J-S06029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                      v.

WILBERT A. SANCHEZ

                           Appellant                 No. 937 MDA 2015


               Appeal from the Judgment of Sentence April 29, 2015
                 In the Court of Common Pleas of Lancaster County
                Criminal Division at No(s): CP-36-CR-0001303-2013
                                            CP-36-CR-0002217-2013
                                            CP-36-CR-0002222-2013
                                            CP-36-CR-0002665-2014
                                            CP-36-CR-0002669-2014
                                            CP-36-CR-0004885-2013


BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MUNDY, J.:                             FILED APRIL 01, 2016

      Appellant, Wilbert A. Sanchez, appeals from the April 29, 2015

aggregate judgment of sentence of two to four years’ imprisonment,

imposed following the revocation of his probation. After careful review, we

affirm.

      The trial court has fully and accurately set forth the facts and

procedural history of this case in its opinion filed pursuant to Pennsylvania

Rule of Appellate Procedure 1925(a), as such we need not repeat them in

full herein.     See Trial Court Opinion, 6/30/15, at 1-5.   Relevant to the

instant appeal, we note the following. On February 24, 2015, a revocation



*Former Justice specially assigned to the Superior Court.
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hearing was held relative to Appellant’s various parole and probationary

sentences at six criminal dockets.     Several of the dockets, including the

probationary sentences at 2665 and 2669 of 2014, involved domestic

violence related charges.    At said hearing, J.R. (Mother), the mother of

Appellant’s four children, and the victim in Appellant’s domestic violence

charges testified for the Commonwealth.          The Commonwealth sought

revocation of Appellant’s probation for three separate violations, to wit,

missing appointments, displaying assaultive and threatening           behavior

towards Mother, and being apprehended at her residence from which he was

prohibited as a special condition. N.T., 2/24/15, at 3. Appellant stipulated

to the missed appointments and apprehension, as such, the hearing was

only on the alleged assaultive and threatening behavior. Id. at 3-4. At the

conclusion of said hearing, the trial court found Appellant in violation of all

three of the aforementioned conditions, and ordered a pre-sentence

investigation report. Id. at 33.

      On April 29, 2015, relative to the revocation of his probationary

sentences, Appellant was resentenced to an aggregate term of two to four

years’ incarceration consecutive to the unexpired balance of his remaining

sentences, which had been the subject of the revocation of his parole. N.T.,

4/29/15, at 15. Specifically, Appellant was sentenced as follows.

                  As to 1303 of 2013, Count 1, the [trial c]ourt
            sentences him to the unexpired balance. He may be
            paroled after 265 days.


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                 2217 of 2013, Count 1, the [trial c]ourt
           sentences him to the unexpired balance. He may be
           paroled after 265 days.

                 2222 of [20]13, Counts 1 through 5, the [trial
           c]ourt sentences him to the unexpired balance. He
           may be paroled after 265 days.

                As to Count 1, the consecutive five years’
           probation remains.

                 As to 4885 of 2013, Count 1, he is to receive
           the unexpired balance.

                 Count 2, he’s sentenced to the unexpired
           balance and may be paroled after 265 days.

                 2665 of 2014, Count 1, he is sentenced to
           incarceration in a State Correctional Institution of not
           less than one, nor more than two years. This is
           consecutive to the sentence imposed on the
           informations from 2013.

                 Count 2 is two years’ probation.

                  2669 of 2014, Count 1, sentence of
           incarceration in a State Correctional Institution of not
           less than one, nor more than two years.

                 This is to be consecutive to 2665 of 2014.

                Domestic violence conditions 1, 3, 6A, 7, 8 and
           10 remain, as do all previously imposed conditions.

                 He is not RRRI eligible.

Id. at 13-14.




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       On May 4, 2015, Appellant filed a timely motion to modify sentence

which was denied on May 5, 2015.               On May 29, 2015, Appellant filed a

timely notice of appeal.1

       On appeal, Appellant raises the following issue for our review.

              I. Was an aggregate sentence of two to four years[’]
              incarceration for a probation and parole violation so
              manifestly excessive as to constitute too severe a
              punishment and contrary to the fundamental norms
              underlying the sentencing process as it was not
              consistent with the protection of the public, the
              gravity of the offenses, the rehabilitative needs of
              [Appellant], and the [trial] court did not impose an
              individualized sentence which took into consideration
              [Appellant]’s circumstances?

Appellant’s Brief at 5.

       We review a trial court’s sentence imposed following the revocation of

probation for an error of law or an abuse of discretion. Commonwealth v.

Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014), appeal denied, 109 A.3d

678 (Pa. 2015). “An abuse of discretion is not merely an error of judgment,

but if in reaching a conclusion the law is overridden or misapplied or the

judgment exercised is manifestly unreasonable, or the result of partiality,

prejudice, bias, or ill will, as shown by the evidence or the record, discretion

is abused.”     Commonwealth v. Burns, 988 A.2d 684, 689 (Pa. Super.

2009) (en banc) (citation omitted), appeal denied, 8 A.3d 341 (Pa. 2010).

____________________________________________


1
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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As the revocation of a sentence of probation is within the sound discretion of

the trial court, “our review is limited to determining the validity of the

revocation proceedings and the authority of the sentencing court to consider

the same sentencing alternatives that it had at the time of the initial

sentencing.”     Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa. Super.

2008).     “[Our] scope of review in an appeal from a revocation sentencing

includes     discretionary   sentencing   challenges.”   Commonwealth        v.

Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc).

      Appellant does not dispute that he violated his probation. Instead, he

claims that the trial court abused its discretion when it revoked his probation

and sentenced him to two to four years’ imprisonment “for only a second

violation of probation and parole.” Appellant’s Brief at 13. This challenge to

the discretionary aspects of a sentence is not appealable as of right. Colon,

supra at 1042.       Instead, an appellant must petition for permission to

appeal.    Id.   We evaluate the following factors to determine whether to

grant permission to appeal a discretionary aspect of sentencing.

              Before we reach the merits of this issue, we must
              engage in a four part analysis to determine: (1)
              whether the appeal is timely; (2) whether Appellant
              preserved his issue; (3) whether Appellant’s brief
              includes a concise statement of the reasons relied
              upon for allowance of appeal with respect to the
              discretionary aspects of sentence [as required by
              Rule 2119(f) of the Pennsylvania Rules of Appellate
              Procedure]; and (4) whether the concise statement
              raises a substantial question that the sentence is
              appropriate under the sentencing code. The third
              and fourth of these requirements arise because

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            Appellant’s attack on his sentence is not an appeal
            as of right. Rather, he must petition this Court, in
            his [Rule 2119(f)] concise statement of reasons, to
            grant consideration of his appeal on the grounds that
            there is a substantial question.      [I]f the appeal
            satisfies each of these four requirements, we will
            then proceed to decide the substantive merits of the
            case.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

      Here, Appellant filed a timely notice of appeal, preserved his

discretionary sentencing challenge in his timely motion to modify sentence

and Rule 1925(b) concise statement, and has included a Rule 2119(f)

statement in his brief. Therefore, we next determine whether Appellant has

raised a substantial question for our review.

            The determination of whether a particular issue
            raises a substantial question is to be evaluated on a
            case-by-case basis.      In order to establish a
            substantial question, the appellant must show
            actions by the trial court inconsistent with the
            Sentencing Code or contrary to the fundamental
            norms underlying the sentencing process.

Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014)

(citation omitted).   “At a minimum, the Rule 2119(f) statement must

articulate what particular provision of the code is violated, what fundamental

norm the sentence violates, and the manner in which it violates that norm.”

Commonwealth v. Zirkle, 107 A.3d 127, at 132 (Pa. Super. 2014)

(citation omitted).




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      In his Rule 2119(f) statement, Appellant claims that by “imposing a

sentence of two to four years[’] incarceration, the [trial] court violated the

provisions of 42 Pa.C.S. § 9721, and failed to consider this was [Appellant]’s

second violation and that he was not a danger to the public.”           Appellant’s

Brief at 10, citing Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super.

2012), appeal denied, 63 A.3d 776 (Pa. 2013). The essence of Appellant’s

argument amounts to an assertion that a two to four year sentence for a

second violation of probation is manifestly excessive.       Appellant’s Brief at

13.

      We have previously concluded “a claim that a particular probation

revocation sentence is excessive in light of its underlying technical violations

can   present    a   [substantial]   question    that   we     should     review.”

Commonwealth v. Carver, 923 A.2d 495, 497 (Pa. Super. 2007), citing

Commonwealth v. Sierra, 752 A.2d 910, 912, 913 (Pa. Super. 2000);

Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa. Super. 2012) (holding

“[a]n argument that the trial court imposed an excessive sentence to

technical probation violations raises a substantial question[]”), appeal

denied, 67 A.3d 796 (Pa. 2013).         Accordingly, Appellant has raised a

substantial question and we will address the merits of his claim.             See

Edwards, supra.




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     The Sentencing Code provides that the trial court may impose a

sentence of total confinement upon revocation of a sentence of probation if

one of the following three circumstances applies.

           § 9771. Modification or revocation of order of
           probation

                                     …

           (c)     Limitation     on   sentence     of    total
           confinement.--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.

