J-S27041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                             IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                            Appellee

                       v.

DREW D’AGOSTINO,

                            Appellant                          No. 1207 EDA 2016


             Appeal from the Judgment of Sentence March 22, 2016
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0013598-2008


BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                        FILED JUNE 19, 2017

        Appellant, Drew D’Agostino, appeals from the judgment of sentence of

not less than two and one-half years’ nor more than five years’ incarceration

in a state correctional institution, imposed following the third revocation of

his probation.     Appellant claims chiefly that his sentence was manifestly

excessive. We affirm.

        On December 14, 2007, Appellant was arrested and charged with

aggravated assault, robbery, and conspiracy to commit robbery. (See Trial

Court Opinion, 6/17/16, at 1).1           On March 2, 2010, Appellant entered a

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*
    Retired Senior Judge assigned to the Superior Court.
1
  Appellant drove the getaway                  car   in   an   armed   robbery.    (See
Commonwealth’s Brief, at 2).
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negotiated guilty plea to robbery and conspiracy, both felonies of the first

degree.     The trial court imposed the agreed-on sentence of ten years’

probation on each count, concurrent.

       The court revoked Appellant’s probation twice previously for a variety

of violations, most notably, twice attempting to provide fake urine samples,

and numerous urinalysis tests which proved positive for opiates, cocaine,

and benzodiazepines.2          The trial court treated Appellant with notable

leniency (e.g., granting early parole twice). However, the court also warned

Appellant both times that if he violated his probation again he faced state

incarceration. (See Trial Ct. Op., at 2).

       After his most recent drug test failure, the trial court revoked

Appellant’s probation and imposed a sentence of not less than two-and-a-

half nor more than five years’ incarceration in a state correctional

institution.3 The court noted that the sentence was necessary to vindicate

the authority of the court. (See id. at 4; see also N.T. Sentencing, at 12).

This timely appeal followed.4

       Appellant presents one question for our review.
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2
  Appellant also failed to get a GED or complete job training.     (See N.T.
Sentencing, 3/22/16, at 4-5).
3
 The court included a recommendation for incarceration at SCI Chester
which had facilities for drug treatment.
4
 Appellant filed a court-ordered statement of errors on June 14, 2016. The
court filed an opinion on June 17, 2016. See Pa.R.A.P. 1925.



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            Was not the sentence of two and one-half to five years [of]
      incarceration for a technical violation of probation manifestly
      excessive, unreasonable, disproportionate to the conduct at
      issue, and not in conformity with the requirements of the
      Sentencing Code?

(Appellant’s Brief, at 4).

      Appellant challenges the discretionary aspects of his sentence.      Our

standard of review in an appeal from the discretionary aspects of a sentence

is well settled:

            Sentencing is a matter vested in the sound discretion of
      the sentencing judge, and a sentence will not be disturbed on
      appeal absent a manifest abuse of discretion. An abuse of
      discretion is more than just an error in judgment and, on appeal,
      the trial court will not be found to have abused its discretion
      unless the record discloses that the judgment exercised was
      manifestly unreasonable, or the result of partiality, bias or ill-
      will.

Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa. Super. 2003) (citations

omitted).

            Upon revoking probation, “the sentencing alternatives
      available to the court shall be the same as were available at the
      time of initial sentencing, due consideration being given to the
      time spent serving the order of probation.”           42 Pa.C.S.
      § 9771(b). Thus, upon revoking probation, the trial court is
      limited only by the maximum sentence that it could have
      imposed originally at the time of the probationary sentence,
      although once probation has been revoked, the court shall not
      impose a sentence of total confinement unless it finds 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


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               (3) such a sentence is essential to vindicate the
          authority of the court.

     42 Pa.C.S. § 9771(c).

Commonwealth v. Pasture, 107 A.3d 21, 27–28 (Pa. 2014).

     “There is no absolute right to appeal the discretionary aspects of a

sentence.”   Commonwealth v. Reyes, 853 A.2d 1052, 1055 (Pa. Super.

