J-S05040-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                   Appellee                :
                                           :
                     v.                    :
                                           :
TORRY DAVID GONZALES,                      :
                                           :
                   Appellant               :     No. 1369 WDA 2017

          Appeal from the Judgment of Sentence August 16, 2017
             in the Court of Common Pleas of Venango County
           Criminal Division at No(s): CP-61-CR-0000013-2008

BEFORE:     OLSON, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                    FILED MARCH 28, 2018

      Torry David Gonzales (Appellant) appeals from the August 16, 2017

judgment of sentence entered after the revocation of his probation.         We

affirm.

      The trial court summarized the factual and procedural history of this

case as follows.

            On September 29, 2007, [Appellant] was arrested and
      charged by criminal information with two counts of forgery (felony
      3), access device fraud (felony 3), identify theft (misdemeanor 1),
      and theft by deception (misdemeanor 1). On November 25, 2008,
      [Appellant] was sentenced … for the above charges to a period of
      sixty months [of] probation. After he served an unrelated jail
      sentence, [Appellant] was released and began his sixty-month
      probation sentence.

            On July 10, 2017, the Commonwealth filed a petition to
      revoke probation/parole based on [Appellant’s] conviction
      received at [docket number] 195-2017 in Clearfield County, a
      material violation of his probation agreement. At [docket number]
      195-2017, [Appellant] was sentenced to a term of forty months

*Retired Senior Judge assigned to the Superior Court.
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      to ten years [of] incarceration. On August 8, 2017, [Appellant]
      was resentenced at [this docket number by the trial court] for
      material violations of his probation agreement. On count 2 –
      forgery, [Appellant] was resentenced to two to seven years [of]
      incarceration. On August 17, 2017, [Appellant] was resentenced
      on count 1 – forgery to two to [seven] years [of] incarceration.
      [The trial court] ordered that the two sentences … be run
      concurrent with each other, but to be run consecutive to
      [Appellant’s] Clearfield County sentence [].

             [Appellant] filed a timely motion to reconsider and modify
      sentence which was denied by [the trial court]. Thereafter,
      [Appellant] filed a timely notice of appeal, and timely filed the
      instant concise statement of [errors] complained of on appeal
      pursuant to [the trial court’s Rule] 1925 order. [The trial court
      filed an opinion in response.]

Trial Court Opinion, 10/17/2017, at 1-2 (unnecessary capitalization and

parenthetical numerals omitted).

      On appeal, Appellant argues that the trial court “abused its discretion

by imposing a sentence without giving consideration to all the relevant

sentencing factors … including [Appellant’s] character and rehabilitative needs

and gravity of the offense.” Appellant’s Brief at 4.

      Appellant challenges the discretionary aspects of his sentence.       We

consider his issue mindful of the following.

      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.

                                     ***


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            When imposing sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. In considering these factors, the court should refer to
      the defendant’s prior criminal record, age, personal characteristics
      and potential for rehabilitation.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the following
      four factors:

            (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).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

      Here, Appellant filed a notice of appeal after preserving the issue by

filing a motion to modify sentence.      Further, Appellant’s brief contains a

statement pursuant to Pa.R.A.P. 2119(f), claiming that the trial “court did not

adequately consider all of the relevant sentencing factors and sentenced him

only on the basis of his criminal record.” Appellant’s Brief at 8.




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     Regarding sentences imposed following the revocation of probation, the

Sentencing Code 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. § 9771(c). Moreover, in addition to these considerations, a trial

court must also consider the factors set forth in subsection 9721(b) 1 when

imposing a sentence following the revocation of probation. Commonwealth

v. Derry, 150 A.3d 987, 995 (Pa. Super. 2016). Thus, “to the extent that



1 That subsection provides, in relevant part, that when imposing a judgment
of sentence,

     the court shall 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 every case in which
     the court imposes a sentence for a felony or misdemeanor,
     modifies a sentence, 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.

42 Pa.C.S. § 9721(b).

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[Appellant] challenges the sentencing court’s failure to consider [subs]ection

9721(b) factors,” he has raised a substantial question. Id. at 995.

Accordingly, we proceed to address the merits of Appellant’s claim.

      Instantly, Appellant contends that the trial court abused its discretion

by focusing “only on [Appellant’s] past record and the circumstances

surrounding the conviction in Clearfield County in fashioning the sentence.”

Appellant’s Brief at 10. Specifically, he argues the following.

            During the hearing, [Appellant] entreated the court to give
      him the opportunity to “readjust” to society. [Appellant] admitted
      that he has been in the criminal justice system for 14 years and
      asked the court to consider a sentence concurrent with the 40
      months to 10 years received in Clearfield County. A concurrent
      sentence would expedite his entrance into society where
      [Appellant] will have access to community resources including but
      not limited to agencies that focus on housing, employment and
      parenting. This will assist him in successful reintegration into the
      community.        Thus, a concurrent sentence would have
      incorporated [Appellant’s] rehabilitative needs.

Id. (citation omitted).

      At the time Appellant was sentenced, the trial court stated that it was

imposing a sentence of total confinement because Appellant “has been

convicted of another crime. The conduct of [Appellant] indicates [Appellant]

will commit another crime if not imprisoned. The sentence of imprisonment

is essential to vindicate the authority of the [trial c]ourt.” N.T., 8/8/2017, at

22; 8/16/2017, at 18.

      In addition, the trial court offered the following explanation for its

sentence.


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      Given [Appellant’s] clear disregard for the laws of the
      Commonwealth, evidenced by his convictions of additional crimes
      while serving his probationary period for the above-captioned
      case, [Appellant] made it clear to [the trial court] that his
      character for unlawful activity makes him a danger to society as a
      whole, and that a term of incarceration to be served after his
      sentence at [docket number] 195-2017 is more than appropriate,
      as well as conducive to [Appellant’s] rehabilitative needs.

Trial Court Opinion, 10/17/2017, at 3.

      Moreover, at the time of sentencing, the trial court had the benefit of

Appellant’s pre-sentence investigation (PSI) report. “[W]here the sentencing

judge had the benefit of a [PSI] report, it will be presumed that he or she was

aware of the relevant information regarding the defendant’s character and

weighed those considerations along with mitigating statutory factors.”

Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016). Based

on the foregoing, we conclude that the trial court did not abuse its discretion

in sentencing Appellant. Appellant essentially concedes that probation has

proven to be ineffective in rehabilitating him; thus, it was not an abuse of

discretion for the trial court to conclude that a prison sentence is necessary to

vindicate the authority of the court and protect the public. Accordingly, we

affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2018




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