J-S27007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 SCOTT MICHAEL KOCHIS                     :
                                          :
                     Appellant            :   No. 855 WDA 2018

            Appeal from the Judgment of Sentence May 22, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0000262-2015


BEFORE:    OLSON, J., OTT, J., and COLINS*, J.

MEMORANDUM BY OLSON, J.:                               FILED JUNE 11, 2019

      Appellant, Scott Michael Kochis, appeals from the judgment of sentence

entered on May 22, 2018, following the revocation of his probation. Upon

review, we affirm.

      The trial court briefly set forth the facts and procedural history of this

case as follows:

      On June 29, 2015, Appellant [] pled guilty to [] one count of
      indecent assault – person less than thirteen years of age. [The
      trial] court sentenced Appellant to a five-year period of probation.
      On May 22, 2018, [the trial] court found Appellant to have violated
      the terms of his probation. [The trial] court revoked probation
      and resentenced Appellant to thirteen to sixty months of
      incarceration. Appellant filed a notice of appeal on June 12, 2018
      and a concise statement of errors complained of [on appeal
      pursuant to Pa.R.A.P. 1925(b)] on June 27, 2018. [The trial court
      issued an opinion pursuant to Pa.R.A.P. 1925(a) on September
      24, 2018].

Trial Court Opinion, 9/24/2018, at 2 (superfluous capitalization omitted).



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      On appeal, Appellant presents the following issues for our review:

      1. Was the 13 [] to [] 60-month state prison sentence imposed
         on Appellant at his probation violation hearing manifestly
         excessive per se, given that (A) Appellant was a technical
         probation violator, not a convicted probation violator; (B) there
         was no showing he was likely to commit a crime while on
         probation unless he was imprisoned; and (C) there was no
         showing that an order of imprisonment was essential to
         vindicate the authority of the probation court?

      2. Was the 13 [] to [] 60-month state prison sentence imposed
         on Appellant at his probation violation hearing manifestly
         excessive, even if imprisonment of some sort could be
         imposed, given that (A) he was a first[-]degree misdemeanor
         offender, thus making the 60 [] month maximum term of
         imprisonment was the most severe punishment that could be
         imposed upon him; (B) he was, as indicated, a technical
         probation violator, and had not had contact with law
         enforcement during his probation term; (C) he suffered from
         four mental health disorders (Attention Deficit – Hyperactivity
         Disorder,     Anxiety  Disorder,   Bipolar     Disorder,   and
         Post-Traumatic Stress Disorder) that both interfered with his
         ability to comply fully with probation conditions and which
         constituted mitigating circumstances in their own right; and
         (D)     he   presented reasons explaining        his   (partial)
         non-compliance with the conditions of his probation, including
         difficulties with his medical insurance and his own drug
         addiction?

Appellant’s Brief at 4-5 (superfluous capitalization omitted).

      To summarize, Appellant “submits that [] he should not have been

ordered imprisoned at all (thus making his confinement sentence manifestly

excessive per se), and that, even if confinement was permissible and

appropriate, the length of incarceration that he was ordered to serve

constituted too severe a punishment for his transgressions.” Id. at 35.      We


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will examine Appellant’s two contentions in turn. First, Appellant contends

that the trial court erred by revoking his probation without a requisite finding

that Appellant violated 42 Pa.C.S.A. § 9771(c).        Id. at 25, 38-43.       More

specifically, Appellant claims that because he did not commit another crime

while on probation, the trial court was required to find that: (1) Appellant

engaged in conduct that indicated that he was likely to commit another crime

if not imprisoned, or (2) incarceration was essential to vindicate the authority

of the court. Id. Appellant maintains that there was insufficient evidence to

show either factor was established. Id.

      We adhere to the following standards:

      Revocation of a probation sentence is a matter committed to the
      sound discretion of the trial court and that court's decision will not
      be disturbed on appeal in the absence of an error of law or an
      abuse of discretion. The Commonwealth establishes a probation
      violation meriting revocation when it shows, by a preponderance
      of the evidence, that the probationer's conduct violated the terms
      and conditions of his probation, and that probation has proven an
      ineffective rehabilitation tool incapable of deterring probationer
      from future antisocial conduct.

Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007)

(citations omitted).

      Pursuant to Section 9771(c), the trial 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




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      (3)   such a sentence is essential to vindicate the authority of the
            court.

