J-S58036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                      v.

RODOLFO ANTHONY INFANTE

                            Appellant                   No. 644 MDA 2015


            Appeal from the Judgment of Sentence March 10, 2015
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0004086-2011;
             CP-36-CR-0004087-2011; CP-36-CR-0004092-2011;
             CP-36-CR-0004128-2011; CP-36-CR-0005888-2013


BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                         FILED OCTOBER 16, 2015

        Appellant, Rodolfo Anthony Infante, appeals from the judgment of

sentence entered in the Lancaster County Court of Commons Pleas, following

the revocation of his parole and probation. We affirm.

        In its opinion, the trial court fully sets forth the relevant facts and

procedural history of this case.        Therefore, we have no reason to restate

them.

        Appellant raises one issue for our review:

           WAS AN AGGREGATE SENTENCE OF TWO TO TEN YEARS
           INCARCERATION FOR TECHNICAL VIOLATIONS OF
           PROBATION AND PAROLE MANIFESTLY EXCESSIVE AND
           AN ABUSE OF THE COURT’S DISCRETION?

(Appellant’s Brief at 5).

_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S58036-15


      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Donald R.

Totaro, we conclude Appellant’s issue merits no relief.      The trial court’s

opinion comprehensively discusses and properly disposes of the question

presented. (See Trial Court Opinion, filed May 14, 2015, at 7-12) (finding:

court determined Appellant violated his parole for third time where Appellant

failed to supply samples for drug testing, admitted using opiates and

marijuana, did not enroll in educational classes or drug and alcohol program,

and failed to obtain employment, as required by terms and conditions of his

parole; court had benefit of pre-sentence investigation (“PSI”) report at

sentencing, so it considered, inter alia, Appellant’s age, level of education,

history of mental health and substance abuse, extensive prior criminal

record, gravity of offenses, Appellant’s failed attempts at rehabilitation

(which included violations of his parole on two prior occasions), and

circumstances of Appellant’s most recent parole violation; court also

considered sentencing guidelines and testimony from Appellant’s parole

officer that Appellant has been under restricted supervision since 2012 due

to Appellant’s neglect of his parole conditions; court found Appellant’s

reasons for repeatedly violating parole were “very poor” excuses; parole had

been ineffective rehabilitation tool for Appellant in past, there was little

evidence to indicate Appellant made any effort to change his lifestyle, and

Appellant is not amenable to treatment outside of state correctional


                                    -2-
J-S58036-15


institution; further, Appellant’s history of committing new crimes while on

parole and refusal to accept offered help demonstrated his likelihood to

engage in criminal behavior if he remained on parole or partial confinement;

Appellant showed total disregard for his parole officer, court, and criminal

justice system, so state prison sentence was essential to vindicate court’s

authority; thus, trial court’s sentence of total confinement for Appellant’s

technical parole violations was proper). Accordingly, we affirm on the basis

of the trial court’s opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2015




                                   -3-
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  CL~~1$0F                   COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                                        CRIMINAL
 201c HAY I 4 PM 3: 25

LA~ffiifiJbF                    PENNSYLVANIA                        644 MDA2015

                   vs.                                              Nos.    58g8-2013; 4128-2011
                                                                            4092-2011; 4087-2011
   RODOLFO ANTHONY INFANTE                                                  4086-2011; 4047-2011


                                        PA R.A.P.1925 OPINION

   BY TOTARO, J.

           On January 28, 2015, Rodolfo Anthony Infante ("Defendant") appeared before the Court

  on six separate criminal informations I for a hearing on technical violations of probation and

  parole, relating to four counts of Burglary (Fl), one count of Criminal Attempt (Trespass) (F2),

  one count of Aggravated Assault (F2), five counts of Forgery (F3), and four counts of Theft by

  Unlawful Taking (Ml). (Notes of Transcript, at 2) ("N.T.").2 Defendant was found to be in


