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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                     :
                                          :
EDMUND ARTHUR GRENIER, JR.                :
         Appellant                        :
                                          :     No. 1626 WDA 2015

          Appeal from the Judgment of Sentence September 16, 2015
              In the Court of Common Pleas of Jefferson County
              Criminal Division No(s): CP-33-CR-0000045-2014


BEFORE: BOWES, DUBOW, and MUSMANNO, JJ.

MEMORANDUM BY DUBOW, J.:                          FILED OCTOBER 6, 2016

        Appellant, Edmund Arthur Grenier, Jr., appeals from the judgment of

sentence imposed by the Court of Common Pleas of Jefferson County as a

result of his probation violation. We affirm.

        On November 9, 2004, Appellant appeared before the Honorable John

H. Foradora and pled guilty to five counts of Deceptive Business Practices1

for taking more than $500,000 from sales of gravesite markers such as

granite stones, bronze markers, vases, vaults, scrolls, and inscriptions, and

failing to order, deliver, and install these items. Police Criminal Complaint,

dated 11/7/13. Judge Foradora sentenced Appellant to five years’ reporting

probation with fines and costs at each count, to be served concurrently.



1
    18 Pa.C.S. § 4107(a)(2).
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        On July 13, 2015, Appellant pled guilty to two new counts of Deceptive

Business Practices, and admitted to committing the same crimes again while

on probation.2

        On September 16, 2015, after taking judicial notice of the new charges

and reviewing the Pre-Sentence Investigation Report, Judge Foradora

revoked Appellant’s probation and sentenced Appellant to five to ten years’

incarceration on each of the prior five counts of Deceptive Business

Practices, with the sentences to run consecutively, for an aggregate

sentence of twenty-five to fifty years’ incarceration. Appellant filed a timely

Notice of Appeal. Both Appellant and the trial court complied with Pa.R.A.P.

1925.

        Appellant raises the following issue on appeal:    “Whether the trial

court abused its discretion when it revoked Appellant’s probation and re-

sentenced him to serve five consecutive sentences aggregating to a

minimum of twenty-five (25) years to a maximum of fifty (50) years in a

State Correctional Institution [for] [A]ppellant’s violation of probation?”

Appellant’s Brief at 4.

        When we consider an appeal from a sentence imposed following the

revocation of probation, we review for an error of law or abuse of discretion.

Specifically:



2
    These two new counts are not part of this appeal.



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       . . . 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. Revocation of a
       probation sentence is a matter committed to the sound
       discretion of the trial court and that court's decision will not be
       disturbed on appeal in the absence of an error of law or an
       abuse of discretion.

Commonwealth v. Mazzetti, 9 A.3d 228, 230 (Pa. Super. 2010) (citation

omitted).    In order for this Court to find an abuse of discretion, Appellant

must     prove    that   the    sentencing   court    “acted   with    manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous.”      Commonwealth v. Crump, 995

A.2d 1280, 1282 (Pa. Super. 2010).

       Appellant does not have an automatic right to appeal the discretionary

aspects of a sentence. Before this Court reviews the discretionary aspects of

a sentence, we must first determine:

       (1)   whether the appellant has filed a timely notice of appeal;
       (2)   whether the issue was properly preserved at sentencing or
             in a motion to reconsider and modify sentence;
       (3)   whether the appellant's brief has a fatal defect; and
       (4)   whether there is a substantial question that the sentence
             appealed from is inappropriate under the Sentencing Code.

Commonwealth v. Williams, 787 A.2d 1085, 1087-88 (Pa. Super. 2001)

(internal citations omitted).

       Here, Appellant filed a timely Notice of Appeal, properly preserved the

issue, and included in his brief a Statement of Reasons relied upon for

allowance of appeal, pursuant to Pa.R.A.P. 2119(f).       Accordingly, we next



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determine whether Appellant’s claim presents a “substantial question” for

review.

      An appellant raises a “substantial question” when he “sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Crump, 995 A.2d at 1282.