42 Pa.C.S.A. § 9771(c).

      We previously determined:

      While a trial court has broad discretion in its initial sentencing, the
      length of a [violation of probation] sentence rests peculiarly within
      the discretion of the [] judge. Sentencing guidelines do not apply
      to sentences imposed as a result of probation or parole
      revocations. Instead, a [violation of probation] sentencing court is
      limited only by the maximum sentence that it could have imposed
      originally at the time of the probationary sentence. The rationale
      for this difference is that a convicted defendant released into the
      community under such control of the sentencing judge, who
      violates the terms of his release, thereby betrays the judge's trust.
      Further, since the defendant has previously appeared before the
      sentencing court, the stated reasons for a revocation sentence
      need not be as elaborate as that which is required at initial
      sentencing.

Commonwealth v. Presley, 193 A.3d 436, 445–446 (Pa. Super. 2018)

(internal citations, quotations, and original brackets omitted).

      Appellant challenges the trial court’s decision to revoke his probation

and impose a sentence of total confinement, arguing that the trial court did

not determine that such a sentence was essential to vindicate the authority of

the court or that his conduct indicated a likelihood that he would commit

another crime.    We disagree.     Before revoking Appellant’s probation and

sentencing him to a term of confinement, the trial court stated:

      [Appellant’s] prior history, though, with the first sexual assault
      [was] quite poor. His attendance [at outpatient sexual offender
      treatment] at the [Mercy] Gatehouse [facility] was so poor that
      he was discharged. He was granted permission to reside with his
      parents in Fayette [County] and attend a dual-diagnosis program
      there. That’s when [Appellant] apparently picked up [] new


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     [criminal] charges [in Fayette County]. He was given a second
     chance at Gatehouse [and] failed to take advantage of it.

     [The trial court did not] see [Appellant], based on the history []
     in [two] presentence [investigation] reports (PSIs), as being a
     good candidate for community supervision when the best we can
     do is put him back in the same situation[.] […T]he best predictor
     of future behavior [is] past behavior. [The trial court did] not see
     him as availing himself of [provided] services [] in the community
     given his past history.

     [Appellant], by report, had multiple inpatient treatment
     opportunities. He reports [for] treatment three times at White
     Deer Run, once at Salvation Army, four times at Western Psych,
     two times at the Gatehouse [as set forth] in the first PSI summary.

     And then [Appellant] had [an] additional opportunity with the
     Gatehouse, which[,] in part[,] form[s] the basis for his violation
     here, failing to attend those. And, again, quickly after his release
     from the Fayette [County] sentence, back to using heroin and
     cocaine, failing to register [as a sex offender] and [the] prior
     indecent assault [were] concern[ing to the trial court], as well, as
     being part of [Appellant’s] supervision history in the past.

                         *            *           *

     [The trial court could not] see any alternative [to] re-sentencing
     [Appellant] to a state sentence, with the hope that he will get
     started on both his [narcotic] addiction treatment as well as the
     sex offender treatment while he is detained.

                         *            *           *

     He does need treatment, which we have not been successful in
     getting for him in the community, and [so, the trial court]
     believe[d] that it would be appropriate for the [Commonwealth]
     to determine when his treatment needs have been met and when
     he becomes safe for another opportunity to be supervised in the
     community through [s]tate [p]arole.

N.T., 5/22/2018, at 10-13. As the foregoing statements show, the trial court

detailed Appellant’s criminal history and poor progress with rehabilitation


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efforts despite multiple opportunities for change as a past probationer,

thereby demonstrating the concern that Appellant would commit another

crime and the need to vindicate the court’s authority. As the record supports

the trial court’s decision to revoke probation under Section 9771(c)(3), we

discern no abuse of discretion or error of law and Appellant’s first issue fails.

      Next, Appellant argues that the trial court abused its discretion by failing

to consider mitigation evidence when it imposed a “manifestly excessive and

constitutionally cruel” sentence of 60 months of incarceration.       Appellant’s

Brief at 32.      He claims that such an extreme sentence is grossly

disproportionate to the crimes. Id. at 34. Appellant further claims that the

trial court failed to consider the following mitigating factors:

      [C]ircumstances existed which mitigated Appellant’s violating acts
      and omissions. Appellant had stopped reporting to his probation
      officer, that was true; but he had been in contact with his
      probation officer for the first portion of his probationary term via
      his probation officer appearing at his (Appellant’s) three-quarter
      house to speak with him while he was there, and during the
      entirety of his probation he lived whe[re] he had been instructed
      to live. Appellant had, concededly, failed to obtain a sex offender
      evaluation; but he had reason for this, as his health insurance was
      rejected when he appeared for an evaluation, and thus he had no
      means to pay for the evaluation. Appellant had, indeed, used
      illegal drugs while he was serving probation; but he suffered from
      drug addiction, and he had reported his relapse (which included
      an overdose) to his probation officer.

