J-S01007-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
STEPHEN SUMMERS,                          :
                                          :
                   Appellant              :           No. 97 WDA 2014

      Appeal from the Judgment of Sentence entered on October 29, 2013
                in the Court of Common Pleas of McKean County,
                 Criminal Division, No. CP-42-CR-0000472-2010

BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED FEBRUARY 19, 2015

        Stephen Summers (“Summers”) appeals from the judgment of

sentence imposed following the revocation of his probation.1 We affirm.

        In August 2011, Summers entered guilty pleas, in two separate cases,

in the McKean County Court of Common Pleas.        At case number 472 CR

2010 (hereinafter “No. 472”), Summers pled guilty to possession with intent

to deliver a controlled substance (“PWID”).2 At case number 473 CR 2010

(hereinafter “No. 473”), Summers pled guilty to possession of a controlled

substance and possession of drug paraphernalia.3 On September 22, 2011,


1
  Although Summers purports to appeal from the trial court’s Order revoking
his probation, the proper subject of this appeal is the judgment of sentence
imposed following revocation. We have altered the caption accordingly, and
observe that Summers’s appeal is timely.
2
    35 P.S. § 780-113(a)(30).
3
    35 P.S. § 780-113(a)(16), (32).
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the trial court imposed a sentence, at No. 472, of six to twelve months in

prison, followed by three years of probation. On the same date, at No. 473,

the trial court imposed an aggregate sentence of seven to twenty-four

months in prison, and ordered this sentence to run consecutively to the

sentence at No. 472. Therefore, Summers received an aggregate sentence,

to be served in a state correctional institution, of thirteen to thirty-six

months, followed by three years of probation.

      Summers timely filed a Motion to modify sentence concerning both No.

472 and No. 473. The trial court granted Summers’s Motion, re-sentencing

him as follows: at No. 472, to three years of probation; and at No. 473, to a

consecutive aggregate sentence of seven to twenty-four months, to be

served in the McKean County Jail. The re-sentencing Order further provided

that Summers’s probation and parole was to be within the province of the

Pennsylvania Board of Probation and Parole (“the PBPP”).        In April 2012,

Summers was released on parole from his sentence of incarceration at No.

473, and placed under the supervision of the PBPP.

      In its Pa.R.A.P. 1925(a) Opinion, the probation revocation court set

forth the relevant history, which transpired thereafter, as follows:

            A probation officer of the PBPP attempted a home visit to
      [Summers’s] residence [in Bradford, Pennsylvania] on December
      12, 2012, and he was unable to locate [Summers] at his
      registered address.

           [The] PBPP issued a warrant for [Summers’s] arrest.
      [Summers] was subsequently arrested[, in New York state,] on
      March 22, 2013, for absconding from supervision at [No.] 473 ….
      [Summers’s] parole was revoked, and he was committed to the

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     McKean County Jail. The Commonwealth filed a [P]etition to
     revoke [Summers’s] probation at [No.] 472 …. The [probation
     revocation c]ourt held a revocation hearing at which [Summers]
     admitted to absconding from supervision …. Upon consideration
     of the Commonwealth’s request to revoke [Summers’s]
     probation[,] and [Summers’s] admission to absconding from
     supervision, the [c]ourt revoked the probation [at No. 472] and
     sentenced [Summers, on October 29, 2013,] to [a term of]
     incarceration of 1 to 2 years[,] to be served consecutive to the
     sentence at [No.] 473 ….[4] [Summers] filed a Motion to Modify
     Sentence, which the [probation revocation c]ourt denied by
     Order dated December 20, 2013.

Probation Revocation Court Opinion, 4/23/14, at 1-2 (footnote added).

Thereafter, Summers timely filed a Notice of Appeal, and a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal.

     On appeal, Summers presents the following issues for our review:

     A. Whether the [probation revocation] court abused its
        discretion in imposing a state sentence of total confinement of
        not less than one [] year nor more than two [] years[,] upon
        revocation of [Summers’s] probation for a technical probation
        violation of absconding from supervision, contrary to the
        limitation set forth in 42 Pa.C.S.[A.] § 9771(c) (re:




4
  Pursuant to an Order of the PBPP, at No. 473, Summers was recommitted
to prison to serve the balance of his unexpired term for his technical parole
violation.


