J. S71042/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                :     IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                            Appellee         :
                                             :
                    v.                       :
                                             :
                                             :
MATTHEW JOHN LAZOVI,                         :
                                             :
                            Appellant        :     No. 1064 MDA 2014


              Appeal from the Judgment of Sentence June 16, 2014
               In the Court of Common Pleas of Schuylkill County
               Criminal Division No(s).: CP-54-CR-0001222-2008

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 12, 2014

        Appellant, Matthew John Lazovi, appeals from the judgment of

sentence entered in the Schuylkill County Court of Common Pleas following

the revocation of his probation. He challenges the trial court’s reasoning for

imposing the revocation sentence. We affirm.

        We adopt the facts set forth by the trial court’s opinion. See Trial Ct.

Op., 7/22/14, at 1-2. We note that on May 21, 2009, Appellant entered a

negotiated guilty plea to, inter alia, two counts of statutory sexual assault

and was sentenced to two to four years’ imprisonment followed by five

years’ probation.        Id. at 1.   On June 16, 2014, Appellant stipulated to



*
    Former Justice specially assigned to the Superior Court.
J. S71042/14


violating his probation for, inter alia, marijuana use and failure to complete

sex offender treatment. Id. at 2. On June 16, 2014, the court imposed a

revocation sentence of six months to five years’ imprisonment and two

years’ probation.

        Appellant timely appealed.    On June 25, 2014, the court ordered

Appellant to comply with Pa.R.A.P. 1925(b) within twenty-one days, which

was July 16, 2014. Appellant filed an untimely Rule 1925(b) statement on

Friday, July 18, 2014,1 raising the following issue: “At [Appellant’s]

probation violation hearing, the sentencing court abused its discretion by

resentencing [Appellant] to a state prison sentence instead of affording him

the opportunity to attend an inpatient mental health rehabilitation center.”

Appellant’s Pa.R.A.P. 1925(b) Statement, 7/18/14.

        In his appellate brief, Appellant raises the following issue: “Whether

the sentence imposed was excessive to the degree that it amounted to an

abuse of discretion?”     Appellant’s Brief at 4.   In support of his issue,

Appellant argues that the court should have imposed a county sentence. Id.

at 9.      He maintains the sentence does not adequately address his

rehabilitative needs.   Appellant notes his “desire to spend time in a state




1
   We decline to find waiver, however.       See Pa.R.A.P. 1925(c)(3);
Commonwealth v. Britt, 83 A.3d 198, 203 (Pa. Super. 2013) (holding
untimely filing of Rule 1925(b) statement by counsel is per se ineffective
assistance of counsel).




                                     -2-
J. S71042/14


mental hospital” and claims the court made no effort to place him in a

hospital. Id. at 10. We hold Appellant is not entitled to relief.

      “[T]he scope of review in an appeal following a sentence imposed after

probation revocation is limited to the validity of the revocation proceedings

and   the   legality   of   the   sentence   imposed   following    revocation.”

Commonwealth v. Infante, 888 A.2d 783, 790 (Pa. 2005) (citation

omitted).   “[I]t is now accepted that it is within our scope of review to

consider challenges to the discretionary aspects of an appellant’s sentence in

an appeal following a revocation of probation.”           Commonwealth v.

Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006).

         [T]he reason for revocation of probation need not
         necessarily be the commission of or conviction for
         subsequent criminal conduct. Rather, this Court has
         repeatedly acknowledged the very broad standard that
         sentencing courts must use in determining whether
         probation has been violated:

            A probation violation is established whenever it is
            shown that the conduct of the probationer indicates
            the probation has proven to have been an ineffective
            vehicle to accomplish rehabilitation and not sufficient
            to deter against future antisocial conduct.

         Furthermore, when the basis for revocation arises from the
         advent of intervening criminal conduct, a VOP hearing may
         be held prior to any trial arising from such criminal
         conduct.

Infante, 888 A.2d at 791 (citations omitted).

            To be reviewed on the merits, a challenge to the
         discretionary aspects of sentence must raise a substantial
         question that the sentence imposed is not appropriate. A
         substantial question is raised when the appellant advances


                                      -3-
J. S71042/14


         a “colorable argument” that the sentence was either
         “inconsistent with a specific provision of the Sentencing
         Code” or “contrary to the fundamental norms which
         underlie the sentencing process.” This Court determines
         whether an appellant has raised a substantial question by
         examination of the appellant’s concise statement of the
         reasons relied upon for allowance of appeal, which must be
         included in the appellant’s brief, pursuant to Pennsylvania
         Rule of Appellate Procedure 2119(f). If a Rule 2119(f)
         statement is not included in the appellant’s brief and the
         appellee objects to the omission, then this Court is
         precluded from reviewing the merits of the appellant’s
         claim.

Commonwealth v. Faulk, 928 A.2d 1061, 1071-72 (Pa. Super. 2007)

(citations omitted).

