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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GREGORY MCDOWELL,                          :
                                               :
                       Appellant               :      No. 1768 EDA 2019

          Appeal from the Judgment of Sentence Entered June 7, 2019
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0004078-2007

BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                                 Filed: April 9, 2020

        Gregory McDowell (“McDowell”) appeals from the judgment of sentence

imposed following the revocation of his probation. We affirm.

        On February 19, 2008, McDowell entered a negotiated guilty plea to

rape by forcible compulsion, unlawful contact with a minor, and corruption of

minors, arising out of his sexual assault of a minor female.1        Following a

Megan’s Law assessment, the trial court sentenced McDowell, in accordance

with the plea agreement, to an aggregate term of 4 to 8 years in prison,

followed by 8 years of probation.

        McDowell began supervision in December 2011, when he was released

from prison. McDowell subsequently committed several technical violations of

the conditions of his supervision. On July 17, 2015, the trial court continued

McDowell’s probation, with the addition of new conditions.
____________________________________________


1   See 18 Pa.C.S.A. §§ 3121(a)(1), 6318(a)(1), 6301(a)(1).
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        In February 2017, while on probation, McDowell was arrested and

charged with various offenses arising out of a sexual assault.       Following a

bench trial, McDowell was convicted of rape of a substantially impaired person,

sexual assault, and indecent assault.2 The trial court sentenced McDowell to

an aggregate term of 12½ to 25 years in prison.

        The trial court conducted a Gagnon II3 hearing on June 4, 2019, during

which McDowell was found to be in violation of his probation. As a result of

the new conviction, the trial court revoked McDowell’s probation and

sentenced him to an aggregate term of 8½ to 17 years in prison. The court

also ordered the sentences to run consecutive to the sentence imposed for the

rape case giving rise to the violation.

        McDowell filed a timely Motion to Reconsider his revocation sentence.4

McDowell subsequently filed a timely Notice of Appeal and a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.

        McDowell now raises the following issues on appeal:

        1. Was not the [revocation] court’s imposition of an eight and one-
        half (8½) to seventeen (17) year sentence of incarceration,
        consecutive to a twelve and one-half (12½) to twenty-five (25)
        year[] sentence on another case, for a violation of probation[,] an
        abuse of discretion where the court violated the requirements of
        42 Pa.C.S.[A.] §[]9721(b) of the Sentencing Code by failing to
____________________________________________


2   See 18 Pa.C.S.A. §§ 3121(a)(4), 3124.1, 3126(a)(1).

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

4The revocation court did not act on McDowell’s Motion to Reconsider prior to
his filing of the Notice of Appeal.

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      give individualized consideration to [McDowell’s] personal history,
      rehabilitative needs or background, and without explaining how,
      as a matter of law, this sentence was the least stringent one
      adequate to protect the community and to serve the rehabilitative
      needs of [McDowell]?

      2. Did not the [revocation] court err and abuse its discretion by
      sentencing [] McDowell to an excessive period of incarceration?

Brief for Appellant at 4.

      We will address McDowell’s claims together, as they are related. First,

McDowell argues that the revocation court failed to consider the factors

identified in Section 9721(b) of the Sentencing Code, including the gravity of

the offense, the need for public protection, and his need for rehabilitation. Id.

at 12. According to McDowell, the revocation court focused exclusively on the

seriousness of the crimes underlying the revocation of his probation, but failed

to consider his background. Id. at 14. McDowell also points out that he was

arrest-free for a period of 11 years, and was largely compliant with state

parole. Id. at 15.

      In his second claim, McDowell argues that his sentence is excessive, and

that the revocation court failed to consider his rehabilitative needs or

mitigating circumstances. Id. at 16-17.

      McDowell’s claims challenge the discretionary aspects of his sentence,

from which there is no absolute right to appeal.      See Commonwealth v.

Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010). In considering such a

challenge,




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     [w]e conduct a four-part analysis to determine: (1) whether the
     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 the 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).

                                     ***

     The determination of what constitutes a substantial question must
     be evaluated on a case-by-case basis. 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.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation

marks and some citations omitted).

     Here, McDowell filed a timely Notice of Appeal, preserved his claim in

his Motion for Reconsideration, and included a separate Rule 2119(f)

Statement in his brief. In his Rule 2119(f) Statement, McDowell asserts that

his revocation sentence, which was imposed consecutively to the sentence for

the offense that gave rise to his probation revocation, is manifestly

unreasonable and excessive.   See Brief for Appellant at 7-9. Additionally,

McDowell claims that the revocation court failed to adequately consider

sentencing criteria set forth in Section 9721(b). McDowell’s argument raises

a substantial question. See Commonwealth v. Derry, 150 A.3d 987, 994-

95 (Pa. Super. 2016) (concluding that a challenge based on a revocation

court’s failure to consider Section 9721(b) factors presents a substantial


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question); Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa. Super.

