J-S66042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                    v.

JIMMY RASHEEN HARRIS

                          Appellant                  No. 1708 MDA 2015


        Appeal from the Judgment of Sentence September 16, 2015
            In the Court of Common Pleas of Lycoming County
           Criminal Division at No(s): CP-41-CR-0001676-2014
                                       CP-41-CR-0001677-2014



BEFORE: BOWES, J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED SEPTEMBER 07, 2016

      Jimmy Rasheen Harris (“Appellant”) appeals from the judgment of

sentence entered in the Lycoming County Court of Common Pleas following

the revocation of his probation. We affirm.

      The trial court set forth the relevant facts and procedural history of

this appeal as follows:

         On September 25, 2014, after a court hearing in another
         matter, Appellant fled instead of entering a vehicle that
         would return him to his juvenile placement at Camp
         Adams. Appellant remained at large for several days.

         On September 29, 2014, Appellant took the Holiday Inn
         shuttle van. The hotel reported the van stolen. A couple
         of hours later, a Penn College police officer observed
         Appellant driving the vehicle in the area of Memorial
         Avenue and Fifth Avenue in Williamsport. The officer
         activated his lights and sirens, but Appellant failed to stop.
         Rather, he drove the van at a high rate of speed through
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           several neighborhoods where vehicle and pedestrian traffic
           was heavy.     Eventually, Appellant lost control of the
           vehicle and struck several trees. The police removed
           Appellant from the heavily damaged van and took him into
           custody.

           The charges that were filed against Appellant were initially
           brought via petitions for delinquency in juvenile court but
           transferred to adult criminal court. Under Information
           1676-2014, Appellant was charged with theft by unlawful
           taking,[1] a felony of the third degree; receiving stolen
           property,[2] a felony of the third degree; unauthorized use
           of a motor vehicle,[3] a misdemeanor of the second
           degree; fleeing or attempting to elude a police officer,[4] a
           felony of the third degree; recklessly endangering another
           person [(“REAP”)],[5] a misdemeanor of the second
           degree; and various summary traffic offenses.[6] Under
           Information 1677-2014, Appellant was charged with
           escape,[7] which was initially graded as a felony of the third
           degree, but upon motion of the Commonwealth it was
           reduced to a misdemeanor of the second degree.

           On March 25, 2015, Appellant entered an open guilty plea
           to theft by unlawful taking, receiving stolen property,
           unauthorized use of a motor vehicle, fleeing or attempting
           to elude a police officer[, REAP] and escape.


____________________________________________


1
    18 Pa.C.S. § 3921(a).
2
    18 Pa.C.S. § 3925.
3
    18 Pa.C.S. § 3928.
4
    75 Pa.C.S. § 3733.
5
    18 Pa.C.S. § 2705.
6
    75 Pa.C.S. §§ 1501, 3736, 3323.
7
    18 Pa.C.S. § 5121(a).



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       On May 28, 2015, over the vehement arguments of the
       Commonwealth for a sentence of state incarceration, the
       court sentenced Appellant to an aggregate term of 11 to
       23 months of incarceration at the Lycoming County Prison
       followed by five years of probation under the supervision
       of the Lycoming County Adult Probation office.1 The court
       gave Appellant credit for time served from October 23,
       [2014] through May 27, 2015. The court also imposed
       multiple special conditions of supervision, including but not
       limited to successful completion of the Re-entry Services
       Program.
          1
             This sentence consisted of 5 to 10 months for
          fleeing or attempting to elude a police officer, 1 to 2
          months for [REAP], 2 years of probation for escape
          and a split sentence of 5 to 11 months followed by 3
          years of probation for theft by unlawful taking.

       Appellant was paroled on June 8, 2015. He failed to appear
       for the Re-entry Services Program for several consecutive
       days during the week of June 14, [2015,] and he was
       discharged from the program. He also failed to report to
       his adult probation officer.   As a result, on June 24,
       [2015], the court issued a bench warrant for Appellant’s
       arrest for absconding from supervision.

       Appellant was arrested on the bench warrant on or about
       July 14, 2015. A parole violation hearing was held on July
       28, 2015, and Appellant was given a 6-month setback with
       work release/work crew eligibility. Appellant remained at
       the Lycoming County Prison from July 28, 2015 to mid-
       August when he was moved to the Pre-Release Center
       (PRC).

       On September 10, 2015, Appellant escaped from PRC. He
       walked out of a basement door and kept on going. Shortly
       thereafter, officials at the PRC realized that Appellant was
       missing. Numerous law enforcement agencies began
       searching for Appellant. They searched the woods near
       PRC and went to his mother’s residence. Law enforcement
       officials apprehended Appellant in the upstairs of his
       mother’s residence, where it was obvious Appellant had
       been smoking marijuana.


