J-S55041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    THOMAS REIBER                              :
                                               :
                       Appellant               :   No. 820 WDA 2019

         Appeal from the Judgment of Sentence Entered March 29, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0005993-2015


BEFORE:      MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                           FILED NOVEMBER 19, 2019

        Appellant, Thomas Reiber, appeals from the aggregate judgment of

sentence of eight years and 212 days to 15 years and 212 days of

confinement, of which 577 days was immediately credited for time served,

resulting in a period of incarceration of seven to fourteen years. This sentence

was imposed after the revocation of his state intermediate punishment (“SIP”)

for three counts of endangering welfare of children (“EWOC”).1 We affirm on

the basis of the trial court opinion.

        On May 3, 2015, Appellant’s three-month-old baby died, because he left

the infant and a three-year-old child in the care of a six-year-old child, while

he took drugs. Appellant was already serving probation pursuant to at least
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
118 Pa.C.S. § 4304(a)(1) (parent, guardian or other person supervising the
welfare of a child under 18 years of age commits offense).
J-S55041-19



seven different dockets since 2011 and was a participant in Allegheny County’s

Mental Health Court at the time his infant died. During his entire probationary

period, Appellant struggled with drug abuse and mental health issues.

      On February 2, 2016, Appellant pleaded guilty to the aforementioned

charges. On August 30, 2016, he was sentenced to six years in SIP.

      Following hearings on March 20 and 29, 2018, the trial court found

Appellant had violated the terms of his SIP sentence and resentenced him to

577 days of confinement with immediate parole for the first count of EWOC

and 3½ to 7 years of confinement for each of the other two EWOC counts.

Order of Sentence – Revocation, 3/29/2018, at 1. These sentences were to

be served consecutively to each other, for an aggregate judgment of sentence

of seven years and 577 days to 14 years and 577 days of confinement – or

eight years and 212 days to 15 years and 212 days of confinement, if 365 of

the days from the 577 days are converted into a year. Id. As Appellant was

immediately paroled on the first count, he would actually be serving seven to

fourteen years of confinement.

      At the conclusion of the second hearing, Appellant requested a new

attorney, which the trial court granted. N.T., 3/29/2018, at 4; Order of Court,

3/29/2019. Appellant’s new counsel filed an untimely notice of appeal, and

this Court quashed that appeal.




                                     -2-
J-S55041-19



       On May 17, 2019, Appellant filed a counseled, timely petition pursuant

to the Post Conviction Relief Act (“PCRA”),2 requesting that his direct appeal

rights be reinstated nunc pro tunc. PCRA Petition, 5/17/2019, at 5. The PCRA

court granted Appellant’s petition and reinstated his right to file a post-

sentence motion and his direct appeal rights. On May 24, 2019, Appellant

filed a post-sentence motion challenging the discretionary aspects of his

sentence, which the trial court denied on May 30, 2019. On June 4, 2019,

Appellant filed this timely direct appeal.3

       Appellant presents the following issue for our review:

       Did the trial court err in denying Appellant’s post sentencing
       motions since the imposition of two statutory maximum sentences
       for [EWOC] (3.5 to 7 years’ imprisonment at each count, for an
       aggregate sentence of 7-14 years’ imprisonment, for a probation
       violation and revocation regarding Appellant’s original sentence of
       [SIP] was manifestly excessive, unreasonable, and an abuse of
       discretion pursuant to 42 Pa.C.S. § 9771 (c), and not in conformity
       with the Sentencing Code. The trial court failed to provide
       adequate reasons for imposing sentences above the aggravated
       range of the guidelines, and failed to take into account Appellant’s
       rehabilitative needs, his background, the circumstances of the
       crimes or the minimal need for public protection in this case;
       Appellant’s crimes were the result of his drug addiction and mental
       illness, and the trial court focused primarily on Appellant’s drug
       addiction?

Appellant’s Brief at 3 (unnecessary capitalization omitted).


____________________________________________


2   42 Pa.C.S. §§ 9541–9546.
3 Appellant simultaneously filed his statement of errors complained of on
appeal. On August 2, 2019, the trial court entered an order stating that its
opinion dated October 26, 2018, would serve as its opinion pursuant to
Pa.R.A.P. 1925(a).

                                           -3-
J-S55041-19


      Preliminarily, we recognize . . . that Appellant’s SIP sentence was
      analogous to a sentence of probation. We review a sentence
      imposed following a revocation of probation for an error of law or
      an abuse of discretion. Accordingly, we apply that same standard
      in reviewing revocation of Appellant’s SIP sentence.

Commonwealth v. Flowers, 149 A.3d 867, 872–73 (Pa. Super. 2016)

(citations omitted).

      [A]n 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.

Commonwealth v. Lekka, 210 A.3d 343, 350 (Pa. Super. 2019) (citation

omitted).

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to an appeal as of right. Prior to reaching the
      merits of a discretionary sentencing issue[, w]e conduct a four-
      part analysis to determine: (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. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)

(quotation marks and some citations omitted), reargument denied (July 7,

2018). In the current case, Appellant filed a timely notice of appeal, preserved

his issue in a post-sentence motion, and included a statement in his brief

pursuant to Pa.R.A.P. 2119(f). Appellant’s Brief at 9-12.

