J-S24023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

JESSE HEROLD,

                         Appellant                   No. 2683 EDA 2014


     Appeal from the Judgment of Sentence entered August 21, 2014,
          in the Court of Common Pleas of Philadelphia County,
          Criminal Division, at No(s): CP-45-CR-0001315-2013

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

MEMORANDUM BY ALLEN, J.:                             FILED APRIL 06, 2015

      Jesse Herold (“Appellant”) appeals from the judgment of sentence

imposed by the trial court after it determined that Appellant had violated the

conditions of his probation. We affirm.

      The trial court summarized the factual and procedural background as

follows:

            On September 25, 2013, [Appellant] pled guilty to
      Possession of Drug Paraphernalia, an ungraded misdemeanor.
      Thereafter, on February 18, 2014, [Appellant] was sentenced to
      one (1) year probation with a term expiring on June 1, 2015. As
      a condition of probation, [Appellant] had to continue substance
      abuse treatment at an approved facility. On July 21, 2014,
      [Appellant] was charged with violating his probation after being
      arrested for, among others, DUI and Possession of Drug
      Paraphernalia. On August 21, 2014, [the trial court] conducted
      a hearing on the petition to revoke [Appellant’s] probation.
      [Appellant] entered a plea to the Possession of Drug
      Paraphernalia charge and was resentenced to undergo
      incarceration in a state correctional institution for not less than
      six months nor more than twelve months.              The sentence
J-S24023-15


       imposed was to run consecutive to a previously imposed
       sentence. [Appellant] filed a Motion to Reconsider Sentence on
       August 27, 2014. [The trial court], by order dated September 2,
       2014, denied [Appellant’s] Motion for Reconsideration.

             On September 11, 2014, [Appellant] filed a timely notice
       of appeal. [The trial court] issued an Order on September 16,
       2014 directing [Appellant] to file his Concise Statement of Errors
       pursuant to Pa.R.A.P. 1925(b), no later than 21 days after the
       date of the Order. The last day of the filing deadline was
       October 7, 2014.      [Appellant] filed his Pa.R.A.P. 1925(b)
       statement on November 5, 2014, well after the filing deadline.

Trial Court Opinion, 11/14/14, at 2 (footnotes omitted).

       Although Appellant filed an untimely Pa.R.A.P. 1925(b) statement, the

trial court, in the interest of judicial economy, addressed Appellant’s claim in

a Pa.R.A.P. 1925(a) opinion. Therefore, we will address the merits of this

appeal without remand.1

       Appellant presents a single issue for our review:

    1. Whether the [trial court] abused its discretion at the time of Re-
       Sentencing in this matter, by sentencing Appellant to the
       maximum sentence allowable by law, well outside of what the
       sentencing guidelines would call for had this been an initial
       sentencing hearing.

Appellant’s Brief at 5.

       Appellant argues that the trial court abused its discretion when it

sentenced him to six to twelve months of incarceration. Appellant’s Brief at
____________________________________________


1
 See Commonwealth v. Veon, --- A.3d ----, 2015 WL 500887 (Pa. Super.
2015) (where the trial court has addressed the issues raised in an untimely
Rule 1925(b) statement, we need not remand and may address the issues
on their merits).




                                           -2-
J-S24023-15


10-13. Such a challenge to the discretionary aspects of a sentence is not

appealable as of right.    Rather, Appellant must petition for allowance of

appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856

A.2d 1254, 1257 (Pa. Super. 2004).

      Before we reach the merits of this [issue], we must engage in a
      four part analysis to determine: (1) whether the appeal is
      timely; (2) whether Appellant preserved his issue; (3) whether
      Appellant's brief includes a concise statement of the reasons
      relied upon for allowance of appeal with respect to the
      discretionary aspects of sentence; and (4) whether the concise
      statement raises a substantial question that the sentence is
      appropriate under the sentencing code. The third and fourth of
      these requirements arise because Appellant's attack on his
      sentence is not an appeal as of right. Rather, he must petition
      this Court, in his concise statement of reasons, to grant
      consideration of his appeal on the grounds that there is a
      substantial question. Finally, if the appeal satisfies each of these
      four requirements, we will then proceed to decide the
      substantive merits of the case.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations

omitted); see also Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.

Super. 2008) (“[W]hen a court revokes probation and imposes a new

sentence, a criminal defendant needs to preserve challenges to the

discretionary aspects of that new sentence either by objecting during the

revocation sentencing or by filing a post-sentence motion.").

