J-S34005-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

MICHAEL VERBISKI

                         Appellant                   No. 416 EDA 2016


           Appeal from the Judgment of Sentence June 29, 2015
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0003497-2009


BEFORE: BOWES, SOLANO, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                              FILED JUNE 06, 2017

      Michael Verbiski appeals the discretionary aspects of the sentence that

was imposed after he violated the terms of his probation. We affirm.

      Based upon the following events, Appellant was charged with one

count of escape graded as a third-degree felony.        On August 26, 1992,

Appellant was sentenced to eight to twenty years imprisonment after

pleading guilty to robbery.    On May 5, 2008, he was accepted into the

Pennsylvania Department of Corrections pre-release program and was

transferred from state prison to Gaudenzia Philly House, Philadelphia.

Appellant had to remain at that location until he was paroled, pardoned,

transferred, or his sentence was completed. On January 16, 2009, Appellant

left the facility without authorization, and was later apprehended.


* Retired Senior Judge specially assigned to the Superior Court.
J-S34005-17



      On October 1, 2009, Appellant tendered a negotiated guilty plea herein

to the charge of escape in return for one and one-half to three years

confinement followed by three years of probation. After he began to serve

the probationary portion of this sentence, he was charged with violating its

terms. Specifically, in July 2014, Appellant pled guilty to driving under the

influence, simple assault, possession of a controlled substance, and

possession of an instrument of crime.      On June 29, 2015, the trial court

found Appellant to be in direct violation of probation. Appellant waived the

preparation of a pre-sentence report, and the matter proceeded directly to

sentencing.

      The Commonwealth asked for imposition of the statutory maximum

remaining after deduction for time served, but the court declined to impose

that sentence. It did conclude, however, that probation was not effective in

rehabilitating Appellant in light of his criminal history, and it sentenced him

to one and one-half to three years incarceration. Appellant filed a motion for

reconsideration maintaining that the trial court did not proffer adequate

reasons for its sentence, did not adequately weigh mitigating factors,

improperly failed to order a pre-sentence report, and violated the terms of

42 Pa.C.S. § 9771(c), which we set forth infra.              The motion for

reconsideration was denied.

      Appellant did not appeal at that time.       His appellate rights were

reinstated pursuant to a timely filed PCRA petition.    This appeal followed.

                                     -2-
J-S34005-17



Appellant complied with the court’s directive to file a Pa.R.A.P. 1925(b)

statement, wherein he repeated the assertions raised in his motion for

reconsideration of sentence and also claimed that the sentence was

excessive.

      On appeal, Appellant raises one issue: “Did the Lower Court abuse its

discretion in sentencing the Appellant to a state sentence where the violation

of probation was due to the Appellant’s pleading guilty and accepting

responsibility for an array of minor crimes?” Appellant’s brief at 8. Initially,

we note that “in an appeal from a sentence imposed after the court has

revoked probation, we can review the validity of the revocation proceedings,

the legality of the sentence imposed following revocation, and any challenge

to the discretionary aspects of the sentence imposed.” Commonwealth v.

Wright, 116 A.3d 133, 136 (Pa.Super. 2015); see Commonwealth v.

Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en banc).

      Appellant’s averment relates to the discretionary aspects of the

sentence imposed.     As we observed in Commonwealth v. McLaine, 150

A.3d 70, 76 (Pa.Super. 2016) (citation omitted), “[a]n appellant is not

entitled to the review of challenges to the discretionary aspects of a

sentence as of right.”

      Instead, prior to exercising our jurisdiction involving a challenge to the

discretionary aspects of a sentence, we must determine if an appellant has

satisfied the following four-part test:

                                      -3-
J-S34005-17



      (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).
Id.

      In the present case, the appeal is timely, the issue was preserved in a

post-sentence motion for reconsideration, and Appellant’s brief contains a

Pa.R.A.P. 2119(f) statement.      Additionally, in that statement, Appellant

avers that the trial court did not articulate sufficient reasons for the sentence

imposed. “This Court has held that such a challenge to the sentence raises a

substantial question.”   Commonwealth v. Simpson, 829 A.2d 334, 338

(Pa.Super. 2003).     Accordingly, we grant allowance of appeal from the

discretionary aspects of the sentence imposed.

      We now examine our standard of review:

            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. 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.

Commonwealth v. Shull, 148 A.3d 820, 831 (Pa.Super. 2016) (citation

omitted).




                                      -4-
J-S34005-17



      In this case, we observe that the probation-violation court was

justified in imposing a sentence of total confinement. As articulated in 42

Pa.C.S. § 9771(c), there are limitations as to when imprisonment can be

imposed after a defendant violates probation.        However, a sentence of

confinement is justified when the court finds any of the following “(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) (emphasis added).         Since

Appellant was convicted of four other crimes, the sentence of imprisonment

was permitted under § 9771(c)(1).

      We have reviewed the argument portion of Appellant’s brief, which

consists of a series of platitudes and a boilerplate outline of the general

principles applicable in the sentencing setting.   We do note that Appellant

suggests that the sentencing guidelines apply herein, Appellant’s brief at 13;

this assertion is incorrect as the sentencing guidelines are inapplicable in the

violation-of-probation setting.   Commonwealth v. Ferguson, 893 A.2d

735, 739 (Pa.Super. 2006) (“Sentencing Guidelines do not apply to

sentences imposed following a revocation of probation.”); 204 Pa. Code §

303.1(b) (“The sentencing guidelines do not apply to sentences imposed as

a result of the following: . . . revocation of probation[.]”).   Appellant also

implies that the trial court considered an impermissible sentencing factor,

                                     -5-
J-S34005-17



Appellant’s brief at 14, but he fails to identify that factor, and our review of

the sentencing proceeding reveals none was employed by the court.

      The only specific, applicable position presented by Appellant is that:

“In this matter, the Lower Court outlines some reasons for its sentence in its

opinion, however this reasoning was not revealed until the opinion. No such

reason[s] were enunciated at the sentencing itself.” Appellant’s brief at 15.

This assertion is contrary to the record. The court stated at sentencing:

            All right. I certainly agree that [Appellant’s] chances –
      unfortunately, I work every day with people trying to rehabilitate
      them, but this man cannot be. But not knowing how much time
      he served [prior to imposition of the sentence in question] and
      recognizing the nature of the case in front of me, I’m not going
      to give him the statutory maximum. I am going to give him
      one-and-one-half to three years.

N.T. Sentencing, 6/29/15, at 15. Thus, at the sentencing hearing itself, the

sentencing court justified its sentence of imprisonment based upon the fact

that Appellant was not capable of being rehabilitated through the use of

probation. This finding is supported because this matter involves Appellant’s

escape from housing less restrictive than jail as well as his commission of

four other crimes while he was on probation for the escape offense.

Additionally, the court declined to impose the statutory maximum, as

requested by the Commonwealth, due to the nature of this case.

      We likewise reject Appellant’s assertion, which was raised in the

Pa.R.A.P. 2119(f) statement and by implication in the question raised on

appeal, that his sentence is excessive in light of the paltry nature of the

                                     -6-
J-S34005-17



crimes that he committed while on probation.        Appellant pled guilty to

possession of a controlled substance, possession of an instrument of crime,

simple assault, and driving under the influence.   While the grading of the

crimes are not revealed in the sentencing transcript, the combination of the

criminal activity at issue cannot be characterized as minor.      Hence, we

conclude that the court did not abuse its discretion in deciding that one and

one-half years imprisonment was an appropriate consequence of Appellant’s

failure to abide by the terms of his probation through the commission of four

new offenses.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2017




                                    -7-
