J-S50037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DORIS DENISE COLON

                            Appellant                 No. 2895 EDA 2014


          Appeal from the Judgment of Sentence September 2, 2014
                in the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0001906-2012


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

MEMORANDUM BY JENKINS, J.:                      FILED SEPTEMBER 30, 2015

        Appellant Doris Denise Colon appeals from the judgment of sentence

entered in the Lehigh County Court of Common Pleas following the

revocation of her parole and probation on an underlying conviction for

possession of a controlled substance with intent to deliver.1      After careful

review, we affirm.

        The trial court aptly set forth the facts and procedural history of this

case as follows:

              On November 16, 2011, Allentown Police executed a
        search warrant on the premises located at 148 Chestnut Street,
        Allentown, Lehigh County, Pennsylvania. Appellant was in the
        residence. During the search, police located fifty-eight bundles
        of suspected heroin and $1,855.00 in United States currency.
____________________________________________


1
    35 P.S. § 780-113(a)(30).
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       The suspected contraband was tested and was found to contain
       heroin and to weigh 27.95 grams.

             Appellant pled guilty to one count of [p]ossession with
       [i]ntent to [d]eliver a [c]ontrolled [s]ubstance on September 26,
       2012. A presentence investigation and mental health evaluation
       were performed on Appellant and reviewed by the [c]ourt.

             On November 6, 201[2], a sentencing hearing was
       conducted.    This [c]ourt sentenced Appellant to eleven to
       twenty-three months in Lehigh County Prison followed by a two[-
       ]year probationary period.

             On August 16, 2013, Appellant was paroled on her
       sentence. On July 15, 2014, Appellant appeared for a Gagnon
       II hearing. She admitted to violating the terms of her parole
       and was resentenced to serve the balance of her sentence
       followed by the same two-year probationary period.

            Appellant was paroled again on July 24, 2014. However,
       she was picked up on a second parole/probation violation
       warrant on July 31, 2014 based on a positive drug screen.

             Appellant appeared before the undersigned for a second
       Gagnon II hearing on September 2, 2014. At that time, she
       conceded the allegation of the violation petition regarding her
       drug use. At that time, the [c]ourt revoked Appellant’s parole
       and remanded her to serve the balance of her sentence.
       Additionally, her probation was revoked and she was sentenced
       to one to four years in state prison, followed by a one-year
       probationary sentence consecutive to the prison term.

             On September 12, 2014, Appellant filed a motion to modify
       her sentence. That motion was denied [on] September 25,
       2014.

             Appellant filed a Notice of Appeal on [October] 2, 2014.[2]
       She timely filed a Concise Statement [of Matters Complained of
       on Appeal].

____________________________________________


2
   Both the trial court and Appellant incorrectly noted the notice of appeal’s
filing date as November 2, 2014, well beyond the 30-day limit to timely
appeal from the trial court’s September 2, 2014 resentencing.            See
(Footnote Continued Next Page)


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1925(a) Opinion, at 1-2 (page numbers supplied) (footnote omitted).

      Appellant raises the following issue for our review:

           Did the lower court err by imposing a disproportionate
      sentence based upon the nature of the violation and by failing to
      properly consider the requisite statutory factors, thus imposing
      an excessive sentence contrary to the fundamental norms of the
      sentencing process?

Appellant’s Brief, p. 4 (all capitals omitted).

      Appellant’s claim raises a challenge to the discretionary aspects of her

sentence following the trial court’s revocation of her probationary sentence.3

See Appellant’s Brief, pp. 10-14.                “An appellant wishing to appeal the

discretionary aspects of a probation-revocation sentence has no absolute

right to do so but, rather, must petition this Court for permission to do so.”

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.Super.2008). As this

Court has explained:

      To reach the merits of a discretionary sentencing issue, we
      conduct a four-part analysis to determine: (1) whether appellant
      has filed a timely notice of appeal, 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, Pa.R.Crim.P. [708];
      (3) whether appellant’s brief has a fatal defect, Pa.R.A.P.
                       _______________________
(Footnote Continued)

Pa.R.A.P. 1925(a) Opinion, November 3, 2014 (“1925(a) Opinion”), p. 2
(page number supplied); Appellant’s Brief, p. 6. However, the certified
record reveals that Appellant dated and timely filed the notice of appeal on
October 2, 2014. See Notice of Appeal; see also Court of Common Pleas of
Lehigh County Docket No. CP-39-CR-0001906-2012, p. 13.
3
  Appellant does not challenge the revocation of parole or imposition of back
time for the parole violation. See generally Appellant’s Brief.



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      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. § 9781(b)].

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa.Super.2007).

      Here, Appellant filed a timely notice of appeal and preserved the issue

by filing a motion for reconsideration. Further, Appellant’s brief includes a

concise statement of the reasons relied upon for allowance of appeal

pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief, p. 9. Accordingly, we

now determine whether Appellant has raised a substantial question for

review and, if so, proceed to a discussion of the merits of the claim.

Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.1987).

      “The determination of whether a particular case raises a substantial

question is to be evaluated on a case-by-case basis. Generally, however, in

order to establish that there is a substantial question, the appellant must

show actions by the sentencing court inconsistent with the Sentencing Code

or contrary to the fundamental norms underlying the sentencing process.”

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa.Super.2005) (internal

citations omitted). On appeal from a probation revocation proceeding, this

Court has previously determined a substantial question is presented when a

sentence of total confinement, in excess of the original sentence, is imposed

as a result of a technical violation of probation.   See Commonwealth v.