      Here, Appellant preserved his claim in his motion for reconsideration,

and filed a timely notice of appeal. Appellant has additionally included in his

brief a concise statement pursuant to Pa.R.A.P. 2119(f).        See Appellant’s




                                     -3-
J-S24023-15


Brief at 9.    Therefore, we proceed to determine whether Appellant has

presented a substantial question for our review.

      “A substantial question exi[s]ts 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.”

Commonwealth v. Clarke, 70 A.3d 1281, 1286-1287 (Pa. Super. 2013)

(citation omitted). Here, Appellant asserts that “the [trial] court abused its

discretion by disregarding the sentencing guidelines at re-sentencing and by

placing Appellant in state prison for possession of drug paraphernalia,

without properly considering mitigating factors that appeared of record, due

to Appellant’s drug addiction.” Appellant’s Brief at 9. Accordingly, Appellant

argues that his sentence to the statutory maximum term of imprisonment

was excessive, and constituted an abuse of discretion. Id.

      This Court has held that “an excessiveness claim in conjunction with

an assertion that the court did not adequately consider a mitigating factor

may present a substantial question.” Commonwealth v. Zeigler, --- A.3d

----, 2015 WL 1268158 at 5 (Pa. Super. 2015).             Because Appellant has

presented a substantial question for our review, we address its merits.

      Although Appellant argues that the sentence imposed by the trial court

following revocation was excessive, Appellant acknowledges that the

sentence did not exceed the statutory maximum.            While Appellant argues


                                    -4-
J-S24023-15


that the imposition of the statutory maximum in and of itself constitutes an

abuse of discretion, it is well established that “upon 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.”

Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (internal

quotation marks and citations omitted).        Thus, without more, an assertion

that the trial court erred in sentencing Appellant to the statutory maximum

does not constitute an abuse of discretion.

      With regard to Appellant’s claim that his sentence fell outside of the

range of the sentencing guidelines, this Court has made clear that an

allegation that a sentence is excessive because the court deviated from the

guidelines without providing adequate reasons and/or considered improper

factors, is without merit as it is well settled that “[t]he sentencing guidelines

do not apply to sentences imposed as a result of probation or parole

revocations.”   Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa.

Super. 2001). This claim therefore lacks merit.

      Finally, to the extent that Appellant argues that the trial court failed to

consider mitigating factors – in particular Appellant’s substance abuse and

drug addiction – in its imposition of sentence, the record refutes this claim.

At the sentencing hearing, the trial court, which had the benefit of a pre-

sentence investigation report, heard statements from Appellant in which he

indicated his intent to “get[] therapy and go[]to AA meetings.”            N.T.,


                                      -5-
J-S24023-15


8/21/14, at 3. Additionally, the trial court heard from Appellant’s probation

officer, who stated that Appellant “struggles with an addiction ... stemming

back from two years in rehab, [and] here we are, years later still struggling

with the same heroin addiction.” Id. at 8.

      In addition, the trial court stated on the record that it was cognizant of

Appellant’s substance use, explaining:


      [T]he sad thing is ... since at least 2012 ... he’s been in and out
      of jail and there’s been nothing that’s changed; and that’s why I
      was just asking him ... what’s going to make him change. ...
      [A]s he stands before me and he’s incarcerated ... he has no
      ability to make a bad decision in that respect as far as drug use.
      ... I think that he is motivated as he’s in jail and he’s clean and
      he’s sober and he doesn’t’ have access to it. I think the problem
      is when you get out and you revert back to the people, places,
      and things; that’s what’s been happening for the past couple of
      years.


                                     ***


      I think it’s drug[s] and alcohol that’s driving you. You haven’t
      done well under county supervision [and] your [drug] use isn’t
      stopping while you’re on county supervision, which means
      supervision isn’t working for you.

Id., at 6-7, 23-24.

      When Appellant expressed to the trial court that he was trying to

rehabilitate himself, the trial court responded, “[f]or whatever reason, I

think I probably believe you,” but nevertheless concluded that Appellant

“relapsed [and] got drunk and ... used [drugs]” and at the time of

sentencing, the trial court explained to Appellant: “I know you’re frustrated


                                     -6-
J-S24023-15


sir, but you’ve heard my reasoning. ... I just think getting you more help is

the better way.” Id. at 32, 36-38. Based on the foregoing, the trial court

clearly was aware of Appellant’s substance abuse problems, and took them

into consideration in fashioning Appellant’s sentence.   Appellant’s claim to

the contrary is unavailing.

      For the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2015




                                    -7-
