J-S26005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

AQUIL MAYS

                         Appellant                 No. 1282 EDA 2015


            Appeal from the Judgment of Sentence April 6, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0011892-2007


BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                           FILED APRIL 19, 2016

      Appellant, Aquil Mays, appeals from the judgment of sentence entered

on April 6, 2015 following the revocation of his parole and concurrent

probation. We affirm.

      The trial court briefly summarized the facts and procedural history of

this case as follows:

        On October 14, 2009, [Appellant] pleaded guilty to violating
        the Uniform Firearms Act (VUFA) by carrying a firearm
        despite being a person prohibited from doing so, 18
        Pa.C.S.A. § 6105, and VUFA 18 Pa.C.S.A. § 6106, carrying a
        firearm without a license. He was sentenced on that date to
        84 months [of] reporting probation for VUFA § 6106, and a
        concurrent sentence of 44 to 99 months [of] incarceration
        for VUFA § 6105.

        On January 21, 2015, a revocation hearing was held, after
        which, [Appellant’s] probation was revoked for multiple
        technical violations and a presentence report was ordered.
        On April 6, 2015, [Appellant] was sentenced to 30 to 78
        months [of] incarceration for VUFA § 6106. [Appellant]

*Retired Senior Judge assigned to the Superior Court.
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          filed a petition to vacate and reconsider sentence on April
          10, 2015, which was denied without a hearing on April 14,
          2015.

          On May 6, 2015, [Appellant] filed a notice of appeal to this
          [violation of probation] sentence. On May 7, 2015, [the
          trial] court ordered [Appellant] to file a concise statement of
          [errors] complained of on appeal within 21 days of the date
          of [that] order. On May 28, 2015, defense counsel filed a
          statement of errors complained of on appeal, listing one
          issue.

Trial   Court   Opinion,   7/6/2015,    at   2   (quotations   and   superfluous

capitalization omitted).

        Thereafter, the trial court granted defense counsel three extensions of

time to file an amended concise statement after obtaining the transcript of

the violation hearing. When counsel requested a fourth extension of time,

the trial court denied relief.    Subsequently, the trial court addressed the

single issue set forth in Appellant’s timely filed concise statement in an

opinion entered on July 6, 2015.

        On appeal, Appellant presents the following issue for our review:

          Did not the lower court err and abuse its discretion at
          [A]ppellant’s violation of probation hearing by imposing a
          manifestly excessive sentence of two-and-a-half to six-and-
          a-half years [of imprisonment], which constituted too
          severe a punishment for technical violations, and the lower
          court failed to explain how, as a matter of law, this
          sentence was the least stringent one adequate to protect
          the community and complied with the requirements of the
          Sentencing Code, 42 Pa.C.S. § 9771[?]

Appellant’s Brief at 4.




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       Appellant contends the trial court abused its discretion by revoking his

parole and concurrent probation and sentencing him to a term of total

confinement when he absconded from a halfway house to spend time with

his dying father. Id. at 13. More specifically, he claims the trial court failed

to determine whether total confinement was justified under 42 Pa.C.S.A.

§ 9771(c).1     Id. at 14-15.       Appellant asserts that the revocation of his

probation resulted from a technical violation of his probation, he was not

convicted of another crime, and sentences of total confinement are generally

not permissible for absconding from supervision. Id. at 15-18. Citing the

notes of testimony from the revocation hearing, Appellant suggests that the

trial court considered his absconding from the halfway house as if it were a

criminal conviction for escape. Id. at 16-17. Appellant also argues that the

trial court did not determine whether the sentence of imprisonment was

imposed because Appellant was likely to commit another crime or was
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1
 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. § 9771(c).




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essential to vindicate the authority of the court pursuant to Section

9771(c)(2) and (3). Id. at 15-16. Thus, he claims the trial court abused its

discretion by sentencing him to a term of incarceration “that was a mere six

months less than the maximum [sentence] permitted by statute.”              Id. at

10-11.

      As Appellant objects to the duration of his sentence, and does not

challenge the trial court’s determination that he was in technical violation of

the terms of his probation and parole, we read Appellant’s challenge to be

one   regarding   the      discretionary   aspects   of   his   sentence.     See

Commonwealth v. Schutzues, 54 A.3d 86, 91 (Pa. Super. 2012), appeal

denied, 67 A.3d 796 (Pa. 2013); Commonwealth v. Rhoades, 8 A.3d 912,

916 (Pa. Super. 2010), appeal denied, 25 A.3d 328 (Pa. 2011).               “[T]his

[C]ourt’s scope of review in an appeal from a revocation sentence[e]

includes   discretionary    sentencing     challenges.”     Commonwealth        v.

Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc).

      “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.” Commonwealth v. Clarke, 70 A.3d 1281,

1287 (Pa. Super. 2013), appeal denied, 85 A.3d 481 (Pa. 2014) (citation

omitted). Pursuant to statute, Appellant does not have an automatic right to

appeal the discretionary aspects of his sentence.               See 42 Pa.C.S.A.