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           On September 16, 2015, the court held a probation
           violation hearing. The court found that Appellant violated
           his probation by escaping from PRC and smoking
           marijuana. The court revoked Appellant’s probation and
           imposed an aggregate sentence of 4 to 8 years of
           incarceration in a state correctional institution, which
           consisted of 3 to 6 years for theft by unlawful taking under
           1676-2014 and 1 to 2 years for escape under 1677-2014.

Trial Court Pa.R.A.P. 1925(a) Opinion, filed April 13, 2016, at 1-3.

       On September 25, 2015, Appellant filed a post-sentence motion to

reconsider    probation     violation   sentence,   which   the   court   denied   on

September 28, 2015.           On October 6, 2015, Appellant filed a notice of

appeal.8     On October 8, 2015, the trial court ordered Appellant to file a

concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.

1925(b), and he timely complied on October 28, 2015.

       Appellant raises the following issue for our review:

           WHETHER THE LOWER COURT ABUSED ITS DISCRETION
           AT [APPELLANT’S] PROBATION REVOCATION HEARING BY
           IMPOSING A MANIFESTLY EXCESSIVE AND UNDULY
           HARSH SENTENCE[?]

Appellant’s Brief at 4.

       Appellant challenges the discretionary aspects of his sentence.             He

claims the court abused its discretion by imposing a manifestly excessive
____________________________________________


8
   Appellant appeals the order of September 16, 2015, which lists both
Docket Nos. 1676-2014 and 1677-2014. Although the notice of appeal only
lists Docket No. 1676-2014, because he listed both docket numbers on his
post-sentence motion, and because his notice of appeal states that he is
appealing from the September 16, 2015 order, we will excuse this mistake
as an inadvertent omission, as did the trial court.



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sentence, which was outside of the guideline range, without fully considering

mitigating circumstances.

      “Generally, in reviewing an appeal from a judgment of sentence

imposed after the revocation of probation, this Court’s scope of review

includes the validity of the hearing, the legality of the final sentence, and if

properly raised, the discretionary aspects of the appellant’s sentence.”

Commonwealth v. Kuykendall, 2 A.3d 559, 563 (Pa.Super.2010) (citing

Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa.Super.2006)).

      Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011). Before this Court can address such a discretionary

challenge, an appellant must invoke this Court’s jurisdiction by satisfying the

following four-part test:

      (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.

Id.

      Instantly, Appellant preserved his issue in a post-sentence motion,

filed a timely notice of appeal, and included in his brief a concise statement

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

discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f).       See



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Appellant’s Brief at 7.      Thus, we must determine whether Appellant has

raised a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”              Commonwealth v. Prisk, 13 A.3d

526, 533 (Pa.Super.2011). Further:

         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. (internal citations omitted).

       “An appellant making an excessiveness claim raises a substantial

question when he sufficiently articulates the manner in which 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.     Raven,     97     A.3d    1244,     1253

(Pa.Super.2014), appeal denied, 105 A.3d 736 (Pa.2014) (internal citations

omitted).      However, a bald assertion that a sentence is excessive does not,

by   itself,    raise   a   substantial        question   for    this   Court’s    review.

Commonwealth v. Giordano, 121 A.3d 998, 1008 (Pa.Super.2015),

appeal denied, 131 A.3d 490 (Pa.2016).

      Further, “ordinarily, a claim that the sentencing court failed to consider

or accord proper weight to a specific sentencing factor does not raise a



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substantial question.”      Commonwealth v. Berry, 785 A.2d 994, 996-97

(Pa.Super.2001) (internal citation omitted) (emphasis in original). Similarly,

“this Court has held on numerous occasions that a claim of inadequate

consideration of mitigating factors does not raise a substantial question for

our   review.”        Commonwealth             v.   Disalvo,   70   A.3d   900,   903

(Pa.Super.2013) (internal citation omitted).

       Here, Appellant claims that his sentence is “manifestly excessive” and

that the court failed to fully consider mitigating factors upon sentencing him.

Appellant has failed to raise a substantial question for our review.9

       Moreover, even if Appellant had raised a substantial question, his issue

is devoid of merit.

       Our standard of review of an appeal from a sentence imposed

following the revocation of probation is as follows:

          Our 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

____________________________________________


9
   We note that an appellant presents a substantial question “when a
sentence of total confinement, in excess of the original sentence, is imposed
as a result of a technical violation of parole or probation.” Commonwealth
v. Sierra, 752 A.2d 910, 913 (Pa.Super.2000). Here, Appellant did not
commit a mere technical violation of probation; he violated his probation by
escaping from PRC and smoking marijuana. Thus, the imposition of total
confinement after the revocation of Appellant’s probation alone does not
raise a substantial question.



