J-S25029-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 DAVON THOMAS CLARK                      :
                                         :
                   Appellant             :   No. 1907 MDA 2019

    Appeal from the Judgment of Sentence Entered September 19, 2019
    In the Court of Common Pleas of Centre County Criminal Division at
                     No(s): CP-14-CR-0000563-2017


BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

MEMORANDUM BY DUBOW, J.:                              FILED JULY 30, 2020

      Appellant, Davon Thomas Clark, appeals from the Judgment of Sentence

(“Revocation Sentence”) of one to two years of incarceration, imposed

September 19, 2010, after the lower court revoked Appellant’s state-

supervised probation for ongoing technical violations. Appellant challenges

the discretionary aspects of this Revocation Sentence. Upon careful review,

we affirm.

      In September 2017, Appellant agreed to plead guilty to Robbery,

Terroristic Threats, and related crimes, in exchange for an aggregate sentence

of one to two years of incarceration, followed by one year of probation. In
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addition, the Commonwealth agreed to nolle prosse additional charges against

Appellant.1 Appellant did not appeal from this Judgment of Sentence.

       In September 2019, the lower court (“Revocation Court”) commenced a

hearing to determine whether Appellant had violated the terms of his

probation. In lieu of testimony, Appellant and the Commonwealth stipulated

to a report compiled by the Pennsylvania Board of Probation and Parole

(“BPP”). N.T. Revocation Hearing, 9/19/19, at 3-7 (stipulating to a three-

page “Supervision History” report).2

       This report documented that, following his release from incarceration,

beginning as early as June 2018, Appellant repeatedly violated the terms of
____________________________________________


1 Appellant pleaded guilty to Robbery – Inflicts or Threatens Immediate Bodily
Injury, Terroristic Threats, Simple Assault, Theft from a Motor Vehicle, Theft
by Unlawful Taking, and Criminal Trespass. 18 Pa.C.S. §§ 3701(a)(1)(iv),
2706(a)(1), 2701(a)(3), 3934(a), 3921(a), 3503(b)(1)(i), respectively. The
Commonwealth nolle prossed Robbery – Threatens Immediate Serious Injury
and two counts of Harassment. 18 Pa.C.S. §§ 3701(a)(1)(ii), 2709(a)(1),
respectively.

2On April 1, 2020, Appellant filed an Application to Strike the Commonwealth’s
Brief, asserting that it contained an exhibit never admitted into evidence
before the Revocation Court. The exhibit consists of documents compiled by
the Pennsylvania BPP relevant to Appellant case, including the “Supervision
History” report to which Appellant stipulated. It is settled that a stipulation is
binding on the parties and the court. See Commonwealth v. Mitchell, 902
A.2d 430, 460 (Pa. 2006). In this case, Appellant expressly opted to forego
actual testimony at the revocation hearing in exchange for stipulating to the
accuracy of the Supervision History. See N.T. Revocation Hearing at 7. The
Revocation Court considered this evidence in reaching its decision. Id. Under
these circumstances, we deem the Supervision History part of the record. To
the extent the Commonwealth’s exhibit includes additional information, we
have not considered this information on appeal. For these reasons, we will
deny Appellant’s Application.


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his probation, which required that he (1) maintain treatment for his substance

abuse, (2) refrain from assaultive behavior, and (3) refrain from alcoholic

beverages and non-prescribed controlled substances. See N.T. Revocation

Hearing at 8-11 (referencing several violent incidents, positive drug tests and

admitted narcotics use, and repeated failures to comply with “directives to get

treatment”).

       Appellant conceded these violations and acknowledged that he needed

help with his addiction. See N.T. Revocation Hearing at 5, 7, 21-22. Through

counsel, Appellant offered to commence drug treatment in exchange for no

further incarceration. See id. at 13-14, 16-17. However, after considering

Appellant’s Supervision History and the arguments of counsel, the court

concluded that without total confinement, Appellant was likely to commit

another crime.      Id. at 22-23.       The court, therefore, revoked Appellant’s

probation and imposed an aggregate sentence of one to two years of

incarceration in a state correctional facility.3

       Appellant timely filed a Post-Sentence Motion, asking the Revocation

Court to reconsider its sentence.4 In his Post-Sentence Motion, noting that he

had committed only technical violations of his state probation, Appellant
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3 The Revocation Sentence consisted of two, concurrent terms of one to two
years of incarceration, relevant to his prior convictions for Robbery and
Terroristic Threats. See N.T. Revocation Hearing at 23-25. Appellant was no
longer under supervision for his other crimes at this docket. See N.T.
Preliminary Hearing, 9/11/19, at 3.