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           “Limitation on sentence of total confinement”)?[5]

        B. Whether the [probation revocation] court abused its
           discretion in imposing a state sentence of total confinement
           by considering [Summers’s] pre-probationary criminal history
           in concluding that [Summers] was likely to commit another
           crime, in violation of 42 Pa.C.S.[A.] § 9771(d)[?6]

Brief for Appellant at 2 (footnotes added, internal citation to record omitted).

        Summers first argues that the probation revocation court abused its

discretion by imposing a sentence of total confinement for his technical

probation violation, contrary to section 9771(c).7 Id. at 6-7.

        Summers challenges the discretionary aspects of his sentence.            See

Commonwealth v. Cartrette, 83 A.3d 1030, 1041 (Pa. Super. 2013) (en

banc)     (stating   that   challenges   under   section   9771(c)   implicate   the

5
    Section 9771(c) provides as follows:

      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).
6
   Section 9771(d) provides, in relevant part, that “[t]here shall be no
revocation or increase of conditions of sentence under this section 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. § 9771(d).
7
 We observe that Summers’s probation revocation sentence at No. 472 was
within the statutory limits for his underlying conviction of PWID.

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discretionary aspects of sentencing). Challenges to the discretionary aspects

of   sentencing   do   not   entitle    an   appellant   to   review   as   of   right.

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

reaching the merits of a discretionary sentencing issue,

      [this Court conducts] 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, [see] 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, [see] 42
      Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).

      Here, Summers filed a timely Notice of Appeal. He also has included a

concise statement of the reasons relied upon for allowance of appeal in his

brief, pursuant to Pa.R.A.P 2119(f).         Additionally, Summers preserved his

challenge concerning section 9771(c) at sentencing. Summers claims that

he has raised a substantial question that his probation revocation sentence

of total confinement is not appropriate because (1) it was imposed as a

result of a mere technical violation of his probation; and (2) there was not

sufficient evidence to support this sentence under either sub-sections

9771(c)(2) or (3).     See Brief for Appellant at 6-7.        Specifically, Summers

argues as follows:

            In this case, there was no evidence of conduct of
      [Summers] that indicated it was likely that he would commit
      another crime if not imprisoned. In its Rule 1925(a) [Opinion],
      the [probation revocation] court found that [Summers] was
      likely to commit another crime because of his “spotty

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      employment, criminal and residential histories….” [Probation
      Revocation Court Opinion, 4/23/14, at] 4. It is suggested that
      these factors are insufficient to demonstrate a likelihood to
      commit another crime.

            Additionally, a sentence of total confinement was not
      essential to vindicate the authority of the [probation revocation]
      court, especially considering that [Summers] was serving a
      sentence of total confinement on his parole violation at No.
      473….

Brief for Appellant at 7 (footnotes omitted).

      Summers’s      claim    presents    a     substantial   question.    See

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).8

      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. Id. On

review, we determine the validity of the probation revocation proceedings


8
   We observe that technical violations, including absconding from
supervision, are sufficient to trigger the revocation of probation. See
Commonwealth v. Ortega, 995 A.2d 879, 884 (Pa. Super. 2010); see
also Commonwealth v. Infante, 888 A.2d 783, 791 (Pa. 2005) (stating
that “the reason for revocation of probation need not necessarily be the
commission of or conviction for subsequent criminal conduct. Rather, … [a]
probation violation is established whenever it is shown that the conduct of
the probationer indicates the probation has proven to have been an
ineffective vehicle to accomplish rehabilitation and not sufficient to deter
against future antisocial conduct.” (citation omitted)); Commonwealth v.
Carver, 923 A.2d 495, 498 (Pa. Super. 2007) (acknowledging that technical
violations, where flagrant and indicative of an inability to reform, can
support revocation and imprisonment).

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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).      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

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

1280, 1283 (Pa. Super. 2010).

