J-S66025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHAWN GHEZZI

                            Appellant                 No. 580 WDA 2015


             Appeal from the Judgment of Sentence March 4, 2015
               In the Court of Common Pleas of Jefferson County
    Criminal Division at Nos: CP-33-CR-0000081-2012; CP-33-CR-0000374-
                         2012; CP-33-CR-0000675-2006


BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                        FILED JANUARY 20, 2016

        Appellant, Shawn Ghezzi, appeals from the March 4, 2015 judgment of

sentence imposing an aggregate five to ten years of incarceration upon

revocation of three separate probation sentences. We affirm.

        On January 17, 2007, at docket number 675 of 2006, Appellant pled

guilty to one count of burglary (18 Pa.C.S.A. § 3502).         The trial court

sentenced Appellant to three months to two years of county incarceration

followed by one year of probation. On December 22, 2009, the trial court

revoked Appellant’s probation and imposed a sentence of five years of

intermediate punishment, including six months of county incarceration.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       On August 15, 2012, at docket number 81 of 2012, Appellant pled

guilty to one count of theft by unlawful taking (18 Pa.C.S.A. § 3921). Also

on August 15, 2012, Appellant pled guilty to fleeing or attempting to elude

police (75 Pa.C.S.A. § 3733) at docket number 374 of 2012.            In light of

these offenses, the trial court revoked Appellant’s intermediate punishment

and imposed a sentence of one to two years of state incarceration followed

by five years of probation. At docket numbers 81 and 374 of 2012, the trial

court imposed five years of probation concurrent with one another and with

the revocation sentence at number 675 of 2006.           On February 17, 2015,

after a Gagnon II1 hearing, the trial court found Appellant violated a

condition of his probation requiring him to refrain from assaultive behavior.

On March 4, 2015, the trial court revoked Appellant’s probation at all three

aforementioned docket numbers.            At number 675 of 2006, the trial court

imposed five to ten years of state incarceration with credit for time served.

At numbers 81 and 374 of 2012, the court imposed sentences of three to

seven years of incarceration, concurrent to one another and to the sentence

at number 675 of 2006. Appellant filed a timely post-sentence motion on

March 11, 2015. The trial court denied that motion on March 13, 2015. This

timely appeal followed.



____________________________________________


1
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).



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       Appellant argues the trial court abused its sentencing discretion by

imposing too severe a sentence.2 To preserve a challenge to the trial court’s

sentencing discretion, an appellant must (1) preserve the issue in a post-

sentence motion; (2) file a timely notice of appeal; (3) include in the

appellate brief a Pa.R.A.P. 2119(f) concise statement of the reasons relied

upon for allowance of appeal; and (4) present a substantial question for

review. Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013),

appeal denied, 76 A.3d 538 (Pa. 2013).             Appellant has complied with the

first three of these requirements.               We must therefore determine if

Appellant’s Pa.R.A.P. 2119(f) statement presents a substantial question for

review.

       Appellant’s Pa.R.A.P. 2119(f) statement alleges, “the sentence was

manifestly unreasonable under the circumstances of this case and the

probation violation, such that it constitutes too severe a punishment, and

that the Court’s reasons for the sentence did not justify the severity.”

Appellant’s Brief at 8. An allegation that the trial court failed to provide an

on-the-record explanation of its sentence raises a substantial question.

Commonwealth v. Simpson, 829 A.2d 334, 337 (Pa. Super. 2003). We

will therefore review the merits of Appellant’s argument.

       The following law governs our review:

____________________________________________


2
    We note with disapproval that the Commonwealth has failed to file a brief.



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            It is well settled that the proper standard of review when
      considering whether to affirm the sentencing court’s
      determination is an abuse of discretion. An abuse of discretion is
      more than a mere error of judgment; thus, a sentencing court
      will not have abused its discretion unless the record discloses
      that the judgment exercised was manifestly unreasonable, or the
      result of partiality, prejudice, bias or ill-will.   An abuse of
      discretion may not be found merely because an appellate court
      might have reached a different conclusion.         Indeed, as we
      explained in Walls, there are significant policy reasons
      underpinning this deferential standard of review:

             The rationale behind such broad discretion and the
      concomitantly deferential standard of appellate review is that the
      sentencing court is in the best position to 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. Even with the advent of
      sentencing guidelines, the power of sentencing is a function to
      be performed by the sentencing court. Thus, rather than cabin
      the exercise of a sentencing court’s discretion, the guidelines
      merely inform the sentencing decision.