      The final requirement, whether the question raised by Appellant is a

substantial question meriting our discretionary review, “must be evaluated on

                                     -4-
J-S55041-19


a case-by-case basis. 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.” Manivannan, 186 A.3d at 489 (quotation marks and some citations

omitted).

       The Rule 2119(f) statement sets forth the claims that the sentencing

court failed to consider the factors set forth in 42 Pa.C.S. § 9721(b)4 and that

his sentence is manifestly excessive in light of the conduct at issue.

Appellant’s    argument      therefore    raises   a   substantial   question.   See

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014) (en

banc) (“[a]rguments that the sentencing court failed to consider the factors

proffered in 42 Pa.C.S. § 9721 does present a substantial question” (citation

omitted)); Commonwealth v. Dodge, 77 A.3d 1263, 1266-67, 1270-71,

1273 (Pa. Super. 2013) (claim that a sentence is excessive in light of the

conduct at issue raises a substantial question); Commonwealth v.

Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006) (appellant “presented a

statement of reasons for allowance of appeal arguing that . . . his sentence of



____________________________________________


4 Section 9721(b) requires the sentencing court to “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.”

                                           -5-
J-S55041-19


total confinement” was “manifestly excessive”; this Court concluded that this

issue “present[ed] substantial questions for [its] review”).     Hence, we will

consider the substantive merits of his sentencing claim.

      After a thorough review of the record, the briefs of the parties, the

applicable   law,   and   the   well-reasoned    opinion   of   the   Honorable

Beth A. Lazzara, we conclude Appellant’s issue merits no relief. The trial court

opinion comprehensively discusses and properly disposes of that question.

See Trial Court Opinion, filed October 26, 2018, at 4–21 (finding: (I) the trial

court did not abuse its discretion when it imposed Appellant’s sentence,

because the sentence was a product of various considerations and was

justified by the totality of the circumstances, which include (A) the seriousness

of his offense conduct, (B) the impact it had on his surviving children and his

family, and (C) that Appellant (1) had been on probation since 2011, (2) was

already a participant in Allegheny County’s Mental Health Court at the time he

committed these three EWOC counts, and (3) had suffered from drug addiction

and mental illness throughout the entire time he was serving probation; (II) as

the trial court considered all of these circumstances when it imposed sentence,

“to suggest that th[e] court failed to give adequate consideration to

[Appellant]’s rehabilitative needs when it imposed the aggregate sentence is

completely unfounded . . . considering that not even the death of his own

newborn was enough to usher him down the path of sobriety”; (III) based on

the nature of Appellant’s crime and his overall history with the court,


                                      -6-
J-S55041-19


consecutive sentences of total confinement were neither manifestly excessive

nor unreasonable).

      Accordingly, we cannot find that the trial court arrived at an

unreasonable decision, and Appellant has failed to demonstrate an error of

law or a manifest abuse of discretion. See Lekka, 210 A.3d at 350; Flowers,

149 A.3d 867, 872–73. We thereby will not disturb Appellant’s sentence on

appeal, and we thus affirm on the basis of the trial court’s opinion. The parties

are instructed to attach the opinion of the trial court dated October 26, 2018

to any filings referencing this Court’s decision.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2019




                                      -7-
                                                                                    Circulated 10/25/2019 10:10 AM




        IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNT)', PENNSYLVANIA
                                                     CRIMINAL DIVISION




COMMONWEALTH OF PENNSYLVANIA,                                      CC No. 2015-5993

                               v.


THOMAS REIBER,


                               Defendant.                         OPINION



         ORIGINAL
        (,.. i;   �r.:·;�n-:t� L;\,. .,-,���Jon
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    '.�\{t�..:c)ni./!·�:-/ r--.�·):.1r\ty:i F.JA
                                                                  BETH A. LAZZARA, JUDGE
                                                                  Courtof Common Pleas


                                                                  Copies Sent To:


                                                                  Mike W. Streily, Esq.
                                                                  Office of the District Attorney
                                                                  401 Courthouse
                                                                  Pittsburgh, PA 15219


                                                                  Suzanne Swan, Esq.·
                                                                  31 O Grant Street, Suite 823
                                                                  Pittsburgh, PA 15219




                     t� :Zf Wd. sz 130 8IOZ
  IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                ;,




  COMMONWEALTH OF PENNSYLVANIA,                 CRIMINAL DIVISION


                     VS.
                                                CC No. 2015-5993

 THOMAS REIBER,

                Defendant.



                                  OPINION


       This is a direct appeal from thejudgment of sentence entered on March 29,

2018, following a resentencing hearing that was held on March 20, 2018, and March 29,

2018. The Defendant was resentenced following his termination from the State

lntennediate Punishment (SIP) Program for non-compliance. On March 20, 2018, the

court resentenced the Defendant to a period of three and a half(3 %) to seven (7) years

of imprisonment at Count Two (2) ofthe above-captioned case, and a consecutive

period ofthree and a half (3 %) to seven (7} years of imprisonment at CountThree (3).

The Defendant received 577 days of credit for time served. The Defendant also was

ordered to have no contact with the minor victims and their custodians. On March 29,

2018, the Defendant was deemed to be ineligible for RRRI.




                                          1
       Counsel for the Defendant subsequently sought leave to withdraw from

representation. On March 29, 2018, the court granted counsel's request and appointed

new counsel. Timely post-sentence motions seeking a modification of the Defendant's

sentence were filed on Marqh 22; 20181 and �ay 4, 2018. The motions w�re heard .and

denied on June 27, 2018.




