J-S10005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

THOMAS VIERECK

                         Appellant                  No. 656 EDA 2015


          Appeal from the Judgment of Sentence February 5, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0004891-2012;
                          CP-51-CR-0014314-2010


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                   FILED FEBRUARY 08, 2016

      Appellant, Thomas Viereck, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following

revocation of his probation. We affirm.

      The trial court set forth the relevant facts and procedural history of

this case as follows:

         On January 3, 2011, Appellant pled guilty to Aggravated
         Assault and Possession of an Instrument of Crime (PIC)
         before the [c]ourt and was sentenced to four to twenty-
         three months[’] confinement followed by three years of
         probation.[1] On February 16, 2011, a motion for parole
         was filed and on March 14, 2011, the motion was granted.
         Subsequently, Appellant left the jurisdiction and a warrant
         for his arrest was issued. At the July 15, 2011 hearing,
         Appellant’s parole was revoked and he was re-sentenced
         to four to twenty-three months[’] confinement followed by
         three years of probation to run concurrently on both
_____________________________

*Retired Senior Judge assigned to the Superior Court.
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       convictions and he was ordered to be supervised under the
       Mental Health Unit. On October 11, 2012, Appellant pled
       guilty to Assault by Prisoner[2] before the [c]ourt and was
       sentenced to eleven and one half to twenty-three
       months[’] incarceration followed by two years of probation.
       At the hearing, Appellant was also found in direct violation
       of probation on his original case and was sentenced to
       eleven and one half to twenty-three months[’] confinement
       followed by two years of probation to run concurrently with
       credit for time served on both convictions and was
       immediately paroled to a treatment facility. He was also
       formally entered into Mental Health Court (MHC). As is the
       procedure in MHC, Appellant was scheduled for status of
       mental health and treatment hearings at regular intervals
       to monitor his compliance and progress.
          1
            18 Pa.C.S.[A.] § 2702(a), 18 Pa.C.S.[A.] § 907(a);
          the first conviction was graded as [an] F2 and the
          second as [an] M1.
          2
            18 Pa.C.S.[A.] § 2703(a); the conviction was
          graded as an F2.

       At the June 27, 2013 hearing, it was reported that on May
       25, 2013, Appellant absconded from his treatment
       program at Girard Medical Center and was arrested for
       absconding on June 7, 2013. The [c]ourt ordered the
       detainer to remain and the case was continued. At the
       July 18, 2013 hearing, Appellant’s probation was revoked
       on both cases and he was sentenced to eleven and one
       half to twenty-three months[’] confinement to run
       concurrently with credit for time served followed by three
       years of probation on each conviction. On February 19,
       2014, Appellant was transported to yet another treatment
       facility, Gaudenzia New Beginnings. At the June 10, 2014
       hearing, it was reported that Appellant absconded from his
       treatment program on April 12, 2014, a mental health
       evaluation was ordered and the case was continued
       pending the outcome of the evaluation. At the July 10,
       2014 hearing, Appellant was found to be competent per
       the report, but the hearing was continued to allow time to
       determine if additional placements were available. From
       July 31, 2014 to September 25, 2014, three hearings were
       continued pending the results of [an] FIR evaluation. On

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           October 30, 2014, a violation of probation hearing was
           conducted and Appellant was found to be in technical
           violation for absconding from the program. Appellant’s
           probation was revoked on both cases and he was
           sentenced to eleven and one half to twenty-three
           months[’] confinement with credit for time served followed
           by eight years of probation on the Aggravated Assault and
           Assault by Prisoner convictions[,] and was sentenced to
           five years of probation to run concurrently on the PIC
           conviction. He was immediately paroled to yet another
           treatment facility, Gaudenzia Together House.       At the
           December 11, 2014 hearing, Appellant failed to appear and
           it was reported that he once again absconded from his
           program on November 27, 2014. At the December 23,
           2014 hearing, the [c]ourt ordered a forthwith mental
           health evaluation for the purposes of determining a
           diagnosis, a treatment plan and whether Appellant was
           competent.     At the January 8, 2015 hearing, it was
           reported that…Appellant was competent, but the case was
           continued. On February 5, 2015, after a violation hearing,
           Appellant’s probation was revoked on both cases and he
           was sentenced to [terms of] four [(4)] to ten [(10)]
           year[s’] confinement on the Aggravated Assault and
           Assault by Prisoner convictions to run concurrently with
           credit for time served.[1] On February 17, 2015, Appellant
           filed a motion to reconsider sentence and it was denied on
           February 20, 2015.

