J-S10027-20 & J-S10028-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
 FREDERICK CHARLES HOCKENBERRY           :
                                         :
                   Appellant             :   No. 1426 MDA 2019


        Appeal from the Judgment of Sentence Entered July 22,
        2019, in the Court of Common Pleas of Clinton County,
        Criminal Division, at No(s): CP-18-CR-0000215-2018.



 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
 FREDERICK C HOCKENBERRY, JR.            :
                                         :
                   Appellant             :   No. 1427 MDA 2019


          Appeal from the Judgment of Sentence Entered July 22,
          2019, in the Court of Common Pleas of Clinton County,
           Criminal Division at No(s): CP-18-CR-0000420-2018.


BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                        FILED APRIL 03, 2020

     Fredrick C. Hockenberry, Jr. appeals from the judgment of sentence

imposed after the trial court revoked his probation. We affirm.
J-S10027-20 & J-S10028-20


        The pertinent facts are as follows:       On September 17, 2018,

Hockenberry entered guilty pleas, and the trial court sentenced him at two

separate dockets. At Case No. 215-2018, Hockenberry entered a guilty plea

to simple drug possession and driving under the influence.1 The trial court

imposed a three-year term of county intermediate punishment for the drug

charge, and a $ 300.00 fine and a concurrent term of six months of probation

for the DUI conviction. At Case No. 420-2018, Hockenberry entered a guilty

plea to simple drug possession and the trial court sentenced him to a

consecutive, three-year term of county intermediate punishment.

        The trial court summarized the subsequent procedural history as

follows:

           [Hockenberry] was originally sentenced [on possession of a
           controlled substance] to the Clinton County Intermediate
           Punishment Program with a Clinton County Treatment
           component.     [He] was ultimately removed from [that
           Program] and resentenced to 36 months of probation. The
           resentence on the [DUI] offense was six months of
           probation concurrent with the possession offense.      To
           Docket No. 420-2018, [Hockenberry] was likewise
           sentenced to the Clinton County Intermediate Punishment
           Program with a Clinton County Treatment component. [He]
           was revoked from [that Program] and was resentenced to
           36 months of probation consecutive to Docket No. 215-
           2018.

                On April 22, 2019, while on probation supervision,
           [Hockenberry] advised of his use of methamphetamines.
           [He] was provided an opportunity to pursue intensive
           outpatient services in lieu of other penalties.

____________________________________________


1   35 P.S. § 780-113(a)(16), and 75 Pa.C.S.A. § 3802(a)(1), respectively.


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                On May 14, 2019, the Clinton County Office of
         Probation was notified by the Center County Office of
         Probation that [Hockenberry] was positive on a urinalysis
         test and was denying use. [His] specimen was sent out to
         the lab and the lab results confirmed that [Hockenberry]
         was positive for Benzodiazepines, opiates, Buprenorphine,
         and Fentanyl. [Hockenberry] possessed a prescription for
         Buprenorphine only.       [He] subsequently admitted to
         violating the terms of his probation supervision.

Trial Court Opinion, 9/13/19, at 4-5.

      On June 10, 2019, Hockenberry entered a stipulated violation of his

probation at both dockets. The trial court accepted Hockenberry’s admissions,

ordered a pre-sentence report, and scheduled resentencing for July 22, 2019.

On that date, the trial court resentenced Hockenberry at Case No. 215-2018

to 11½ to 24 months of incarceration, less one day, for the drug conviction,

and a consecutive 3-6 months of incarceration for the DUI conviction. The

trial court also sentenced Hockenberry at Case No. 420-2018 to a consecutive

term of 6 to 24 months of incarceration, less one day, for the drug conviction.

Thus, the trial court sentenced Hockenberry to an aggregate term of 20 ½ to

54 months, less two days, of incarceration.

      The trial court denied Hockenberry’s motion for reconsideration. This

timely appeal followed. Both Hockenberry and the trial court have complied

with Pa.R.A.P. 1925.

      Hockenberry now raises the following issue:

         1. Did the Trial Court commit an abuse of discretion in
            sentencing [Hockenberry] to [the above aggregate
            sentence] when [he] was facing the first violation of his
            probation for an admitted relapse following the


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J-S10027-20 & J-S10028-20


            recommendation of adult probation to an aggregate
            minimum sentence of ninety days?

Hockenberry’s Brief at 4.

     Hockenberry’s appellate issue challenges the discretionary aspects of his

sentence.   “Sentencing is a matter vested in the sound discretion of the

sentencing judge, whose judgment will not be disturbed absent an abuse of

discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa.Super.

2001). A convicted person has no automatic right of appeal regarding the

discretionary aspects of his sentence. See, e.g., Commonwealth v. Moury,

992 A.2d 162, 170 (Pa.Super. 2010).

     This Court has articulated the following four-part test to determine

whether to allow such an appeal:

        (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).

Id. (some punctuation omitted).

     Here, the parties do not dispute that Hockenberry has met the first three

parts of the above test. Thus, we must determine whether he has raised a

substantial question. A request for allowance of appeal on the discretionary

aspects raises a substantial question “only where [a] Rule 2119(f) statement

sufficiently articulates the manner in which the sentence violates either a



                                    -4-
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specific provision of the sentencing scheme set forth in the Sentencing Code

or a particular fundamental norm underlying the sentencing process . . .”

Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002) (plurality

opinion).     See also Commonwealth v. Sierra, 752 A.2d 910, 912-13

(Pa.Super. 2000) (accord).

      Hockenberry’s Rule 2119(f) statement reads, in pertinent part:

               The trial court’s . . . aggregate sentence of 20½ months
            to 54 months minus two days . . . is patently unreasonable,
            given    the    adult      probation   department’s     initial
            recommendation of 90 days to 24 months incarceration.
            Said recommendation led [Hockenberry] to believe that a
            sentence in that vicinity was likely and the deviation was so
            extreme that it became unreasonable and unfair.

Hockenberry’s Brief at 7.

      The Commonwealth asserts Hockenberry has not raised a substantial

question, and, as a result, this Court may not reach the merits of his appeal.

See Commonwealth’s Brief at 3-4. We agree.

      As readily seen in the above statement, Hockenberry cites no provision

of the Sentencing Code that the trial court allegedly violated. In addition, he

does not contend (much less sufficiently articulate) how the trial court’s

actions “violate[d] . . . a particular, fundamental norm underlying the

sentencing process.”       Mouzon, supra.      In fact, the only complaint in his

request for allowance of appeal was that the probation office initially

recommended a shorter period of incarceration than the trial court ultimately

imposed.



                                         -5-
J-S10027-20 & J-S10028-20



      At best, Hockenberry claims that the trial court abused its discretion in

failing to follow the probation department’s original recommendation of ninety

days of imprisonment. The probation department’s recommendations are just

that—recommendations. They are not binding on a court. Indeed, this Court

discourages the practice altogether:

         A sentencing judge may not delegate the sentencing
         decision to any person or group. See Commonwealth v.
         Knighton, 490 Pa. 16, 415 A.2d 9 (1980). Therefore, we
         see no reason for the probation office to make a sentencing
         recommendation.

Commonwealth v. Bastone, 467 A.2d 1339, 1342 (Pa.Super. 1983). Thus,

a probation department’s recommendations carry no legal significance at a

resentencing following revocation.

      Because Hockenberry has failed “to raise a substantial question so as to

permit a grant of allowance of appeal of the discretionary aspects of the

sentence,” Mouzon, 812 A.2d at 627, we deny his application for an allowance

of appeal.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/03/2020

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