      Appellant argues that there is a “substantial question” that warrants

review by this Court because his sentence was “manifestly unreasonable,”

“too severe,” and “the [c]ourt’s reasons for the sentence did not justify the

severity.” Appellant’s Brief at 6.

      We agree that Appellant has raised a “substantial question” and will

review the merits of Appellant’s claims.     See, e.g., Commonwealth v.

Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006) (concluding that a claim

that a sentence was manifestly excessive presents a “substantial question”

for review).

      Appellant acknowledges the severity of his crimes, see Appellant’s

Brief at 9, but argues that the sentencing court abused its discretion when it

revoked Appellant’s probation and re-sentenced him to serve an aggregate

term of twenty-five to fifty years’ incarceration for violating probation.

Appellant’s Brief at 4. We disagree.




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      The Pennsylvania Sentencing Code permits a sentencing court to

impose a sentence of total confinement upon revocation of probation if it

makes a finding that:

      (1)   the defendant has been convicted of another crime; or
      (2)   the conduct of the defendant indicates that it is likely that
            he will commit another crime if he is not imprisoned; or
      (3)   such a sentence is essential to vindicate the authority of
            the court.

42 Pa.C.S. § 9771.

      In this case, the sentencing court made a finding that all three factors

applied. Specifically, the sentencing court found:

      Over the course of several years, [Appellant] swindled grieving,
      vulnerable people out of hundreds of dollars with the knowledge
      that he could not deliver the promised goods and services. He
      continued to engage in his deceptive practices even after being
      put on probation and, as a result, incurred additional charges
      that resulted in a new conviction. That conviction, in and of
      itself, was sufficient justification for the [c]ourt to impose a
      sentence of total incarceration, 42 Pa.C.S.A. § 9771(c), and
      [Appellant]’s victim/con man mentality contributed to the Court’s
      decision that total confinement was warranted.

      Before the Court for disposition on his violation, [Appellant]
      persisted in blaming his wife and others for the position he was
      in and, heedless of his victims and the distress he had caused
      them, attempted to avoid further punishment for his actions by
      advancing the clearly preposterous “Give me another chance
      because I’m on the verge of solvency” story. Whatever his
      reason for pleading guilty in the first place, it was clear on
      September 16, 2015, therefore, that [Appellant] was not
      accepting responsibility for his crimes and their effects. It was
      likewise clear that he thought he could con the Court into
      excusing his conduct the same way he had conned his victims
      out of their money. In short, not only did he sustain a new
      criminal conviction while on probation, but he retained a criminal
      mindset such as one does not expect to see in someone his age



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      and which foreshadowed further societal victimization were he to
      be released back into the community.

Trial Ct. Op., dated 12/18/15, at 1-2.          As the record supports the trial

court’s findings, we find no abuse of discretion.

      Appellant avers that the trial court “did not adequately explain” why it

imposed the twenty-five to fifty year sentence. Appellant’s Brief at 10. In

response, the trial court opined:

      With respect to the claim that the Court failed to state its
      reasons, the record proves differently. As the [c]ourt stated on
      the record, it had considered, among other things, the relevant
      presentence     investigation   report,   and    according    to
      Commonwealth v. Fowler, 893 A.2d 758 (Pa. Super. 2006), it
      thereby satisfied the requirement to place its reasons for
      sentencing on the record. Id. at 766.

Trial Ct. Op. at 2. We agree.

      In Fowler, this Court stated, “[s]ince the sentencing court had and

considered a presentence report, this fact alone was adequate to support the

sentence, and due to the court's explicit reliance on that report, we are

required to presume that the court properly weighed the mitigating factors

present in the case.” Fowler, supra at 766.

      The record here reflects that the trial court considered the presentence

investigation report.      In addition, the trial court stated on the record

additional reasons for imposing the sentence, i.e., the severity of the crimes,

Appellant’s failure to cease his criminal activities even after the imposition of

a   relatively   light   sentence   of   probation,   and   his   failure   to   accept




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responsibility for his actions even while pleading guilty. See Trial Ct. Op. at

1-2.

       Accordingly, we find no abuse of discretion as the trial court

adequately placed its reasons for sentencing on the record.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/6/2016




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