           I
            Information #4047-2011: Criminal Attempt (Trespass); Information #4086-2011: Burglary;
  Information #4087-2011: Burglary; Information #4092-2011: Burglary; Information #4128-2011:
  Burglary and Aggravated Assault; Information #5888-2013: Forgery and Theft by Unlawful Taking.
          2
             On August 16, 2012, Defendant entered an open guilty plea to the above-referenced counts at
  Information numbers 4047-2011, 4086-2011, 4087-2011, 4092-2011, and 4128-2011. On September 28,
  2012, following completion of a Pre-sentence Investigation Report, Defendant received a split sentence
  of one year less one day to two years less one day in Lancaster County Prison followed by four years of
  consecutive probation on each count of Burglary, Aggravated Assault, and Criminal Attempt (Trespass).
  See Sentencing Orders. Those minimum sentences were below the standard range of the sentencing
  guidelines for the burglary counts at Information numbers 4086-2011, 4092-2011, and 4128-2011, which
  started at 12 months and would have resulted in state prison sentences if imposed (standard range: 12-24
  months). See Sentencing Guidelines Worksheet. As conditions of sentence, Defendant was to undergo a
  drug and alcohol evaluation, comply with any treatment deemed necessary, and immediately enroll in
  GED or high school classes. See Sentencing Conditions Order.

           On January 22, 2014, Defendant tendered a negotiated guilty plea at Information number 5888-
 . 2013, at which time he received a split sentence of time served to 23 months incarceration in Lancaster
   County Prison followed by three years of consecutive probation on each of the five counts of Forgery.
   See Sentencing Order. Defendant received a sentence of time served to 23 months incarceration on the
   four counts of Theft by Unlawful Taking. Id.
                                                                            Circulated 09/29/2015 02:15 PM




violation of parole, his parole and probation on the split sentences were revoked, and a Pre-

Sentence Investigation Report ("PSI") was ordered prior to the imposition of sentence. Id. at 3-5.

        On March 10, 2015, Defendant appeared before the Court for sentencing on the above-

referenced violations, at which time the PSI Report was made part of the record. (Notes of

Transcript, Sentencing at 2, 9) ("N.T.S"). Thereafter, Defendant's parole was immediately

terminated on all but the four counts of Theft by Unlawful Taking, and for each count of

Burglary he received a sentence of not less than two years nor more than ten years incarceration

in the State Correctional Institution. Id. at 16-18. For Criminal Attempt (Trespass) and

Aggravated Assault, Defendant received a sentence of not less than two years nor more than five

years incarceration. Id. at 17. On each of the five Forgery counts, Defendant was sentenced to

not less than one year nor more than three years incarceration, and for the four counts of Theft by

Unlawful Taking Defendant received the unexpired balance of572 days. Id at 17-18. All

sentences were made concurrent to each other, so the aggregate sentence on all criminal dockets

was not less than two nor more than ten years incarceration. Id. at 18.

       On March 20, 2015, Defendant filed a Motion to Modify Sentence, which was denied by

the Court on March 23, 2015. On April 9, 2015, Defendant filed a Notice of Appeal, which was

amended on April 30, 2015. Defendant also timely filed a Concise Statement of the Errors

Complained of on Appeal ("Statement"), asserting that an aggregate sentence of two to ten years

incarceration for technical violations of probation and parole was contrary to the fundamental

norms underlying the sentencing process and was manifestly excessive and an abuse of the

court's discretion. See Statement. This opinion is written pursuant to Rule 1925(a) of the

Pennsylvania Rules of Appellate Procedure.


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                                       LEGAL STANDARD

        There is no absolute right to appeal when challenging the discretionary aspects of a parole

violation sentence. Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008). Appeal is

permitted only if the Superior Court determines there is a substantial questionthat the sentence

was not appropriate under the sentencing code. Id. A substantial question is raised when the

appellant sets forth a plausible argument that the sentence violates a provision of the sentencing

code or is contrary to fundamental norms of the sentencing process. Id.

        Defendant contests the discretionary aspects of his sentence of total confinement for

technical violations of probation. The imposition of a sentence of total confinement after the

revocation of probation for a technical violation, and not for a new criminal offense, implicates

the "fundamental norms which underlie the sentencing process." Commonwealth v. Sierra, 752

A.2d 910, 913 (Pa. Super. 2000) (quoting Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.

