J-S68015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

TONY DELGADO,

                         Appellant                    No. 515 EDA 2015


     Appeal from the Judgment of Sentence Entered January 15, 2015
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0013657-2011


BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED DECEMBER 30, 2015

      Appellant, Tony Delgado, appeals from the judgment of sentence of an

aggregate term of 2 to 5 years’ imprisonment, imposed after the court

revoked his term of probation based on technical violations.       Appellant

challenges the discretionary aspects of his sentence. We affirm.

      The trial court summarized the relevant facts and procedural history of

this case in its Pa.R.A.P. 1925(a) opinion, as follows:

      On February 22, 2012, Appellant was found guilty of criminal
      trespass as a felony of the third degree, as well as theft by
      unlawful taking and receiving stolen property as misdemeanors
      of the third degree by the [H]onorable Charles Ehrlich. Prior to
      sentencing, Judge Ehrlich ordered a Presentence Investigation
      and Mental Health Evaluation.

      On April 24, 2012, Judge Ehrlich sentenced Appellant to 11½ to
      23 months[’] incarceration, followed by 3 years[’] probation on
      the criminal trespass, and no further penalty on the 2 remaining
      charges. Thereafter, Judge Ehrlich relinquished jurisdiction and
      the case was referred to Mental Health Court (MHC). On June
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     28, 2012, Appellant was formally entered into MHC. As is
     procedure in MHC, Appellant was scheduled for status of mental
     health and treatment hearings at regular intervals to monitor his
     compliance and progress.

     On February 27, 2013, Appellant was paroled to Gaudenzia
     North Broad. On March 31, 2013, Appellant failed to appear for
     Court and a violation hearing was scheduled. At the June 13,
     2013 violation hearing, it was reported that Appellant had been
     discharged from Gaudenzia North Broad for testing positive for
     drugs on two separate occasions, and for leaving the facility
     without permission. Following the hearing, Appellant was found
     in technical violation, his probation/parole was revoked, and a
     new sentence of 11½ to 23 months[’] confinement followed by 4
     years[’] reporting probation, with immediate parole, was
     implemented. On June 26, 2013, Appellant was released to NET
     Frankford and Fresh Start Recovery House. On August 15,
     Appellant was not in compliance with the conditions of his
     program and received a jury box sanction. On October 23,
     2013, Appellant was taken into custody after the director at
     Fresh Start informed Appellant’s probation officer that Appellant
     was being discharged for non-compliance. Appellant remained in
     custody until January 23, 2014, when he was paroled to the
     Homeward Bound program.

     On May 28, 2014, Appellant’s probation officer received a call
     from Appellant’s recovery coach at Homeward Bound indicating
     that Appellant had failed to attend his treatment appointment on
     May 23, 2014.       It was also reported that Appellant was
     scheduled to be in attendance five days a week, but would only
     show up three days a week. In addition, when Appellant was in
     attendance, he would sleep through the group sessions, and
     walk in and out of groups. On June 11, 2014, Appellant’s
     probation officer received a report from his Homeward Bound
     case manager that Appellant had tested positive for cocaine. On
     June 12, 2014, Appellant absconded from the program and failed
     to appear at the July 17, 2014 [MHC] hearing. A bench warrant
     was issued and Appellant was taken into custody on October 4,
     2014. A forthwith mental health evaluation was ordered and a
     violation hearing was scheduled. At the hearing, Appellant’s
     case manager testified to the aforementioned events and
     Appellant’s probation summary was entered into evidence. On
     January 15, 2015, following the hearing, the Court found
     Appellant in technical violation, revoked probation, and
     sentenced Appellant to 2 to 5 years in state custody. Appellant’s

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      Motion to [V]acate and Reconsider Sentence was denied without
      a hearing. This appeal followed.

Trial Court Opinion (TCO), 4/13/15, at 1-3.