4 The court expressly granted reconsideration.            Revocation Ct. Order,
10/17/19.

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asserted that the revocation sentence imposed by the lower court was

excessive because Appellant was “agreeable to receiving treatment for his

substance abuse issues” as an alternative to state incarceration.             Post-

Sentence Motion, 9/25/19, at 5 ¶ 24. Following further review, the Revocation

Court issued an Opinion denying Appellant’s Motion.

      Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

Statement.    In response, the Revocation Court referenced its October 29,

2019 Opinion and Order.

      Appellant raises the following issue on appeal:

      [Whether] the [revocation] court abused[d] its discretion by
      sentencing [Appellant] to a [one- to two-year] sentence at a
      [s]tate [c]orrectional [i]nstitution with the only alleged violations
      being technical violations and when such a sentence was contrary
      to [Appellant’s] individual circumstances and rehabilitative needs
      and less excessive options than a [s]tate prison sentence were
      available[.]

Appellant’s Br. at 6.

      Appellant’s claim challenges the discretionary aspects of his sentence.

A challenge to discretionary aspects of a sentence is not reviewable as a

matter of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super.

2015).   Rather, an appellant challenging the sentencing court’s discretion

must invoke this Court’s jurisdiction by (1) filing a timely notice of appeal; (2)

properly preserving the issue at sentencing or in a post-sentence motion; (3)

complying with Pa.R.A.P. 2119(f), which requires a separate section of the

brief setting forth a concise statement of the reasons relied upon for allowance



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of appeal with respect to the discretionary aspects of a sentence; and (4)

presenting a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b). Id.;

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).

     Appellant timely appealed. Further, Appellant sufficiently preserved his

claim in a Post-Sentence Motion asserting that his sentence was excessive.

Within his brief, Appellant has included a statement pursuant to Rule 2119(f),

asserting that his claim raises a substantial question because the Revocation

Court imposed a sentence of total confinement for merely technical violations

of his probation. See Appellant’s Br. at 16-17.

     Whether an appellant has raised a substantial question is determined on

a case-by-case basis. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.

Super. 2010).    “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 [that] underlie the sentencing

process.” Id. (citation and quotation omitted).

     “The imposition of a sentence of total confinement after the revocation

of probation for a technical violation, and not a new criminal offense,

implicates the ‘fundamental norms which underlie the sentencing process.’”

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

omitted); see Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super.

2000) (recognizing a substantial question where imposition of revocation

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sentence exceeded original sentence following technical violations of

probation). Here, the Revocation Court sentenced Appellant to incarceration

due solely to technical violations of his probation. Thus, Appellant has raised

a substantial question, and we shall review the merits of his claim.5

       Appellant’s over-arching contention is that he needs treatment in a local,

outpatient setting, rather than incarceration in a state institution.       See

generally Appellant’s Br. at 22-38. Appellant concedes that “he had made

some missteps, [but] he was at least putting forth [an] effort to try and reform

and acknowledge[d] the issues that were presenting obstacles.” Id. at 24.

Prior to imposing a state sentence, Appellant asserts that the court should

have offered him “an opportunity to see if the structure and treatment that

were available on the local level were sufficient to help his substance abuse

issues[.]” Id. at 27. In depriving Appellant of this opportunity, Appellant

concludes, the court failed to consider his “individual circumstances and

rehabilitative and treatment needs.” Id. at 38.6
____________________________________________


5 Appellant also asserts that he has raised a substantial question because the
Revocation Court failed to consider adequately mitigating factors specific to
Appellant. See Appellant’s Br. at 17-19. This does not constitute a substantial
question. See Commonwealth v. Griffin, 804 A.2d 1, 9 (Pa. Super. 2002)
(citing Commonwealth v. Williams, 562 A.2d 1385, 1388 (Pa. Super. 1989)
(en banc) (declining to recognize a substantial question because an allegation
that the sentencing court did not adequately consider various factors is, in
effect, a request that this court substitute its judgment for that of the lower
court in fashioning a defendant’s sentence)).

