J-S49017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

BRUCE ANDERSON

                            Appellant               No. 2932 EDA 2013


            Appeal from the Judgment of Sentence August 22, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011765-2011


BEFORE: OLSON, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                          FILED FEBRUARY 05, 2015

       Bruce Anderson appeals from the judgment of sentence imposed on

August 22, 2013, in the Court of Common Pleas of Philadelphia County,

following the revocation of his probation.     Anderson contends the court’s

imposition of an aggregate term of 2½ to 5 years’ imprisonment for

technical violations of probation was excessive and unreasonable.      Based

upon the following, we affirm.

       We adopt the facts set forth in the trial court’s opinion.   See Trial

Court Opinion, 2/27/2014, at 1–3. We note that Anderson was arrested on

February 27, 2010 and, on July 19, 2012,1 entered into a negotiated plea to

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1
  Between Anderson’s arrest and his plea, he was initially found to be
incompetent, and then found to be competent, but in need of treatment.
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simple assault, unlawful restraint/serious bodily injury, and recklessly

endangering another person,2 in exchange for a sentence of 11½ to 23

months’ imprisonment, followed by four years’ probation supervised by the

mental health unit through Mental Health Court.3,4 On May 16, 2013,

following a hearing, Anderson was found in technical violation of his

probation and sentenced as stated above.

       Anderson argues that the trial court abused its discretion in sentencing

him to 2½ to 5 years of incarceration. As such, Anderson is challenging the

discretionary aspects of his revocation sentence. Preliminarily, we note:

       [A] challenge to the discretionary aspects of a sentence is not
       appealable as of right. Rather, Appellant must petition for
       allowance of appeal pursuant to 42 Pa.C.S.A. § 9781.

           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
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2
   See 18 Pa.C.S. §§ 2701(a), 2902(a)(1), and 2705, respectively.
Additional charges of criminal attempt—rape/forcible compulsion, 18 Pa.C.S.
§ 901, indecent exposure, 18 Pa.C.S. § 3127(a), false imprisonment, 18
Pa.C.S. § 2903(a), and open lewdness, 18 Pa.C.S. § 5901, were nol prossed.
3
  Anderson was released from custody on July 31, 2012.        See Anderson’s
Brief at 5.
4
  “Participants in the Mental Health Court are closely monitored by the Court
through regularly scheduled status hearings.”           Trial Court Opinion,
2/27/2014, at 2 n.2. “Mental Health [Court] employs a system of graduated
sanctions beginning with increased court supervision with frequent court
appearances, and becoming more restrictive if needed.” Id. at 2 n.3.



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           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. The third and fourth of these
           requirements arise because Appellant’s attack on his
           sentence is not an appeal as of right. Rather, he must
           petition this Court, in his concise statement of reasons, to
           grant consideration of his appeal on the grounds that
           there is a substantial question. Finally, if the appeal
           satisfies each of these four requirements, we will then
           proceed to decide the substantive merits of the case.

Commonwealth v. Colon, __ A.3d ___, ___ [2014 PA Super 242 at *19–

*20] (Pa. Super. 2014) (citations omitted).

       Here, Anderson preserved his claim in a timely petition to vacate and

reconsider sentence, filed within 10 days of sentencing, and a timely appeal,

filed within 30 days of the sentence.5 See Pa.R.Crim.P. 708(E). Anderson

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

2119(f). See Anderson’s Brief at 9–12.

       Anderson maintains that this case presents a substantial question

because the court sentenced him without carefully considering all the

relevant sentencing factors set forth in 42 Pa.C.S. § 9721(b).       See id. at

10–11. Specifically, Anderson asserts that the court “failed to address [his]

rehabilitative needs by disregarding his mental health issues and the fact

that his mental health treatment programs were in agreement to continue

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5
  Anderson also complied with the court’s order to file a Pa.R.A.P. 1925(b)
statement.