      Here, the probation revocation court addressed Summers’s sentencing

challenge concerning section 9771(c) in its Rule 1925(a) Opinion as follows:

             At the sentencing hearing on the revocation of
      [Summers’s] probation, the [probation revocation c]ourt stated
      the reasons for imposition of a sentence of total confinement.
      [T]he sentence of total confinement was [imposed] pursuant to
      subsections (2) and (3) [of section 9771(c)]. The [c]ourt stated
      as follows [prior to imposing sentence]:

              [T]he [c]ourt has of course reviewed the record here,
         the Petition to Revoke Probation[,] and it[] [has] also
         looked back to the first sentencing.        We have the
         transcript and[,] at th[e] time [of Summers’s first
         sentencing,] I noted out of the PSI, [Summers’s] criminal
         history indicates there is a prior criminal record of
         unauthorized use and disorderly conduct both in New
         York State and Pennsylvania.

              The [c]ourt looked at the fact that … there’s no good
         history of employment.       For the past three years,
         [Summers] has just lived at various different addresses
         in Bradford and he doesn’t even have an established life
         for himself at his age. He has children but I don’t think
         he probably is supporting them if he doesn't have a job….



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            … And it was a total state sentence at the time.
        Then [Summers’s counsel] came back and had a Motion
        to Reconsider[,] and at that time the [c]ourt considered
        the fact that [Summers] had a child and he must have
        given me the whole story the way he’s giving it to me
        now. And even though I’ve been around long enough
        that I usually don’t buy it; I bought it with you.

             I relented and changed your sentence. I amended
        the sentence to make it a sentence … to be served [in the
        county jail]. And what do you do? I find that you r[a]n
        off for four months [and] absconded. You haven’t lived
        up to what I said. You haven’t been working in … a job
        to try and make money to take care of this family you
        say you’re taking care of.

             The whole past record that I have is still the same.
        Obviously[,] you were in prison so you couldn’t make
        some changes at the beginning or in jail[. Y]ou luckily
        had convinced me not to send you to [a] state
        [correctional institution]. But [] I see on the drug and
        alcohol report that you’re making gradual change. Well,
        that means that you haven’t gotten to a point yet where
        you should be out on probation because you still need
        treatment. And so with that attitude that you’ve shown,
        disregard for the [c]ourt having given you a break that
        you … pull the stunt like this, I think that you do need
        incarceration because there is likelihood that with no job
        and with a criminal history …, [] you’ll commit another
        crime….

            … A[]lso, the sentence is essential to vindicate the
        authority of the [c]ourt that you were able to snow one
        time and you’re not going to snow this [c]ourt again.

     ([N.T., 10/29/13, at] Page 9, Line 6 to Page 11, Line 2.)

           The [probation revocation c]ourt found that [Summers’s]
     conduct indicated that there was the likelihood that he will
     commit another crime if not incarcerated. The [c]ourt also
     explained that the sentence of total incarceration was necessary
     to vindicate the [c]ourt in having previously sentenced
     [Summers], on the underlying charges, to a lenient term upon
     reconsideration from a state sentence because of [Summers’s]
     plea to the [c]ourt to make him available to his family. The

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     [c]ourt then found that his plea was a sham. The [c]ourt’s
     authority in sentencing had been manipulated by deceitful
     representations of [Summers]. The authority of the [c]ourt was
     vindicated by its returning to a state sentence.

           … The [c]ourt articulated the reasons in support of a
     sentence of total confinement upon revocation of [Summers’s]
     probation. Moreover, the reasons giving rise to the sentence are
     pursuant to the exceptions that are expressly carved out of the
     general limitation against a sentence of total confinement in
     Section 9771. Because the [c]ourt found that [Summers], with
     spotty employment, criminal, and residential histories, was likely
     to commit another crime if not incarcerated, and because
     [Summers] flaunted the [c]ourt’s discretion in resentencing him
     on the underlying charge, the current re-sentence of total
     confinement was not an abuse of discretion.

Probation Revocation Court Opinion, 4/23/14, at 2-4.

