J-S13016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                              Appellee

                       v.

TRE RON ARNEZ JACKSON

                              Appellant                     No. 597 WDA 2015


        Appeal from the Judgment of Sentence entered March 11, 2015
             In the Court of Common Pleas of Allegheny County
              Criminal Division at No: CP-02-CR-0007336-2014


BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                                    FILED MAY 13, 2016

        Appellant, Tre Ron Arnez Jackson, appeals from the judgment of

sentence imposed on March 11, 2015 in the Court of Common Pleas of

Allegheny County following revocation of his probation. Following review, we

affirm.

        The   trial   court    provided   the   following   factual   and   procedural

background:

        [Appellant] was charged with Rape, Sexual Assault, Aggravated
        Indecent Assault and Terroristic Threats.[1] On October 6, 2014,
        [Appellant] appeared before this [c]ourt and, pursuant to a plea
        agreement with the Commonwealth, the Rape charge was
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*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3121(a)(1), 3124.1, 3125(a)(1), and 2706(a)(1).
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        amended to an Indecent Assault charge[2] and [Appellant] pled
        guilty to that new charge.      The remaining charges were
        withdrawn. [Appellant] was immediately sentenced to a term of
        probation of two (2) years. No Post-Sentence Motions were filed
        and no direct appeal was taken.

        [Appellant] next appeared before this [c]ourt on November 5,
        2014 for a review hearing. At the conclusion of that hearing,
        [Appellant] was sentenced to a new term of probation of two (2)
        years, [and] ordered to take a denial polygraph. Additionally,
        other special conditions were imposed, including a zero tolerance
        condition. Again, no post-sentence motions were filed and no
        direct appeal was taken.

        [Appellant] next appeared before this [c]ourt on March 11, 2015
        for a review hearing. At the conclusion of the hearing, upon
        determining that [Appellant] had failed to report and to comply
        with the special conditions of his probation and that he was also
        charged with a new offense, this [c]ourt revoked his probation
        and imposed a term of imprisonment of one (1) to two (2) years.
        A timely Post-Sentence Motion to Modify Sentence was filed and
        was denied on May 18, 2015. This appeal followed.

Trial Court Rule 1925(a) Opinion, 9/22/15, at 1-2 (footnotes omitted).

Appellant and the trial court both complied with Pa.R.A.P. 1925.

        Appellant presents two issues for this Court’s consideration:

        I.    Whether the trial court abused its discretion in sentencing
              [Appellant] to the maximum period of total confinement
              when none of the required factors pursuant to 42 Pa.C.S.A.
              § 9771(c) was applicable?

        II.   Whether the trial court abused its sentencing discretion
              when it failed to consider relevant sentencing criteria,
              including the protection of the public, the gravity of the
              underlying offenses and violation, and the character,
              personal history, and rehabilitative needs of [Appellant], as
              required by 42 Pa.C.S.A. § 9721(b)?
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2
    18 Pa.C.S.A. § 3126(a)(1).



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Appellant’s Brief at 5. Appellant’s issues involve the discretionary aspects of

sentencing.3 In Commonwealth v. Allen, 24 A.3d 1058 (Pa. Super. 2011),

this Court stated:

       Our review of discretionary aspects           of   sentencing   claims
       implicates the following principles:

          [T]he proper standard of review when considering whether
          to affirm the sentencing courts determination is an abuse
          of discretion. . . . [A]n abuse of discretion is more than a
          mere error of judgment; thus, a sentencing court will not
          have abused its discretion unless the record discloses that
          the judgment exercised was manifestly unreasonable, or
          the result of partiality, prejudice, bias or ill-will. . . . An
          abuse of discretion may not be found merely because an
          appellate court might have reached a different conclusion,
          but requires a result of manifest unreasonableness, or
          partiality, prejudice, bias, or ill-will, or such lack of support
          so as to be clearly erroneous. . . . The rationale behind
          such broad discretion and the concomitantly deferential
          standard of appellate review is that 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.

       Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 961
       (2007) (internal citations omitted).        Challenges to the
       discretionary aspects of sentencing do not entitle an appellant to
       review as of right. Commonwealth v. Sierra, 752 A.2d 910,
       912 (Pa. Super. 2000).