      Herein, Appellant presents the following issues for our review: “Was

not the sentence of two to five years[’] total confinement manifestly

excessive and grossly disproportionate to [A]ppellant’s technical violations,

and was [it not] far in excess of what was necessary to foster [A]ppellant’s

rehabilitation?” Appellant’s Brief at 3.

      Initially, we note that Appellant’s allegations relate to the discretionary

aspects of his sentence.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right.            An appellant
      challenging the discretionary aspects of his sentence must
      invoke this Court’s jurisdiction by satisfying a four-part test:

         We conduct a four-part analysis to determine:             (1)
         whether 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
         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).

      Objections to the discretionary aspects of a sentence are
      generally waived if they are not raised at the sentencing hearing
      or in a motion to modify the sentence imposed.

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

and internal quotations omitted).




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       Appellant has met the first prong of the four-part test by filing a timely

notice of appeal on February 17, 2015.1          However, the Commonwealth

argues that Appellant’s claims are not reviewable because he failed to

properly preserve the issues at sentencing or in a timely motion for

reconsideration.     After careful review of the record, we are constrained to

agree with the Commonwealth. Appellant’s motion for reconsideration was

filed two weeks late, on February 9, 2015.2          See Pa.R.Crim.P. 708(E)

(providing that a post-sentence motion to modify a sentence imposed after

revocation shall be filed within ten days of the date of imposition); see also

Commonwealth v. Wrecks, 931 A.2d 717 (Pa. Super. 2007) (“An untimely

post-sentence motion does not preserve issues for appeal.”). On February

19, 2015, the trial court entered an order accepting the motion for

reconsideration nunc pro tunc; however, the trial court did not have

jurisdiction to do so, as the notice of appeal had been filed two days prior,

on February 17, 2015.          See Pa.R.A.P. 1701(a) (providing that after an

appeal is filed, the trial court may no longer proceed in the matter).

____________________________________________


1
  The revocation order from which Appellant appealed was entered on
January 15, 2015. Because 30 days from the date of the order fell on
Saturday, February 14, 2015, and Monday, February 16, 2015 was a court
holiday, the notice of appeal was due February 17, 2015. See 1 Pa.C.S. §
1908.
2
  Appellant was informed at the revocation hearing of the 10-day time
requirement for filing a post-sentence motion. See N.T. Revocation Hearing,
1/15/15, at 19.



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Moreover, Appellant failed to raise any objection to the sentence imposed at

the revocation hearing. See N.T. Revocation Hearing at 16-20.

      Even if these issues were properly preserved, we are further precluded

from reviewing Appellant’s claims because he failed to raise a substantial

question to meet the final requirement of the four-part test outlined above.

As we explained in Moury:

      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.

Moury, 992 A.2d at 170 (citations and internal quotations omitted).

      Appellant contends that his sentence is excessive and unreasonable,

as it is grossly disproportionate to his violations, and further contends that

his sentence far exceeds what is necessary to foster his rehabilitation.

Appellant’s Brief at 12. However, “a bald assertion that Appellant’s sentence

was excessive, devoid of supporting legal authority does not present a

substantial question,” and therefore, is not reviewable by this Court.

Commonwealth v. Fisher, 47           A.3d 155, 159      (Pa. Super. 2012).

Moreover, we have stated that “ordinarily, a claim that the sentencing court

failed to consider or accord proper weight to a specific sentencing factor

does not raise a substantial question.” Commonwealth v. Berry, 785 A.2d

994, 996-97 (Pa. Super. 2001) (internal citation omitted; emphasis in

original). Specifically, there is ample precedent to support a determination

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that a claim that the trial court failed to consider an appellant’s rehabilitative

needs fails to raise a substantial question.          See Commonwealth v.

Coolbaugh, 770 A.2d 788, 793 (Pa. Super. 2001) (citing Commonwealth

v. Mobley, 581 A.2d 949, 952 (1990) (holding that a claim that sentence

failed to take into consideration the defendant’s rehabilitative needs and was

manifestly excessive did not raise a substantial question where sentence was

within      statutory   guidelines   and     within   sentencing    guidelines));

Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa. Super. 1997)

(concluding that a claim that a trial court failed to appropriately consider an

appellant’s rehabilitative needs does not present a substantial question).

