J-S42031-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, :             IN THE SUPERIOR COURT OF
                              :                   PENNSYLVANIA
            Appellee          :
                              :
        v.                    :
                              :
CARLOS ANTHONY CLAIBORNE,     :
                              :
            Appellant         :             No. 1546 MDA 2017

          Appeal from the Judgment of Sentence August 24, 2017
            in the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0000022-2014

BEFORE: BOWES, MCLAUGHLIN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:               FILED SEPTEMBER 26, 2018

     Carlos Anthony Claiborne (Appellant) appeals from the judgment of

sentence entered August 24, 2017, after the trial court found that Appellant

committed several technical violations, which resulted in the termination of

his parole and revocation of his probation. We affirm.

           By way of additional background, by criminal information
     docketed to number CP-36-CR-0000022-2014 [(docket number
     22-2014), Appellant] was charged with allegedly having
     committed the offense of retail theft, graded as a misdemeanor
     of the first degree. On February 28, 2014, [Appellant] appeared
     before the Honorable Margaret C. Miller [] and entered into a
     negotiated guilty plea. Pursuant to the terms of said negotiated
     plea agreement, [Appellant] was sentenced to a period of
     incarceration of not less than three nor more than twenty-three
     months to be followed by a consecutive one[-]year period of
     probation on a split sentence basis.

           On March 28, 2014, a capias and bench warrant were filed
     against [Appellant] alleging that he had absconded from his
     approved residence and that his whereabouts were unknown to
     his supervising probation officer.     Following [Appellant’s]


* Retired Senior Judge assigned to the Superior Court
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     apprehension, on June 6, 2014, [Appellant] appeared before the
     Honorable Jeffery D. Wright [] relative to a violation of his
     parole/probation. At such time, the court found [Appellant] to
     be in violation of the terms of his probation/parole and deferred
     sentencing pending completion of a pre-sentence investigation
     [(PSI) report]. On September 8, 2014, [Appellant] appeared for
     sentencing. At such time, the court sentenced [Appellant] to
     serve the unexpired balance of his sentence, but ordered that he
     be paroled after serving six months directly to an in-patient
     treatment facility. The consecutive probationary sentence was
     to remain in effect. On November 20, 2014, pursuant to a
     written petition filed by his counsel, [Appellant] was granted
     early parole from said sentence.

           On April 28, 2016, a capias and bench warrant were filed
     against [Appellant] alleging that he failed to report to his
     scheduled probation office appointments on April 4, 2016, April
     6, 2016, and April 14, 2016; admitted to the use of cocaine and
     marijuana on January 20, 2016 during an office appointment on
     January 28, 2016; and, had tested positive for the use of
     controlled substances on February 26, 2016. On November 4,
     2016, [Appellant] appeared before the Honorable Louis J. Farina
     [] relative to said parole/probation violations. At such time,
     [Appellant] was found to be in violation; his probationary period
     was revoked; and, [Appellant] was resentenced to a period of
     incarceration of not less than time served nor more than twenty-
     three months to be followed by a three[-]year period of
     consecutive probation on a split sentence basis. As a condition
     of sentence, [Appellant] was specifically ordered to complete
     drug and alcohol and mental health evaluations and to
     successfully complete any such treatment deemed necessary.

            On May 15, 2017, a capias and bench warrant were filed
     against [Appellant] alleging that he failed to report to his
     supervising probation officer as directed on April 26, 2017;
     verbally admitted to the use of cocaine on April 17, 2017; and,
     was administratively discharged from the White Deer Run
     treatment facility for non-compliance with facility rules on May
     11, 2017. On June 19, 2017, [Appellant] appeared before the
     trial court relative to said parole/probation violation. [Appellant]
     was found to be in violation of the terms of his probation and
     parole at the time of his violation hearing. The court ordered
     [PSI] report, and sentencing was to be scheduled upon receipt of
     such report.