Id. at 1064.
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3
  “[T]his Court’s scope of review in an appeal from a revocation sentencing
includes discretionary sentencing challenges.”        Commonwealth v.
Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc). The issue
must have been preserved, however.         Id. at 1042.    Here, Appellant
preserved the issue in his post-sentence motion and filed a timely notice of
appeal.



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      When a challenge to the discretionary aspects of a sentence is raised,

an appellant must provide a separate statement specifying where the

sentence falls in the sentencing guidelines, what provision of the sentencing

code has been violated, what fundamental norm the sentence violates, and

the manner in which it violates the norm. Pa.R.A.P. 2119(f). Appellant has

provided a statement that complies with the requirements of Rule 2119(f).

Appellant’s Brief at 12-17.    In his statement, he contends the trial court

ignored 42 Pa.C.S.A. § 9771(c), which imposes limitations on sentences of

total confinement upon revocation of a probation order. Id. In Sierra, this

Court recognized that the imposition of a sentence of total confinement after

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

offense, implicates the “fundamental norms which underlie the sentencing

process” and, as such, presents a substantial question. Sierra, 752 A.2d at

913 (citation omitted). See also Commonwealth v. Malovich, 903 A.2d

1247, 1253 (Pa. Super. 2006).

      In his Rule 2119(f) statement, Appellant also argues that the trial

court failed to consider relevant sentencing criteria required by 42 Pa.C.S.A.

§ 9721(b), such as protection of the public, gravity of the offense, and

Appellant’s character and rehabilitative needs.     Appellant’s Brief at 13-15.

In Commonwealth v. Riggs, 63 A.3d 780 (Pa. Super. 2012), this Court

determined the appellant raised a substantial question by asserting that the

trial court failed to consider the § 9721(b) criteria. Id. at 786.

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       We find Appellant has raised a substantial question in each of his two

issues.4   Therefore, we shall consider the merits of his claims.

        In his first issue, Appellant argues the trial court abused its discretion

by imposing a sentence of total confinement because none of the § 9771(c)

factors were applicable. 42 Pa.C.S.A. § 9771(c) provides:

       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.

       Although Appellant was charged with an additional crime, he was not

convicted. Consequently, subsection (1) does not apply. Therefore, we turn

to subsections (2) and (3).

       At Appellant’s March 11, 2015 revocation hearing, his counsel argued

that Appellant had made mistakes but, as a young man with a one-year-old

daughter, he had reasons to clean up his behavior.                Notes of Testimony,

Hearing, 3/11/15, at 4.          He noted that Appellant was working for his
____________________________________________


4
  The Commonwealth concedes Appellant has raised a substantial question in
each issue. Commonwealth Brief at 6. However, the Commonwealth
disputes Appellant’s contention that the trial court abused its discretion with
respect to either § 9771(c) or § 9721(b). Id. at 6-11.



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grandfather—earning $10 per hour—and anticipated the grandfather would

increase Appellant’s work hours if necessary to keep Appellant out of

trouble. Id.

      The trial court responded:

      Well, that would be fine except in November, I already had a
      hearing, and he did – he was in noncompliance for the exact
      same things that he’s in noncompliance for.

      So from November on, he was not in compliance in fact, and I
      already had the zero tolerance hearing and he was smoking
      marijuana then. He’s smoked marijuana since. He was in jail. I
      lifted the detainer. He’s failed with treatment. He was arrested
      for the charges that were mentioned by the [probation officer].
      Although I recognize it was a summary.

      He was finally put in jail for testing positive for marijuana
      throughout the term of his probation. He has not done any
      treatment. He’s continued to use drugs. He hasn’t taken the
      polygraph.

Id. at 4-5.

      Appellant complains that the trial court failed to address the § 9771(c)

factors specifically and, therefore, the sentence must be vacated.        We

disagree. This Court rejected a similar argument in Malovich, announcing:

      We also disagree with Appellant’s assertion that the record does
      not show a consideration of the sentencing factors under 42
      Pa.C.S.A. § 9771(c). The transcript from the sentencing hearing
      shows that Appellant was found in possession of marijuana while
      on probation. Possessing marijuana is a crime. The record thus
      reveals not just that Appellant was likely to commit another
      offense, but also that he had in fact done so by illegally
      possessing a controlled substance.

