give him the statutory maximum. I am going to give him
one-and-one-half to three years.
N.T. Sentencing, 6/29/15, at 15. Thus, at the sentencing hearing itself, the
sentencing court justified its sentence of imprisonment based upon the fact
that Appellant was not capable of being rehabilitated through the use of
probation. This finding is supported because this matter involves Appellant’s
escape from housing less restrictive than jail as well as his commission of
four other crimes while he was on probation for the escape offense.
Additionally, the court declined to impose the statutory maximum, as
requested by the Commonwealth, due to the nature of this case.
We likewise reject Appellant’s assertion, which was raised in the
Pa.R.A.P. 2119(f) statement and by implication in the question raised on
appeal, that his sentence is excessive in light of the paltry nature of the
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crimes that he committed while on probation. Appellant pled guilty to
possession of a controlled substance, possession of an instrument of crime,
simple assault, and driving under the influence. While the grading of the
crimes are not revealed in the sentencing transcript, the combination of the
criminal activity at issue cannot be characterized as minor. Hence, we
conclude that the court did not abuse its discretion in deciding that one and
one-half years imprisonment was an appropriate consequence of Appellant’s
failure to abide by the terms of his probation through the commission of four
new offenses.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2017
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