J-S37008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

WAYNE ELLIS DEMIKO

                        Appellant                  No. 3385 EDA 2014


         Appeal from the Judgment of Sentence October 29, 2014
            In the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0002638-2010


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.:                          FILED JULY 28, 2015

     Appellant, Wayne Ellis Demiko, appeals from the judgment of sentence

entered in the Delaware County Court of Common Pleas, following

revocation of his probation. We affirm.

     The relevant facts and procedural history of this case are as follows.

On October 18, 2011, Appellant pled nolo contendere to aggravated assault

after he slashed a prison guard with a razor blade.    The court sentenced

Appellant to two (2) to four (4) years’ imprisonment, followed by three (3)

years’ probation. On April 16, 2014, Appellant assaulted an individual in a

mental health facility. Appellant pled guilty to simple assault on September

25, 2014, and the court sentenced him to six (6) to twelve (12) months’

imprisonment.
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       On October 29, 2014, the court conducted a Gagnon II1 hearing and

revoked Appellant’s probation on the 2011 aggravated assault conviction.

The court immediately resentenced Appellant to two (2) to six (6) years’

imprisonment, consecutive to his 2014 simple assault sentence.              On

November 6, 2014, Appellant timely filed a motion to reconsider his

revocation sentence, which the court denied on November 10, 2014.

Appellant timely filed a notice of appeal on November 25, 2014. The court

ordered Appellant on December 1, 2014, to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely

complied on December 15, 2014.

       Appellant raises the following issue for our review:

          WHETHER THE SENTENCE OF TWO TO SIX YEARS
          IMPRISONMENT IMPOSED AT THE GAGNON II HEARING
          HELD IN THIS MATTER ON OCTOBER 29, 2014 WAS
          HARSH AND EXCESSIVE UNDER THE CIRCUMSTANCES
          WHERE THE COURT RELIED ON AN IMPERMISSIBLE
          FACTOR THAT AMOUNTED TO THE COURT SENDING A
          MESSAGE    TO A  THIRD   PARTY UNRELATED   TO
          [APPELLANT].

(Appellant’s Brief at 7).

       Appellant argues his revocation sentence of two (2) to six (6) years’ of

state time is harsh and excessive because the court relied on an

impermissible factor in resentencing Appellant.         Specifically, Appellant

____________________________________________


1
  Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656
(1973).



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contends the court used Appellant’s circumstances as an opportunity to

address a personal issue the court had with a supervisor of the Pennsylvania

Board of Probation and Parole (“Board”). Appellant alleges the court used

his revocation sentence to send a message to a Board supervisor on how the

court felt about the Board’s recommended sentence of six (6) to twelve (12)

months’ county imprisonment. Appellant maintains the court’s actions were

outside the norms of sentencing, and that the court dismissed the agent’s

reasoning because of personal bias against the state, unrelated to

Appellant’s conduct on probation.       Appellant concludes this Court should

vacate his revocation sentence and remand for resentencing. As presented,

Appellant challenges the discretionary aspects of his revocation sentence.

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

(stating claim that court considered improper factors at sentencing refers to

discretionary aspects of sentencing).

     When reviewing the outcome of a revocation proceeding, this Court is

limited to determining the validity of the proceeding and the legality of the

judgment of sentence imposed.       Commonwealth v. Heilman, 876 A.2d

1021 (Pa.Super. 2005).       Notwithstanding the stated scope of review

suggesting only the legality of a sentence is reviewable, an appellant may

also challenge the discretionary aspects of a sentence imposed following

revocation.   Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super. 2000).

See also Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013)


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(en banc) (discussing that scope of review following revocation proceedings

includes discretionary sentencing claims).

      Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.    Sierra, supra.      Prior to reaching the

merits of a discretionary sentencing issue:

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

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

      When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating a substantial question as to the

appropriateness    of   the   sentence       under   the    Sentencing    Code.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.

2119(f). The concise statement must indicate “where the sentence falls in

relation to the sentencing guidelines and what particular provision of the

code it violates.” Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.Super.

2004) (quoting Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super.