Super. 1999) (internal quotation marks omitted). Additionally, a substantial question that the

sentence was not appropriate under the Sentencing Code may occur even where a sentence is

within the statutory limits. Commonwealth v. Titus, 816 A.2d 251, 255 (Pa. Super. 2003). Thus,

the Court will review Defendant's issue on the merits.

       The Superior Court has set out the general standard of review when considering a

challenge to the discretionary aspects of a Court's sentence as follows:

       Sentencing is a matter vested in the sound discretion of the sentencing judge, and a
       sentence will not be disturbed on appeal absent a manifest abuse of discretion. In
       this context, an abuse of discretion is not shown merely by an error in judgment.
       Rather, the appellant must establish, by reference to the record, that the sentencing
       court ignored or misapplied the law, exercised its judgment for reasons of partiality,
       prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.



                                             3
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Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa. Super. 2005) (quoting Commonwealth v.

Rodda, 723 A.2d 212, 214 (Pa. Super. 1999)).

        In clarifying the proper standard of appellate review of a sentencing court's imposition of

sentence, our Supreme Court has noted:

       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 the sentencing
       guidelines, the power of sentencing is a function to be performed by the sentencing
       court.

Commonwealth v. Walls, 926 A.2d 957, 961-62 (Pa. 2007) (footnote omitted) (citing

Commonwealth v. Ward, 568 A.2d 1242, 1243 (Pa. 1990)). Thus, 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." Id. (quoting Ward, 568 A.2d at 1243).

        Sentencing on a probation violation is a matter vested within the discretion of the trial

court, and will not be disturbed absent a manifest abuse of discretion. Commonwealth v. Crump,

995 A.2d 1280, 1282 (Pa. Super. 2010). "An abuse of discretion requires the trial court to have

acted with manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous." Id

       "When imposing a sentence of total confinement after a probation revocation, the

sentencing court is to consider the factors set forth in [42 Pa. C.S.A. § 9771]." Crump, 995 A.2d

at 1282. Section 9771 states in pertinent part:

       § 9771. Modification or revocation of orderof probation
      (a) General rule.- The court may at any time terminate continued supervision or
      lessen or increase the conditions upon which an order of probation has been imposed.


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       (b) Revocation.- The court may revoke an order of probation upon proof of the
       violation of specified conditions of the probation. Upon revocation 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.
       (c) Limitation on sentence of total confinement.- The 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
       (3) such a sentence is essential to vindicate the authority of the court.

42 Pa. C.S.A. §§ 977l(a)-(c); see also Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa.

Super. 2001).

       Moreover, technical violations, where flagrant and indicative of an inability to reform,

can support imprisonment upon revocation. See Commonwealth v. Carver, 923 A.2d 495, 498

(Pa. Super. 2007). In Commonwealth v. Carrillo-Diaz, where appellant failed to appear for

required treatment and misled the court at his revocation hearing about the reasons for his failure

to appear, the Superior Court found that the trial court acted within its discretion in imposing a

state prison sentence for appellant's technical violations. 64 A.3d 722, 727-29 (Pa. Super. 2013).

Furthermore, in Commonwealth v. Ortega, where the trial court determined that appellant's

serious and protracted technical violations made him unsuitable for another "community based

sentence" of probation, the Superior Court agreed that in light of 42 Pa. C.S.A. § 977l(c)(3), the

trial court could have reasonably determined a sentence of imprisonment for a defendant who

absconded at the very outset of his probationary term and remained delinquent for three years

was essential to vindicate the authority of the court. 995 A.2d 879, 884 (Pa. Super. 2010).

       Where probation is violated, the trial court is free to impose any sentence permitted under

the Sentencing Code, and is not restricted by the bounds of a negotiated plea agreement between


                                                  5
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a defendant and prosecutor. Commonwealth v. Partee, 86 A.3d 245, 249 (Pa. Super. 2014).

Furthermore, sentencing guidelines no longer apply in a revocation hearing. Commonwealth v.