       A Notice of Appeal was filed on July 27, 2018. The Defendant was

directed to file a OonclseSfatement of Errors Complained of on Appeal ("Concise.

Statement") pursuant to Pa.R.A.P. 1925(b) no later than August 27, 2018. On

August 15, 2018, Counsel filed a timely Concise Statement, raising the following

allegations of error on appeal:


    a. The lower court erred in imposing a sentence that is manifestly unjust,
       unreasonable, and excessive. Moreover, the sentence imposed is contrary
       to the Sentencing Code, and the fundamental nonns underlying the
       sentencing process in that the court failed to consider and apply all of the
       required sentencing factors under 42 Pa.C.S. §9721 and 42 Pa: C.S.
       §9725. The sentence imposed falls to adequately consider the
       rehabilitative needs of Mr. Reiber as his conduct in this situation was the
       result of mental health conditions, which were made worse by a drug
       addiction. Mr. Reiber needs to be treated for his mental health issues and
       substance abuse' problems. Mr. Reiber is not a continuing danger to the
       victims and has shown marked changes in clarity and understanding since
       his incarceration. He was making progress in the intermediate punishment
       program for a period of time; however, relapses are notuncommon during
       treatment. While some degree of incarceration is appropriate, 7 to 14.
       years is lengthy for someone Whose conduct is not the result ofjustbad
       behavior, but mental illness and drug addiction. When crafting a
       sentence. a Court must consider the serious nature of the offense but also

1
  The March 22, 2018 post-sentence motion was filed by Attorney Brandon Herring
before he sought leave to withdraw from the case. The Defendant's new attorney,
Suzanne Swan, was provided an opportunity to file an amended post-sentence motion
following her appointment to the case.
                                            2
          the impact on the community and the rehabilitative needs of the
          defendant The sentence of 7 to 14 years does not adequately refle.ci
          those factors where these acts were motivated by mental illness and drug
          abuse, not malice. .

   b. The court abused its discretion In imposing a manifestly excessive and
        unreasonable 'sentence in violation of the Sentencing Code insofar as it did not
        set forth on the record any statement of its reasons at all for deviating from the
      · sentencing guidelines, specifically for imposing sentences above the aggravated
        range at two counts. Mr. Reiber admits that he did not properly care for his
        children due to his drug addiction. He suffered a great loss   as a result of his
          neglect He was not verbally orviofently abusive towards his children. He has no
          history of aggressive behavior towards anyone. The sentence does not reflect
          any consideration of Mr. Reiber's backqround and characteristics, his mental
          health treatment needs and his drug rehabilitation needs, the circumstances of
          the crime; and the need for public protection. The court's failure to do so resulted
          in· a manifestly excessive and unreasonable sentence that was contrary to the
          sentencing code and contrary to the fundamental norms underlying the
          sentencing process.

   c. The court's imposition of two consecutive statutory maximum sentences was
      unreasonable and manifestly excessive because it was grossly disproportionate
      to the circumstances of the case; The focus on Mr. Relber's drug addiction
      and/or recidivism did not account for the whole picture and did not accountfor an
      adequate assessment of Mr. Reiber's rehabilitative needs,

(Concise Statement, pp. 2·3).




          The Defendant's allegations of error on appeal are withc:>Ut merit. The court

respectfully requests that the Defendant's sentences be upheld for the reasons that

follow.




                                                3
I.       . DISCUSSION


             This court did not abuse its discretion whEm If imposed an aggregate
             sentence of seven (7) to fourteen (14) years of imprisonment because
             the sentence was a product of various considerations..and was justified
             by the totality of the clrcumstances.




          The Defendant's contentions 011 appeal challenge the discretionary aspects of his

sentence. The court notes that "[t]he right to appeal a discretionary aspect of sentence

is not absolute," Commonwealth v. Martin, 727 A.2ci 1136, 1143 (Pa. Super. 1999). A

defendant "challenging the discretionary aspects of [the] sentence must invoke

[appellate] jurisdiction by satisfying a four-part test," Commonwealth V; Moury, 992 A.2d

162, 170 (Pa. Super.. 2010). In applying the four-part test, the appellate court analyzes

          ( 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. [708];
          (3) whetherappellant'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).
     Id. at 170. "The determination of whether there Isa substantial question is made on a

case-by-case basis, and [the appellate court] will grant the appeal 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." Commonwealth v.

Haynes, 125 A.3d 800, 807 (Pa. Super. 2015).




                                                                      ,..-

                                               4
        ln arguing that the aggregate sentence was manifestly excessive, the Defendant

 claims that this court did not give adequate consideration to his rehabllltatlve needs and

 also failed to properly give consideration to his mental health and substance abuse

 issues. (Concise Statement; pp. 2-3). Our courts have "held on numerous occasions

 that a claim of inadequate consideration of [mitigating] factors does not raise a

 substantial question for D review." Haynes, supra, at 807; Commonwealth v.

 Buterbaugh, 91 A.3d 1247, 12�6 (Pa. Super. 2014). Thi� court respectfully requests

 that the revi ewlng court find that the Defendant has failed to raise a substantial question

 for review of his sentence. The Defendant's sentence was consistent with the

 sentencing provisions of the Sentencing Code, and it did not conflict with the

 fundamental norms that undettle the sentencing process. However, should the·

 reviewing court conclude that there exists a substantial questio� as to the

 appropriateness of the sentence, the Defendant's challenge to his sentence

. nevertheless fails on the merits. .




