J-A24013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                     v.

TIMOTHY ALAN THIMONS

                          Appellant                  No. 1371 WDA 2016


          Appeal from the Judgment of Sentence August 16, 2016
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0002636-2006


BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                        FILED NOVEMBER 9, 2017

     Timothy Alan Thimons appeals from the August 16, 2016 judgment of

sentence entered in the Allegheny County Court of Common Pleas following

his revocation of probation. We affirm.

     The trial court set forth the history of this case as follows:

           [Thimons] was charged with Rape of a Child,1 Rape,2
        Unlawful    Contact,3  Sexual     Abuse     of    Children:
        Photographing,4 Indecent Assault of a Person Under 13,5
        Endangering the Welfare of a Child,6 Corruption of Minors7
        and Indecent Exposure8 in relation to a series of incidents
        that occurred between [Thimons] and the daughter of
        family friends when she was between the ages of 7 and
        12. On November 8, 2006, [Thimons] appeared before
        this Court and, pursuant to a plea agreement with the
        Commonwealth, pled guilty to all charges in exchange for a
        term of imprisonment of five (5) to 10 years with a
        subsequent term of probation of 10 years.         No Post-
        Sentence Motions were filed and no direct appeal was
        taken.
              1
                  18 Pa.C.S.A. § 3121(c)
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               2
                   18 Pa.C.S.A. § 3121
               3
                   18 Pa.C.S.A. § 6318[(a)](1)
               4
                   18 Pa.C.S.A. § 6312
               5
                   18 Pa.C.S.A. § 3126(a)(7)
               6
                   18 Pa.C.S.A. § 4304
               7
                   18 Pa.C.S.A. § 6301(a)(1)
               8
                   18 Pa.C.S.A. § 3127

            On August 16, 2016, [Thimons] appeared before this
         Court for a probation violation hearing. At the hearing it
         was revealed that [Thimons] was viewing pornography on
         a cell phone with an internet connection and at the
         Carnegie Library of Pittsburgh, that he was contacting
         underage girls via text message, Facebook and “Teens
         Only” and “Young Cuties” chatrooms, that he had used
         Google Maps to search the area where the seven-year old
         victim who was the subject to the instant complaint lived
         and that he disclosed four (4) other underage victims in
         the course of a maintenance polygraph. He also failed to
         secure appropriate housing in accordance with his housing
         plan. At the conclusion of that hearing, this Court revoked
         [Thimons’] probation and imposed a term of imprisonment
         of five (5) to 10 years. Timely Post-Sentence Motions
         were filed and were denied on September 7, 2016. This
         appeal followed.

Trial Court Opinion, 4/6/17, at 1-2 (unpaginated) (“1925(a) Op.”).

      Thimons timely filed his notice of appeal.      On appeal, he raises the

following issue: “Did the trial court fail to adequately consider and apply all

of the relevant sentencing criteria, including the protection of the public, the

gravity of the offense/violation, and especially Mr. Thimons’ character and

rehabilitative needs, as required under 42 Pa.C.S.A. § 9721(b) (Sentencing

generally; general standards)[?]         Thimons’ Br. at 5 (full capitalization

omitted).

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      Thimons is challenging the discretionary aspects of his sentence.

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super. 2011).      Before we address such a challenge, we first

determine:

         (1) whether the appeal is timely; (2) whether [a]ppellant
         preserved his issue; (3) whether [a]ppellant’s brief
         includes a concise statement of the reasons relied upon for
         allowance of appeal with respect to the discretionary
         aspects of sentence; and (4) whether the concise
         statement raises a substantial question that the sentence
         is appropriate under the [S]entencing [C]ode.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).

      Thimons filed a timely notice of appeal, preserved his claim in a timely

post-sentence motion, and included in his brief a concise statement of

reasons relied upon for allowance of appeal pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f). Additionally, Thimons’ claim that the trial court

failed to consider sentencing criteria, including the protection of the public,

the gravity of the offense, and his rehabilitative needs, raises a substantial

question.    See Commonwealth v. Derry, 150 A.3d 987, 992 (Pa.Super.

2016). Accordingly, we will review the merits of his claim.