2004) (citation omitted). To reach the merits of a discretionary sentencing

issue, we conduct a four-part analysis to determine: (1) whether Appellant

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

Appellant’s brief contains a concise statement of the reasons relied upon for

allowance of appeal with respect to the discretionary aspects of a sentence

pursuant to 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, or is contrary to the fundamental norms which underlie

the sentencing process.   See Commonwealth v. Mastromarino, 2 A.3d

581, 585 (Pa. Super. 2010), appeal denied, 14 A.3d 825 (Pa. 2011).

     Here, Appellant timely filed his notice of appeal, satisfying the first

prong of the test. Appellant also filed a timely post-sentence motion raising

a claim of an excessive sentence.         However, as noted, two more

requirements must be met before we will review such a challenge on its

merits.




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       First, an appellant must set forth in his brief a concise statement of the

reasons relied upon for allowance of appeal with respect to the discretionary

aspects of a sentence. See Pa.R.A.P. 2119(f). Secondly, the appellant must

show that there is a substantial question that the sentence imposed is not

appropriate under the Sentencing Code, or the fundamental norms which

underlie the sentencing process.          We evaluate whether a particular issue

raises a substantial question on a case-by-case basis. See Commonwealth

v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006), appeal denied, 906

A.2d 1196 (Pa. 2006); Commonwealth v. Titus, 816 A.2d 251, 255 (Pa.

Super. 2003).

       Here, Appellant has included in his brief a Rule 2119(f) statement in

support of review of the discretionary aspects of the sentence.            (See

Appellant’s Brief, at 8-10); see also Pa.R.A.P. 2119(f).

       However, the Commonwealth argues that Appellant has failed to

present a substantial question because his Rule 2119(f) statement consists

only of a bare conclusory allegation of excessiveness and a series of citations

and authority, without an explanation of how the general principles cited

relate to the trial court’s alleged abuse of discretion.5 (See Appellant’s Brief,



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5
  Notably, Appellant concedes that the violation of his probation entitled the
court to re-sentence him. (See Appellant’s Brief, at 9).




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at 8-10; Commonwealth’s Brief, at 10-11).              On independent review, we

agree.

       Appellant     makes      bald,    serial   claims   that   his   sentence    is

disproportionate, manifestly excessive, and so forth, but fails to show

specific actions by which the trial court acted inconsistently with the

Sentencing Code or contrary to the fundamental norms underlying the

sentencing process.

       Appellant notes repeatedly that the probation officer requested

inpatient drug treatment, implying that the court’s sentence of incarceration

was an abuse of discretion.             (See e.g., Appellant’s Brief, at 6).       The

assertion is incomplete and misleading.           The probation officer did suggest

that Appellant “have another FIR6 inpatient treatment” because “[o]utpatient

isn’t working for him.” (N.T. Sentencing, at 7, 8). The trial court responded

that Appellant had already received a FIR evaluation, which recommended

outpatient treatment. (See id. at 8).

       “We emphasize a trial court does not necessarily abuse its discretion in

imposing a seemingly harsher post-revocation sentence where the defendant

received a lenient sentence and then failed to adhere to the conditions

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6
  FIR (Forensic Intensive Recovery) is a diversionary program managed by
PHMC (the Public Health Management Corporation of Philadelphia). FIR
offers eligible participants substance abuse treatment in lieu of incarceration.
FIR appears to provide predominantly for outpatient treatment.




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imposed on him.” Pasture, supra at 28 (citation omitted). Accordingly, we

conclude that Appellant has failed to raise a substantial question for review.7

       Judgment of sentence affirmed.

       President Judge Gantman joins the Memorandum.

       Judge Ott concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/19/2017




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7
  Moreover, we observe for completeness and clarity that Appellant’s claim
of excessiveness focuses exclusively on the sentence as it relates to the
violation of probation, with no regard for the sentencing options available
based on the original offenses to which he pleaded guilty. See 42 Pa.C.S.A.
§ 9771(b); Pasture, supra at 27–28.




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