J-S40041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JASON ROBERT BERRESFORD                  :
                                          :
                    Appellant             :   No. 303 WDA 2019

     Appeal from the Judgment of Sentence Entered October 23, 2018
    In the Court of Common Pleas of Beaver County Criminal Division at
                      No(s): CP-04-CR-0000089-2015

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                       FILED AUGUST 8, 2019

      Jason Robert Berresford (Berresford) appeals from the judgment of

sentence imposed in the Court of Common Pleas of Beaver County (trial court)

following his revocation of probation. We affirm.

      In 2015, Berresford pleaded guilty to one count of Unlawful Contact with

a Minor graded as a third-degree felony, 18 Pa.C.S. § 6318(a). Under his plea

agreement, Berresford was sentenced to five years’ probation and ordered to

undergo sex offender counseling and treatment, which he did. However, in

2018, Berresford was discharged from treatment and appeared for a violation

of probation hearing. After receiving evidence about Berresford’s discharge,

the trial court found him in violation of his probation and resentenced him to

serve 30 to 84 months’ imprisonment, stating that it found Berresford to be

an extreme danger and risk to the community.         Berresford filed a post-

sentence motion claiming that there was insufficient evidence for the violation
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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and that his sentence was unduly harsh.           After that motion was denied,

Berresford filed this appeal and raises one issue:

        Whether Appellant’s sentence is an illegal sentence as the court is
        prohibited from imposing a sentence of total confinement upon
        revocation of probation absent an express finding, on the record,
        at the time of sentencing that the defendant has been convicted
        of another crime; the conduct of the defendant indicates that it is
        likely that he will commit another crime if he is not imprisoned, or
        such a sentence is essential to vindicate the authority of the court?

Berresford’s Brief, at 7.

        Berresford’s argument is premised on his contention that the trial court,

in resentencing him to serve a sentence of total confinement, did not comply

with 42 Pa.C.S. § 9771.1 However, in his brief, Berresford admits that the

trial court “certainly set forth reasons that could support it making a finding

under [42 Pa.C.S. §] 9771(c)” that total confinement was necessary based on


____________________________________________


1   42 Pa.C.S. § 9771 provides:

        (c) Limitation on sentence of total confinement.--The court
        shall not impose a sentence of total confinement upon revocation
        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

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

42 Pa.C.S. § 9771(c).


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the risk he posed to the community if not confined. Indeed, as the trial court

notes in its Pa.R.A.P. 1925(a) opinion, it placed on the record at the time of

its resentence of Berresford ample justification for its belief that total

confinement was warranted under the Sentencing Code. See N.T., 10/13/18,

at 37-41, 43.        Berresford believes that, despite this ample on-record

explanation, the trial court erred by not explicitly stating that its consideration

was under 42 Pa.C.S. § 9771(c) rather than the Sentencing Code generally.

See Berresford’s Brief, at 12.           However, Berresford neither cites legal

authority for this proposition nor develops an argument that would support it.

The trial court clearly complied with the Sentencing Code and put substantial

reasons on the record to support its decision to imprison Berresford based on

his violation of probation.2

       Judgment of sentence affirmed.

       President Judge Emeritus Bender concurs in the result.

       Judge McLaughlin concurs in the result.




____________________________________________


2 Because the trial court complied with 42 Pa.C.S. § 9771(c), we choose not
to address Berresford’s claim that this Court should revisit Commonwealth
v. Schutzues, 54 A.3d 86 (Pa. Super. 2012), in which we held that a claim
that a trial court failed to make a proper statutory fining under 42 Pa.C.S. §
9771 implicates the discretionary aspects of sentencing and must be properly
preserved.

                                           -3-
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2019




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