      This is a case, secondly, in which Appellant caused little difficulty
      to others. He was employed during his probation period, albeit
      “under the table,” thereby helping to defray the costs of his
      residence. Not only had he not been convicted of a crime while
      on probation, he was not so much as charged with having
      committed any crimes while on probation, and indeed had not had
      any contact whatsoever with law enforcement during his probation

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     term. He did not assault anyone, did not threaten anyone with
     injury, did not steal from any businesses or residences, did not
     cause property damage, and did not traffic in drugs. While he had
     not obtained the sex offender evaluation he was to undergo (and
     therefore was not undergoing sex offender therapy at the time he
     was arrested), there was no indication that he had sexually
     assaulted any child while on probation. Indeed, there is no
     indication that he had [] even spoken to a child, been in the
     presence of one, or even laid eyes on a child during the time that
     he was on probation. Appellant stayed out of trouble during his
     probation term, lived where he was instructed to live, and tried to
     earn money to pay his rent via his own labor for the landlord.

     [...F]urthermore, [] Appellant suffers from multiple [m]ental
     [h]ealth disorders. [] Appellant was diagnosed with four serious
     mental health ailments – those being (1) [a]ttention [d]eficit
     [h]yperactivity [d]isorder, (2) [a]nxiety [d]isorder, (3) [b]ipolar
     [d]isorder, and (4) [p]ost-[t]raumatic [s]tress [d]isorder. Each of
     those mental health disorders alone imposes a substantial burden
     on one’s life. Together the effects are considerable, and [made]
     Appellant’s non-compliance with his probation sentence is
     understandable.

Id. at 44-47 (record citations and footnotes omitted).

     “Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right.” Commonwealth v. Swope, 123 A.3d 333,

337 (Pa. Super. 2015) (citation omitted). Before this Court may address a

discretionary challenge, an appellant must comply with the following

requirements:

     An appellant challenging the discretionary aspects of his sentence
     must invoke this Court's jurisdiction by satisfying a four-part test:
     (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.

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Id.

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

in a post-sentence motion following the revocation of his probation and

sentencing. Further, Appellant's brief includes a concise statement of reasons

relied upon for allowance of appeal with respect to the discretionary aspects

of his sentence pursuant to Pa.R.A.P. 2119(f). See Appellant's Brief at 24-

28.     We now must determine whether Appellant presents a substantial

question that the sentence appealed is not appropriate under the Sentencing

Code.

        We previously held:

        The determination of what constitutes a substantial question must
        be evaluated on a case-by-case basis. A substantial question
        exists only when the appellant advances a colorable argument
        that the sentencing judge's actions were either: (1) inconsistent
        with a specific provision of the Sentencing Code; or (2) contrary
        to the fundamental norms which underlie the sentencing process.

                              *          *            *

        An appellant making an excessiveness claim raises a substantial
        question when he sufficiently articulates the manner in which the
        sentence violates either a specific provision of the sentencing
        scheme set forth in the Sentencing Code or a particular
        fundamental norm underlying the sentencing process.

        When imposing a sentence, the sentencing court must consider
        the factors set out in 42 Pa.C.S.A. § 9721(b), that is, the
        protection of the public, gravity of offense in relation to impact on
        victim and community, and rehabilitative needs of the defendant.

Swope, 123 A.3d at 338 (internal citations, original brackets, footnotes, and

some quotations omitted). This Court has held that “an excessive sentence


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claim—in conjunction with an assertion that the court failed to consider

mitigating factors—raises a substantial question.” Id. at 339, citing

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014); see also

Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en

banc) (same) (citations omitted); see also Commonwealth v. Sierra, 752

A.2d 910, 913 (Pa. Super. 2000) (stating that a substantial question is

presented when a probation revocation sentence of total confinement is

imposed as a result of a technical violation of probation). Thus, we conclude

that Appellant has raised a substantial question for our review.

      Our Supreme Court previously determined:

      a trial court has broad discretion in sentencing a defendant, and
      concomitantly, the appellate courts utilize a deferential standard
      of appellate review in determining whether the trial court abused
      its discretion in fashioning an appropriate sentence. The reason
      for this broad discretion and deferential standard of appellate
      review is that the sentencing court is in the best position to
      measure various factors and determine the proper penalty for a
      particular offense based upon an evaluation of the individual
      circumstances before it. Simply stated, the sentencing court
      sentences flesh-and-blood defendants and the nuances of
      sentencing decisions are difficult to gauge from the cold transcript
      used upon appellate review. Moreover, the sentencing court
      enjoys an institutional advantage to appellate review, bringing to
      its decisions an expertise, experience, and judgment that should
      not be lightly disturbed.

