J-S22005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROBERT GEYER

                            Appellant                 No. 384 WDA 2014


            Appeal from the Judgment of Sentence February 3, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0003418-2008


BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                                  FILED MAY 22, 2015

        Appellant, Robert Geyer, appeals from the judgment of sentence

entered following the revocation of his probation on February 3, 2014, in the

Court of Common Pleas of Allegheny County. We affirm.

        We take the underlying facts and procedural history in this matter

from the trial court’s opinion.

              Geyer was originally charged with two counts of rape, one
        count of sexual assault, one count of statutory sexual assault,
        one count of indecent assault and one count of simple assault as
        a result of his raping a fourteen-year-old female. On November
        18, 2009, Geyer plead guilty to one count of sexual assault in
        exchange for the dismissal of all of the remaining counts.
        Geyer’s plea was the result of a plea agreement, which
        envisioned that he would be sentenced to time served, and a
        period of probation of five years. Geyer was to follow a service
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      plan that was prepared for him which envisioned that he would
      undergo random drug screening and that he would seek
      psychiatric treatment at Western Pennsylvania Psychiatric
      Hospital.

             Geyer was cited as a probation violator for his continued
      use and abuse of drugs. It was noted in the violation report that
      Geyer tested positive for drug use on twelve different occasions
      and his drug use included marijuana, cocaine                  and
      benzodiazepine. In addition to his drug abuse, the violation
      report noted that he had threatened the staff at Western
      Pennsylvania Psychiatric Hospital, the Day Reporting Center and
      the psychiatric community treatment team. Threats made by
      Geyer to these individuals were such that representatives from
      the psychiatric community treatment team refused to go to
      Geyer’s home since they feared for their safety. In addition to
      this violation, it was noted that Geyer had been charged with
      failure to comply with the [sex offender] registration
      [requirements]….       Two violation hearings were held and
      following the first hearing, a presentence report was ordered to
      aid this [c]ourt in formulating a sentence for Geyer’s violations.
      On February 3, 2014, following the second hearing and a review
      of the presentence report, Geyer was sentenced to a period of
      incarceration of not less than three nor more than six years, to
      be followed by a period of probation of two years, during which
      he would undergo random drug screening and he was to have no
      contact with the victim.

Trial Court Opinion, 1/8/15 at 2-3.     Geyer filed a post-sentence motion,

which the lower court denied following a hearing.         This timely appeal

followed.

      On appeal, Geyer raises the following issue for our review:

      [Did the] trial court abuse its sentencing discretion by imposing
      an excessive sentence without adequately addressing all
      required sentencing factors, such as Appellant’s rehabilitative
      needs?

Appellant’s Brief at 8 (unnecessary capitalization omitted).




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      Our standard when reviewing a sentence imposed following the

revocation of probation is as follows.

      Our review is limited to determining the validity of the probation
      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. Also, upon sentencing following
      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. Tann, 79 A.3d 1130, 1132 (Pa. Super. 2014) (citation

omitted), appeal denied, 94 A.3d 1009 (Pa. 2014).

      Geyer challenges the discretionary aspects of his sentence.            In

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

an en banc panel of this Court concluded that “this Court’s scope of review in

an appeal from a revocation sentencing includes discretionary sentencing

challenges.” Id., at 1034. Therefore, Geyer’s claim is properly before us.

      A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted).

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

      [We] conduct a four-part analysis to determine: (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


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      question that the sentence appealed from is not appropriate
      under the Sentencing Code, 42. Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

      Here, Geyer filed a timely appeal and challenged his sentence in a

post-sentence motion. Geyer’s appellate brief also contains the requisite

Rule 2119(f) concise statement, in which he contends that “trial court did

not sufficiently consider his drug problems and his rehabilitative needs in

order to adequately deal with his drug dependence or his mental problems.”

Appellant’s Brief at 14-15.        We must now determine whether Geyer’s

challenge to the discretionary aspects of his sentence raises a substantial

question.

      “A substantial question will be found where an appellant advances a

colorable argument that the sentence imposed is either inconsistent with a

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

norms which underlie the sentencing process.” Commonwealth v. Zirkle,

107 A.3d 127, 132 (Pa. Super. 2014) (citation omitted). “[A]rguments that

the sentencing court failed to consider the factors proffered in 42 Pa.C.S. §

9721 does present a substantial question whereas a statement that the

court failed to consider facts of record, though necessarily encompassing the

factors of § 9721, has been rejected.” Commonwealth v. Buterbaugh, 91

A.3d 1247, 1266 (Pa. Super. 2014) (en banc), appeal denied, 104 A.3d

1 (Pa. 2014) (citation omitted).



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      While Geyer frames his argument by claiming that the trial court failed

to consider certain statutory sentencing factors, in substance Geyer merely

argues that the trial court failed to sufficiently address factors of record, i.e.,

his drug and mental health problems. We note in this regard that the trial

court had prepared and reviewed a pre-sentence report.                 See N.T.,

Sentencing, 2/3/14 at 8. Where the trial court had the benefit of reviewing

a pre-sentence report, we must

      presume that the sentencing judge was aware of relevant
      information regarding the defendant’s character and weighed
      those considerations along with mitigating statutory factors. A
      pre-sentence report constitutes the record and speaks for itself.
      In order to dispel any lingering doubt as to our intention of
      engaging in an effort of legal purification, we state clearly that
      sentencers are under no compulsion to employ checklists or any
      extended or systematic definitions of their punishment
      procedure. Having been fully informed by the pre-sentence
      report, the sentencing court's discretion should not be disturbed.
      This is particularly true, we repeat, in those circumstances where
      it can be demonstrated that the judge had any degree of
      awareness of the sentencing considerations, and there we will
      presume also that the weighing process took place in a
      meaningful fashion. It would be foolish, indeed, to take the
      position that if a court is in possession of the facts, it will fail to
      apply them to the case at hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citing

Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988)).

As the trial court in this case had the benefit of a pre-sentence report, we

must presume that he considered all relevant sentencing factors, including

Geyer’s rehabilitative needs.




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     Accordingly, we are constrained to find that Geyer’s claim that the trial

court did not adequately consider relevant factors of record fails to raise a

substantial question. See Buterbaugh, 91 A.3d at 1266.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2015




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