      In his second claim, Appellant asserts that his sentence does not

comply with 42 Pa.C.S. § 9771(c), which expressly limits the sentencing

court’s authority to impose a sentence of total confinement upon revocation

to the following circumstances:

      (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. § 9771(c).

      In response, we first note that this claim is also waived due to

Appellant’s failure to properly preserve it at the revocation hearing or in a

timely motion for reconsideration. However, were we to address the merits




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of this final issue raised by Appellant, we would conclude that the claim is

without merit.

      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. To constitute an abuse of
      discretion, the sentence imposed must either exceed the
      statutory limits or be manifestly excessive. 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.

                                       ***
      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 crime, the defendant’s character, and
      the defendant’s display of remorse, defiance, or indifference.

Commonwealth v. Perry, 883 A.2d 599, 602-603 (Pa. Super. 2005)

(citations omitted).   We further note that “where a sentence is within the

standard range of the guidelines, Pennsylvania law views the sentence as

appropriate under the Sentencing Code.” Commonwealth v. Griffin, 65

A.3d 932, 937 (Pa. Super. 2013).

      Here, Appellant argues that his actions did not fall within any of the

categories listed in 42 Pa.C.S. § 9771(c) and, therefore, incarceration is

impermissible. Appellant’s Brief at 16. However, the statute provides that,

if the original offense was punishable by total confinement, such a penalty is

available to a revocation court when one of the above enumerated

circumstances is found.    42 Pa.C.S. § 9771. As the court explained in its

Pa.R.A.P. 1925(a) opinion,

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      Appellant’s behavior … demonstrated to the [c]ourt that he had
      not benefitted from probation and the services provided during
      his probation. Appellant failed to comply with the conditions of
      his sentence despite the [c]ourt giving him informal sanctions
      before violating him a second time. It became obvious that
      Appellant was unable to conform his behavior.

TCO at 6. Based on the foregoing, it was reasonable for the trial court to

impose a sentence of total confinement to vindicate the court’s authority.

See 42 Pa.C.S. § 9771(c)(3).

      Moreover, Appellant’s sentence is well within the standard range of

guidelines. The trial court provided a detailed explanation of the sentencing

guidelines and its reasoning for the sentence imposed in the following

portion of its Rule 1925(a) opinion:

      Upon revoking a defendant’s probation, a court has available to
      it essentially all the sentencing alternatives that existed at the
      time of the initial sentencing, limited only by the maximum
      sentence that it could have imposed originally at the time of the
      probationary sentence. Appellant was found guilty of criminal
      trespass as a third degree felony which carries a maximum
      penalty of 7 years[’] incarceration.          Therefore, Appellant’s
      sentence of 2 to 5 years[’] incarceration with credit for time
      served, is well below the maximum.              Moreover, technical
      violations can support revocation and a sentence of incarceration
      where such violations are flagrant and indicate an inability to
      reform. Commonwealth v. Allshouse, 2009 PA Super 47, 969
      A.2d 1236, 1241 (Pa. Super. Ct. 2009). In light of Appellant’s
      continued non-compliance with the conditions of his sentence
      and the rules of MHC, the sentence was appropriate. The
      assertion that Appellant’s sentence is grossly disproportionate
      for failing to tailor it to his individual circumstances is without
      any support in the record. Appellant failed to attend treatment
      meetings, was non-compliant with staff, and tested positive for
      cocaine. In addition, this was Appellant’s second revocation as a
      result of non-compliance. In total, Appellant was placed in three
      different treatment facilities under MHC supervision, but was
      discharged from each for his non-compliance and positive drug


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      tests. Appellant absconded from his last treatment facility, and
      failed to appear at the following [c]ourt listing.

TCO at 4-5.

      After careful review of the record, we ascertain no abuse of discretion

by the trial court.   Thus, even had Appellant preserved his issues for our

review, we would not afford him sentencing relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2015




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