      ....




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      Additionally, the tenor of the transcript convinces us that the
      sentencing court believed state incarceration was necessary to
      vindicate the court’s authority: Appellant had not complied with
      previous judicial efforts such as Drug Court, probation and prior
      revocations. He had not been putting anything into the court-
      imposed rehabilitation efforts. It was important that Appellant
      begin to appreciate the seriousness of the situation.        The
      foregoing comments by the court support total confinement
      under 42 Pa.C.S.A. § 9771(c). Appellant was not responding to
      the court’s authority; incarceration was necessary.

      We understand that the court did not quote from the statute in
      question or mention it by citation. However, the record as a
      whole reflects the court’s reasons and its consideration of the
      code, the circumstances of the offense and the character of the
      offender.    We are persuaded that the sentencing court
      considered the appropriate factors.

Id., 903 A.2d at 1254 (internal quotations and citations to record omitted).

      Similarly, the trial court’s statements suggest the likelihood that

Appellant is likely to commit another crime if not imprisoned—and, in fact,

already had in the intervening period between his November 2014 and

March 2015 hearings.             Further, Appellant’s disregard for his previous

probationary terms supports a finding that the sentence was essential to

vindicate the authority of the trial court. Therefore, just as in Malovich, we

are persuaded that the sentencing court considered the appropriate factors

and did not abuse its discretion in imposing a sentence of confinement.

Appellant’s first issue fails.

      In his second issue, Appellant complains that the trial court abused its

discretion by imposing a sentence without following the general principle

that the confinement should be “consistent with the protection of the public,


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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). We disagree.

      Section 9721(b) directs that when imposing a sentence 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.” 42 Pa.C.S.A. § 9721(b). However, as

our Supreme Court has clarified:

      At initial sentencing, all of the rules and 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 reappears 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. § 9721. See
      Commonwealth v. Reaves, 592 Pa. 134, 150, 923 A.2d 1119,
      1129 (2007) (citing 204 Pa.Code. § 303.1(b) (Sentencing
      Guidelines do not apply to sentences imposed as result of
      revocation of probation)).

      Upon revoking probation, “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.” 42 Pa.C.S. § 9771(b).
      Thus, upon revoking probation, the trial court is limited only by
      the maximum sentence that it could have imposed originally at




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       the time of the probationary sentence, although once probation
       has been revoked, the court shall not impose a sentence of total
       confinement unless [authorized under 42 Pa.C.S. § 9771(c)].[5]

       Moreover, 42 Pa.C.S. § 9721(b) specifies that in every case
       following the 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.” See also Pa.R.Crim.P. 708(C)(2) (indicating
       at the time of sentence following the revocation of probation,
       “[t]he judge shall state on the record the reasons for the
       sentence imposed.”).

       [F]ollowing revocation, a sentencing court need not undertake a
       lengthy discourse for its reasons for imposing a sentence or
       specifically reference the statutes in question. Simply put, 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. The
       rationale for this is obvious. When sentencing is a consequence
       of the revocation of probation, the trial judge is already fully
       informed as to the facts and circumstances of both the crime and
       the nature of the defendant[.]

Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014). Further,

       where the revocation sentence was adequately considered and
       sufficiently explained on the record by the revocation judge, in
       light of the judge’s experience with the defendant and awareness
       of the circumstances of the probation violation, under the
       appropriate deferential standard of review, the sentence, if
       within the statutory bounds, is peculiarly within the judge’s
       discretion.

Id. at 28-29.

       Here, Appellant does not suggest the sentence fell outside the

statutory bounds. Further, the trial judge was fully aware of the facts and
____________________________________________


5
  In disposing of Appellant’s first issue, we explained that 42 Pa.C.S.A.
§ 9771(c)(2) and (3) authorized a sentence of total confinement in this case.



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circumstances of Appellant’s case and Appellant’s actions, having presided

over earlier proceedings, including his original sentencing and his first review

hearing in November 2014.      Moreover, as reflected above, the trial judge

explained on the record the reasons for imposing Appellant’s sentence of

confinement following revocation of his probation.       We find no abuse of

discretion with respect to 42 Pa.C.S.A. § 9721(b). Appellant’s second issue

lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/13/2016




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