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§ 9781(b).    Instead, Appellant must petition this Court for permission to

appeal the discretionary aspects of his sentence. Id.

      As this Court has explained:

      To reach the merits of a discretionary sentencing issue, we
      conduct a four-part analysis to determine:           (1) whether
      appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903;
      (2) whether the issue was properly preserved at sentencing or in
      a motion to reconsider and modify sentence, Pa.R.Crim.P. [708];
      (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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007); see also

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008) (“when

a court revokes probation and imposes a new sentence, a criminal defendant

needs to preserve challenges to the discretionary aspects of that sentence

either by objecting during the revocation sentencing or by filing a

post-sentence motion”).

      Here, Appellant filed a timely notice of appeal and the issue was

properly preserved in a post-sentence motion.           Appellant includes a

statement pursuant to Pennsylvania Rule of Appellate Procedure 2119(f) in

his brief.   Thus, we turn to whether the appeal presents a substantial

question.

      Since Appellant was sentenced following the revocation of probation,

the sentencing guidelines do not apply to Appellant’s sentence.      204 Pa.

Code § 303.1(b); Commonwealth v. Williams, 69 A.3d 735, 741 (Pa.


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Super. 2013), appeal denied, 83 A.3d 415 (Pa. 2014). “[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) (citation omitted). Thus, in sentencing Appellant, the

trial court was required to “consider the general principles and standards of

the Sentencing Code.” Commonwealth v. Russell, 460 A.2d 316, 322 (Pa.

Super. 1983).     Section 9721 expresses these general principles in the

following manner:

      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(b). These factors must be considered along with those

under Section 9771, relating to revocation, as set forth above.

      As we have explained:

      The determination of whether a particular case raises a
      substantial question is to be evaluated on a case-by-case basis.
      Generally, however, in order to establish that there is a
      substantial question, the appellant must show actions by the
      sentencing court inconsistent with the Sentencing Code or
      contrary to the fundamental norms underlying the sentencing
      process.

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal

citations omitted).

      We have previously determined that an appellant raises a substantial

question when he contends the trial court imposed an excessive sentence of

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total confinement, disproportionate to underlying technical violations of

probation, without considering or discussing the mandatory factors of 42

Pa.C.S.A. § 9771. See Commonwealth v. Malovich, 903 A.2d 1247, 1253

(Pa. Super. 2006); see also Commonwealth v. Sierra, 752 A.2d 910, 913

(Pa. Super. 2000) (stating that a substantial question is presented when a

probation revocation sentence of total confinement, in excess of the original

sentence, is imposed as a result of a technical violation of parole or

probation).   Here, Appellant argues the trial court did not discuss Section

9771 factors before he received an excessive sentence for technical

violations of his probation.   We conclude that Appellant has presented a

substantial question, so we turn now to the merits of his sentencing claim.

     The imposition of sentence following the revocation of probation is

vested within the sound discretion of the probation revocation court, which,

absent an abuse of that discretion, will not be disturbed on appeal. Sierra,

752 A.2d at 913. On review, we determine the validity of the probation

revocation proceedings and the authority of the probation revocation court

to consider the same sentencing alternatives that it had at the time of the

initial sentencing. See 42 Pa.C.S.A. § 9771(b); Commonwealth v. Gheen,

688 A.2d 1206, 1207–08 (Pa. Super. 1997). “There shall be no revocation

or increase of conditions of sentence [] except after a hearing at which the

court shall consider the record of the sentencing proceeding together with

evidence of the conduct of the defendant while on probation.” 42 Pa.C.S.A.


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§ 9771(d). Following revocation of probation, a probation revocation court

need not undertake a lengthy discourse for its reasons for imposing a

sentence of total confinement, but the record as a whole must reflect the

probation revocation court's consideration of the facts of the case and

character of the offender.         Commonwealth v. Crump, 995 A.2d 1280,

1283 (Pa. Super. 2010). “The trial court [is] not limited to a consideration

of only the most recent events in [an a]ppellant's [parole/probation] history”

and we have previously concluded it is “not an abuse of discretion for the

trial judge to review the entirety of the [s]upervision [h]istory submitted at

the hearing by the Pennsylvania Department of Probation and Parole when

sentencing [an a]ppellant.”         Commonwealth v. McAfee, 849 A.2d 270,

276 (Pa. Super. 2004).

       Here, at the revocation hearing, the trial court reviewed a case

summary of Appellant’s probation and parole history prepared by the

Pennsylvania Board of Probation and Parole (supervision summary).2        The

trial court, relying upon the supervision summary, recognized that Appellant

was adjudicated delinquent seven times as a juvenile for “possessing a

weapon on school property, 4 cases involving robbery and related charges,

theft of a vehicle and possession of a controlled substance” and that
____________________________________________


2
    Appellant, does not dispute that the trial court had the supervision
summary at its disposal at the revocation hearing. Moreover, Appellant did
not challenge the contents of his supervision summary or argue he lacked
notice it would be presented.



