J-A15024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ROBERT EDWARD LEE, IV                    :
                                          :
                    Appellant             :   No. 1870 MDA 2017

           Appeal from the Judgment of Sentence October 4, 2017
   In the Court of Common Pleas of Lancaster County Criminal Division at
                      No(s): CP-36-CR-0003827-2009


BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                              FILED JULY 05, 2018

      Robert Edward Lee, IV (Appellant) appeals from the judgment of

sentence entered following the second revocation of his probation. We affirm.

      On March 3, 2011, Appellant pled guilty to aggravated assault, fleeing

or attempting to elude a police officer, recklessly endangering another person,

driving under the influence of alcohol (DUI), driving with a BAC of .02 or

greater with a suspended license from a prior DUI, and numerous summary

traffic offenses. The trial court sentenced Appellant to an aggregate 2½ to 5

years of incarceration, followed by 10 years of probation.

      On February 26, 2016, Appellant was released from prison after

completing his maximum sentence. He began serving probation. Less than a

year later, in January of 2017, a bench warrant was issued for Appellant

because he had incurred new criminal charges of simple assault, recklessly

endangering another person, harassment, and disorderly conduct. Appellant
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appeared for a violation of probation hearing on March 24, 2017, and admitted

to violating his probation. The trial court found Appellant to be in violation of

his probation and sentenced him to a new 10 year period of probation, but

advised Appellant that he would face incarceration if he violated his probation

again. The trial court summarized the events that followed:

            On June 6, 2017, another capias and bench warrant were
      issued for Appellant’s arrest. Appellant once again allegedly
      violated his probation . . . by committing new crimes of violence
      on May 16, 2017. Appellant was in the custody of Chester County
      Prison.

             On July 13, 2017, Appellant appeared before [the trial court]
      by simultaneous audio-visual two-way communication for a
      hearing on this second probation violation. The new criminal
      charges [filed in Chester County] . . . had been returned to court
      following a preliminary hearing, and Appellant stipulated he was
      in violation of probation based on the new charges. Consequently,
      his probation was revoked. While the probation officer and
      prosecutor requested a state prison sentence, and Appellant
      requested a county sentence concurrent to [the] Chester County
      charges, the court deferred sentence pending disposition of the
      new charges and upon completion of a pre-sentence investigation
      report (“PSI”).

            On October 4, 2017, Appellant appeared before the court for
      sentencing on the probation violation, at which time it was
      determined that Appellant had pleaded guilty in Chester County
      to the new offenses of recklessly endangering another person and
      driving under suspension.      Those crimes involved domestic
      violence, and [the Chester County Court of Common Pleas
      sentenced Appellant to a term of six to twelve months’
      imprisonment]. After reviewing the PSI report and affording all
      parties an opportunity to speak, this court imposed a sentence of
      2-5 years[’] incarceration in SCI . . . consecutive to the sentence
      in Chester County. Appellant was made eligible for all treatment
      programs in SCI to address his drug/alcohol addiction and anger
      management.

Trial Court Opinion, 12/13/17, at 3 (citations to the record omitted).


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      Appellant filed a timely post-sentence motion to modify his sentence,

which the trial court denied on October 18, 2017. This timely appeal followed.

Appellant and the trial court have complied with Pa.R.A.P. 1925.

      On appeal, Appellant presents a single issue for our review:

      Was the [t]rial [c]ourt’s sentence of two (2) to five (5) years’
      incarceration in a state correctional institution . . . consecutive to
      the Chester County sentence [Appellant] received, manifestly
      excessive and an abuse of the [trial c]ourt’s discretion?

Appellant’s Brief at 4.

      Appellant challenges the discretionary aspects of his sentence. “[I]t is

within our scope of review to consider challenges to the discretionary aspects

of an appellant’s sentence in an appeal following a revocation of probation.”

Commonwealth v. Fergusson, 893 A.2d 735, 737 (Pa. Super. 2006).

However, “a challenge to the discretionary aspects of a sentence is not

appealable as of right.” Commonwealth v. Colon, 102 A.3d 1033, 1042 (Pa.

Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015). Before we exercise

jurisdiction to reach the merits of Appellant’s claim, we must 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; and (4) whether
      the concise statement raises a substantial question that the
      sentence is appropriate under the sentencing code. . . . [I]f the
      appeal satisfies each of these four requirements, we will then
      proceed to decide the substantive merits of the case.

Id. at 1042-43 (quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.

Super. 2013) (citations omitted)).



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     Appellant has filed a timely notice of appeal and preserved his issue by

filing a post-sentence motion for modification of sentence.    Appellant has

additionally included in his brief a concise statement pursuant to Pa.R.A.P.

2119(f). See Appellant’s Brief at 11-13. With regard to whether Appellant

has raised a substantial question, we conduct a case-by-case analysis to

determine     what   allegations    constitute   a    substantial   question.

Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004).               This

Court has held that an excessive sentence claim, in conjunction with an

assertion that the court failed to consider mitigating factors, raises a

substantial question for our review. See Commonwealth v. Caldwell, 117

A.3d 763, 770 (Pa. Super. 2015) (en banc) (substantial question existed

where appellant challenged sentence as unduly excessive, together with claim

that court failed to consider rehabilitative needs); appeal denied, 126 A.3d

1282 (Pa. 2015); see also Commonwealth v. Johnson-Daniels, 167 A.3d

17, 27 (Pa. Super. 2017), appeal denied, 174 A.3d 1029 (Pa. 2017).

     Having considered that Appellant has raised a substantial question, we

recognize 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.




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

omitted), appeal denied, 117 A.3d 297 (Pa. 2015).

      In determining whether a sentence is manifestly excessive, the
      appellate court must give great weight to the sentencing court’s
      discretion, as he or she is in the best position to measure factors
      such as the nature of the crime, the defendant’s character, and
      the defendant’s display of remorse, defiance, or indifference.

Colon, 102 A.3d at 1043 (citation omitted).

      Upon revoking probation, a sentencing court may choose from any of

the sentencing options that existed at the time of the original sentencing,

including incarceration.   42 Pa.C.S.A. § 9771(b).     “[U]pon 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 Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (internal

quotation marks and citations omitted).     However, 42 Pa.C.S.A. § 9771(c)

provides that once probation has been revoked, a sentence of total

confinement may only be imposed if any of the following conditions exist:

      (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). The trial court may determine whether a sentence

should run consecutive to or concurrent with another sentence being imposed

based upon the facts of a particular case. Commonwealth v. Perry, 883

A.2d 599, 603 (Pa. Super. 2005) (internal citations omitted).


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      As discussed above, Appellant twice violated his probation by being

charged with crimes of violence. At the October 4, 2017 hearing, the trial

court had the benefit of pre-sentence investigation report.         When the

sentencing court has the benefit of a pre-sentence investigation report, it is

presumed to have properly considered and weighed all of the relevant

information, including any mitigating statutory factors. Commonwealth v.

Fowler, 893 A.2d 758, 766 (Pa. Super. 2006) (citing Commonwealth v.

Boyer, 856 A.2d 149, 154 (Pa. Super. 2004), affirmed, 891 A.2d 1265 (Pa.

2006)). Here, the trial court stated:

             Prior to imposing sentence in the present case, the [trial]
      court confirmed with Appellant and his counsel that all information
      in the [pre-sentence investigation report] was accurate. The
      [trial] court then specifically stated that it was taking into
      consideration all information contained within the [report] to
      determine the appropriate sentence.

Trial Court Opinion, 12/13/17, at 9.

      Further, the trial court explained to Appellant:

            You have appeared in court on nine separate occasions for
      new criminal offenses since 1995 involving 12 separate criminal
      dockets. At least three of the criminal episodes involve crimes of
      violence.

            You owe over $7,000 in fines, costs, and restitution.

             I have considered your rehabilitative needs, including the
      fact there is little to indicate you have made any effort to change
      your lifestyle or that you are amenable to rehabilitation.

                                       ***

      [T]he [trial c]ourt believes a sentence of total confinement is
      necessary because you have clearly demonstrated probation has
      proven to be an ineffectual rehabilitation tool. You are not


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      amenable to treatment or rehabilitation outside of a correctional
      facility.

             You are in need of treatment that can be provided most
      effectively by commitment to an institution. You are a danger to
      society, and society needs to be protected. You have total
      disregard for your probation officer, the [trial c]ourt, and criminal
      justice system.

           Incarceration is warranted because a lesser sentence would
      depreciate the seriousness of your conduct, and a state prison
      sentence is essential to vindicate the authority of the [trial c]ourt.

N.T., 10/4/17, at 24-25.

      In its opinion, the trial court expanded on its rationale, and detailed its

consideration of numerous factors in imposing Appellant’s sentence. See Trial

Court Opinion, 12/13/17, at 9-16.        Also, in addressing its imposition of

Appellant’s sentence as consecutive, the trial court reasoned that Appellant

was “not entitled to a volume discount for his crimes and repeated violations

of probation.”   Id. at 15-16 (citation omitted).       In sum, the trial court

concluded:

             After considering all of these factors, the court found that a
      sentence of total confinement was necessary because Appellant
      has clearly demonstrated that probation has proven to be an
      ineffective rehabilitation tool, Appellant is not amenable to
      treatment or rehabilitation outside a correctional facility, Appellant
      is in need of treatment that can be provided most effectively by
      his commitment to an institution, Appellant’s conduct indicates he
      is a danger to society, he has committed a new crime, and
      Appellant is likely to commit another crime if not incarcerated.
      The court found that Appellant has demonstrated total disregard
      for his probation officer, this court, and the criminal justice
      system. Additionally, a state prison sentence was essential to
      vindicate the authority of the court.

Id. at 14 (citations to notes of testimony omitted).



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      On this record, we find Appellant has failed to establish that the

trial 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. Zirkle, supra. Because the trial court did not

abuse its discretion, we affirm the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/05/2018




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