J-A13021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ORLAND BRISCOE,                            :
                                               :
                       Appellant               :   No. 1707 EDA 2018

          Appeal from the Judgment of Sentence Entered May 15, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0002810-2011

BEFORE:      SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                                FILED JULY 12, 2019

        Appellant Orland Briscoe appeals from the judgment of sentence of one

to two years’ imprisonment imposed following the revocation of his probation.

He contends that his sentence was manifestly unreasonable because the trial

court did not consider mitigating circumstances. We affirm.

        We adopt the facts set forth in the trial court’s opinion:

        On May 31, 2013, [Appellant pled] guilty to aggravated assault of
        a corrections officer (felony 2).    The trial court sentenced
        [Appellant] to time served to 23 months, to run from February 21,
        2012, plus two (2) years probation to run consecutive to the
        expiration of parole. The court also ordered a [psychiatric
        evaluation] and recommended treatment.

        Following sentencing, [Appellant] was transferred to Philadelphia
        County[,] which was his place of residence.            However,
        [Appellant’s] supervision was transferred back to Montgomery
        County due to [Appellant’s] failure to report.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A13021-19


        On October 1, 2015, [Appellant] appeared before the trial court to
        address seven (7) new arrests[1] and other technical violations of
        his probation and parole stemming from the above sentence. The
        trial court found [Appellant] guilty of this initial violation and
        sentenced him to time served to twenty-three (23) months, to run
        from July 17, 2015, followed by three (3) years probation.
        [Appellant] was also to comply with the mental health evaluation
        and recommendation.        [Appellant’s] supervision was again
        transferred to Philadelphia County.

                                       *       *   *

        Upon further investigation, it was learned that, as of September
        1, 2016, [Appellant] had been arrested and was in custody of the
        Burlington County Jail in New Jersey. On September 1, 2016,
        [Appellant] was arrested by the New Jersey Transit Police
        Department-Newark (NJ) for aggravated assault; possession of a
        weapon for unlawful purposes; and, unlawful possession of a
        weapon. The criminal complaint alleged that [Appellant] had
        brandished a knife and threatened a person waiting on the train
        platform, after which he punched the subject in the face and
        walked away.

        On November 23, 2016, the Montgomery County Department of
        Probation and Parole provided [Appellant] with Notice of Violations
        Letter[,] which [Appellant] refused to sign to indicate that he had
        received it. The November 23, 2016[] Notice indicated that
        [Appellant] was charged with violating the conditions and terms
        of his probation and parole . . . .

        On May 15, 2018, after a violation hearing, the trial court found
        [Appellant] was in violation of his probation.[2] That same day,
        the trial court sentenced [Appellant] to 1-2 years in State
        Correctional Institution (SCI) on Count One of 2810-11. The
        sentence was to run from November 23, 2016.


____________________________________________


1   The seven arrests occurred between November 2013 and February 2015.

2 There is nothing in the record to account for Appellant’s delay in sentencing
between the dates of November 23, 2016, and July 27, 2017. However, the
record indicates that the delay between July 27, 2017, and May 15, 2018, was
due to multiple rescheduled mental health evaluations and a competency
hearing.

                                           -2-
J-A13021-19



Trial Ct. Op., 8/15/18, at 1-3 (citations and some capitalization omitted).

       At the hearing, the trial court observed as follows:

          THE COURT: I understand you are diagnosed with
          schizophrenia among other things and I do understand you
          do have some medical issues.

          [Appellant’s interjection omitted].

          THE COURT: I understand. So I’m going to sentence you
          [Appellant]—let’s get this done. I’m not going to give you
          the one to four. I am going to sentence you, though, to one
          to two years in state prison. I am going to specifically write
          on the sentencing sheet—

          [Appellant]: Ma’am, ma’am, ma’am, ma’am.

          THE COURT: —that you get medical attention right away.

N.T., 5/15/18, at 38-39.

       Appellant filed a timely post-sentence motion requesting, among other

things, that the trial court resentence him to “a time-served county sentence.”

Post-Sentence Mot., 5/22/18, at 2. The court denied Appellant’s motion on

June 6, 2018.

       Appellant timely appealed on June 11, 2018.3 See also Pa.R.Crim.P.

708(E). Appellant timely filed a Pa.R.A.P. 1925(b) statement, and the trial

court filed a responsive opinion.

       Appellant raises one question on appeal: “Whether the trial court’s

sentence was manifestly unreasonable.”           Appellant’s Brief at 4.   Appellant

argues that his one to two year sentence is excessive. Id. at 9. Specifically,
____________________________________________


3 The docket reflects Appellant’s notice of appeal, but the certified record
transmitted to this Court did not include the notice.

                                           -3-
J-A13021-19



Appellant asserts that the court failed to consider mitigating circumstances.

Id. at 8. Appellant contends that his probation violations were the result of

mental illness.     Id.    He states that punitive responses, such as lengthy

sentences, in response to mental illness are ineffective. Id.

       Moreover, Appellant claims that the trial court erred in finding that he

was not amenable to treatment. Id. at 12. He emphasizes that he expressed

a willingness to fulfill the obligations of supervised release and that his mother

could provide support for his re-entry, housing, and medical care. Id. at 12.

Appellant concludes that he was in need of treatment rather than

confinement.4 Id. at 11.