      “Sentencing is a matter vested within the discretion of the trial court

and will not    be   disturbed absent    a manifest abuse      of discretion.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010).                “A


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sentencing court need not undertake a lengthy discourse for its reasons for

imposing a sentence or specifically reference the statute in question, but the

record as a whole must reflect the sentencing court’s consideration of the

facts of the crime and character of the offender.” Id. at 1283.

      Upon revocation of probation, a trial court may impose a sentence of

total confinement if any of the following requirements are met:        “(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).        “[T]he 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).

      Thimons contends that the trial court failed to consider the protection

of the public, the gravity of the offense, and his rehabilitative needs and

based his sentence solely on technical violations. Further, he claims that the

trial court ignored key mitigating evidence.

      Here, the trial court thoroughly stated on the record its reasons for

imposing its sentence:

            Mr. Thimons, I’m going to start from a while ago, you
         did have a prior conviction for sex abuse of a child. My
         case involves sexual abuse of a child of the age of seven
         that apparently went on for several years. Since you have
         been out, you’ve been accessing Google, looking in the
         area where the victim lives. This is a seven-year-old

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J-A24013-17


        victim that I’m talking about.       You admit going on
        Facebook, which apparently involved pornography as well
        as contact with minors. I believe that you were rejected at
        the Hollywood Show Bar and Farkus House; however, you
        misrepresented to us that you were. The cell phone
        search showed that you had been contacting females
        between the age of 12 and 17 according to the report.

           You already did nine-and-a-half years in jail in the State
        Correctional Institute and that provided you no incentive to
        comply with the terms and conditions of probation. You
        went to Carnegie Library and looked at porno. I don’t
        even know how you can get porno at Carnegie Library.
        One would think that shouldn’t happen.

                                      ...

           THE COURT: Then, you had a video of a girl, and
        whoever observed it said that she looked to be under 16,
        whether she was or not, I won’t put very much weight on
        that since we have no definitive measure. And, again, you
        disclosed at the polygraph that you had four additional
        victims that were underage.         However, you were not
        charged for those. Disclosing at a polygraph and then
        passing it is still a failure. Just because you said I have
        four additional victims and then tell the truth on the
        polygraph, that doesn’t mean you didn’t do it.

           You certainly are a danger to every young lady in
        Allegheny County, perhaps Western Pennsylvania. I see
        no evidence that you tried to rehabilitate yourself or take
        any advantages of the services offered to you.

N.T., 8/16/16, at 16-18.

     We disagree with Thimons’ contention that the trial court did not

consider the protection of the public, the gravity of the offense, or his

rehabilitative needs.   The trial court stated that Thimons had a prior

conviction for sexual abuse of a seven-year-old child, that he had been

accessing Google for the purpose of looking in the area where the victim

lives, that he had been contacting females between the ages of 12 and 17,

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J-A24013-17


and that he was “a danger to every young lady in Allegheny County, perhaps

Western Pennsylvania.” N.T., 8/16/16, at 16-18. The trial court found that

in light of Thimons’ technical violations, the “nine-and-a-half years in jail in

the State Correctional Institute . . . provided [him] no incentive to comply

with the terms and conditions of probation[,]” and there was “no evidence

that [he] tried to rehabilitate [himself] or take any advantages of the

services offered to [him].” Id. at 17, 18.

       With regard to Thimons’ claim that the trial court failed to consider

mitigating evidence, our review of the record shows that the trial court

considered the mitigating evidence presented at the revocation hearing. The

trial court heard Thimons’ testimony, reviewed letters from Thimons’

daughter and mother, and had the benefit of two pre-sentence reports.1

       A trial court is “in the best position to evaluate [an a]ppellant’s

character,” Malovich, 903 A.2d at 1254, and given the trial court findings,

the facts of the violation of Thimons’ probation, and the evidence presented,

we conclude the sentence was not manifestly unreasonable.

       Because the record supports the conclusion that Thimons was likely to

commit another crime under 42 Pa.C.S. § 9771(c)(2), and the trial court
____________________________________________


       1
         “Where pre-sentence reports exist, we . . . presume that the
sentencing judge was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Macias, 968 A.2d 773,
778 (Pa.Super. 2009) (quoting Commonwealth v. Devers, 546 A.2d 12,
18 (Pa. 1988)).



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J-A24013-17


fully stated its reasons on the record, we conclude it did not abuse its

discretion in imposing its sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2017




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