2000), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000)).                   “The


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requirement that an appellant separately set forth the reasons relied upon

for allowance of appeal ‘furthers the purpose evident in the Sentencing Code

as a whole of limiting any challenges to the trial court’s evaluation of the

multitude of factors impinging on the sentencing decision to exceptional

cases.’”    Commonwealth v. Williams, 562 A.2d 1385, 1387 (Pa.Super.

1989) (en banc).

           [O]nly where the appellant’s Rule 2119(f) statement
           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, will
           such a statement be deemed adequate to raise a
           substantial question so as to permit a grant of allowance of
           appeal of the discretionary aspects of the sentence. See
           [Commonwealth v. Koehler, 558 Pa. 334, 370, 737 A.2d
           225, 244 (1999)] (party must articulate why sentence
           raises doubts that sentence was improper under the
           Sentencing Code).

Mouzon, supra at 435, 812 A.2d at 627.

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.             Anderson, supra.   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.”          Sierra, supra at 912-13.      An

appellant raises a substantial question where he alleges an excessive

sentence     due    to   the   court’s   reliance   on   impermissible    factors.

Commonwealth v. McNabb, 819 A.2d 54 (Pa.Super. 2003).

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      “In general, 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.”

Commonwealth v. Hoover, 909 A.2d 321, 322 (Pa.Super. 2006).                  A

sentence should not be disturbed where it is evident the court was aware of

the appropriate sentencing considerations and weighed them in a meaningful

fashion. Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.Super. 2000).

      The Sentencing Guidelines do not apply to sentences imposed

following revocation of probation. Commonwealth v. Ferguson, 893 A.2d

735, 739 (Pa.Super. 2006), appeal denied, 588 Pa. 788, 906 A.2d 1196

(2006).   “[U]pon sentencing following a 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.

Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001). A court can sentence a

defendant to total confinement after revoking probation if the defendant was

convicted of another crime, the defendant’s conduct indicates it is likely that

he will commit another crime if he is not imprisoned, or such a sentence is

essential to vindicate the court’s authority.   Commonwealth v. Crump,

995 A.2d 1280 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475

(2010).

      Instantly, Appellant properly preserved his discretionary aspects of

sentencing claim. See Evans, supra. Moreover, Appellant’s claim raises a


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substantial question.   See McNabb, supra.          Nevertheless, the court

concluded:

        This [c]ourt imposed the sentence because [Appellant] is a
        violent recidivist who has serious mental illness and cannot
        be effectively supervised by the County of Delaware. He
        has a criminal record with arrests for Retail Theft, Criminal
        Trespass, Resisting Arrest, Theft, Criminal Mischief,
        Reckless Endangerment, Disorderly Conduct, Simple
        Assault, [and] Attempt to Commit Aggravated Assault.
        While in prison, he incurred a new criminal charge of
        aggravated harassment and had 39 misconducts.             He
        committed a new violent offense within a few weeks of his
        release.

        Although the State Probation Officer who appeared at the
        Gagnon II hearing recommended that [Appellant] be
        given a County sentence, the State has superior resources
        to contend with a man with such violent propensities as a
        result of severe mental illness. The County lacks the
        resources to supervise him once he is released.

        This [c]ourt did not fashion the sentence with the intent to
        send a message to any third party about an issue
        unrelated to [Appellant]. The State dispatched a probation
        officer to the Gagnon II hearing to advocate for a County
        sentence. This [c]ourt saw this maneuver as a tactical
        ploy by the State to rid itself of responsibility for
        [Appellant]. The State provided [Appellant] with little
        assistance when he was in its custody, and it made an
        effort to ensure that he would not return to any form of
        State responsibility. This [c]ourt believes that the State,
        not the County, has the superior, relevant resources.
        Thus, it asked that the probation officer advise Ms. Mackie
        of the local State probation and parole office that she
        should employ State resources.        The admonition was
        directly relevant to [Appellant’s] needs; it was not
        “unrelated.”

(Trial Court Opinion, filed February 12, 2015, at 2-3) (citation to record

omitted).    The record supports the court’s decision.     Thus, Appellant’s


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discretionary aspects of sentencing claim merits no relief. Accordingly, we

affirm the judgment of sentence.

     Judgment of sentence affirmed.

     Judge Lazarus joins this memorandum.

     Judge Shogan concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2015




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