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Appellant “was expelled from school in 8th grade for bringing a knife to

school.”   Trial Court Opinion, 7/6/2015, at 4 n.5.   As an adult, Appellant

“had 12 arrests, 4 convictions, 6 commitments, 9 violations, and 4

revocations, specifically, 2 robbery arrests, 4 [possession with intent to

deliver controlled substances] arrests (3 commitments), 4 possession [of

controlled substances] arrests, and one theft arrest.    Id.   The trial court

then detailed Appellant’s probation/parole history on the underlying offense

at issue, noting that Appellant:   (1) absconded from supervision in March

2013, telling his landlord he was going to California because his sister died,

and was arrested on a warrant in Altoona, Pennsylvania in July 2013,

wherein Appellant was intoxicated and belligerent and possessed a citation

for driving with a suspended license; (2) was re-paroled in January 2014,

but disciplined in April 2014 for missing curfew, smelling of marijuana, and

admitting to taking Xanax and Percocet, and then later discharged from a

treatment facility for failing to comply with treatment and going on a hunger

strike; (3) was seen catching a package thrown over a gate at the Kintock

Community Correction Center in May 2014, but refused to be searched and

then later tested positive for marijuana and opiate use; and (4) was paroled

to the Joseph E. Coleman facility in June 2014 and absconded in September

2014, when he left Temple Episcopal Hospital after he was taken there

following a collapse from knee pain. Id. at 5-6 (record citations omitted).

Appellant argued that the Parole Board had hearings regarding these alleged


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infractions, but he was not found guilty or in violation of the terms of his

supervision. N.T., 1/21/2015, at 11.     However, the trial court determined

Appellant “had multiple technical violations [with an] accent on the word

multiple.”   Id. at 15.    Accordingly, the trial court revoked Appellant’s

probation and ordered a pre-sentence investigation (PSI) report prior to

sentencing. Id.

      At the sentencing hearing, the trial court received a modified PSI

report, because Appellant “declined to participate in” an interview.      N.T.,

4/6/2015, at 4.    Appellant informed the trial court that he “received nine

months [of imprisonment] from the [Parole] Board for absconding from their

supervision” at the Joseph E. Coleman facility.     Id. at 6.   The trial court

then went over Appellant’s supervision summary again.              Id. at 9-14.

Appellant executed his right to allocution, arguing he did not understand

why the trial court was considering his supervision summary when he was

not found guilty of the alleged parole infractions, however, he admitted he

absconded from supervision to be with his ill father. Id. at 15.

      In imposing sentence, the trial court noted Appellant is “a very bad

probationer” and “giving [Appellant] more probation would just be silly at

this point” because “[i]t hasn’t worked” as Appellant is “not a good candidate

for community supervision.” Id. at 18. The trial court recognized that when

Appellant was first paroled, “his behavior was better than his behavior was

the longer he had his freedom.” Id. Accordingly, the trial court concluded


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that “[s]tate prison had some effect on [Appellant], but not as much of an

effect as it should have.”    Id.   The trial court also inquired into whether

Appellant availed himself of vocational training programs while in prison.

Id. When Appellant responded he had completed two programs, the trial

court replied:

        Obviously, that didn’t work.  Maybe they’ll give [the
        Thinking for a Change Program] to you again, kind of
        change your ways of thinking.

        This is the minimum sentence that is required when I
        balance your potential for rehabilitation, which isn’t very
        good right now, versus my duty to protect the public. But I
        hope this stint, even though it’s shorter in state prison, has
        a better effect at modifying your behavior than the last
        state prison sentence that I gave.

Id. at 19.       The trial court sentenced Appellant to 30 to 78 months of

imprisonment. Id. at 18.

      Based upon all of the foregoing, we discern no abuse of discretion in

imposing a sentence of 30 to 78 months of total confinement upon

Appellant. Initially, we note it was proper for the trial court to rely on

Appellant’s entire supervision summary.       McAfee, 849 A.2d at 276.    The

trial court detailed Appellant’s juvenile and adult criminal history and

ultimately determined it would be fruitless to impose additional probation

because he consistently failed to follow the rules of supervision, thus

showing probation has not been an effective rehabilitation tool.     While on

probation, Appellant flouted curfew, admitted to drug use and tested positive

for controlled substances on at least one occasion, retrieved a package

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thrown over a secured facility wall and then refused to be searched, and

absconded from supervision on two separate occasions. Thus, the trial court

concluded probation was clearly not effective as a rehabilitative method,

whereas, “[s]tate prison had some effect on [Appellant], but not as much of

an effect as it should have.”     N.T., 4/6/2015, at 18.   Thus, the record

supports the trial court’s imposition of a sentence of total confinement both

because Appellant’s conduct indicated it was likely that he would reoffend

and imprisonment was essential to vindicate the court’s authority.       We

discern no abuse of discretion. Hence, we conclude the trial court complied

with Section 9771 and Appellant’s sole issue fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2016




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