        It is well-established that 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 m�will." Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996). "In

 determining
       .
             whether a sentence is manifestly excessive, the appellate. court must give

 great weight to the sentencing court's discretion." Commonwealth     v. Mouzon, 828 A.2d
 1126, 1128 (Pa. Super; 2003). This deferential standard ofreviewacknowledges that

 the sentencing court is "in the best position to view the defendant's character, displays

                                              5
of remorse, defiance, indifference, and the overall effect and nature of the crime."

Commonwealth v. Allen, 24A.3d 1058, 1065 (Pa. Super. 2011) (internal citations

omitted) .




      . Contrary to the Defendant's contentions; the Defendanfs aggregate sentence

was a product of many considerations, and the sentence was .not manifestly excessive
given the totality of the circumstances. As an initial matter, the court notes that it is wen

familiar with the Defendant because he had been on this court's probation since

October 17, 2011, and he was a Mental Health Court ("MHC") participant at the time of

the horrific incident which resulted In his convictions atthe above-captioned case. The.

Defendant struggled with substance abuse, and, to a more limited exterit, mental health

issues the entire time that he was on this court's probation.




       By way of background, which is essential to understanding the court's rationale
for the sentence lmposed •.the Defendant first had contact with this court on October 17,

2011, when he pied guilty to a simple possession charge at CC# 2011-9005. He was

placed on a six (6) month term of probation and was to comply with any and all

recommendations of a court-ordered drug and alcohol evaluation. However,: on March

7, 2012, before he had completed his probationary sentence, the Defendant was

detained because he had acquired new charges of burglary, theft by unlawful taking and

receiving stolen property at CC# 2012-3804. (Court Exhibit 1). After the burglary

charge was dismissed following the Defendant's successful Petition for Habeas Corpus,


                                              6
this court, on the Defendant's motion, transferred the Defendant's detainer to ACTA, an

alternative housing program focusedg on drug and alcohol treatment (Court Exhibit 2).

The Defendant was transferred to the program on May 23, 2012, (Court Exhibit 2).




         The Defendant pied guilty to the remaining charges at CC# 2012-3804 on July

17, 2012. He was sentenced to two (2) years of probation. His detainer at CC# 2011-
9005 was not lifted at that time so that he could complete more of the ACTA program.

He had only been in the program for less than two (2) months, and he needed another

five (5) weeks to complete the drug and alcohol treatment portion of the program.

Unfortunately, on July 19, 2012, only two (2) days after his guilty plea, he was revoked

back to the AlleghenyCounty Jail (AC.J) due to suboxone use while in the ACTA

program. (Courts Exhibit 3 and 4). The Defendant spent another two (.2) months in the

ACJ, until September 25, 2012, when his detainer was lifted, and hls probation at

CC# 2011-9005 was closed. (Court Exhibit 5).




         Unfortunately, the Defendant continued to struggle with drug use, and he again

acquired. new charges for Identity theft, inter alia, which were filed at CC# 2013-5200.
     '            '.




The offense date for these charges was March 27, 2013, and a detainer was lodged

that same day. (Court Exhibit 6). The detainer subsequently was lifted on May 24,

2013, upon motion of counsel. (Court Exhibit 7). ·When the Defendant appeared for

court on October 23, 2013 to address his new charges at CC# 20t3-5200, he was

under the influence of illegal substances. (Court Exhiblt8). His positive drug test came


                                             7
during the time he was a patient at the Discovery House outpatient treatment facility,

which specializes in the treatment of opiate addiction. (Court Exhibit9). The

Defendant's bond was revoked, and he was incarcerated again in the ACJ. {Court

Exhibit 10). He ultimately was sentenced on this new charge on November 19, 2013,

after pleading guilty. He was given 60-120 days of incarceration, with credit for time
            ,.
served and ·immediate parole. He was also given three {3) years of probation, With

requirements to have a drug and alcohol evaluation and to comply with treatment

recommendations, as well as continue with, and comply with, mental health treatment.

On that same date, the Defendt:1nt's probation at CC# 2012-3804 was revoked, and he

was given. a new two (2) year period of probation to run concurrent with the case at

CC# 2013-5200. His detainers at CC# 2012-3804 and CC# 2013-5200 were also lifted

on November 19, 2013, and he was released from theACJ ttiat day.. (Court.Exhibit 11,

p. 4).




         On November 21, 2013, just two (2) days after his sentencing hearing, the

Defendant again obtained -new criminal charges, which were originally charged as two

(2) cases of simple assault at OTN�G662376-1. (Court Exhibit 11, pp. 2-4). Both

charges, one of which involved allegations of assault against his children's mother, were

reduced to summary offenses, and he pied guilty on both cases before a magisterial
                                                                            .
district judge on January 16, 2014. (Court Exhibit 11, pp. 2-3). Probation visited him on

December 11, 2013 and warned him not to Incur any additional attributable charges or

he would again face detention. (Court E�hibit 11, p. 4). However, on January 17, 2014,

the day after his plea hearing before the magistrate judge, a probation visit revealed that

                                             8
the Defendant was again using drugs. (Court Exhibit 11, p. 4). He was     referred for drug

testinqand a drug and alcohol evaluation.