42 Pa.C.S.A. § 9771(c).    We have consistently held “[t]echnical violations

can support revocation and a sentence of incarceration when such violations

are flagrant and indicate an inability to reform.” Carver, supra at 498; see

also Schutzues, supra at 99 (concluding that appellant’s frequent contact

with his young nieces was not a de minimus violation of his probation when

one of his probation conditions barred him from having any contact with

minors).

     Instantly, at sentencing, the trial court set forth the following

reasoning for imposing a sentence of two to four years of total confinement.


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                 [Appellant] is 24 years of age, which shows
          sufficient maturity to understand the significance of
          his acts.

                 He is intelligent enough to understand the
          significance of his acts, having completed 11 grades
          of education.

                He can read, write and understand the English
          language, certainly to an extended degree.         He
          indicates a work history specifically with this carpet
          business that clearly shows he can follow directions.

                 He has an extremely lengthy prior record,
          predominantly those cases that are before us on
          violations. But since 2004, when he started with his
          simple assault and terroristic threats, two summary
          harassments in [20]13, and [20]14 a retail theft.
          There are five separate simple assaults, all related to
          [Mother], endangering the welfare of children, two
          intimidation charges and three separate violations of
          his probation and parole.

                 He has controlled [Mother] and kept her in fear
          for the majority of their relationship. He wants the
          [trial c]ourt to believe that there was no physical
          abuse that brought him back to th[e trial c]ourt for
          the violations in front of us, when, in fact, she not
          only reported to the probation office of hitting and
          choking and being punched in the stomach while
          pregnant, probation and parole actually saw the
          injuries relative to that.

                He still blames her for everything. Six dockets
          are violent in nature. Five out of six the same
          victim[, Mother].

                 One of the most disturbing parts about this
          individual who is before me is that we did a hearing
          on this violation solely because of his attempts to
          intimidate her and have her come before the [trial
          c]ourt and lie.




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                 It is he who is the liar, not she. It is he who is
           the violent person, not she. It is he who is the
           abusive, controlling individual, not she.

                 His assaultive and threatening behavior
           towards [Mother] will continue the minute he is
           around her.    He was only apprehended at her
           request from her residence where he was clearly told
           by Judge Madenspacher he shall not live.

                His drug and alcohol         issues   go   back   to
           synthetic marijuana use.

                  The [trial c]ourt does note, as counsel
           indicated in her comments on his behalf, that he has
           reported all kinds of abuse to himself as a young
           person from his mother on him. It does also indicate
           that he was suspended from school a lot relative to
           fighting.

                 One of the comments I saw in here is that he
           indicates he talks and writes - - talks or writes to her
           every day.      I know that Judge Madenspacher’s
           specific domestic violence conditions included the no
           contact provision but for custody issues with the
           children.

                 There were no custody issues with the children
           when he’s incarcerated in the Lancaster County
           Prison.

                 The [trial c]ourt has considered the pre-
           sentence report in detail.  The [trial c]ourt has
           considered the penalties authorized by the
           Legislature.

                Incarceration is warranted because a lesser
           sentence would depreciate the seriousness of the
           crimes and the seriousness of his total lack of
           concern for court orders.

N.T., 4/29/15, at 11-13.




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      Upon review, we discern no abuse of the sentencing court’s discretion.

Appellant received a statutorily based sentence of total confinement after

revocation of his probation for technical violations. The record supports the

reasonableness of Appellant’s sentence. He has a lengthy criminal record,

and, at the majority of the dockets, Mother is the victim. He continues to

try to control her and contact her in violation of the trial court’s orders.

Based on these considerations, the trial court sentenced Appellant to total

confinement pursuant to 42 Pa.C.S.A. § 9771(c)(2)-(3).        As “it is evident

that the [trial] court was aware of sentencing considerations and weighed

the considerations in a meaningful fashion[,]” this sentence should not be

disturbed.   See Ahmad, supra.         In addition to the reasons listed, it is

axiomatic that where “the sentencing court had the benefit of a [PSI], we

can assume the sentencing court was aware of relevant information

regarding the defendant’s character and weighed those considerations along

with mitigating statutory factors.”    Commonwealth v. Rhoades, 8 A.3d

912, 919 (Pa. Super. 2010) (internal quotation marks and citation omitted),

appeal denied, 25 A.3d 328 (Pa. 2011), cert. denied, Rhoades v.

Pennsylvania, 132 S. Ct. 1746 (2012).           Therefore, the above factors

provide a sufficient basis for the trial court to sentence Appellant to a period

of total confinement.

      Based on the foregoing, we conclude the trial court did not abuse its

discretion in sentencing Appellant to two to four years’ incarceration upon


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revocation of his probation. Accordingly, we affirm the trial court’s April 29,

2015 judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2016




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