Pasture, 107 A.3d 21, 27 (Pa. 2014).

        A trial court does not necessarily abuse its discretion in imposing a seemingly harsh post-

revocation sentence where the defendant originally received a lenient sentence and then failed to

adhere to the conditions imposed on him. Commonwealth v. Schutzues, 54 A.3d 86, 99 (Pa.

Super. 2012); see also Pasture, 107 A.3d at 28-29. The trial court is limited only by the

maximum sentence it could have originally imposed at the time of the probationary sentence.

Commonwealth v. McAJee, 849 A.2d 270, 275 (Pa. Super. 2004); see also 42 Pa. C.S.A. § 9771.

        A sentencing court need not undertake a lengthy discourse in explaining its reasons for

imposing a sentence if the record reflects the court considered facts of the crime and character of

the offender. Crump, 995 A.2d at 1283. Further, the trial court does not abuse its discretion by

failing to specifically address all mitigating factors presented by a defendant. Commonwealth v.

Samuel, 102 A.3d 1001, 1007 (Pa. Super. 2014). If the record as a whole reflects that the trial

court considered the facts of the crime and character of an appellant, the Superior Court "cannot

re-weigh the sentencing factors to achieve a different result." Crump, 995 A.2d at 1283.

        Finally, when the sentencing court takes into consideration a Pre-Sentence Investigation

Report, as the trial court did in the present case, our Superior Court has noted as follows:

       Since the sentencing court had and considered a presentence report, this fact alone
       was adequate to support the sentence, and due to the court's explicit reliance on that
       report, we are required to presume that the court properly weighed the mitigating
       factors present in the case. . . where the sentencing judge had the benefit of a
       presentence investigation report, it will be presumed that he or she was aware of the
       relevant information regarding the defendant's character and weighed those
       considerations along with mitigating statutory factors.


                                              6
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Commonwealth v. Fowler, 893 A.2d 758, 766-67 (Pa. Super. 2006) (quoting Commonwealth v.

Boyer, 856 A.2d 149, 154 (Pa. Super. 2004)) (citation omitted).

                                           DISCUSSION

        In the present case, the record clearly demonstrates the trial court relied heavily on all

information contained in the PSI Report before imposing sentence. (N.T.S. at 9). Thus, pursuant

to Fowler, supra, there is a presumption the Court was aware of all relevant information

regarding Defendant's character to support the sentence imposed.

        Prior to imposing sentence, the Court confirmed with Defendant and his counsel that all

information contained in the PSI Report was accurate. (N.T.S. at 2-3). The Court noted

Defendant was 22 years of age at the time of his most recent violation, an age of sufficient

maturity to understand the significance of his acts. Id at 11. The Court considered the character

and history of Defendant as disclosed in the PSI Report, and by observing Defendant when he

appeared for his violation hearing and sentencing. Id. The Court also considered comments

made by Defendant and his counsel, including very poor excuses offered by Defendant as to why

he was continually violating his parole. Id. at 7~8, 11.

       Moreover, the Court considered Defendant's mental health history. (N.T.S. at 9).

Defendant reported he was diagnosed with ADHD in fifth grade, but there is no history of mental

health treatment or prescribed medications. Id at 9·10. Defendant also reported the belief that

he is bipolar, but Defendant failed to attend a scheduled appointment with a counselor. Id. at 10.

       Defendant's history of substance abuse as disclosed in the PSI Report was considered.

(N.T.S. at 10·11). Defendant had a drug and alcohol evaluation done in January 2013, where he

was diagnosed as abusive of alcohol, cocaine, and cannabis. Id. at 10. Outpatient treatment was


                                                  7
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 recommended. Id. He had another evaluation in September 2014, while in jail on his second

parole violation, resulting in an appointment with a drug treatment facility. Id However,

Defendant did not attend. Id Rather, Defendant once again began using drugs, resulting in his

third parole violation for which he now stands before the Court. Id at 10· 11.

        Defendant's level of education and work history were discussed. (N.T.S. at 11).

