J-S03013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

JOHN EDWARD FLAMER,

                          Appellant                 No. 2650 EDA 2018


       Appeal from the Judgment of Sentence Entered August 2, 2018
             In the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0006457-2013

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED APRIL 16, 2019

      Appellant, John Edward Flamer, appeals from the judgment of sentence

of an aggregate term of 1½ to 5 years’ imprisonment, imposed after the court

revoked his term of probation based on a new conviction in an unrelated case.

Appellant challenges the discretionary aspects of his sentence. After careful

review, we affirm.

      The trial court provided the following summary of the procedural history

of this case in its Pa.R.A.P. 1925(a) opinion:

            On July 8, 2013, [Appellant] was arrested by the Ridley
      Township Police Department and charged with retail theft, 18
      Pa.C.S. § 3929[,] and providing false identification to police, 18
      Pa.C.S. § 4914, after stealing a GPX portable DVD player from a
      Kmart store and then falsely identifying himself after being
      arrested.

            On December 16, 2013, [Appellant] entered into a
      negotiated plea agreement and was sentenced to 8 to 23
      months[’] incarceration followed by three years[’] probation on
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        the retail theft charge and one-year [of] probation on the false
        identification charge.

              On April 29, 2014, [Appellant] was arrested in the state of
        Delaware on charges of theft. He was convicted on January 26,
        2015. The Adult Probation and Parole Services Department
        charged him with a violation of Rule 3 of his probation, that he
        comply with all municipal, county, state and federal laws, as well
        as Rule 10A, that he pay his court costs and fines.             It
        recommended that he be found in violation of the terms of his
        probation, that his probation be revoked, and that he receive a
        new sentence of 18 to 60 months on the retail theft charge and 6
        to 12 months[’] probation on the false identification charge.

              On August 2, 2018, this court conducted a Gagnon II[1]
        hearing, at which defense counsel asked that [Appellant] be
        sentenced to county time. This court rejected that request,
        expressing the belief that the state has more resources than the
        county to help [Appellant] with treatment and placement. It
        adopted the recommendations of the probation department and
        sentenced [Appellant] accordingly.

             On August 6, 2018, counsel filed a motion to reconsider
        sentence, in which he argued that this court erred when it
        departed from the sentencing guidelines without stating a basis.

              On August 7, 2018, this court denied that motion without a
        hearing.

Trial Court Opinion (“TCO”), 10/17/18, at 1-2 (unnecessary capitalization

omitted).

        Appellant filed a timely notice of appeal on August 31, 2018, followed

by a timely, court-ordered Rule 1925(b) concise statement of errors

complained of on appeal. Appellant now presents the following issue for our

review:

        The [c]ourt erred in that its sentence was unreasonable in that it
        was four times the standard guidelines without articulating
____________________________________________


1   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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      adequate reasons for the departure. The trial court abused its
      discretion when it imposed a sentence exceeding the aggravated
      guidelines without explaining compelling reasons why the
      particular offense was more severe than the normal crime of
      [that] type.

Appellant’s Brief at 4.

      Appellant’s allegations relate to the discretionary aspects of his

sentence.

      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 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).

      Objections to the discretionary aspects of a sentence are generally
      waived if they are not raised at the sentencing hearing or in a
      motion to modify the sentence imposed.

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

and internal quotations omitted).

      Here, the record reflects that Appellant filed a timely notice of appeal,

properly preserved his claim in his post-sentence motion, and included a Rule

2119(f) statement in his appellate brief in compliance with Pennsylvania Rules

of Appellate Procedure. Thus, we proceed to determine whether Appellant has

raised a substantial question to meet the fourth requirement of the four-part

test outlined above.

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      As we explained in Moury:

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. 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.

Id. at 170 (citations and internal quotations omitted).

      Appellant maintains in his Rule 2119(f) statement that the trial court

“violated the express provisions of the Sentencing Code and imposed an

excessive sentence contrary to the fundamental norms which underlie the

sentencing process.”   Appellant’s Brief at 6.    More specifically, Appellant

contends that his revocation sentence is “grossly disproportionate to the

nature of the violation,” that the trial court failed to consider all relevant

sentencing criteria, and that the court accepted an unsupported sentencing

recommendation from the probation department.        Id. at 7. Based on the

arguments presented in Appellant’s Rule 2119(f) statement, and the case law

on which he relies, we conclude that he has presented a substantial question

for our review. See Commonwealth v. Simmons, 56 A.3d 1280, 1286 (Pa.

Super. 2012); Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super.