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        On August 24, 2017, th[e trial court] terminated [Appellant’s]
        parole; revoked [Appellant’s] probation; and sentenced
        [Appellant] to serve a period of incarceration of not less than
        one year nor more than three years in the state correctional
        system. Said sentence was to be served concurrently with the
        sentence imposed on information number CP-36-CR-0004413-
        2009 [(docket number 4413-2009).1 Appellant] was deemed
        ineligible for participation in the RRRI Program and the
        Commonwealth did not waive [Appellant’s] ineligibility therefor.
        [Appellant] was also made eligible for all educational, vocational,
        drug and alcohol, mental health or other counseling programs as
        deemed necessary by the Department of Corrections.
        [Appellant] also remained obligated for all financial obligations.

Trial Court Opinion, 12/1/2017, at 2-4.

        Appellant thereafter timely filed a post-sentence motion and, following

its denial, a notice of appeal.2 Appellant presents the following question for

our review: “Did the [trial c]ourt err in denying Appellant’s post-sentence

motion requesting relief upon review of the sentence with respect to

available mitigating factors, thus misapplying the sentencing guidelines,



1
  On appeal, Appellant complains of the aggregate sentence imposed at
docket numbers 4413-2009 and 22-2014. However, as correctly noted by
the trial court, Appellant filed a post-sentence motion, notice of appeal, and
concise statement of matters complained of on appeal only relative to docket
number 22-2014. Trial Court Opinion, 12/1/2017, at 1-2; Post-Sentence
Motion, 9/3/2017; Notice of Appeal, 10/5/2017; Concise Statement of
Matters Complained of on Appeal, 10/30/2017.             “We therefore lack
jurisdiction to review the sentence imposed at docket number” 4413-2009.
Commonwealth v. Hardy, 99 A.3d 577, 579 (Pa. Super. 2014). “Thus, we
shall proceed by considering the merits of Appellant’s claims only to the
extent they relate to the judgment of sentence at docket number” 22-2014.
Id.
2
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.




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resulting in an abuse of discretion by imposing a sentence that was

manifestly excessive?”   Appellant’s Brief at 6.    Appellant’s sole issue on

appeal challenges the discretionary aspects of his sentence. Id.

     It is within this Court’s scope of review to consider challenges to the

discretionary aspects of an appellant’s sentence in an appeal following a

revocation of probation. Commonwealth v. Ferguson, 893 A.2d 735, 737

(Pa. Super. 2006).

           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.

           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.

           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.            [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.[]
     § 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[s]:

           (1) the defendant has been convicted of another
           crime; or


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            (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.

            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. 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.

Commonwealth v. Colon, 102 A.3d at 1033, 1044 (Pa. Super. 2014)

(citations and quotation marks omitted).

      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 [or her] 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.[] § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted).



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      Here, Appellant timely filed a post-sentence motion and a notice of

appeal, and included a statement pursuant to Rule 2119(f) in his brief. We

now turn to consider whether Appellant has presented a substantial question

for our review.

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.       Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). “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.” Griffin, 65 A.3d at 935 (citation and quotation marks

omitted).

      In his 2119(f) statement, Appellant contends the trial court

      failed to properly take into consideration mitigating factors
      presented by counsel at sentencing such as the age of []
      Appellant, the nature of his technical violations, as well as his
      rehabilitative needs.

             In light of the gravity of the technical offenses and an
      appropriate diagnosis responsible for his conduct, the [trial
      court’s] lengthy sentence was not necessary to rehabilitate
      Appellant and was not justified by the need protect the public or
      vindicate the authority of the court. The [c]ourt misapplied the
      legislative intent in sentencing an individual by ignoring the
      factors underlying his conduct as well as not utilizing the
      rehabilitative treatment available by sentencing Appellant to
      [s]tate [p]rison, accordingly, the sentence handed down by the
      [trial court] was clearly unreasonable, unnecessary, and
      manifestly excessive.

Appellant’s Brief at 13 (citation omitted).