(Trial Court Opinion, filed May 8, 2015, at 1-3).      Appellant filed a timely

notice of appeal on March 6, 2015. On March 26, 2015, the court ordered

Appellant to file a concise statement of errors complained of on appeal per

Pa.R.A.P. 1925(b).        The court entered a new order on April 20, 2015,

extending the time for Appellant to file a Rule 1925(b) statement until April

24, 2015. Appellant timely filed a Rule 1925(b) statement that same day.

____________________________________________


1
    The court imposed no further penalty for Appellant’s PIC conviction.



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      Appellant presents the following issues for our review:

         DID THE [TRIAL] COURT VIOLATE THE TENETS OF THE
         SENTENCING CODE, WHICH MANDATE INDIVIDUALIZED
         SENTENCING, AND IMPOSE AN EXCESSIVE SENTENCE OF
         FOUR TO TEN YEARS[’] TOTAL CONFINEMENT FOR A
         TECHNICAL VIOLATION OF PROBATION?

         BECAUSE OF PRIOR SENTENCES IMPOSED ON THE SAME
         INFORMATIONS, DID NOT THE [TRIAL] COURT IMPOSE[] A
         MAXIMUM SENTENCE—TEN YEARS—THAT EXCEEDS THE
         STATUTORY MAXIMUM—TEN YEARS?

(Appellant’s Brief at 3).

      In his first issue, Appellant argues the court failed to impose an

individualized sentence with consideration of all relevant sentencing factors.

Appellant contends the court failed to order a pre-sentence investigation

(“PSI”) report and to consider Appellant’s rehabilitative needs in light of his

history of mental health and substance abuse issues. Appellant asserts the

court’s sentencing decision was based on nothing more than Appellant’s

repeated technical violations of parole and probation.    Appellant concludes

his revocation sentence was excessive, and this Court should vacate his

judgment of sentence and remand for resentencing. Appellant’s challenge is

to the discretionary aspects of his sentence.       See Commonwealth v.

Carrillo-Diaz, 64 A.3d 722 (Pa.Super. 2013) (stating claim that sentencing

court erred when it imposed sentence without ordering PSI report challenges

discretionary aspects of sentence); Commonwealth v. Lutes, 793 A.2d

949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive

challenges discretionary aspects of sentencing); Commonwealth v. Cruz-

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Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676

A.2d 1195 (1996) (stating claim that court did not consider certain

mitigating factors challenges discretionary aspects of sentencing).

      When reviewing the outcome of a revocation proceeding, this Court is

limited to determining the validity of the proceeding, the legality of the

judgment of sentence imposed, and the discretionary aspects of sentencing.

Commonwealth v. Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013)

(en banc) (explaining appellate review of revocation sentence includes

discretionary sentencing challenges).      Challenges to the discretionary

aspects of sentencing do not entitle an appellant to an appeal as of right.

Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super. 2000).                   When

appealing the discretionary aspects of a sentence, an appellant must invoke

the appellate court’s jurisdiction by including in his brief a separate concise

statement demonstrating a substantial question as to the appropriateness of

the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571

Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f).       A substantial question

exists “only when the appellant advances a colorable argument that the

sentencing judge’s actions were either: (1) inconsistent with a specific

provision of the Sentencing Code; or (2) contrary to the fundamental norms

which underlie the sentencing process.” Sierra, supra at 913.

      A claim of excessiveness can raise a substantial question as to the

appropriateness of a sentence under the Sentencing Code, even if the


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sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at

624. Bald allegations of excessiveness, however, do not raise a substantial

question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather,

a substantial question exists “only where the appellant’s Rule 2119(f)

statement sufficiently articulates the manner in which the sentence violates

either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

process….”    Id.    See, e.g., Carrillo-Diaz, supra (stating defendant’s

contention that court failed to order PSI report, or alternatively to give

reason on record for not ordering report, presented substantial question);

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

defendant raised substantial question with respect to claim that revocation

sentence was excessive in light of underlying technical probation violations).

An allegation that the sentencing court failed to consider a specific mitigating

factor,   however,   generally   does    not   raise   a   substantial   question.

Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001) (holding claim

that sentencing court ignored appellant’s rehabilitative needs failed to raise

substantial question).

      “In general, the imposition of sentence following the revocation of

probation is vested within the sound discretion of the trial court, which,

absent an abuse of that discretion, will not be disturbed on appeal.”

Commonwealth v. Hoover, 909 A.2d 321 (Pa.Super. 2006). Following the


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revocation of probation, the court may impose a sentence of total

confinement if any of the following conditions exist: the defendant has been

convicted of another crime; the conduct of the defendant indicates it is likely

he will commit another crime if he is not imprisoned; or, such a sentence is

essential to vindicate the authority of the court.       See 42 Pa.C.S.A. §

9771(c).    The Sentencing Guidelines do not apply to sentences imposed

following a revocation of probation.     Commonwealth v. Ferguson, 893

A.2d 735 (Pa.Super. 2006), appeal denied, 588 Pa. 788, 906 A.2d 1196

(2006).    “[U]pon sentencing following a revocation of probation, the trial

court is limited only by the maximum sentence that it could have imposed

originally at the time of the probationary sentence.”     Commonwealth v.

Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001).

      Pursuant to Section 9721(b), “the court shall follow the general

principle that the sentence imposed should call for confinement that is

consistent with the protection of the public, the gravity of the offense as it

relates to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant.”       42 Pa.C.S.A. § 9721(b).   “[T]he

court shall make as part of the record, and disclose in open court at the time

of sentencing, a statement of the reason or reasons for the sentence

imposed.”    Id.   Nevertheless, “[a] sentencing court need not undertake a

lengthy     discourse   for   its   reasons   for   imposing   a   sentence….”

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal


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denied, 608 Pa. 661, 13 A.3d 475 (2010). Rather, “the record as a whole

must reflect the sentencing court’s consideration of the facts of the crime

and character of the offender.”       Id.   See also Carrillo-Diaz, supra

(explaining where revocation court presided over defendant’s no-contest

plea hearing and original sentencing, as well as his probation revocation

hearing and sentencing, court had sufficient information to evaluate

circumstances of offense and character of defendant when sentencing

following revocation).

      Instantly, to the extent Appellant complains the court did not

adequately consider specific mitigating factors, such as Appellant’s mental

health issues, substance abuse, and rehabilitative needs, this allegation fails

to raise a substantial question.        See Berry, supra.        Nevertheless,

Appellant’s claim that his sentence was excessive in light of his technical

violations of probation does present a substantial question warranting

review.   See Malovich, supra.      To the extent Appellant argues the court

failed to order a PSI report without explanation, that claim also raises a

substantial question. See Carrillo-Diaz, supra.

      At sentencing, the court provided the following rationale for the

revocation sentence imposed:

          [J]ust the need to really emphasize the number of
          opportunities that you’ve been given in this program,
          particularly for an individual. You did wait quite a long
          time for a program. And as that individual who waits for a
          long period, that I truly expect will take full advantage of
          the opportunities of the services of their resources. But

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         what I don’t expect is that you will leave and you did that
         time and time again.

         Yeah, there may have been a couple of times when you
         were on target, but generally speaking, four previous
         violations hearings, this is the fifth. I asked for one case.
         Certainly, there are opportunities where I could have sent
         you to the state sooner, yet I continued to give you
         chances to want to work with you. And, again, by your
         actions, you’ve indicated that you don’t want the services.
         And, consequently, I think services will be better provided
         for you in a state facility.

         So in order to vindicate the authority of this [c]ourt, the
         fact that this is the fifth violation on one case and the third
         violation, I think, on the other matter—you have been
         given other sanctions. I think, previously in this program,
         you failed to appear in this [c]ourt, but I will not do a
         separate contempt hearing for that. I will incorporate all
         that into one sentence—so as to each of these cases
         today, where I found you to be in violation, I will sentence
         you to 4 to 10 years of incarceration.

(N.T. Sentencing, 2/5/15, at 15-16). In its Rule 1925(a) opinion, the court

further stated:

         The [c]ourt sentenced Appellant to four to ten years[’]
         incarceration to run concurrently with credit for time
         served, which was far shorter than the possible 25 years[’]
         incarceration    to    which…Appellant    was     exposed.
         Furthermore, the evidence at the revocation hearing
         showed that Appellant absconded from the Gaudenzia
         program on November 27, 2014 and…Appellant failed to
         appear at the December 11, 2014 hearing[,] which
         resulted in a bench warrant. Appellant’s probation [o]fficer
         also reported that Appellant had four prior violations of
         probation on his first case and two prior violations on his
         second case. The [c]ourt noted that Appellant was given
         numerous opportunities to avail himself of the services
         provided while under the supervision of Mental Health
         Court, but chose not to participate. In total, Appellant
         absconded from three different treatment facilities while
         under the [c]ourt’s supervision. Therefore, considering

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        that the sentence was far less than the maximum penalty
        available,… Appellant’s history of non-compliance with
        conditions   of   his    supervision   and    the   [c]ourt’s
        consideration of…Appellant’s lack of interest in the services
        provided for his rehabilitative needs, the sentence was not
        unreasonable.