2003) (concluding that claims that revocation court, after revoking probation,

imposed a sentence that was grossly disproportionate to the crimes

committed, failed to consider appellant’s background and the nature of the

offenses, and failed to provide adequate reasons for the sentence on the

record raised a substantial question). Thus, we will consider the merits of

McDowell’s claim.

      Our standard of review is 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. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014) (citation

omitted).

             The reason for this broad discretion and deferential standard
      of appellate review is that the sentencing court is in the best
      position to measure various factors and 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.

           The sentencing court’s institutional advantage is, perhaps,
      more pronounced in fashioning a sentence following the revocation
      of probation, which is qualitatively different than an initial
      sentencing proceeding. At initial sentencing, all of the rules and

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      procedures designed to inform the court and to cabin its
      discretionary sentencing authority properly are involved and play
      a crucial role. However, it is a different matter when a defendant
      appears before the court for sentencing proceedings following a
      violation of the mercy bestowed upon him in the form of a
      probationary sentence. For example, in such a case, contrary to
      when an initial sentence is imposed, the Sentencing Guidelines do
      not apply, and 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.A. § 9721.

Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (some citations and

quotation marks omitted).

      Upon revocation of probation, a sentencing court may choose from any

of the sentencing options that existed at the time of the original sentence,

including incarceration. 42 Pa.C.S.A. § 9771(b). However, the imposition of

total confinement upon revocation requires a finding that either “(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.” Id. § 9771(c).

      Moreover, “[i]n every case in which the court … resentences an offender

following revocation of probation, … the court shall make as 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.” Id. § 9721(b); see also Pa.R.Crim.P.

708(D)(2) (providing that “[t]he judge shall state on the record the reasons


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for the sentence imposed.”). However, following the revocation of probation,

a sentencing court need not undertake a lengthy discourse for its reasons for

imposing a sentence or specifically reference the statutes in question. See

Pasture, 107 A.3d at 28 (stating that “since the defendant has previously

appeared before the sentencing court, the stated reasons for a revocation

sentence need not be as elaborate as that which is required at initial

sentencing.”).

      Here, the revocation court sentenced McDowell to a term of 6 to 12

years in prison for his unlawful contact with a minor conviction, and a

consecutive term of 2½ to 5 years for his corruption of minors conviction.

McDowell’s post-revocation sentence is within statutory bounds, and is based

on a new criminal charge. See 42 Pa.C.S.A. § 9771(b), (c).

      Further, in its Opinion, the revocation court stated that “[b]y

participating in additional criminal activity, [McDowell] demonstrated that he

was not amenable to probation and that he was a menace to society….” Trial

Court Opinion, 8/13/19, at 4.    The revocation court also pointed out that

McDowell had again been convicted of rape. See id. The revocation court

rejected McDowell’s assertion that it had failed to consider the sentencing

factors set forth in Section 9721(b), and explained that it had “reviewed the

sentencing reports, the statutory maximum for each conviction, the facts of

the cases, [McDowell’s] individual circumstances and background, and all

other legally permissible and pertinent factors….” Id. at 6-7; see also id. at


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6 (citing N.T., 6/6/19, at 17-20, wherein the court explained that it had

considered the relevant sentencing factors).5

       The record confirms that the revocation court was provided with

sufficient information to make a fully informed sentencing decision following

the revocation of McDowell’s probation, and that the court adequately

considered the relevant sentencing factors.           Additionally, McDowell’s

aggregate post-revocation sentence is not manifestly excessive, and “the

court was free to impose the sentence consecutively to his other sentences

for the crimes he committed while on probation.”           Commonwealth v.

Swope, 123 A.3d 333, 341 (Pa. Super. 2015).            Discerning no abuse of

discretion by the trial court, we will not disrupt McDowell’s sentence on appeal.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/9/20


____________________________________________


5 We note that McDowell failed to include the transcripts from his revocation
sentencing in the certified record. See Commonwealth v. Holston, 211
A.3d 1264, 1276 (Pa. Super. 2019) (explaining that “the responsibility rests
upon the appellant to ensure that the record certified on appeal is complete
in the sense that it contains all of the materials necessary for the reviewing
court to perform its duty.”).

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