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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 LAVAUGN GREY                             :
                                          :
                    Appellant             :    No. 1371 WDA 2017

          Appeal from the Judgment of Sentence August 24, 2017
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0012155-2015


BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY PANELLA, J.:                      FILED NOVEMBER 09, 2018

      The trial court found Lavaugn Grey had violated the conditions of his

sentence of probation, and revoked the sentence. The court then re-sentenced

Grey to a term of imprisonment of three to six years, which falls in the

standard range of the sentencing guidelines. Grey does not contest the

revocation of his probation. He claims only that the court abused its discretion

in imposing sentence. We affirm.

      As noted by the Commonwealth, the transcript from Grey’s guilty plea

is not in the certified record. It was Grey’s responsibility to ensure this

document was part of the certified record on appeal. See, e.g., Everett Cash

Mutual Insurance Company v. T.H.E. Insurance Company, 804 A.2d 31,

34 (Pa. Super. 2002). However, we conclude a review of this transcript is not

necessary, as Grey does not challenge the trial court’s recitation of the facts.
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      On January 27, 2016, Grey pled guilty to one count of criminal trespass,

one count of terroristic threats, and one count of resisting arrest. The court

sentenced him to two years’ probation on the criminal trespass conviction,

and no further penalty on the terroristic threats and resisting arrest

convictions.

      On September 21, 2016, Grey was arrested on charges of, among

others, burglary and aggravated assault involving the same victim. The court

held a probation revocation hearing nearly a year later to assess Grey’s status.

      The court opened the hearing by notifying Grey that a standard range

sentence upon revocation would be a minimum sentence of 33 to 48 months.

Grey, represented by counsel, did not contest this calculation at the hearing,

and has not raised any challenge to it on appeal.

      The hearing proceeded to the testimony of Grey’s probation officer.

      PROBATION OFFICER ALLEN: The defendant’s conduct while
      under supervision can be characterized as marginal at best. He
      reported as directed. He was ordered to have no [violent contact
      with the victim,] which is the subject of this report.

      He was … ordered to have no contact with [the victim.] However,
      he was arrested on September 21 for aggravated assault on an
      unborn child, endangering the welfare of children, burglary, [and]
      simple assault.

      The defendant was accused of calling the victim all night. Then he
      showed up outside of her residence, punched the screen window
      in, then climbed through the window in the residence where he
      began attacking her. He jumped on top of her and began choking
      her, punching her multiple times in the head, face, stomach, and
      pulled her hair. The victim was seven weeks pregnant at the time.




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       The defendant was leaving the residence. He kicked the bouncy
       chair in which had his small son in it.

       He was court ordered to complete a drug and alcohol evaluation.
       In September, 2016, he did complete it; however, he did not meet
       the criteria for the drug and alcohol treatment.

       He was court ordered to complete the GED program. He reported
       until he was arrested for the attributable charges.

       He was also instructed to complete the Batterer’s Intervention
       Program. The Probation Office has not received any type of
       verification that he had completed that[.]

N.T., Revocation Hearing, 8/24/17, at 2-3.

       Grey’s counsel provided the court with a verification that Grey had

completed the Batterer’s Intervention Program. See id., at 4. She also noted

that the charges arising from the allegation of kicking his son’s chair had been

dismissed. See id. She did not challenge any other aspect of the probation

officer’s recitation. Instead, she highlighted Gray’s issues with alcohol,

depression, possible brain injury, and his need for rehabilitation. See id., at

4-5.

       The court summarized its findings:

       Mr. Grey, you are a convicted violator for burglary involving the
       same victim as I had you on probation for. You broke in and you
       assaulted your pregnant baby’s momma. You continued
       contacting her while you were in jail.

       You are serving 11 ½ to 23 months [on the convictions for the
       September 2016, crimes.] You have been convicted of aggravated
       assault, simple assault, and have been active with the criminal
       justice system since 1994. You’ve been on and off supervision
       since 1994. And you have managed to violate all, if not – I’m
       sorry, most if not all of your periods of probation.


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      You had several prior incarcerations in the Allegheny County Jail.
      You also served a term of four to eight years for involuntary
      deviate sexual intercourse.

      You have a lengthy history of avoiding treatment, although you
      did periodically attend Pyramid and Family Links. However, you
      seem to continue the same kind of actions.

      …

      Mr. [Grey], I find you really are not a candidate for county
      supervision. We’ve done everything we can to try to rehabilitate
      you since 1994. That’s a long time to be working with you.

Id., at 6-8. Grey has never challenged the court’s recitation of the

circumstances involved.

      What Grey does challenge, however, is the whether the court considered

his rehabilitative needs and the fact that he has community support. Grey

concedes this raises a challenge to the discretionary aspects of his sentence.