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working with him under more stringent parameters.” Id. at 10.         Anderson

also asserts that this case presents a substantial question because none of

the criteria of 42 Pa.C.S. § 9771 — providing that “[t]he court shall not

impose a sentence of total confinement upon revocation unless it finds that:

(1) the defendant is convicted of another crime; or (2) his conduct indicates

that it is likely that he will commit another offense; or (3) such a sentence is

essential to vindicate the court’s authority” — were satisfied. See id. at 11–

12.

       Upon review, we find Anderson’s former claim that the court

sentenced him without regard for Section 9721(b)’s sentencing factors fails

to raise a substantial question.    As the Pennsylvania Supreme Court has

recently explained, “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. § 9721. Commonwealth

v. Pasture, ___ A.3d ___, ___ (Pa. December 29, 2014).               See also

Commonwealth v. Reaves, 923 A.2d 1119, 1129 (Pa. 2007); 204 Pa.

Code. § 303.1(b) (Sentencing Guidelines do not apply to sentences imposed

as result of revocation of probation).

      However, we conclude Anderson’s latter claim, that the court failed to

comply with 42 Pa.C.S. § 9771(c), does present a substantial question. See


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Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2007)

(finding claim that court imposed total confinement without considering or

discussing the mandatory factors of 42 Pa.C.S. § 9771 presented a

substantial question).

      The principles that guide our review are well settled:

         The imposition of sentence following the revocation of
         probation is vested within the sound discretion of the trial
         court, which, absent an abuse of that discretion, will not
         be disturbed on appeal. An abuse of discretion is more
         than an error in judgment — a sentencing court has not
         abused its discretion unless the record discloses that the
         judgment exercised was manifestly unreasonable, or the
         result of partiality, prejudice, bias or ill-will.

      Commonwealth v. Simmons, 2012 PA Super 262, 56 A.3d
      1280, 1283-84 (Pa. Super. 2012).

         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.

      Commonwealth v. Mouzon, 2003 PA Super 249, 828 A.2d
      1126, 1128 (Pa. Super. 2003).

      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.”
      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

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        (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).

     “In addition, in all cases where the court resentences an offender
     following 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 [and] [f]ailure to comply with these provisions
     shall be grounds for vacating the sentence or resentence and
     resentencing the defendant.” Commonwealth v. Cartrette,
     2013 PA Super 325, 83 A.3d 1030, 1040-1041 (Pa. Super. 2013)
     (internal quotations omitted); 42 Pa.C.S. § 9721(b). “A trial
     court need not undertake a lengthy discourse for its reasons for
     imposing a sentence or specifically reference the statute in
     question, but the record as a whole must reflect the sentencing
     court’s consideration of the facts of the crime and character of
     the offender.” Crump, 995 A.2d at 1282-1283.

Colon, supra at ___ [2014 PA Super 242 at *19–*20].

     In the present case, following a hearing, the trial court revoked

Anderson’s probation based upon technical violations, specifically, non-

compliance with his treatment program at Joseph J. Peters Institute (JJPI),

and with his treatment housing facility at Fisher Lane House.     See N.T.,

8/22/2013, at 19.

     The court heard the testimony of Jessica Rojas, the JJPI case manager,

who testified that Anderson had been placed on a behavior contract at JJPI,

that his behavior had not improved, and that he also was on a behavior

contract at Fisher’s Lane.   She further testified Anderson had served four

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sanctions and one custody sanction,6 and was about to be discharged. Rojas

requested that the court revoke Anderson’s probation. See id. at 2–4.