       Because Appellant’s issue implicates the discretionary aspects of

sentencing, we are guided by the following:

       [c]hallenges 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:

          [W]e conduct a four-part analysis to determine: (1) whether
          appellant has filed a timely notice of appeal; (2) whether
          the issue was properly preserved at sentencing or in a
          motion to reconsider and modify sentence; (3) whether
          appellant’s brief has a fatal defect; and (4) whether there is
          a substantial question that the sentence appealed from is
          not appropriate under the Sentencing Code.




____________________________________________


4Appellant has attached to his appellate brief several newspaper and journal
articles addressing incarceration of mentally ill inmates. The attachments
were not filed with the trial court.

                                           -4-
J-A13021-19



Commonwealth v. Derry, 150 A.3d 987, 991 (Pa. Super. 2016) (citations

omitted).

      As to the requirement that a substantial question be raised, this Court

has explained that a substantial question “exists only when an appellant

advances a colorable argument that the sentencing judge’s actions were either

inconsistent with a specific provision of the Sentencing Code or contrary to

the fundamental norms underlying the sentencing process.” Commonwealth

v. Bynum-Hamilton, 135 A.3d 179, 184 (Pa. Super. 2016) (citation

omitted).   “[A]n averment that the court sentenced based solely on the

seriousness of the offense and failed to consider all relevant factors raises a

substantial question.” Commonwealth v. Macias, 968 A.2d 773, 776 (Pa.

Super. 2009) (citations omitted); see also Commonwealth v. Dodge, 77

A.3d 1263, 1272 n.8 (Pa. Super. 2013).

      Here, Appellant’s appeal was timely, he preserved his issue in a motion

for reconsideration of sentence, and his brief contains a concise statement of

the reasons relied upon for allowance of appeal. See Derry, 150 A.3d at 991.

Moreover, Appellant’s claim that the trial court failed to consider mitigating

circumstances raises a substantial question.     See id.   Therefore, we will

address Appellant’s argument that the sentence was manifestly unreasonable.

      In matters involving the discretionary aspects of sentencing, our well-

settled standard of review is as follows:

      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

                                     -5-
J-A13021-19


      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. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation

omitted).

      The statute governing the modification or revocation of probation

provides:

      § 9771. Modification or revocation of order of probation

                                  *     *   *

      (c) Limitation on sentence of total confinement.—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. § 9771(c).

      Following revocation, “[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.”   Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.

Super. 2000) (citation omitted).      “[T]he trial court is limited only by the




                                      -6-
J-A13021-19



maximum sentence that it could have imposed originally at the time of the

probationary sentence.” Id.

     “When imposing a sentence, the sentencing court must consider the

factors set out in 42 Pa.C.S. § 9721(b) . . . .” Commonwealth v. Caldwell,

117 A.3d 763, 768 (Pa. Super. 2015) (citation omitted).          This Court has

explained:

     While parts of § 9721(b) do not govern revocation proceedings,
     as our sentencing guidelines are not required to be consulted in
     such instances, . . . other provisions of that section do apply. For
     example, the sentencing court must follow the general principle
     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. In
     addition, in all cases where the court resentences an offender
     following revocation of probation, county intermediate
     punishment or State intermediate punishment or resentences
     following remand, 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.

Derry, 150 A.3d at 993 (citations and quotation marks omitted).

     In its Rule 1925(a) opinion, the trial court explained that it

     noted [Appellant’s] significant mental health issues as
     documented in [his prior competency and psychological
     evaluation] reports, and [it] was further concerned by the fact that
     [Appellant] failed to comply with the recommendations as cited in
     the August 2015 Psychological Evaluation, denies any psychiatric
     issues, and refuses to take his prescribed psychotropic
     medication. Further, the trial court imposed a sentence of 1-2
     years instead of the requested 2-4, and did so with the hopes that
     [Appellant] could also obtain some medical treatment in the state
     facility. Finally, with reference to any mitigating factors, the trial
     court did not have confidence in [Appellant’s] assertions that, if
     released, he could live with his mother in Philadelphia and that
     she would oversee his medical care, get him work and make sure

                                     -7-
J-A13021-19


      he reported. . . . [Appellant’s] supervision was originally
      transferred to Philadelphia where his mother lived, but had to be
      transferred back twice due to [Appellant’s] failure to report, and
      due to other violations.

Trial Ct. Op., 8/15/18, at 7-8.

      Based on our review of the record, we find no abuse of discretion in the

trial court’s decision to impose a sentence of one to two years’ imprisonment.

Appellant had a lengthy history of failing to comply with the requirements of

probation, and his most recent offense involved an aggravated assault. The

trial court explicitly noted that the sentence was consistent with its duty to

protect the needs of the community, as well as the potential rehabilitation of

Appellant.   See Derry, 150 A.3d at 993.      The trial court also considered

Appellant’s mitigating circumstances, including his mental illness. See N.T.,

5/15/18, at 38-39. The trial court, however, indicated its lack of confidence

that Appellant could comply with the terms of probation, even under his

mother’s supervision. See Trial Ct. Op., 8/15/18, at 7.

      Therefore, having reviewed the record and Appellant’s argument, we

conclude that the trial court appropriately considered all relevant sentencing

factors. As such, Appellant’s claim warrants no relief. See Raven, 97 A.3d

at 1253.

      Judgment of sentence affirmed.




                                    -8-
J-A13021-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/12/19




                          -9-