                                 *     *      *

        Finally, the [c]ourt complied with Pa.R.Crim.P. 702, which
        requires that a court order a PSI or state on the record its
        reasons for not ordering one. …

        Here, Appellant had been under the [c]ourt’s supervision
        since January 3, 2011 and has been enrolled in MHC since
        October 11, 2012. As part of MHC, Appellant was subject
        to regular status hearings where reports concerning his
        progress in treatment were provided. Furthermore, the
        [c]ourt was in possession of mental health evaluations
        conducted on June 30, 2014 and December 31, 2014 as
        well as 19 reports from Appellant’s probation officer dating
        back to June[] 2011. This information enabled the [c]ourt
        to make a determination of the circumstances of
        Appellant’s offense and character, and give individualized
        consideration to Appellant’s needs at sentencing.
        Therefore, the [c]ourt had sufficient information to
        substitute for the PSI when fashioning an individualized
        sentence for Appellant.

(Trial Court Opinion at 4-6).   We see no reason to disturb the revocation

court’s sentencing decision on the grounds stated. The court also presided

over Appellant’s guilty plea hearings, original sentencing, and previous

resentencing hearings.   The court supervised Appellant in MHC and was

aware of Appellant’s individual needs and circumstances, which obviated the

need for a PSI report. The court repeatedly gave Appellant opportunities to

take advantage of rehabilitative services and avoid incarceration. Appellant,

however, repeatedly rejected those opportunities and failed to comply with

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the terms of his probation or parole. The record as a whole makes clear the

court was aware of and considered the relevant sentencing factors, and the

sentence imposed was not excessive.       See Carrillo-Diaz, supra; Crump,

supra.      Therefore, Appellant is not entitled to relief on his discretionary

aspects of sentencing claim. See Hoover, supra.

     In his second issue, Appellant argues his concurrent sentences for the

aggravated assault and assault by prisoner convictions exceed the statutory

maximum of ten years applicable to each of those offenses.           Appellant

contends the ten-year term of incarceration he received for each conviction

rises above the statutory maximum when combined with the time he spent

incarcerated for previous parole or probation violations on the same

offenses. Appellant concludes the court imposed an unlawful sentence. We

disagree.

     The issue of whether a sentence is illegal is a question of law and our

scope of review is plenary. Crump, supra. An illegal sentence is subject to

correction and must be vacated.       Commonwealth v. Watson, 945 A.2d

174, 178-79 (Pa.Super. 2008). Assuming proper jurisdiction, the legality of

a sentence is a non-waivable claim, and this Court can raise the issue sua

sponte. Commonwealth v. Edrington, 780 A.2d 721 (Pa.Super. 2001).

         When determining the lawful maximum allowable on a split
         sentence, the time originally imposed cannot exceed the
         statutory maximum. Thus, where the maximum is ten
         years, a defendant cannot receive a term of incarceration
         of three to six years followed by five years[’] probation.
         However, in a situation where probation is revoked on a

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        split sentence, …a defendant is not entitled to credit for
        time spent on probation. Nor is a defendant automatically
        granted credit for time served while incarcerated on the
        original sentence unless the court imposes a new sentence
        that would result in the defendant serving time in prison in
        excess of the statutory maximum.

Crump, supra at 1283-85 (internal citations omitted). Upon revocation of

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.A.

§ 9771(b).    “As long as the new sentence imposed does not exceed the

statutory maximum when factoring in the incarcerated time already served,

the sentence is not illegal.” Crump, supra at 1285.

     Aggravated assault is a felony of the second degree under subsections

(a)(3)-(a)(8) of the aggravated assault statute. See 18 Pa.C.S.A. § 2702(b)

Assault by prisoner is also a second-degree felony.     See 18 Pa.C.S.A. §

2703. The statutory maximum term of imprisonment for a second-degree

felony is ten years. See 18 Pa.C.S.A. 106(b)(3).

     Instantly, as a preliminary matter, Appellant did not raise his illegal

sentence issue in his Rule 1925(b) statement.      See Commonwealth v.

Castillo, 585 Pa. 395, 888 A.2d 775 (2005) (stating any issue not raised in

Rule 1925(b) statement will be deemed waived for appellate review).

Nevertheless, Appellant’s illegal sentence claim is nonwaivable.        See

Edrington, supra. Therefore, we will address it on the merits.

     Following Appellant’s most recent probation violation, the court

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resentenced Appellant to concurrent terms of four (4) to ten (10) years’

incarceration for his aggravated assault and assault by prisoner convictions.

Appellant previously spent time incarcerated for those offenses. The court,

however,   gave   Appellant   credit    for     time   served   while   incarcerated.

Additionally, Appellant was not automatically entitled to credit for the time

he spent on parole or probation.       See Crump, supra.           Both aggravated

assault and assault by prisoner were graded as second-degree felonies.

Factoring in Appellant’s credit for time served, neither of Appellant’s new

sentences exceeded the ten-year statutory maximum applicable to each

offense.   See 18 Pa.C.S.A. 106(b)(3).          Therefore, Appellant’s sentence is

lawful in its entirety. See Crump, supra. Accordingly, we affirm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/8/2016




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