Thereafter, Anderson’s counsel informed the court that, after discussion, JJPI

was willing to increase the level of Anderson’s services, and that, two days

earlier, Anderson had been prescribed a new medication to help with his

sleep problem. See id. at 4–5. Ms. Smith,7 testified she was willing to work

with Anderson, and Anderson’s social worker, Mary Ann Kuntz, testified that

she had spoken to Ms. Rojas about increasing Anderson’s days in the partial

care program to five days a week. See id. at 6–8. Ms. Rojas confirmed that

JJPI was willing to work with Anderson, but she also testified Anderson had

struggled due to his “negative maladaptive behaviors,” despite “many

modifications and encouragements and prompts,” and that he “opts to do

certain things and show[s] lack of disregard [sic], which is what we get into

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6
  “[Anderson] was given three “jury box” sanctions, one of which had to be
repeated because [Anderson] slept through the sanction period.” Trial Court
Opinion, 2/27/2014, at 2 (footnote omitted). “[Anderson] continued to
struggle with compliance and on July 11, 2013, received a stronger sanction
of a weekend in custody.” Id.      We note that “[a] ‘jury box’ sanction for
non-compliance or inappropriate behavior requires the offender to spend a
day in a jury box observing criminal proceedings.” Commonwealth’s Brief at
4 n.1.
7
  The transcript of the revocation/sentencing hearing reflects testimony by
“Ms. Smith,” who is not otherwise identified on the record at the hearing.
Anderson’s Petition to Vacate and Reconsider Sentence refers to
“[Anderson’s] Intensive Case Manager, Taeesha Smith from Community
Treatment Team.” Anderson’s Petition to Vacate and Reconsider Sentence,
¶11.



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problems with.”       Id. at 9.      The court also heard from Anderson, who

apologized for being argumentative and difficult at JJPI.   See id. at 18.

       The court revoked probation, stating:

              I do find you in technical violation of your probation and I
       am going to revoke it at this time because of not living up to the
       behavior contracts, not attending in the way that you should.
       JJPI came in with the intent of having you discharged today due
       to your behavior and lack of participation. And that is sufficient
       for finding you in violation. Additionally, your behavior contract
       at Fisher’s Lane.

             You know, Mr. Anderson, as I look back over my file, it is
       getting very thick, you really have been given opportunities.
       You have been given more opportunities than most folks have
       been given in terms of you have jury box sanctions, you have
       custody sanctions. And [I] do think that oftentimes it is the
       same song, the same excuses with you.           Can you do it?
       Probably. But have I given you every opportunity to show me
       that you can do it, I believe I have. And I do believe that based
       on your history, you have a prior record score of five, and I am
       looking at the misdemeanors that I have and I am going to go to
       sentencing today.

Id. at 19–20. The trial court then heard argument from Anderson’s counsel

and Commonwealth counsel, and Anderson exercised his right of allocution.

Afterward, the court reiterated, “I think that every attempt has been made

by this Court to address all of [Anderson’s] issues on a lot of different

levels,” and sentenced Anderson to an aggregate term of 2½ to 5 years’

incarceration.8 Id. at 24.
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8
  The court imposed a sentence of 2½ to 5 years’ imprisonment on the
unlawful restraint charge, and concurrent sentences of one to two years’
imprisonment on the charges of simple assault and recklessly endangering
another person. See N.T., 8/22/2013, at 24.



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       Based on our review, we find that the trial court properly justified its

sentence on the record, and that the record supports the trial court’s

determination that, in light of Anderson’s many opportunities to change his

behavior, a sentence of imprisonment was essential to vindicate the

authority of the court. As the trial court aptly explained:

       [Anderson] was non-compliant with his program from May 16,
       2013 until the revocation hearing on August 22, 2013. Despite
       being given increasingly more severe sanctions for his lack of
       compliance, [Anderson] failed to change his behaviors.
       Therefore, the Court determined that it was necessary to impose
       a period of incarceration to vindicate its authority.

Trial Court Opinion, 2/27/2014, at 5.

       Accordingly, we find no basis upon which to disturb the 2½ to 5 year

sentence of imprisonment imposed upon Anderson following probation

revocaton.9 Therefore, we affirm.

       Judgment of sentence affirmed.




____________________________________________


9
 We note upon revocation, Anderson faced a potential sentence of 4½ to 9
years’ imprisonment, in the event of consecutive sentences.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2015




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