See Appellant’s Brief, at 13.

      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). “Two requirements must be met before we

will review this challenge on its merits.” Id. (citation omitted).

      “First, an appellant must set forth in his brief a concise statement of the

reasons relied upon for allowance of appeal with respect to the discretionary

aspects of a sentence.” Id. (citation omitted). See also Pa.R.A.P. 2119(f).

“Second, the appellant must show that there is a substantial question that the


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sentence imposed is not appropriate under the Sentencing Code.” Id. (citation

omitted). That is, “the sentence violates either a specific provision of the

sentencing scheme set forth in the Sentencing Code or a particular

fundamental norm underlying the sentencing process.” Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (citation omitted).

      We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See id. “Our inquiry must focus on the

reasons for which the appeal is sought, in contrast to the facts underlying the

appeal, which are necessary only to decide the appeal on the merits.” Id.

(citation and emphasis omitted). Here, Grey has preserved his arguments

through a post-sentence motion.

      In his Rule 2119(f) statement, Grey contends the court abused its

discretion by imposing an excessive sentence and failing to consider his

“rehabilitative needs and that he had community support.” Appellant’s Brief,

at 15-16. This raises a substantial question. See Commonwealth v. Baker,

72 A.3d 652, 662 (Pa. Super. 2013).

      We thus turn to the substance of Grey’s argument.

      The imposition of sentence following the revocation of probation
      is vested within the sound discretion of the trial court, which,
      absent an abuse of that discretion, will not be disturbed on appeal.
      An abuse of discretion is more than an error in judgment—a
      sentencing court has not abused its discretion unless the record
      discloses that the judgment exercised was manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-will.




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Commonwealth v. Simmons, 56 A.3d 1280, 1283-1284 (Pa. Super. 2012)

(citation omitted).

      “Upon revocation the sentencing alternatives available to the court shall

be the same as were available at the time of initial sentencing, due

consideration being given to the time spent serving the order of probation.”

42 Pa.C.S.A. § 9771(b). And the revocation court may impose a sentence of

total confinement upon revocation if “the defendant has been convicted of

another crime[.]” Id., at (c)(1). “[T]he 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) (citations omitted).

      In addition, in all cases where the court resentences an offender
      following revocation of probation … 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
      [and] [f]ailure to comply with these provisions shall be grounds
      for vacating the sentence or resentence and resentencing the
      defendant. 42 Pa.C.S. § 9721(b). A trial court need not undertake
      a lengthy discourse for its reasons for imposing a sentence or
      specifically reference the statute in question, but the record as a
      whole must reflect the sentencing court’s consideration of the
      facts of the crime and character of the offender.

Commonwealth v. Colon, 102 A.3d 1033, 1044 (Pa. Super. 2014) (internal

citations and quotation marks omitted).

      When imposing sentence, a court must consider “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.”


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Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006) (citation

omitted).

      Sentencing guidelines are not applicable to a sentence imposed after a

revocation of probation. See Commonwealth v. Cappellini, 690 A.2d 1220,

1224 (Pa. Super. 1997). Here, however, the court chose to follow them

anyway. And, in doing so, the court imposed a standard range sentence which

is presumptively reasonable. See, e.g., Commonwealth v. Fowler, 893

A.2d 758, 767 (Pa. Super. 2006).

      Grey has failed to meet his burden of establishing the sentence imposed

was unreasonable. He conceded multiple technical violations of parole, as well

as breaking into the victim’s home and assaulting her while he was on

probation from previously trespassing on her property. Also, Grey has an

extensive criminal history. All of which weighs heavily in favor of protecting

the public, to say nothing of his victim, from Grey.

      Additionally, the court had the benefit of a presentence investigation

report (“PSI”). Thus, the law presumes the court was aware of and weighed

relevant information regarding a defendant’s character along with mitigating

statutory factors. See Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa.

Super. 1992) (“It would be foolish, indeed, to take the position that if a court

is in possession of the facts, it will fail to apply them to the case at hand.”)

See also Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super. 2005)

(finding that where the sentencing court has a PSI, “it is presumed that the


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sentencing court was aware of the relevant information regarding defendant’s

character and weighed those considerations along with mitigating statutory

factors”).

      The court acknowledged Grey’s rehabilitative needs.         See N.T.,

Revocation Hearing, 8/24/17, at 6-7. However, the court concluded, “[w]e’ve

done everything we can to try to rehabilitate you since 1994. That’s a long

time to be working with you.” Id., at 7-8. The court considered Grey’s

rehabilitative needs; it merely found they were outweighed by the need to

protect the victim and the community from Grey’s recidivism.

      We can discern no abuse of the court’s discretion in imposing sentence.

We therefore affirm.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2018




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