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      At the outset, we recognize that a claim alleging the court “failed to

properly take into consideration” the mitigating factors presented does not

raise a substantial question. See Commonwealth v. Disalvo, 70 A.3d 900,

903 (Pa. Super. 2013) (“[T]his Court has held on numerous occasions that a

claim of inadequate consideration of mitigating factors does not raise a

substantial   question     for   our   review.”)   (quoting   Commonwealth   v.

Downing, 990 A.2d 788, 794 (Pa. Super. 2010)); Commonwealth v.

Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (“[W]e have held that a claim

that a court did not weigh the factors as an appellant wishes does not raise a

substantial question.”).

      To the extent Appellant raises a substantial question for our review by

alleging an excessive sentence in relation to the technical violations

committed by Appellant,3 we find his claim without merit. In its opinion to

this Court, the trial court thorough addressed Appellant’s arguments as

follows.

            In re-sentencing [Appellant] in the instant matter, the
      court was guided by an extensive pre-sentence investigation
      [(PSI report)]. In fashioning sentence, the court gave thoughtful
      consideration to the entirety of [PSI4] report, with all its



3
 See Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super.
2006).
4“Where the sentencing court had the benefit of a [PSI], we can assume the
sentencing court ‘was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
mitigating statutory factors.’” Commonwealth v. Griffin, 65 A.3d 932, 937
(Footnote Continued Next Page)


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      attachments; the penalties authorized by the Legislature; the
      comments offered by the attorney for the Commonwealth; the
      comments offered by [Appellant] and his counsel; the letters
      from the Cove Forge treatment facility and the Lancaster County
      Prison; the recommendation and comments made by
      [Appellant’s]    supervising   probation   officer;  [Appellant’s]
      extensive rehabilitative needs; the need for the protection of the
      community; the need for there to be a deterrence; the facts and
      circumstances of the underlying offenses; and, most notably,
      [Appellant’s] troubled history under the supervision of the court.

             The court noted that [Appellant] is forty-one years of age.
      The court further considered [Appellant’s] troubled upbringing,
      inasmuch as his father suffered from alcohol abuse and was
      physically and verbally abusive in nature. The court noted that
      [Appellant] frequently relocated throughout his formative and
      adult years. [Appellant] is married, but separated, and also was
      involved in a separate committed relationship while residing in
      the City of Harrisburg. [Appellant] is the father of a fifteen year
      old son.       The court considered [Appellant’s] educational
      background noting that he was expelled from Columbia High
      School after completing eleven grades of formal education,
      although he did earn his GED certification while in Juvenile Court
      commitment at an Abraxas facility. The court considered that
      [Appellant] received special education services for a learning
      disability. The court noted that there is a history of behavioral
      difficulties during [Appellant’s] academic years. The court noted
      [Appellant’s] sporadic employment history since his release from
      incarceration whereby he only worked for twenty-three days in
      2015 and four months in 2016.

            The court noted [Appellant’s] prior criminal background,
      which demonstrated an extensive criminal record involving a
      juvenile offense of burglary in Louisiana; a robbery offense in
      Maryland; numerous charges in Florida, including lodging in
      prohibited places, possession charges, trespass charges, charges
      of carrying a concealed weapon, possession of drug
      paraphernalia, and grand theft auto.           In Pennsylvania,
      [Appellant] has convictions for drug paraphernalia; false

(Footnote Continued)   _______________________

(Pa. Super. 2013) (quoting Commonwealth v. Devers, 546 A.2d 12, 18
(Pa. 1988)).




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     identification to law enforcement; receiving stolen property;
     unauthorized use of a motor vehicle; theft offenses; harassment
     charges’ and numerous violations of th[e trial] court’s
     supervision. The court considered that [Appellant] has made
     little, if any, effort to change his pattern of anti-social behavior
     since turning eighteen years of age.