Sierra, 752 A.2d 910, 913 (Pa.Super. 2000). Because the instant matter

involves a sentence of total incarceration as a result of a technical violation

of probation, we examine Appellant’s claim.

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        “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.   Ahmad,      961   A.2d     884,   888

(Pa.Super.2008).      “The Commonwealth establishes a probation violation

meriting revocation when it shows, by a preponderance of the evidence, that

the probationer’s conduct violated the terms and conditions of his probation,

and that probation has proven an ineffective rehabilitation tool incapable of

deterring probationer from future antisocial conduct.” Id. “[I]t is only when

it becomes apparent that the probationary order is not serving this desired

end [of rehabilitation] the court’s discretion to impose a more appropriate

sanction should not be fettered.” Id. at 888-89.

        “Upon revocation [of probation] the sentencing alternatives available

to the court shall be the same as were available at the time of initial

sentencing[.]”     42 Pa.C.S. § 9771(b).    “Thus, if the original offense was

punishable by total confinement, such a penalty is available to a revocation

court, subject to the limitation that the court shall not impose total

confinement unless it finds that: (1) the defendant has been convicted of

another crime; (2) the defendant’s conduct indicates a likelihood of future

offenses; or (3) such a sentence is necessary to vindicate the court’s

authority.”     Kalichak, 943 A.2d at 289.       “Sentencing Guidelines do not

apply    to    sentences   imposed   following   a   revocation   of   probation.”

Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa.Super.2006)

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(citation omitted).        Instead, pursuant to 42 Pa.C.S. § 9721(b), the

sentencing court must consider the protection of the public, the gravity of

the offense in relation to the impact on the victim and the community, and

the rehabilitative needs of the defendant. Id. Further, technical probation

violations “can support revocation and a sentence of incarceration when such

violations are flagrant and indicate an inability to reform.” Commonwealth

v. Carver, 923 A.2d 495, 498 (Pa.Super.2007); see also Sierra, 752 A.2d

at 912 (failure to keep probation appointments); Commonwealth v.

Malovich, 903 A.2d 1247, 1254 (Pa.Super.2006) (possession of controlled

substances);     Commonwealth           v.     Cappellini,    690   A.2d   1220,   1225

(Pa.Super.1997) (continued drug use and resistance to treatment).

       Appellant contends that, given the technical nature of her violation,

the sentence she received upon revocation was excessive. See Appellant’s

Brief, pp. 13-14. She is incorrect.

       Upon revoking Appellant’s probation, the trial court properly sentenced

her to total confinement because she flagrantly violated her probation – for a

second time – by using controlled substances.                The nature of Appellant’s

technical violation, the haste with which she violated upon being paroled,

and the fact that her violation was a carbon-copy of her previous violation,

all indicated that she would likely commit another crime if not imprisoned.4

____________________________________________


4
  In addition to indicating a likelihood that Appellant will commit another
crime, we note that Appellant’s second drug-use violation, occurring, as did
(Footnote Continued Next Page)


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      The trial court explained its imposition of incarceration upon the

revocation of the probationary portion of Appellant’s sentence as follows:

            In this case, the sentence Appellant received is appropriate
      and was fully warranted under the circumstances. Appellant
      appeared before the undersigned on July 15, 2014 conceding
      that she violated the terms of her parole.            The [c]ourt
      resentenced her to the balance of her parole and reimposed the
      two-year probationary sentence she originally received.
      Additionally, the [c]ourt made Appellant eligible for early parole
      upon verification of residence. She was paroled approximately
      one week later and was detained for drug use within a single
      week of being paroled for the second time on the within case.

            Appellant’s presentence investigation reports performed
      prior to her original sentencing date made reference to her
      extensive drug problems. The fact that she resumed using drugs
      within a week of being paroled is illustrative of the challenges
      she faces. It is also a strong indicator of the high likelihood that
      Appellant would reoffend.

            The sentence imposed reflects due consideration of the
      gravity of Appellant’s offenses and her treatment needs. A
      structured environment with greater supervision is more likely to
      lead to Appellant’s rehabilitation and encourage her addressing
      her substance abuse challenges than allowing her to serve a
      shorter period of time and be back on the streets where there is
      a greater temptation to resume her drug use. The subsequent
      probationary sentence following Appellant’s parole serves to
      allow supervisory authorities to monitor her in order to aid in
      keeping Appellant on a drug-free life path after her
      incarceration.




                       _______________________
(Footnote Continued)

the previous drug-use violation, so soon after being paroled, also indicates
that a sentence of incarceration is essential to vindicate the trial court’s
authority.



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1925(a) Opinion, pp. 4-5 (footnote omitted) (page numbers supplied). We

find no abuse of discretion in the trial court’s imposition of sentence

following the revocation of Appellant’s probation.

      Moreover, the trial court sentenced Appellant within the statutory

limits for her conviction. Possession of a controlled substance with intent to

deliver a Schedule I drug (heroin), graded as a felony, carries a possible

sentence of up to 15 years’, or 180 months’, incarceration. 35 P.S. § 780-

113(f).   Appellant’s probation revocation sentence of 1 to 4 years’

incarceration, together with the full back time of her revoked parole

sentence of 11 to 23 months’ incarceration, amounted to a sentence of 23 to

71 months’ incarceration for the crime. This sentence was within statutory

limits and, thus, legal. Therefore, we find no abuse of discretion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/2015




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