         On January .18, 2014, just two (2) days after entering his summary pleas, and

While on this court's probation at two (2) cases, and only two (2) months afterthe

sentencing on those cases,     and one (1) day after probation's visit, the Defendant again
acquired new criminal charges at CC# 201 �9592. (Court Exhibit 11, pp. 34). The case

was a retail theft case with an incident date of January. 18, 2014. (Court Exhibit 11, pp.

34). As promised by probanon, the Defendant was again detained at the ACJ on

January 19, 2014, due to the new attributable charges. (Court Exhibit 11, p. 4). His

detainer was again transferred to alternative housing for drug and alcohol treatment at

the Renewal Center on April 29, 2014. {Court Exhibit 1 t, p. 4 ). However, less than. a

month later, on May 13, 2014, the Defendant absconded from Renewal,. earning himself

an F3 escape charge filed at CC# 2014-9907. (Court Exhibit 11, p. 4). l:ie was returned

to the ACJ on July,   s, 2014. (Court Exhibit 11, p. 4-);



         The Defendant pied guilty and was sentenced t�rough Allegheny County's

Phoenix Court on September 22. 2014 to the retail theft charge at case number CC#

2014-9592; and received a six (6) month period of probation. On December 11, 2014,

he pied guilty to an M2 E�cape charge at CC# 2014-9907. He was sentenced to a

period   of two (2) years of probation, to be monitored through Allegheny County's Mental
Health Court (MHC).· which this court oversees. All of his active probation cases were


                                                9
also transferred to MHC, with the requirement that, as a conditic>n of all of his

probations, he was to fully and completely comply with all recommendations of his

Justice Related Services (JRS) service plan.




       The Defendant's JRS service plan provided for release of the Defe"ndant to a

recovery   house· known as Cash Club. While the Defendant was in this 90 day
placement, he was to receive drug and alcohol and mental health treatment.          At his first
MHC review on December 22, 201.4, the Defendant was told "that a bed was available.

for him at Cash Club and that he would be released the following week. When he next

appeared for a MHC review on January 5, 2015, he was residing at the Cash Club,

doing in-house meetings and waiting to get into treatment. During his next review on

February 2, 2015, the Defendant proudly related the birth of his baby boy, Caleb, who

had arrived on January 26, 2015�- The Defendant failed to appear for his next review on.

March 16, 2015 because ·he was hospltalizf3d for a seizure. When he was released

from the hospital on March 18, 2015, he returned to his home, as Cash Club was not

confident that it could meet his medical needs. He reported to MHC for a review on

March 23, 2015, at; which time his medical condition arid his baby's progress were

discussed. He returned   to Cash Club.



       Unfortunately, yet again, the Defendant was arrested on April 4, . 2015, for

possession of drugs and paraphernalia, at CC# 2015;-6460. This occurred after an

Incident at the Cash .Club recovery home.in which he was found unconscious on the


                                             10
floor of the bathroom with a used needle under his body, an empty stamp bag nearby,

and six (6)-Clonazepam in his pocket. (Court Exhibit 12). His children were present at

Cash Club for a visit when this occurred. The Defendant needed to be revived by-

several Narcan injections and then was taken to the hospital. He returned to Cash Club

upon discharge, was immediately enrolled in Intensive Out-patient drug and alcohol

therapy (because his admitted use was insufficient for an ln-panent DIA admission), and

was required to have weekly urines through the Day Reporting Center of probation, and

again during his weekly MHC reviews. This was all discussed at a MHC review on April

20, 2015. At his next review on April 27, 2015, the Defendant appearedto be more

engaged in his recovery.




       However, any true attempt at recovery was short-lived for the Defendant · Police

were called to his home on May 3, 2015. · He was presentthere on a pass from Cash

Club. The police found   a male infant unresponsive in deplorable living conditions, with
both parents apparently under the influence of drugs. The child, Caleb, was taken to

the hospital, where he was pronounced dead. The Defendant was arrested that same

day on three (3} counts of ·endangering the welfare of children, with charges filed at the

above-captioned case. The Defendant was seen fora negative MHC review on June 1,

2015, where It was related by a JRS representative that the Defendant minimized the

new charqes, blaming Caleb's death on the Defendant's own six (6) year old child, and

stating that he "only' hada few benzos (slang,for benzodiazlpans).




                                            11
       Thus, to suggest that this court failed to give adequate consideration to the .

Defendant's rehabilitative needs when it imposed the aggregate sentence is completely

unfounded. The Defendant had been accepted ihto MHC because this courtdue to his

long history of.non-compliance with probation, had recognized his. struggle with

substance abuse and mental health Issues. This court believed when it accepted him

into MHC thatthe Defendant was sincere in his desire to address .those issues and that

he would substantially benefitfrom a program thatwas focused on rehabilitation through

various substance abuse and mental health counseling programs. However. despite

this court's best efforts to work with him through regular probation and then through

MHC, the Defendant continued to use drugs while he was purportedly In recovery, even.

going so far as to experience an overdose during his time at the Cash Club, a treatment

and addiction facility. (Resentencing Hearing Transcript ("RHr), 3/20/18, pp. a ..9).