Commonwealth v. Perry, 32 A.3d 232, 236-37 (Pa. 2011) (internal

citations and quotation marks omitted) (quoting Commonwealth v. Walls,

926 A.2d 957, 961-62 (Pa. 2007)).

      The sentence on appeal resulted from probation violations, and not

new   convictions.    Under   these   circumstances,   a   sentence   of   total

confinement is appropriate if “the conduct of the defendant indicates that it

is likely that he will commit another crime if he is not imprisoned” or “such a

sentence is essential to vindicate the authority of the court.” 42 Pa.C.S.A.



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§ 9771(c)(2), (3).      An offender’s repeated failures to reform his conduct

while    out   of   prison   can   justify   a   sentence    of   total   incarceration.

Commonwealth v. Malovich, 903 A.2d 1247, 1254 (Pa. Super. 2006).

Likewise, the sentencing court is in the best position to observe an offender’s

“character, defiance, and indifference” when determining the length of a

sentence of incarceration after revocation. Id.

        Appellant argues his sentence is too severe because his probation

violations involved throwing “objects around the house of his mother” and

failing to pay fines and costs. Appellant’s Brief at 10. Appellant’s revocation

sentence did not result from the commission of a new offense.                 Appellant

argues a sentence of county incarceration and anger management would

have been appropriate.        Id. at 11.     Appellant also argues the trial court

failed to explain the reasons for the five to ten year sentence.

        The sentencing court stated that it was aware of Appellant’s criminal

background, including his history of resentencing. N.T. Sentencing, 3/4/15,

at 6. The court noted Appellant engaged in a “temperamental outburst” at

his mother’s house, where he lived.              Id. at 7.    During that outburst,

Appellant was throwing things, and the sentencing court described the

outburst as “potentially dangerous.” Id. at 7, 12. The sentencing court did

not believe, based on Appellant’s history, that he was amenable to

treatment. Id. at 9. Appellant appeared in front of the sentencing court as

both a juvenile and adult offender, and the court noted that Appellant has


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repeatedly reoffended when out of prison.         Id. at 11.   The court believed

Appellant was capable of further outbursts during which he might injure

somebody. Id. at 9.

      Furthermore,    the   trial   court    believed   a   lengthy   sentence   of

incarceration was necessary to vindicate the authority of the court, given

Appellant’s history of reoffending.         Id. at 9-10.    The court noted that

Appellant was becoming emotional during the sentencing hearing. Id. at 12.

The court stated:

            Let me tell you what I’m observing. Stop talking. I know
      what you’re going to say. Everyone in this courtroom is saying,
      Shawn is getting a little off tilt. And that’s something you need
      to control for the safety of the community, for the safety of your
      family and your child. And that’s why I’m giving you this
      sentence because, obviously, you haven’t matured. You didn’t
      get into programming when you were on the street and had the
      opportunity.

            So the best chance is for you to go down to state prison
      and not sit there and go, well, I’ll wait for my time to see if I’ll
      get paroled because they’re putting a lot of people out the door.
      It’s getting into the right program to find way [sic] to control
      your temperament and to be patient and do programming when
      you’re out on street [sic] so that you can get back into the
      community. [. . .] [Y]ou’ve got to get your temper under
      control.

Id. at 13.

      In summary, the record does not support the Appellant’s argument

that the sentencing court failed to explain its sentence. The court found that

incarceration was necessary to vindicate its authority and to protect the

community, in accord with § 9771(c)(2) and (3).             The court believed a



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lengthy sentence would give Appellant time to obtain treatment and learn to

control his temper. As we stated in Malovich, the sentencing court is in the

best position to make these observations.     Malovich, 903 A.2d at 1254.

This is especially so where, as here, the trial court has presided over the

offender as both a juvenile and as an adult. The court sufficiently explained

both its decision to incarcerate Appellant and its decision to impose a

lengthy period of incarceration. Based on all of the foregoing, we discern no

abuse of discretion. We therefore affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2016




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