Defendant completed the 101h grade before being expelled for fighting and being tardy on too

many occasions. Id. However, there was nothing to indicate a lack of intellectual ability that

would prevent him from understanding the significance of his acts. Id Defendant had a sporadic

work history, working as a cook for four months before he was fired and working to stock

shelves in a store for six months before he quit because he did not like the job. Id at 11-12.

        The Court took into consideration Defendant's extensive prior criminal record, which

includes convictions on 6 separate dockets for charges including four counts of burglary at four

separate residential properties, one count of criminal attempt (trespass), one count of aggravated

assault involving a police officer, one count of resisting arrest, five counts of forgery, and

multiple counts of theft. (N.T.S. at 12). Defendant owes over $10,000 in fines and costs. Id.

        The Court considered the gravity of the offenses for which Defendant was convicted as

they related to impact on the victims and community. (N.T.S. at 12). In May 2011, Defendant

attempted to enter a residence by breaking a window. Id On July 17, 2011, Defendant entered a

residence and took over $1,000 in property. Id. On August 1, 2011, Defendant entered a

residence and took property worth $620. Id. On August 22, 2011, Defendant cut a window

screen, entered a residence, and took over $4,000 in property. Id. Also on August 22, 2011,

Defendant cut the phone line to a residence, entered that residence, and fled after being


                                                  8
                                                                            Circulated 09/29/2015 02:15 PM




confronted by an individual inside. Id at 12-13. Defendant resisted arrest and assaulted a police

officer who responded to the scene, resulting in his being restrained by a taser. Id. at 13.

        Defendant pled guilty to all of these charges on September 28, 2012, at which time he

was given a break by receiving a county sentence in the mitigated range of the sentencing

guidelines rather than a state prison sentence as warranted by the standard range of sentencing

guidelines. (N.T.S. at 13). Thereafter, in September 2013, while still on parole for the burglary

and assault convictions, Defendant uttered five stolen checks totaling $1,850 and made four

withdrawals totaling $680 from stolen checks he deposited into his account. Id Defendant pled

guilty to those charges on January 22, 2014, for a time-served sentence. Id.

        Defendant's prior failed attempts at rehabilitation were considered by the Court,

including violations of parole on two prior occasions and the circumstances of his most recent

parole violation. (N.T.S. at 9, 13). As such, the Court found there was little to indicate

Defendant had made an effort to change his lifestyle or that he was amenable to rehabilitation.

Id at 13. Defendant was originally paroled on November 27, 2012, after pleading guilty to

several burglaries and related offenses. Id. After release, Defendant was required to immediately

enroll in GED or high school classes and comply with any drug or alcohol counseling deemed

necessary. Id. at 13-14. Defendant failed to comply. Id. at 14.

       On August 9, 2013, a capias was issued for Defendant's first parole violation, on

Information numbers 4047-2011, 4086-2011, 4087-2011, 4092-2011, and 4128-2011, because he

missed seven scheduled appointments with his probation officer between the dates of February 6,

2013 and August 5, 2013. (N.T.S. at 14). Moreover, Defendant failed to provide a sample for a

drug test on July 10, 2013. Id. Additionally, Defendant was charged on October 31, 2013 with


                                                  9
                                                                           Circulated 09/29/2015 02:15 PM




the new crimes of forgery and theft. Id On December 20, 2013, Defendant was found in

violation of parole and he received a time-served sentence. Id.

       On March 12, 2014, a capias was issued for Defendant's second parole violation, on

Information numbers 4047-2011, 4086-2011, 4087-2011, 4092-2011, 4128-2011, and 5888-

2013, because Defendant failed to appear for scheduled appointments with his probation officer

on March 5, 2014 and March 10, 2014, he moved from his approved address, his whereabouts

were unknown, he failed to return as scheduled to provide a drug testing sample on March 5,

2014, and he failed to obtain a drug and alcohol evaluation. (N.T.S. at 14). On July 30, 2014,

Defendant appeared in court and was again found to be in violation of parole. Id. Defendant was

released from jail on September 15, 2014, after completion of the drug program at Lancaster

County Prison and upon undergoing a drug and alcohol evaluation. Id. at 14-15.