      The sentencing court's institutional advantage is, perhaps, more
      pronounced in fashioning a sentence following the revocation of
      probation, which is qualitatively different than an initial sentencing
      proceeding. At initial sentencing, all of the rules and procedures
      designed to inform the court and to cabin its discretionary
      sentencing authority properly are involved and play a crucial role.
      However, it is a different matter when a defendant reappears
      before the court for sentencing proceedings following a violation

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     of the mercy bestowed upon him in the form of a probationary
     sentence. For example, in such a case, contrary to when an initial
     sentence is imposed, the Sentencing Guidelines do not apply, and
     the revocation court is not cabined by Section 9721(b)'s
     requirement 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.” 42 Pa.C.S.A. § 9721.

     Upon revoking probation, “the sentencing alternatives available to
     the court shall be the same as were available at the time of initial
     sentencing, due consideration being given to the time spent
     serving the order of probation.” 42 Pa.C.S.A. § 9771(b). Thus,
     upon revoking probation, the trial court is limited only by the
     maximum sentence that it could have imposed originally at the
     time of the probationary sentence, although once probation has
     been revoked, the court shall not impose a sentence of total
     confinement 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).

     Moreover, 42 Pa.C.S.A. § 9721(b) specifies that in every case
     following the revocation of probation, “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.” See also Pa.R.Crim.P. 708 (indicating at the time of
     sentence following the revocation of probation, “[t]he judge shall
     state on the record the reasons for the sentence imposed.”).

     However, following revocation, a sentencing court need not
     undertake a lengthy discourse for its reasons for imposing a
     sentence or specifically reference the statutes in question. Simply
     put, since the defendant has previously appeared before the

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      sentencing court, the stated reasons for a revocation sentence
      need not be as elaborate as that which is required at initial
      sentencing. The rationale for this is obvious. When sentencing is
      a consequence of the revocation of probation, the trial judge is
      already fully informed as to the facts and circumstances of both
      the crime and the nature of the defendant, particularly where []
      the trial judge had the benefit of a PSI during the initial sentencing
      proceedings.

Commonwealth v. Pasture, 107 A.3d 21, 27–28 (Pa. 2014) (case citations,

footnotes, and some quotations omitted). Moreover, when “the sentencing

court had the benefit of a [PSI] report, we can assume the sentencing court

was aware of relevant information regarding the defendant's character and

weighed those considerations[.]” Commonwealth v. Rhoades, 8 A.3d 912,

919 (Pa. Super. 2010) (internal citation and quotations omitted).

      Initially, we note that the trial court had the benefit of two PSIs in this

case, the original PSI used at the initial sentencing hearing and an updated

PSI for the revocation and resentencing proceeding. See N.T., 5/22/2018, at

2. Appellant reviewed both reports and had no additions or corrections to

either report. Id. Thus, we presume that the trial court was aware of the

relevant information regarding Appellant’s character when sentencing him

following revocation. Moreover, the trial court was not required to conduct a

proportionality review of the sentence imposed as compared to the crime

committed. Instead, the trial court was permitted to impose any sentence

that it could have imposed originally at the time of the probationary sentence,

including the statutory maximum. Appellant concedes that he received the

five-year statutory maximum sentence.          Appellant’s Brief at 26.        Such



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sentence was permissive. See Pasture. Additionally, Appellant explained

the reasons he failed to comply with three of the terms of his probation. Id.

at 6-9. As such, the trial court was aware of the mitigation evidence Appellant

presented. However, the trial court determined that a term of incarceration

was necessary because, as set forth above in detail, prior efforts at

rehabilitation proved ineffective and Appellant was a danger to the

community. The trial court concluded that Appellant was unable to procure

or complete sex offender treatment on his own in the community and,

therefore, a term of incarceration (where Appellant can receive sex offender

and substance abuse treatment and additional rehabilitation) was warranted.

See N.T., 5/22/2018, at 13 (“Appellant does need treatment, which we have

not been successful in getting for him in the community, and [therefore,] it

would be appropriate for the [Commonwealth] to determine when his

treatment needs have been met and when he becomes safe for another

opportunity to be supervised in the community through [s]tate [p]arole.”).

Here, the trial court had all of Appellant’s relevant information available to it

and stated its reasons on the record for the imposition of Appellant’s sentence.

Hence, based upon the foregoing, we discern no abuse of discretion in

sentencing Appellant following the revocation of his probation.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/2019




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