2011); Commonwealth v. Parlante, 823 A.2d 927, 929-30 (Pa. Super.

2003).

      Accordingly, we will review the merits of his claim, mindful of the

following standard of review:

      Sentencing is a matter vested within the discretion of the trial
      court and will not be disturbed absent a manifest abuse of

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      discretion. An abuse of discretion requires the trial court to have
      acted with manifest unreasonableness, or partiality, prejudice,
      bias, or ill-will, or such lack of support so as to be clearly
      erroneous. It is also now accepted that in an appeal following the
      revocation of probation, it is within our scope of review to consider
      challenges to both the legality of the final sentence and the
      discretionary aspects of an appellant’s sentence.

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010)

(citations omitted). Moreover, when we consider an appeal from a sentence

imposed following the revocation of probation,

      [o]ur review is limited to determining the validity of the probation
      revocation proceedings and the authority of the sentencing court
      to consider the same sentencing alternatives that it had at the
      time of the initial sentencing. 42 Pa.C.S. § 9771(b). Also, upon
      sentencing following a 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. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006)

(internal citation omitted).

      The reason for the trial court’s broad discretion in sentencing and the

deferential standard of appellate review is that “the sentencing court is in the

best position to measure various factors and determine the proper penalty for

a particular offense based upon an evaluation of the individual circumstances

before it.” Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011) (internal

citation and quotation marks omitted). Our Supreme Court has recognized

that the sentencing court’s “institutional advantage” is, perhaps, even “more

pronounced in fashioning a sentence following the revocation of probation,

which is qualitatively different than an initial sentencing proceeding.”

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


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      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, … 923 A.2d
      1119, 1129 ([Pa.] 2007) (citing 204 Pa.Code. § 303.1(b)
      (Sentencing Guidelines do not apply to sentences imposed as
      result of revocation of probation)).

Id.

      In response to Appellant’s assertion that his new sentence exceeds the

standard guidelines, the court emphasized that the standard sentencing

guidelines do not apply following a revocation of probation. TCO at 4. The

court further explained:

      Even if the guidelines were to apply, this court sentenced
      [Appellant] within them.      Although the DVD player that
      [Appellant] stole from … Kmart was worth only $95.39, the
      offense was graded as a felony of the third degree because it was
      “a third subsequent offense, regardless of the value of the
      merchandise.” 18 Pa.C.S. § 3929(b)(1)(iv). His offense gravity
      score under the guidelines matrix is 5. [Appellant] had a prior
      record score of 5, so the standard range for the minimum
      sentence pursuant to the matrix is 12 to 18 months.

      At the recommendation of the office of Adult Probation and Parole
      Services, this court imposed a minimum sentence of 18 months,
      which is at the top of but, nevertheless, within the guidelines. The
      sentence was not “beyond the top end of the aggravated range,”
      or “four times the standard guidelines” as [Appellant] suggests.

Id. (unnecessary capitalization omitted).

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       Moreover, the record reflects that the trial court did consider the

rehabilitative needs of Appellant prior to sentencing.

       As stated on the record,[2] this [c]ourt sentenced [Appellant] to
       state time because the state parole department has superior
       resources to assist him once he has completed his minimum
       sentence. [Appellant] has a history of psychosis, for which he has
       been evaluated and treated. Those evaluations, however, also
       indicate that he has shown some resistance to treatment. Once
       he has finished his sentence, the State Parole Department will be
       better equipped to assist him in his transfer back to the
       community.

Id. at 4-5. The court also recognized that after given credit for time served,

Appellant will essentially be immediately eligible for parole. N.T. Sentencing

at 6-7.

       Finally, Appellant argues that the court failed to explain its reasoning for

imposing a harsher sentence on Appellant post-revocation. See Brief at 8-9,

12. However, as the Pasture Court made clear:

       [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….



____________________________________________


2 See N.T. Sentencing, 8/2/18, at 12 (“One of the reasons that I think that
[Appellant] should be on state parole is because they have more resources to
help him with his treatment and placement than the county does or even state
probation, and I think it’s probably the best placement for him.”).

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Pasture, 107 A.3d at 28. The Pasture Court further emphasized that “a trial

court does not necessarily abuse its discretion in imposing a seemingly

harsher post-revocation sentence where the defendant received a lenient

sentence and then failed to adhere to the conditions imposed on him.” Id.

      Based on our review of the record, we are satisfied with the justification

provided for the sentence imposed on Appellant post-revocation, and we

discern no abuse of discretion by the trial court.

      Judgment of sentence affirmed.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/19




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