       Notwithstanding the Defendant's connnued drug use and non-compliance With

the tenns of MHC, this court continued to work with him, believing mat the Defendant

was serious about overcoming hls.relapse and addiction. (RHT, pp. 7-9). However, the

Defendant's own overdose was not sufficient to cieter him from drug use, and on May 3,
           ·,    .•




2015, the Defendant paid the ultimate price for his dn..ig addiction, when it directly led to

the tragic and untimely death of his three (3) month old son. (RHC p. 8); (Guilty Plea

Transcript, dated 2(2/16 ("PT 2/16"), p. 26). The newborn died because. the Defendant

shirked his parental duties and delegated the responsibility of caring for the infant, as

well as another young child, to t�e Defendant's six.:.ye�r old daughter. so that he could

get high. (RHT, p. 8); (PT, 2/16 p. 26). The.Defendanteven pathetically blamed his six-

                                              12
 year-old daughter for not appropriately caring for the baby while he was high. (RHT, p.

 8). His daughter is still undergoing therapy for the trauma she endured, as a direct result
 ofthe Defendant's actions. (RHT, p. 9).




        Following the death of his infant, a mental health evaluation was conducted at

 the ACJ, and the Defendant was deemed competent to stand trial, ultimately pleading
 guilty at CC# 2015-5993. to three (3) felony counts of endangering welfare of children on

 February 2, 2016. (PT 2/16, p. 6). The Defendant's new convictions constituted

 violations of his MHC probation at case numbers 2014-9907, 2014-9592, 2013�5200

 and 2012.:3804. (PT 2/16 p. 6). It was disappointing enough that the Defendant

 committed new crimes while under MHC supervision, but the fact that those crimes

 involved the death of an infant was a circumstance that far exceeded his prior conduct

 and violations. This court concluded that it could. not continue to work with the ·

 Defendant in the community, either on regular probation or under MHC supervision.




          Notwithstanding the gravity and nature of the Defendant's offenses, the parties

 negotiated an agreement that pennltted the Defendant's participation In the State

· lntennedlate Punlshment ("SIP") program. At the Defendant's February 2, 2016 plea

 hearing, the court expressed its sincere doubts over whether the Defendant deserved

 consideration for the SIP program, given the seriousness of his offense conduct, the

 impact it had on his surviving children and his family, and the tremendous. loss that had

 been suffered due to his neglectful and Irresponsible behavior. (PT 2/16, pp. 25-26).


                                             13
This court struggled with how to properly address the Defendant's conduct, and part of

 this court believed that the Defendant did not deserve such a generous sentence, given

 his overall behavior. (PT 2/16, p. 26). The powerful and emotional victim statement

 which Was read into evidence at the time of the plea hearing perfectly summarized the

 concerns that this court had harbored. (PT, p. 17-21, 26).




        However, given this court's role and involvement in the MHC program, this court

 has a unique and genuine understanding of the difficulty individuals experience when

 attempting to address their substance abuse and mental health court issues. Therefore,

 this court reluctantly agreed to give the Defendant "one last shot" through the-SIP

 program, infonning the Defendant that the SIP program was the last mechanism this

 court had left to help him. (PT 2/16, pp. 25-27). The Defendant's SIP sentence was

 intended to afford. him with a meaningful opportunity to continue to seek treatment,

which was a substantial factor in this court's decision to impose an SIP sentence. (PT

 2/16, p. 24 ). The court agreed that the Defendant's sentences for his MHC violations

 would be tied into the SIP sentence for the case at CC# 2015�5993. (PT 2/16, pp. 22-

 23).




        At the time of his plea hearing, the Defendant was specifically informed that if he

 failed to comply With the terms of the SIP program, he would be resentenced, and the

. guidelines would be "out the window at that point." (PT, 2/16, pp. 26-27). The court then

 left the Defendant with the follo�ing warning:


                                             14
                 So this Is your last shot to get the help that you say you need
                 that would change your life. I certainly hope it will, because
                 certainly your life up to this point has changed your children's lives,
                 and it   has not been in a positive way. I .mean, as parents, you
                 know, you are charged with protecting those children, loving those
                 children, doing whatever is necessary to make those children's
                 lives the best they can possibly be. You've totally failed in that
                 regard. The hope is that you'll make changes In your life .so that ·
                 maybe, you know, you can go forward in a more positive. way, ·
                 maybe you can have a positive relationship with your children and
                 they can learn something from you, if the only thing they learn is the
                 path not to take.
(PT, 2/16, p. 28) (emphasis added). The court then ordered that the Defendant be

evaluated for potential participation in the SIP Program. (Id.).




       Following his evaluation, the Defendant was accepted into the SIP program. On

AuglJst 30, 2016, the Defendant was fonnally sentenced to the program. (Sentencing

Transcript("Sr), 8/30/16, pp. 2-3). The court also sentenced the Defendantfor his

MHC probation violations at case numbers 2012-3804, 2013-5200, .2014-9592, and

2014-9907. For his probation violations, the court took credit for time served and closed

interest at case numbers 2012-3804, 2013-5200, and 2014-9592. (ST, p 4). At CC#

2014-9907, this court revoked the pnorpenod of probation, and imposed a new, one (1)

year term of probation, to commence upon the Defendant's release.from incarceration.

(ST, pp. 4-5).




       At Count One (1) of CC# 2015-5993, this court sentenced the Defendant to a

. period of 24 months in the SIP program. At Count Two, a period of two (2) years'

probation was imposed, to run consecutive to the period of probation imposed at CC#

                                                 15
2014-9907. (ST, p. 5). At Count Three (3), the Defendant received another two (2) year

period of probation, which was ordered to run consecutively to the other periods of

probation imposed. (STi p. 5). In total, the Defendant received a five (5) yearterlTi of

probation to follow his completion of the SIP program. (ST, pp. 5-6). The Defendant

also was ordered to have no contact with his surviving children, as well as their

custodians. (ST, p. 6).