         [T]he Rule 2119(f) statement must specify where the
         sentence falls in relation to the sentencing guidelines and
         what particular provision of the Code is violated (e.g., the
         sentence is outside the guidelines and the court did not
         offer any reasons either on the record or in writing, or
         double-counted factors already considered). Similarly, the
         Rule 2119(f) statement must specify what fundamental
         norm the sentence violates and the manner in which it
         violates that norm (e.g., the sentence is unreasonable or
         the result of prejudice because it is 500 percent greater
         than the extreme end of the aggravated range.).

Commonwealth v. Googins, 748 A.2d 721, 727 (Pa. Super. 2000) (en

banc).

      Instantly, Appellant’s Rule 2119(f) statement complies with Googins,

supra, and his claim that his sentence violates one of the fundamental

norms underlying the sentencing process raises a substantial question. See

Faulk, 928 A.2d at 1071-72.      Accordingly, we address the merits.    After

careful review of the record, the parties’ briefs, and the opinion of the



                                    -4-
J. S71042/14


Honorable John E. Domalakes, we affirm on the basis of the trial court’s

opinion.   See Trial Ct. Op. at 1-3 (holding Appellant’s probation violations

and failure to complete sex offender treatment justified sentence).      We

therefore affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/12/2014




                                    -5-
                                                                        Circulated 11/19/2014 03:22 PM




         COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY - CRIMINAL


 COMMONWEALTH OF PENNSYLVANIA                    NO.     1222 - 2008

                     v.

MATTHEW LAZOVI


                          District Attorney - for the Commonwealth
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               OPINION AND ORDER PURSUANT TO PA.R.A.P. 1925                n
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DOMALAKES, J.                                                             :;         y,J      '.=l

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       AND NOW, this 22 nd day of July, 2014, it is'tlereby ORDERED thafthe ~rk of;

Courts of Schuylkill County transmit the record papers of the within proceeding, together

with the Opinion of this Court to the Pennsylvania Superior Court.
                                                                           Circulated 11/19/2014 03:22 PM




          COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY - CRIMINAL


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        Defendant has appealed a resentence imposed upon him after his probation was

 revoked. In his Statement of Matters Complained of on Appeal, he alleges that the

 sentencing court abused its discretion by resentencing the Defendant to a state prison

 sentence instead of affording him an opportunity to attend an inpatient mental health

 rehabilitation center.

        The Defendant pled guilty and was sentenced via a negotiated plea on May 21,

2009. His offenses were sexual in nature. He was sentenced to two (2) to four (4)

years on two (2) Statutory Sexual Assault counts. The victims were minor females who

were twelve (12) and fourteen (14) years of age respectively. The Defendant was

twenty (20) years of age and, therefore, more than four (4) years older than the victims.

Those sentences had expired. He was also sentenced to five (5) additional years of

probation, consecutive to the prison sentence, on Corruption of Minors and Indecent

Assault counts. On June 16, 2014, while on probation, he stipulated to violating the

conditions of his probation. His probation was revoked, and he was resentenced upon
                                                                           Circulated 11/19/2014 03:22 PM




  recommendation of the State Parole Officer to a period of incarceration of not less than

  six (6) months nor more than five (5) years in a state correctional institution on each of

 three counts, concurrent with each other, and two (2) years re-probation one two (2)

 other Indecent Assault counts, concurrent with the prison sentence. He was also

 ordered to undergo a mental health and drug and alcohol evaluations with follow-up

 treatment as recommended.

        All of the Defendant's resentencings were within statutory limits. The Defendant

 does not allege that the resentencings were illegal.

        When a defendant is resentenced after a probation revocation, the sentencing

 guidelines are inapplicable. See 204 Pa. Code §303.1 (b).

        The Defendant's probation violations include marijuana use and diluting a urine

 sample. He also did not have an appropriate address, as his father had moved and

would not allow Defendant to reside with him. His state parole officer also established

that Defendant was unsuccessfully discharged from sex offender treatment at

Psychological Associates because he did not attend the required amount of sessions.

Alternative treatment programs were provided, and he was unsuccessfully discharged

from drug and alcohol treatment, also for non-attendance (see p. 9 of transcript of

6/16/14). It is noted that Defendant's sexual offenses involve twelve (12) and fourteen

(14) year old females. It is also noted that, in resentencing the Defendant, the Court

ordered that he undergo both mental health and drug and alcohol evaluations with

follow-up treatment. Under the circumstances the Court believes that its re-sentencing

was appropriate.




                                             2
                                                                            Circulated 11/19/2014 03:22 PM




       The Court may revoke an order of probation upon proof of the violation of specific

conditions of probation. Upon revocation, the sentencing alternatives available to the

Court shall be the same as were available at the time of the initial sentencing with due

consideration being given to the time spent serving the order of probation. A sentence

of total confinement upon revocation is applicable when the conduct of the Defendant

indicates that it is likely that he will commit another crime if he is not in prison or where

such a sentence is essential to vindicate the authority of the Court. 42 Pa. C.SA

§9771. The Defendant's illegal drug use and deceptive behavior in attempting to dilute

his urine sample suggest that a sentence of total confinement upon revocation was

appropriate. Moreover, Department of Corrections officials will make certain that he

receives the evaluations and treatment ordered by the Court.




                                            3