     For the purpose of the instant appeal, we will focus upon the probation

revocation court’s finding that there were sufficient grounds under section

9771(c)(3) to warrant imposing a sentence of total confinement because

same was essential to vindicate the authority of the court. After review, we

discern no abuse of discretion in the court’s finding in this regard,

particularly in light of the facts that Summers (1) absconded from

supervision and fled to another state for several months; and (2) flaunted

the sentencing court’s previous leniency in granting Summers’s Motion for

reconsideration of sentence, and re-sentencing him at No. 472 to merely a

probationary term.    See Ortega, 995 A.2d at 884 (holding that “the

[probation   revocation]   court   could   have   reasonably   determined   that

revocation and a sentence of imprisonment for a defendant who absconded

at the very outset of his probationary term and remained delinquent for



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three years was essential to vindicate the authority of the court.”).

Moreover, we are unpersuaded by Summers’s claim that the probation

revocation court abused its discretion by determining that the sentence

imposed was essential to vindicate the authority of the court, purely

because, as Summers points out, “[he] was serving a sentence of total

confinement on his parole violation at No. 473 [].” Brief for Appellant at 7.

The instant case and No. 473 were separate cases, and the probation

revocation court had the authority to impose a sentence of incarceration in

the instant case, in addition to the parole violation recommitment that

Summers was then serving at No. 473. Accordingly, Summers’s first issue

does not entitle him to relief.

      Next, Summers contends that the probation revocation court abused

its discretion, and violated section 9771(d), “in imposing a state sentence of

total confinement by considering [Summers’s] pre-probationary criminal

history in concluding that [Summers] was likely to commit another crime,”

i.e., under section 9771(c)(2).       Brief for Appellant at 7 (capitalization

omitted).

      Summers did not raise this claim in his court-ordered Pa.R.A.P.

1925(b)     Concise   Statement.       Accordingly,   it   is   waived.   See

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding that

“[a]ny issues not raised in a 1925(b) statement will be deemed waived.”);

see also Pa.R.A.P. 1925(b)(4)(vii) (providing that “[i]ssues not included in

the Statement … are waived.”). Additionally, Summers waived this claim by

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failing to preserve it either at sentencing or in his pro se post-sentence

Motion. See Commonwealth v. Gibbs, 981 A.2d 274, 282-83 (Pa. Super.

2009) (stating that “[i]ssues challenging the discretionary aspects of a

sentence must be raised in a post-sentence motion or by presenting the

claim to the trial court during the sentencing proceedings.           Absent such

efforts, an objection to a discretionary aspect of a sentence is waived.”).9

        In light of the foregoing, and based upon our review of the record, we

conclude the probation revocation court did not commit an error of law or

abuse    its   discretion   in   imposing     Summers’s   sentence   following   the

revocation of his probation.

        Judgment of sentence affirmed.


9
  Nevertheless, even if this claim was not waived, we would determine that it
does not entitle Summers to relief. Summers points out that this Court has
held that “[section 9771](d) states unequivocally that there can be neither a
‘revocation’ nor an ‘increase of conditions of sentence’ until a hearing occurs
wherein 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.] § 9771(d) (emphasis added). This section
clearly restrains the court from considering facts occurring prior to the
imposition of probation when revoking probation.” Carver, 923 A.2d at
497; see also Brief for Appellant at 8; but see Sierra, 752 A.2d at 913-14
(where the appellant challenged the probation revocation court’s imposition
of a sentence of total confinement upon resentencing under section
9771(c)(2), holding that the probation revocation court properly considered,
inter alia, the appellant’s “significant criminal record as a juvenile and as an
adult[.]”). Even assuming, arguendo, that the probation revocation court in
the instant case erred by considering Summers’s pre-probationary criminal
conduct in imposing sentence, such error did not result in any prejudice to
Summers because, as discussed above, the probation revocation court
articulated sufficient and compelling reasons, besides Summers’s criminal
history, as to why a sentence of total confinement was necessary under
section 9711(c)(3) to vindicate the authority of the court.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/19/2015




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