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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                       :
WESLEY A. WILSON,                      :          No. 661 WDA 2015
                                       :
                       Appellant       :


           Appeal from the Judgment of Sentence, March 25, 2015,
             in the Court of Common Pleas of Allegheny County
              Criminal Division at No. CP-02-CR-0008824-2008


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED AUGUST 23, 2016

      Wesley A. Wilson appeals from the judgment of sentence of March 25,

2015, following revocation of his probation. We affirm.

      The trial court has aptly summarized the history of this matter as

follows:

                  In this case, [appellant] pled guilty to one
            count of criminal trespass, one count of simple
            assault and one count of criminal mischief on
            December 10, 2008. The factual basis for the guilty
            plea was that [appellant] assaulted his girlfriend by
            punching her in the back of her head and then
            dragging her and slamming her head onto the hood
            of a car.    The victim ran into her house and
            [appellant] continued the assault inside the
            residence. Two females rushed to the victim’s aid
            and they were both assaulted by [appellant].
            Relative to the criminal trespass conviction, this
            Court imposed a sentence of imprisonment of not
            less than 11½ months nor more than 23 months
            followed by a term of probation of three years. This


* Retired Senior Judge assigned to the Superior Court.
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          Court imposed concurrent terms of two years’
          probation on the remaining counts. The probation
          terms were consecutive to parole but concurrent with
          each other.     [Appellant] was ordered to pay
          $4,280.79 in restitution.

                 After he was paroled, [appellant] began
          serving the probationary portion of his sentence. On
          January 10, 2010, [appellant] tested positive for
          marijuana and cocaine.        He was warned that
          continued drug use would result in a probation
          violation hearing. [Appellant] failed to report to
          probation.      His supervising probation officer
          contacted [appellant] and [appellant] then reported
          to his probation officer. During the month of April,
          2010, [appellant] failed to report to probation. He
          was cited as a technical violator for failing to report,
          failure to pay restitution and failure to abstain from
          drug use.

                On March 9, 2011, [appellant] was arrested
          and charged with simple assault and terroristic
          threats. [Appellant] pled guilty to the summary
          offense of disorderly conduct.

                On November 11, 2011, [appellant] was
          charged with criminal mischief, stalking and
          terroristic threats for threatening his girlfriend and
          throwing a brick through the window of her
          residence.     He was ultimately convicted of the
          charges and placed on two years’ probation by
          another member of this Court. This Court convened
          a probation violation hearing relative to this
          conviction. This Court revoked [appellant]’s term of
          probation and issued a new sentence. [Appellant]
          was sentenced to a term of imprisonment of not less
          than 6 months and not more than 12 months
          followed by three concurrent terms of two-years’
          probation.       [Appellant]   continued    his   poor
          performance of reporting to his probation officer
          after he was paroled from this sentence.




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                   On October 15, 2013, [appellant] was arrested
             again for a domestic incident. These charges were
             ultimately withdrawn.

                   [Appellant] was again arrested for a domestic
             incident. On August 4, 2014 [appellant] pled guilty
             to simple assault and recklessly endangering another
             person and was sentenced to a term of probation of
             two years. As a result of this conviction, this Court
             convened a probation violation hearing and revoked
             [appellant]’s probation and sentenced him [to not
             less than 18 months nor more than 48 months’
             incarceration, followed by 2 years of probation]. It
             was this most recent conviction that gave rise to the
             revocation of probation at issue in this appeal.

Trial court opinion, 7/29/15 at 1-3.

      Appellant’s motion for reconsideration of sentence was denied, and

this timely appeal followed. Appellant has complied with Pa.R.A.P. 1925(b),

and the trial court has filed a Rule 1925(a) opinion.

      Appellant has raised the following issue for this court’s review,

challenging the discretionary aspects of his sentence following revocation of

probation:

             I.    Whether the trial court abused its discretion by
                   revoking and re-sentencing [appellant] to
                   18-48 months [of] incarceration when it failed
                   to consider relevant and mandatory sentencing
                   criteria, including the rehabilitative needs of
                   [appellant], as required by 42 Pa.C.S.A.
                   § 9721(b)?

Appellant’s brief at 5.

             Our standard of review is well-settled:

                   The imposition of sentence following the
                   revocation of probation is vested within


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                 the sound discretion of the trial court,
                 which, absent an abuse of that
                 discretion, will not be disturbed on
                 appeal. An abuse of discretion is more
                 than an error in judgment—a sentencing
                 court has not abused its discretion unless
                 the record discloses that the judgment
                 exercised was manifestly unreasonable,
                 or the result of partiality, prejudice, bias
                 or ill-will.

