J-S80044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JONATHAN LEVONNE RODGERS

                            Appellant               No. 631 MDA 2016


           Appeal from the Judgment of Sentence February 11, 2016
                in the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0005983-2003


BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                       FILED JANUARY 03, 2017

       Appellant, Jonathan Levonne Rodgers, appeals from the judgment of

sentence entered after the February 11, 2016 hearing in which the court

revoked his probation. We affirm.

       On June 10, 2005, Appellant entered open guilty pleas in three cases.

In the instant matter, he entered an open plea to the charge of resisting

arrest and was sentenced to two years of special probation. 1       Several

months prior to the expiration of his probationary period, Appellant was

again arrested and charged with access device fraud, theft of property lost

____________________________________________


1
  18 Pa.C.S. § 5104. In his other cases, Appellant entered guilty pleas to
robbery, 18 Pa.C.S. § 3701(a)(1)(iv), and received a sentence of two to
seven and one-half years of incarceration; and to obstructing the
administration of law, 18 Pa.C.S. § 5101, for which he received a sentence
of two years of probation, to run consecutively to his incarceration.
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by mistake, identity theft, theft by deception, and receipt of stolen

property.2

       On February 11, 2016, Appellant entered a guilty plea to the identity

theft charges. The court imposed a sentence of three years of probation.

       At this time, the court also conducted a Gagnon II3 hearing.

Appellant argued he was entitled to a probationary sentence, noting that: he

had remained arrest free from 2005 until 2015; he had started a

construction business that employed other offenders; and he had married

and had children.         See Notes of Testimony (N. T.), 2/11/16, at 7-8.

Appellant suggested that he had accepted responsibility by pleading guilty

and offered to pay restitution. Id. Further, he argued that based on prison

delays, a state sentence with a minimum of ninety-four days would

transform into a one- to two-year sentence. Id.

       The court found Appellant in violation of his probation and, despite

Appellant’s arguments, sentenced him to ninety-four days to two years of

incarceration, effective from the date of the hearing, with credit for ninety-

four days of time served.




____________________________________________


2
  18 Pa.C.S. §§ 4106(a)(1)(ii), 3924, 4120(a), 3922(a)(1), and 3925(a),
respectively.
3
  See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (concluding that due
process requires parolee be given a preliminary (Gagnon I) and final
(Gagnon II) hearing prior to parole revocation).



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       Appellant   timely    filed     a    post-sentence       motion    challenging     the

discretionary   aspects     of   the       court’s   sentence.      The    court   granted

reconsideration but, after a hearing, denied Appellant’s motion for relief.

       Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The trial court issued a responsive opinion.

       On appeal, Appellant raises a single issue:

       Whether the trial court abused its discretion by imposing an
       excessive sentence, relied solely on Appellant’s prior record
       score and failed to consider the mitigating factors presented by
       Appellant, including the gravity of the offense as it related to the
       impact on the life of the victim and the community, the
       rehabilitative needs of Appellant, and the protection of the
       public.

Appellant’s Brief at 6.

       Appellant challenges the discretionary aspects of his sentence, a

challenge which does not entitle him to review as of right. Commonwealth

v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011).                    Prior to addressing a

discretionary challenge, this Court engages in a four-part analysis: 1)

whether the appeal is timely; 2) whether Appellant preserved his issue; 3)

whether Appellant’s brief contains a concise statement of the reasons relied

upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f); and 4) whether

that   statement   raises    a   substantial         question    that    the   sentence    is

inappropriate under the sentencing code. See Commonwealth v. Austin,

66 A.3d 798, 808 (Pa. Super. 2013); see also Pa.R.A.P. 2119(f).




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      Appellant timely filed a notice of appeal, preserved his claim in a post-

sentence motion, and included in his brief an appropriate Pa.R.A.P. 2119(f)

statement.    We must now determine whether he has raised a substantial

question that the sentence is inappropriate under the sentencing code, and if

so, review the merits.

      A substantial question must be evaluated on a case-by-case basis.

Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003).             A

substantial question exists only where the Appellant advances a colorable

argument that the sentencing judge’s actions were either inconsistent with a

specific provision of the Sentencing Code, or contrary to the fundamental

norms which underlie the sentencing process. Commonwealth v. Sierra,

752 A.2d 910, 913 (Pa. Super. 2000). A claim that a sentence is manifestly

excessive many raise a substantial question if Appellant’s Pa.R.A.P. 2119(f)

statement sufficiently articulates the manner in which the sentence was

inconsistent with the Code or contrary to its norms.      Commonwealth v.

Mouzon, 812 A.2d 617, 627-28 (Pa. 2002).

      In the instant case, Appellant asserts that the court’s imposition of a

sentence of time served to twenty-four months was manifestly excessive,

unreasonable, and contrary to the fundamental norms underlying the Code,

as the court failed to adequately consider the mitigating factors presented by

Appellant and focused solely on his prior record score.           Additionally,




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Appellant asserts that the imposition of a maximum sentence was excessive

in nature, given the aforesaid mitigating factors. Appellant’s Brief at 14-15.

      However,     the   record    contains    a   recitation   of   those   same

circumstances, both at the original Gagnon II hearing, and after the court

granted reconsideration and allowed further argument.             Specifically, the

court did spend      extensive    time    considering    Appellant’s family, self-

employment and employer status.           See N. T., 2/11/16, at 3-17; N. T.

4/7/16 at 3-10. It also considered Appellant’s prior record score of five, the

fact that one of his priors was a robbery, his technical violation in 2012, the

issuance of bench warrants in Appellant’s other cases, and that the instant

violation was for a new crime. See N. T., 4/7/16 at 8-11. The court also

noted Appellant’s argument regarding the potential delay in his release

raised speculative concerns. See N. T., 2/11/16 at 7, 11.

      We cannot conclude, based on the record, that the sentencing court

failed to consider the aforesaid personal circumstances, ignored mandatory

factors under 42 Pa.C.S. § 9721(b), or in any other way imposed a harsh

and excessive sentence that was disproportionate to the underlying

violations and circumstances. Commonwealth v. Kalichak, 943 A.2d 285,

292 (Pa. Super. 2008).        The court appropriately considered all factors

relevant to sentencing. Appellant has not raised a substantial question as a

matter of law, and thus, he is not entitled to relief.




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     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2017




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