       At .the conclusion of the August30, 2016 sentencing hearlng, the court once

again conveyed its hesitation with the imposition of an SIP sentence. Specifically, the

court stated:

       Mr. Reiber the Commonwealth has negotiated this plea agreement which
       is - - I'm sure you are probably well aware, I'm not happy about Because
       they think that you deserve an opportunity to show that you can make
       some changes in your life. My feeling is we gave you those .
       opportunities In mental health court andyou never took advantage of
       them. As a result, one of your children died. So I'm certainly hoping
       that that horrifying event and your incarceration is enough to maybe
       get you on track, lflt is, not, slr, I'll be sitting here waiting for you.
       Okay.'
       So you better make sure that you successfully complete the state IP
       program, that you. have no contact and you walk off my five years of
       probation without any problems. Do you understand that, sir?      ·
(ST, pp. 9-10) (emphasis added). The Defendant confirmed his understanding. (Id. at

10).




       Unfortunately, the Defendant failed to need any of the court's warnings about

making the most of his time in the SIP program. In February of 2017, having spent less

                                            16
than six (6} months in a program that lasts 24 months total, this court received notice

that the Defendant was being tennlnated from the SIP program because the Defendant

had four (4) positive urinalysis tests for illegal substances and experienced an

accidental non-fatal opioid overdose during his short time in the program. (Court Exhibit

13); Due to these facts, the SIP program concluded that he had failed to meaningfully

participate in the program. (RHT, pp. 3-9). On March 20, 2018, a resentencing·hearing

was held, and this court· imposed the aggregate sentence of 7 to 14 years'

imprisonment, which is the subject of this appeal.




       Againstthis backdrop, the Defendant' s challenge to his sentence is wholly

without merit. The court clearly had taken into account the Defendant's rehabilitative

needs when it first monitored him on regu[ar probation, when It accepted him into MHC,

and it did so again when it extended him the opportunity to participate lnthe SIP

program. As noted, the court initially was hesitant to allow him the opportunity to

participate in the SIP program given the serious nature of hi� offense conduct, and the

fact that such a heinous offense was committed while he was being offered a chance to

seek.rehabilitative treatment for his mental health and substance abuse issues through

MHC.




       Despite this court's willingness   to afford him one last opportunity to address his
issues, the Defendant nevertheless violated the terms of the SIP program, knowing full

well the repercussions that he would face with this court. The Defendant's behavior as

a whole i_ndicated that he was either unwilling or unable to transform into a sober; law

                                               17
abiding citizen, and either circumstance makes him a threatto society. This is

particularly true considering that not even the death of his own. newborn was enough to

usher him down the path of sobriety.




      Overall, this court made a sincere and genuine attempt to work with the ·

Defendant The court continuously gave him the benefit of the doubt, and it repe�tedly
attempted to provide him with meaningful avenues. of addressing his mental health and

substance abuse issues, instead of imposing a serious punishment for his crimes.

However, the Defendant's history of non-compliance on regular probation and while in

MHC, coupled with his behavior In the SIP program, showed that he lacked a genuine

desire to address his mental health and substance abuse issues.




      The Defendant's conduct as a whole demonstrated a need for a much more

substantial sentence, since more lenient sentences, with requirements and

opportunities for treatment, clearly had failed to deter him from substance abuse and

criminal activity. Indeed, the fact thatthe Defendant could not comply with the terms of

the SIP prograrn after knowing that he received a substantial break in his sentence
                                   .                              .
further serves to demonstrate the need for a lengthy term otlmprlsonment, The

Defendant has failed to make any progress throughout the years, despite �he numerous

opportunities and resources that he has been offered, the number of pnorlncarceranons

at the county level, and the len(iencythat he has previously been shown with respectto

sentencing. Thus, contrary to the Defendant's contentlon, the aggregate· sentence took


                                           18
into account all relevant sentencing factors and was not an abuse of discretion. 'Based

on the foregoing, the· aggregate sentence of 7 to 14 years of Imprisonment was not

manifestly excessive or unreasonable In this case.




       With respect to the contention that this court erred by not stating its reasons for

deviating from the guidelines, this argu,nent has no. merit. First, the sentencing
guidelines do not apply to sentences that are imposed as a result ofa revocation from

an intermediate punishment program. Commonwealth v. Phillipp, 709 A.2d 920 (Pa.
                                          I                                             .




Super. 1998); Commonwealth v. Cartrette, 83 A.3d 1030, 1040 (Pa. Super. 2013)

(noting that "t;entencing guidelines are notreqolred to be consulted in" revocation

proceedings"); 204 Pa. Code §. 303 .. 1 (b). "The sentencing court obviously need not

explain deviation from the guidelines where they do not apply." Phillipp, sup� at 922.

However, this court is aware that it must, nevertheless, "follow the general principle that

the sentence lmposed should call for confinement that is consistent with the protection

of the public, the gravity of the offense �s it relates to the impact on the life of the victim

and on the. community, and the rehabili,ative needs of the defendant." Cartrette, supra

at 1040-41. The court is further aware that, in all cases where the court 'resentences

an offender following revocation of ..• State intermediate
                                                   .       punishment, . . . the court
                                              !
                                                                   at the time of sentencing,
                                              I

shall make as a part of the record, and <iisclos� in open court

astatement of the reason or reasons for the sentence imposed." . ld. at 1041.




