J-S60014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

JOSEPH MARTIN HOLLOWAY

                            Appellant                   No. 569 MDA 2014


           Appeal from the Judgment of Sentence February 27, 2014
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0000327-2012


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

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

        John Martin Holloway appeals from the judgment of sentence imposed

on February 27, 2014, in the Court of Common Pleas of Lancaster County,

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

imposition of an aggregate term of three to ten years’ imprisonment for his

probation/parole violation was excessive and unreasonable. Based upon the

following, we affirm.

         On September 11, 2012, Holloway pleaded guilty to one count of

criminal trespass, one count of theft by deception, and one count of criminal

attempt – theft by deception.1          The trial court sentenced Holloway to an


____________________________________________


1
    18 Pa.C.S. §§ 3503(a)(1)(ii), 3922(a)(1), 901(a), respectively.
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aggregate sentence of time served to 23 months’ imprisonment, followed by

three years’ probation.2

       On October 13, 2013, a capias was issued, alleging that Holloway

violated the terms of his supervision by missing four appointments with his

probation officer, failing to report for a scheduled drug test, and admitting to

the use of cocaine. An order amending the capias was filed on October 21,

2013, stating an additional violation of the terms of his supervision in that

he received new criminal charges of false identification and disorderly

conduct.

       On January 15, 2014, following a hearing at which Holloway stipulated

to violating his probation/parole,3 the trial court found that a violation

occurred, and revoked Holloway’s probation and parole.        On February 27,

2014, Holloway was sentenced to an aggregate term of three to ten years’

imprisonment.4


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2
  On the criminal trespass count, the court imposed a split sentence of time
served to 23 months’ imprisonment, followed by three years’ probation. The
court imposed a concurrent term of two years’ probation on each count of
theft by deception.
3
  The written stipulation stated, inter alia, that Holloway “has violated
his/her probation and/or parole,” and “the [c]apias is incorporated into the
record.” Probation/Parole Violation Stipulation, dated 1/19/2014.
4
  On the criminal trespass count, the court terminated Holloway’s parole and
imposed a three to ten year sentence of imprisonment. The court imposed a
concurrent term of two years’ probation on each count of theft by deception.



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       In this appeal, Holloway argues that the sentence imposed upon

revocation of probation/parole was manifestly excessive and contrary to the

fundamental norms of the sentencing process.             As such, Holloway is

challenging the discretionary aspects of his revocation sentence.         In this

regard, 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 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, 102 A.3d 1042, 1043 [2014 PA Super 242 at

*19–*20] (Pa. Super. 2014) (citations omitted).

       Here, Holloway preserved his discretionary aspects of sentencing

challenge in a timely motion to modify sentence, filed within 10 days of

sentencing, and a timely appeal, filed within 30 days of the sentence. 5 See
____________________________________________


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



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Pa.R.Crim.P. 708(E).     Holloway has also included in his brief a concise

statement pursuant to Pa.R.A.P. 2119(f).           See Holloway’s Brief at 8–9.

Furthermore, Holloway maintains that this case presents a substantial

question, and in support cites 42 Pa.C.S. §§ 9721(b) and 9771(c). See id.

at 8. Specifically, Holloway asserts that “[i]n imposing a sentence of three

to ten years incarceration, the court violated the provisions of 42 Pa.C.S. §

9771, and failed to consider the non-violent nature of Mr. Holloway’s

violation as well as his strong need for drug and alcohol treatment.” Id. at 9.

      Upon review, we find Holloway’s argument that a substantial question

exists in this case based upon Section 9721(b) fails to raise a substantial

question in this case.    As the Pennsylvania Supreme Court has recently

opined,   “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 ___, ___ [2014 WL 7392242, at *5] (Pa. December

29, 2014).    See also Commonwealth v. Reaves, 923 A.2d 1119, 1129

(Pa. 2007), citing 204 Pa. Code. § 303.1(b) (Sentencing Guidelines do not

apply to sentences imposed as result of revocation of probation).

      However, we conclude Holloway’s latter claim, that the court violated

the provisions of 42 Pa.C.S. § 9771(c), does present a substantial question.

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

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(finding claim that court imposed total confinement without considering or

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

substantial question).

      Holloway claims that the three to ten year sentence of imprisonment

for a non-violent violation of parole and probation was manifestly excessive

in that the court failed to consider his strong need for drug rehabilitation, his

completion of the Two-One drug and alcohol program at Lancaster County

Prison, his acceptance into the Potter’s House re-entry program, and his

employment.      Specifically, Holloway argues:     “Considering Mr. Holloway’s

significant drug addiction and his hardworking and non-violent nature, the

Court failed to consider the benefit Mr. Holloway would have received from a

lesser period of incarceration and being paroled to either the Potter’s House

or an inpatient rehabilitation facility.” Holloway’s Brief, at 12.

      The principles that guide our review are as follows:

          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

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        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

        (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 1043-44 [2014 PA Super 242 at *22–*24].




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      In the present case, the court explained the basis of its sentencing

decision as follows:

      At sentencing, the Court listened to both the comments of
      [Holloway] and the arguments of Counsel. (N.T.PV. 2-5). While
      listening to Defense Counsel’s arguments, the Court was made
      aware of and took into consideration numerous factors
      concerning [Holloway’s] background and responsibilities prior to
      committing the aforementioned crimes (N.T.PV. 2-4). Defense
      Counsel provided the Court with information pertaining to
      [Holloway’s] education (N.T.PV. 2), [Holloway’s] good rapport
      with his place of employment (N.T.PV. 3), the circumstances
      surrounding [Holloway’s] relapse as a drug addict (N.T.PV. 3), as
      well as [Holloway’s] completion of the two one program (N.T.PV.
      3-4).

            The Court noted on the record multiple factors that cause
      substantial concern:

                "The fact of the matter is you have a criminal
         history record as an adult which consists of 19 pages in
         this presentence report. As the summary attached to the
         violation — or the capias in this case indicates, it's your
         16th overall violation [], it's your 25th appearance in
         Lancaster County Court.

               You are someone who, it's clear to me, has no real
         interest in complying with whatever rules and regulations
         the Adult Probation folks have tried to impose on you in
         order to get you to be more compliant with the rules of
         society.

                 I believe that a substantial extended period of
         incarceration is the only opportunity you're going to have
         to take advantage of any programs to get your life on a
         different path than it's been on, at least from what I can
         tell, for decades." (N.T.PV. 6-7).

      Further, the Court noted the fact that it read the presentence
      report in detail as well as the character statements of
      [Holloway]. (N.T.PV. 6). The Court properly considered all of the



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     above factors and fashioned            an   individualized   sentence
     appropriate for [Holloway].

Trial Court Opinion, 5/23/2014, at 2–3.

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

sentence on the record. Furthermore, the record supports the trial court’s

implicit determination that, given Holloway’s long criminal history and many

opportunities for rehabilitation, and his present failure to comply with the

rules and regulations of his supervision, “the conduct of the defendant

indicates that it is likely that he will commit another crime if he is not

imprisoned” and “such a sentence is essential to vindicate the authority of

the court.” 42 Pa.C.S. § 9771(c)(2), (3).

     Accordingly, we find no basis upon which to disturb the three-to-ten

year sentence of imprisonment imposed upon Holloway following probation

revocation. Therefore, we affirm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2015




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