Commonwealth v. Swope, 123 A.3d 333, 340 (Pa.Super. 2015), quoting

Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa.Super. 2014), appeal

denied, 109 A.3d 678 (Pa. 2015).            See also Commonwealth v.

Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc) (this court’s scope of

review in an appeal from a revocation sentencing includes discretionary

sentencing challenges).

           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

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


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            42 Pa.C.S. § 9771(c).

Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014). We also note

that the sentencing guidelines do not apply to sentences imposed as the

result of probation revocations. Id. at 27 (citations omitted).

            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.
            Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)];
            42 Pa.C.S.A. § 9781(b). Specifically, the appellant
            must present, as part of the appellate brief, a
            concise statement of the reasons relied upon for
            allowance of appeal. Malovich, 903 A.2d at 1250;
            Pa.R.A.P. 2119(f). In that statement, the appellant
            must persuade us there exists a substantial question
            that the sentence is inappropriate under the
            sentencing code.     Malovich, 903 A.2d at 1250;
            Pa.R.A.P. 2119(f).

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

            In general, an appellant may demonstrate the
            existence of a substantial question by advancing a
            colorable argument that the sentencing court’s
            actions were inconsistent with a specific provision of
            the sentencing code or violated a fundamental norm
            of the sentencing process. Malovich, 903 A.2d at
            1252. While this general guideline holds true, we
            conduct a case-specific analysis of each appeal to
            decide whether the particular issues presented
            actually form a substantial question. Id. Thus, we
            do not include or exclude any entire class of issues
            as being or not being substantial. Id. Instead, we
            evaluate each claim based on the particulars of its
            own case. Id.

Id. at 289-290.




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      In his Rule 2119(f) statement, appellant claims that the trial court

failed to consider all relevant and mandatory sentencing criteria, including

his rehabilitative needs as required by 42 Pa.C.S.A. § 9721(b). (Appellant’s

brief at 17.) Appellant’s assertion that the trial court failed to consider his

rehabilitative needs raises a substantial question. See Commonwealth v.

Baker, 72 A.3d 652, 662 (Pa.Super. 2013), appeal denied, 86 A.3d 231

(Pa. 2014) (finding, inter alia, assertion that trial court failed to account for

appellant’s rehabilitative needs was substantial question suitable for review);

see also Commonwealth v. Macias, 968 A.2d 773, 776 (Pa.Super. 2009)

(“an averment that the court sentenced based solely on the seriousness of

the offense and failed to consider all relevant factors raises a substantial

question” (citations omitted)). “Additionally, a substantial question that the

sentence was not appropriate under the Sentencing Code may occur even

where a sentence is within the statutory limits.”           Commonwealth v.

Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010), appeal denied, 13 A.3d

475 (Pa. 2010), citing Commonwealth v. Titus, 816 A.2d 251 (Pa.Super.

2003).    Hence, we will consider the merits of appellant’s sentencing

challenge.

      The record reflects that while the trial court did consider appellant’s

rehabilitative needs, it was clear that prior attempts at rehabilitation had

proved   ineffective   and   appellant    remained   a   danger   to   the   public,

particularly women:



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            I do not believe that allowing [appellant] to reenter
            the community at this time is a good idea. I do think
            that a county sentence and county supervision have
            not worked or else we wouldn’t be here. And I think
            [appellant]’s conduct demonstrates that the longer
            period of incarceration is required to protect the
            community and hopefully get his attention while he’s
            still young enough to rethink what he’s doing and
            change his ways.

Notes of testimony, 3/25/15 at 10.

            And you pick on women. Apparently you can’t hold
            your temper or something. I’m not sure what it is.
            But you physically harm people. And apparently
            those are women who are close to you in your life
            from what I’m reading. So you represent a very
            specific danger to the community that I think the
            community has tolerated long enough.

Id. at 9-10.

      Appellant committed further crimes while on probation, including

crimes of domestic violence.   He tested positive for drugs and refused to

report to his probation officer. He has not paid any restitution. (Trial court

opinion, 7/29/15 at 6.) He was given several county sentences, but failed to

conform his conduct to the law. The trial court did consider appellant’s need

for treatment and rehabilitation, but ultimately decided that a sentence of

total confinement was necessary to protect the public and to vindicate the

authority of the court. (Id. at 6-7.) See also notes of testimony, 3/25/15

at 9 (“But we tried a lengthy county sentence with you, and it made no

impression on you from my point of view. You got 11½ to 23 months in this

case and you’re back harming other women when you get your freedom



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back.”). The trial court did not abuse its discretion in revoking appellant’s

probation and re-sentencing him to a state sentence of 18-48 months’

imprisonment.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/23/2016




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