6Appellant’s further assertion, that his situation did not demonstrate that he
was likely to commit additional crimes, is not persuasive. See Appellant’s Br.



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       “Sentencing is a matter vested in the sound discretion of the sentencing

judge,” and we shall not disturb a sentence absent an abuse of that discretion.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citation

omitted). “An abuse of discretion is more than a mere error of judgment;

thus, a sentencing court will not have abused its discretion unless the record

discloses that the judgment exercised was manifestly unreasonable, or the

result of partiality, prejudice, bias or ill-will.” Moury, 992 A.2d at 169-70

(quoting Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007).

       “[U]pon 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. Fish, 752

A.2d 921, 923 (Pa. Super. 2000) (citation omitted). Nevertheless, a sentence

of total confinement is appropriate only if: “(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).

       The court must state on the record its reasons for imposing sentence.

42 Pa.C.S. § 9721(b).        However, “a lengthy discourse on the trial court's

sentencing philosophy is not required.”          Commonwealth v. McAfee, 849
____________________________________________


at 29. Appellant stipulated that he had repeatedly engaged in assaultive
behavior and continued to use illegal and/or prescription drugs without a
prescription. N.T. Revocation History at 7. Although Appellant did not incur
new charges, this conduct constitutes potentially criminal behavior.

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A.2d 270, 275 (Pa. Super. 2004) (citation omitted). “Rather, the record as a

whole must reflect the court's reasons and its meaningful consideration of the

facts of the crime and the character of the offender.” Commonwealth v.

Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006) (citation omitted).

      Following our review of the Revocation Court’s reasons for the sentence

imposed, we discern no abuse of the court’s discretion in sentencing Appellant

as it did. Of particular concern to the court was Appellant’s need for drug

treatment.    N.T. Revocation Hearing at 25 (concluding that a “state

correctional facility will be in a better position to offer [Appellant] the

programming and the help that he needs” and encouraging Appellant to

participate in the programming).       We note also that the court clearly

considered progress Appellant made in achieving some stability in his day-to-

day life. Id. (referencing Appellant’s employment history, housing, and desire

to attend school, the court stated, “I hope you remember the things you said

to me and remember the positive changes [you have made]”).

      In denying Appellant’s Post-Sentence Motion, the Revocation Court

further explained its reasoning:

      The [c]ourt finds that [Appellant’s] argument [that the court failed
      to consider his need and request for drug treatment] is
      opportunistic, as [Appellant] has repeatedly ignored instructions
      to seek drug and alcohol treatment, and has tested positive for
      drugs during his probation; however, now that [Appellant] is faced
      with imprisonment for his [probation] violations, he has a renewed
      vigor in seeking treatment. [Appellant] had the opportunity to
      comply with the terms of his probation and seek treatment, but
      chose not to do so. As a result of his actions, [Appellant] has now
      lost the opportunity to seek treatment on his own terms, and it is


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      the hope of this [c]ourt that [Appellant] will be able to receive the
      treatment he needs in an appropriate setting.

Revocation Ct. Op. and Order, 10/29/19, at 2-3 (unpaginated) (further noting

that Appellant would not have access to controlled substances during state

incarceration).

      The record reflects that the Revocation Court considered progress

Appellant had made but remained concerned that his repeated refusal to take

advantage of local treatment options available to him while on probation had

undermined this progress and ultimately posed a risk that Appellant would

commit additional crimes.          Moreover, the court explained that the

programming available in a state facility offered Appellant a better opportunity

for rehabilitation and more effectively eliminated his access to controlled

substances.

      For these reasons, we deem unpersuasive Appellant’s contention that

the court failed to consider his individual rehabilitative needs, thus abusing its

discretion. Further, we note that the record does not support any claim that

Appellant’s sentence is the result of prejudice, bias, or ill-will. To the contrary,

the record confirms that the court was most concerned with Appellant’s

rehabilitative needs and encouraged Appellant to build upon the progress that

he had begun to make. Under these circumstances, we discern no abuse of

the court’s sentencing discretion.

      Application to Strike denied. Judgment of Sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/30/2020




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