       On December 19, 2014, only three months after release from prison on his second parole

violation, a capias and bench warrant were issued for Defendant's third violation because on

October 2, 2014, only seventeen days after release from prison on the second violation,

Defendant claimed an inability to provide a drug testing sample. (N.T.S. at 15). Moreover,

Defendant admitted using opiates on November 22, 2014, he again claimed an inability to

provide a sample for drug testing on December 10, 2014 and December 16, 2014, and he

admitted using marijuana on December 6, 2014. Id Defendant also failed to enroll in

educational classes, obtain employment, or enroll in a drug and alcohol program as required. Id.

       According to his probation officer, Defendant has been part of the re-entry unit since

2012, and has never been stepped down to a less restrictive form of supervision because he

neglects to follow through with conditions. (N.T.S. at 15). Within three weeks of being released


                                                10
                                                                              Circulated 09/29/2015 02:15 PM




from Lancaster County Prison for his second violation, Defendant stopped reporting to his

weekly appointments and was not answering calls left by his probation officer. Id. Defendant

further advised his probation officer he would attend Career Link as encouraged, but failed to

appear and later claimed he overslept. Id at 8, 15-16. Because Defendant failed to show any

motivation, his probation officer was recommending a state prison sentence. Id. at 6, 13, 16.

        Finally, the Court considered all penalties authorized by the Pennsylvania legislature for

the crimes committed, as well as the guidelines of the sentencing code. (N.T.S. at 11).

        For these reasons, the court noted that parole had not been an effective rehabilitation tool,

there was little to indicate Defendant has made any effort to change his lifestyle, and he is not

amenable to treatment or rehabilitation outside a state correctional institution. (N.T.S. at 16).

Further, because Defendant previously committed new crimes while on parole and he has refused

to accept any offered help, there is an undue risk that during a period of probation or partial

confinement Defendant would once again engage in the same criminal behavior of theft and

burglaries to support his drug addiction. Id. Finally, because Defendant has shown total

disregard for his probation officer, the Court and the criminal justice system, the Court stated a

state prison sentence was essential to vindicate the authority of the court. Id. Consequently,

pursuant to 42 Pa. C.S.A. § 9771, the Court imposed a sentence of total confinement.

                                          CONCLUSION

       In his Statement, Defendant suggests the sentences imposed by the trial court for

technical violations were manifestly excessive and an abuse of discretion. By doing so,

Defendant ignores the seriousness of the offenses for which he was convicted, the break he

received at the time of original sentence, and previous unsuccessful attempts at rehabilitation.


                                                  11
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                         As noted, Defendant received a significant break when he was originally sentenced below

              the standard range of the sentencing guidelines on three counts of burglary, resulting in a county

              rather than state prison sentence. As conditions of sentence, Defendant was to immediately

              enroll in GED or high school classes, undergo a drug and alcohol evaluation, and comply with

             any treatment deemed necessary. Defendant failed to comply with said conditions, violating his

             parole on three separate occasions within a period of less than 18 months. As stated in Schutzues

             and Pasture, supra, a trial court does not abuse its discretion in imposing a seemingly harsh post-

             revocation sentence where the defendant originally received a lenient sentence and then failed to

             adhere to the conditions imposed on him.

                         Moreover, like the appellant in Carrillo-Diaz, supra, Defendant did not follow through

             with treatment, demonstrating a lack of motivation and poor long-term prognosis. Additionally,

             as in Ortega, supra, Defendant's prior record, background and technical violations make him

             unsuitable for another "community based sentence" of probation.

                        For these reasons, the Court did not abuse its discretion when sentencing Defendant, and

             the sentence was not manifestly excessive. In fact, a state prison sentence was essential to

             vindicate the authority of the court. Therefore, Defendant's appeal should be dismissed and his

             probation violation sentence affirmed.




                                                                     BY THE COURT:

                                                                       V-h~
             Date:         May 14, 2015                              DONALD R. TOTARO, JUDGE

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ATTEST:


Copies:   Office of the District Attorney
          Mary Jean Glick, Esquire, Senior Assistant Public Defender




                                         13