                                                  1.9
      Prior to imposing the sentence in this case, the court listened to the positions of

counsel with respect to sentencing; the victim statement from the Defendant's father, as.

well as the Defendant's allocution where he completely failed to take any ownership for

his actions. {RHT, pp; 3-14). Instead ofshowing any remorse for his actions, the

Defendant deflected responsibility and indicated that he should have fought the_

charges, stating:


      I'll be honest with you, Your Honor. After reading my discovery, every last
      one, these last couple years it really gave me a chance to review my
      discovery, there is a lot of accusations and a lot of things being thrown out
      there, that if everybody had a chance to honestly read the affidavit and
      look through certain things and certain facts that were in the affidavit and
      through forensics, a lot of things were being pushed towards me and
      blamed upon me that weren't In my doings that night and prior to this.
      {RHT, pp. 13-14).                          ,
      The court, completely dumbfounded t>y his statements, responded:

      Sir, I simply am incredulous at the response that you have made here
      today on your behalf. Like [the Commonwealth] I look at.this case and
      cannot understand how anyone cannot seek and take advantage of every
      bit of help that is avalleble to them to make changes because of what
      happened, because of the circumstances of this case. And we gave you
      an opportunity, and quite frankly at the time that that opportunity was
      extended to you I was not happy with that offer: I was not happy with that
      deal because in my opinion I did not think you were going to take           ·
      advantage of It. And you certainly have proven me right. I wish you would
      have done something different but you made your choices and you chose
      to continue to use and to continue to go back to the lifestyle that brought
      you here for this terribly tragic. horrible case. And in your coinmentstoday
      you certainly have not it seems to me advanced in anyway, shape orfonn
      from the point that we were at When we did this sentencing on 1 · guess
      August 30of'16·. And you made no advancementsince thehwhatsoever
      and in fact in my mind it appeers.met you have gone backwards, You
      certainly haven't gone forward at all, you have gone backwardsjust based
      on the comments you have made here today.
(RHT, pp. 14-15). In addition to the statements made· at the March 20, 2018 ·

Resentencing Transcript, a reading of the February 2, 2016 Plea Transcript and the


                                           20
August 30, 2016 Sentencing Transcript also lend an explanation as to ttlls court's

reasoning for the sentence imposed. Accordingly, the Defendant's contention should be

rejected on appeal because this court stated its reasons for the sentence imposed. The

DEJfendant's sentence is consistent With the protection of the public, the gravity ofthe
                                                                    .    .
offense as It relates to the impact on the life of the victims and.the community, andthe

Defendant's rehabilitative needs.




       Finally, with respect to the contention that the imposition of consecutive

sentences was an abuse     of discretion, this argument also has no merit.   As explained In

Moury, supra, at 171-72,


      Under 42 Pa.C.S.A. § 9721, the court has discretion to impose sentences
      consecutively or concurrently and, ordinarily, a challenge to thls exercise
      of discretion does not raise a substantial question. Commonwealth v.
      Pass, 914 A.2d 442, 446-.47 (Pa. Super. 2006). The imposition of
      consecutive, rather than concurrent, sentences may raise a substantial
      question in only the most extreme circumstances, such as where the
      aggregate. sentence is unduly harsh, considering the nature of the crimes
      and the length of imprisonment. Id. (holding challenge to court's imposition
      of sentence of six (6) to twenty-three (23) months imprisonment and
      sentence of one (1) year probation nmning consecutive, did not present
      substantial question). Compare Dodge II, supra (holding imposition of ·
      consecutive sentences totaling 58 Yi to 124 years imprisonment for thirty-
      seven {37) counts of theft-related offenses presented a substantial ·
      question because total sentence was essentially life sentence for forty-two
      year-old defendant who committed non-violent offenses with limited
      financial impact).




       Here, the imposition of consecutive sentences fails to raise a substantial question

because it is not unduly harsh considering the nature of the Defendant's crime, his

overall history with the court, and the length of imprisonment. Furthennore, "extensive

                                             21
case law in this jurisdiction holds that defendants convicted of multiple offenses are not

entitled to a 'volume discount' on their aggregate sentence." Commonwealth v. Foust,

t80A.3d 416, 433(Pa. Super. 2018). Based on the aforementioned reasons, the

Defendant certainly was not entitled to any volume discount given the serious nature of

his crimes and his overall conduct during his time with this court. Contrary to the

Defendant's allegation, this court was fully aware of "the whole picture" when it

sentenced the Defendant. Because a consecutive sentence was justified by the

circumstances in this case, this contention also should be rejected on appeal.



II.    CONCLUSION

      The Defendant's contentions of error on appeal are without merit. Based on the

foregoing, the court did not abuse its discretion in imposing an aggregate sentence of 7

to 14 years imprisonment. The sentence did not exceed the statutory maximums; It was

not manifestly unreasonable under the circumstances; It was·, a product of various

considerations; and it was arrived at after careful and thoughtful deliberation. The court


                                .
stated its reasons for the sentence on the record, and the Defendant was not entitled to
                            .
a concurrent sentencing scheme.


                                          BYTHE COURT:




                                            22