            The court considered that [Appellant] has an extensive
     drug and alcohol history, which began when he was fourteen
     years of age. [Appellant] was drinking on a daily basis, but said
     use had diminished as an adult. [Appellant] was a heavy user of
     marijuana from fourteen to twenty-four years of age.
     [Appellant] was also heavily addicted to cocaine between the
     ages of fourteen and twenty-seven. [Appellant] used PCP four
     to five times per day from the age of twenty-seven to twenty-
     eight.    Between the ages of twenty-seven and thirty-one,
     [Appellant] used LSD. Between the age of thirty-four and forty,
     [Appellant] used fifteen packs of synthetic marijuana per week.
     While there is a prior treatment history, the court notes that
     [Appellant] only spent eleven days at White Deer Run earlier in
     2017 and was administratively discharged when he left the
     program of his own free will due to his father’s medical issues.
     The court noted it was more concerned by the fact that
     [Appellant] refused any after-care o[r] follow-up treatment.

           The court considered [Appellant’s] mental health history
     with his diagnosis and treatment at Wellness Counseling
     Associates and Pennsylvania Counseling Services for numerous
     conditions, including bipolar disorder, depression, anxiety
     disorder not otherwise specified, cannabis dependence, alcohol
     dependence, mood disorder not otherwise specified, intermittent
     explosive disorder, multiple personality disorder, and obsessive
     compulsive disorder.       [Appellant] was prescribed various
     medications for these conditions and was hospitalized on at least
     three occasions relative to mental health concerns.

           For [Appellant] to suggest that the sentence imposed by
     th[e trial] court is so manifestly excessive as to constitute an
     abuse of discretion is belied by an examination of his history on
     court supervision. As noted above, [Appellant’s] first violation
     occurred one month after his release from incarceration and
     [Appellant’s] eighth violation[] since 2011 included the admitted
     use of drugs, repeated failure to report to his supervising
     probation officer as directed, and non-compliance with drug and


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      alcohol treatment. The sentence imposed in this case was not
      manifestly unreasonable, nor was it the result of partiality,
      prejudice, bias, or ill-will.  It was the result of extensive
      reflection    upon    all   considerations   discussed   above.
      Unfortunately, probation, parole, and community[-]based
      treatment have been ineffective vehicles to address [Appellant’s]
      rehabilitative needs.

Trial Court Opinion, 12/1/2017, at 8-10 (citations omitted).

      The record supports the foregoing.     See N.T., 8/24/2017, at 10-12

(noting before sentencing the court considered, inter alia, “penalties

authorized by the Legislature[;]” “facts and circumstances of the underlying

offense, the facts and circumstances of the current violations on [Appellant’s

c]ourt supervision, and [Appellant’s] history while on the supervision of th[e

trial court;] the PSI report; “the position of the Commonwealth, the position

of the probation officer … the comments made by [Appellant’s counsel and

Appellant;]” Appellant’s rehabilitative needs, “the need for there to be a

deterrence and vindication of th[e trial court’s] authority as we as protection

of the entire community.”).     See also Id. at 18 (finding Appellant has

“thumbed” his nose at various opportunities provided to help him and “that

probation and parole and community-based treatment has been an

ineffective vehicle to address [Appellant’s] concerns or an ineffective vehicle

to address his rehabilitative needs[,]” and concluding that based on

Appellant’s conduct, Appellant “is likely to commit another crime if he is not

in prison, and there simply can be no doubt that the sentence which the

[trial court imposed was] necessary to vindicate the authority of” the court.).



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      Here, we find the trial court properly considered all the factors,

including the mitigating evidence presented, and was well within its

discretion   to    determine   that   Appellant’s   multiple   violations   “had

demonstrated a continuing refusal to abide by the conditions of court

supervision.” Trial Court Opinion, 12/1/2017, at 10. See Commonwealth

v. Mouzon, 812 A.2d 617, 620 (Pa. 2002) (“Traditionally, the trial court is

afforded broad discretion in sentencing criminal defendants ‘because of the

perception that the trial 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.’”) (quoting Commonwealth v. Ward, 812 A.2d,

617 (Pa. 1990)).

      Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/26/2018




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