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

Commonwealth v. Simmons, 56 A.3d 1280, 1286–87 (Pa.Super.2012),

aff'd, 91 A.3d 102 (Pa.2014) (quoting Commonwealth v. MacGregor, 912

A.2d 315, 317 (Pa.Super.2006)).

      Upon revoking probation, a sentencing court may choose from any of

the sentencing options that existed at the time of the original sentencing,

including incarceration.   42 Pa.C.S. § 9771(b). However, the imposition of

total confinement upon revocation requires a finding that either “(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).

      “Sentencing guidelines do not apply to sentences imposed following a

revocation of probation.”    Commonwealth v. Ferguson, 893 A.2d 735,

739 (Pa.Super.2006) (citation omitted).       “Although the sentencing court

need not explain deviation from the guidelines where they do not apply, the

court is required, pursuant to Pa.R.Crim.P. 1409(C)(2) to state on the record

the reasons for the sentence imposed.”       Commonwealth v. Coolbaugh,

770 A.2d 788, 793 (Pa.Super.2001) (quoting Commonwealth v. Philipp,

709 A.2d 920, 922 (Pa.Super.1998)).           See also Commonwealth v.

Cartrette, 83 A.3d 1030, 1041 (Pa.Super.2013).

      Here, in its sentencing order, the court stated:

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        The [c]ourt cannot explain why [Appellant] continues to
        act the way he does.

        The [c]ourt has reviewed volumes of records from his
        juvenile history, as well as his adult history.     While
        [Appellant] had a miserable upbringing, [Appellant] was
        given numerous opportunities to make better choices.
        [Appellant] is certainly intelligent enough to know his
        choices, and capable of making better choices. The [c]ourt
        recommends that he be placed and classified to a State
        Correctional Institution which houses youthful offenders,
        and that he attend and complete any and all programs that
        might address his decision making or lack thereof.

        Finally, the [c]ourt notes that it did not order a
        presentence report because the [c]ourt has reviewed all of
        the factors, and is acutely aware of [Appellant’s] history
        and characteristics, the circumstances of the offense,
        [Appellant’s] prior record score, and all other areas that
        would be covered by a presentence report.

Trial Court Order, September 16, 2015.

     In sentencing Appellant, the trial court further reasoned:

        Here, a sentence of state incarceration was necessary and
        appropriate because the conduct of Appellant indicated
        that he was likely to commit another crime if not
        imprisoned and such a sentence was essential to vindicate
        the authority of the court.

        It was patently obvious from Appellant’s history that
        neither probation nor a county sentence was an effective
        means of rehabilitating Appellant. The initial sentence was
        a sentence of county incarceration followed by probation.
        The court tried to give Appellant access to educational,
        vocational, behavioral and emotional support services by
        making him eligible for the Re-entry Services Program, but
        Appellant was on parole supervision for less than a week
        before he stopped attending the Re-entry Services
        Program and absconded from supervision. The court then
        tried to give Appellant a wake-up call without sending him
        to a state correctional institution when it merely gave
        Appellant a 6-month parole setback with work

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         release/work crew eligibility and left his probation
         sentences intact.    Instead of taking advantage of the
         chance to retain his probation, however, Appellant failed to
         even serve his setback. Instead, he escaped from the PRC
         after serving only about 1½ months of his 6-month
         setback.

         As the court noted at the probation violation hearing,
         Appellant had zero respect for authority or anyone else.
         Despite his promises in his letters to the court prior to the
         initial sentencing and his pleas for mercy and leniency so
         he could be home again, Appellant had no interest in
         changing his life around or cooperating in any
         rehabilitation efforts. He only did what he wanted to do.

         Appellant was before the court at his initial sentencing,
         because he escaped from his juvenile placement when he
         fled following a court hearing and stole a vehicle a few
         days later.    He was before the court at his parole
         revocation hearing, because he quit attending the Re-entry
         Services Program within a week of his release and he
         absconded from supervision. He was before the court for a
         probation revocation hearing, because he escaped from
         PRC.     Since Appellant utterly failed and refused [to]
         comply with what he was directed to do, the court was left
         with no choice but to warehouse him in a secure state
         correctional facility. Perhaps while he is there, he will
         realize that he won’t get paroled unless he completes his
         programming and he will finally take advantage of
         programs designed to assist in his rehabilitation. If not, he
         probably will not get another opportunity to comply with
         supervision conditions, because he likely will not be
         paroled.

Trial Court Pa.R.A.P. 1925(a) Opinion, at 5-6. The trial court’s reasoning is

sound, and it did not abuse its discretion in sentencing Appellant.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2016




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