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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

NICHOLAS JAMES GARULLE

                            Appellant                  No. 99 MDA 2014


           Appeal from the Judgment of Sentence December 19, 2013
               In the Court of Common Pleas of Schuylkill County
              Criminal Division at No(s): CP-54-CR-0000779-2012


BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                             FILED MARCH 27, 2015

        Appellant, Nicholas James Garulle, appeals from the judgment of

sentence entered after the trial court revoked his probation.        Garulle

contends that the trial court abused its discretion by imposing an excessive

sentence. After careful review, we affirm.

        On November 14, 2012, Garulle pled guilty to receiving stolen

property.     Pursuant to the negotiated plea agreement, the trial court

sentence Garulle to 23 months of probation. Slightly over a year later, the

Commonwealth moved to revoke Garulle’s probation, alleging, among other

things, that Garulle had removed his electronic monitor and had been found

in possession of heroin.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      After a hearing on the Commonwealth’s motion, the trial court revoked

Garulle’s probation and entertained testimony on an appropriate sentence.

At the conclusion of this testimony, the trial court sentenced Garulle to a

term of imprisonment of 24 months to 60 months.          This timely appeal

followed.

      On appeal, Garulle argues that the sentence imposed by the trial court

was excessive.    On appeal from a judgment of sentence following the

revocation of probation

      [o]ur review is limited to determining the validity of the
      probation revocation proceedings and the authority of the
      sentencing court to consider the same sentencing alternatives
      that it had at the time of the initial sentencing. 42 Pa.C.S.A. §
      9771(b).

Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000). This scope

of review encompasses a review of the discretionary aspects of the sentence

imposed after revocation.    See Commonwealth v. Cartrette, 83 A.3d

1030, 1042 (Pa. Super. 2013) (en banc).

      “Revocation of a probation sentence is a matter committed to the

sound discretion of the trial court and that court's decision will not be

disturbed on appeal in the absence of an error of law or an abuse of

discretion.”   Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa. Super.

2008) (citation omitted).   A court may revoke an order of probation upon

proof of the violation of specified conditions of the probation.          See

Commonwealth v. Infante, 888 A.2d 783, 791 (Pa. 2005). “A probation



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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.” Id., at 791. Technical violations are sufficient to trigger

revocation.   See Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super.

2000).

      As noted above, Garulle contends that the sentence imposed by the

trial court is excessive. Garulle concedes that this claim raises a challenge

to the discretionary aspects of the sentence imposed. See Commonwealth

v. Hornaman, 920 A.2d 1282, 1284 (Pa. Super. 2007).

      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). When challenging the discretionary aspects

of the sentence imposed, an appellant must present a substantial question

as to the inappropriateness of the sentence.        See Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be

met before we will review this challenge on its merits.” McAfee, 849 A.2d

at 274. “First, an appellant must set forth in his brief a concise statement of

the reasons relied upon for allowance of appeal with respect to the

discretionary aspects of a sentence.” Id.




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       “Second, the appellant must show that there is a substantial question

that the sentence imposed is not appropriate under the Sentencing Code.”

Id.    That is, “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.” Tirado, 870 A.2d at

365.    We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See id. “Our inquiry must focus on

the reasons for which the appeal is sought, in contrast to the facts

underlying the appeal, which are necessary only to decide the appeal on the

merits.” Id.

       In the present case, Garulle’s appellate brief contains the requisite

Rule 2119(f) concise statement, and, as such, is in technical compliance with

the requirements to challenge the discretionary aspects of his sentence.

Garulle argues in his Rule 2119(f) statement that the sentence imposed by

the trial court “goes against the rehabilitative nature of the Sentencing

Code[.]” Appellant’s Brief at 6.       Even assuming that this statement

constitutes a substantial question, we conclude that Garulle is due no relief.

       Garulle testified that before he was arrested for the probation

violations, he was “trying to turn myself into a mental hospital because I

have a problem.” N.T., revocation hearing, 12/19/13, at 34. This problem

caused him to cut off his electronic monitor in an attempt to commit suicide.

See id., at 33.    The trial court explained its decision to impose a state


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sentence on Garulle as follows:      “Right now there’s only one feasible

disposition for Mr. Garulle, and he’s out of control; and the only way to

impose that control is to get him into a facility where he can have the proper

treatment.”   Id., at 52.   Thus, the trial court indicated that a primary

purpose of the sentence imposed was the rehabilitation of Garulle. Garulle’s

contention that the sentence disregarded his rehabilitative needs is therefore

unsupported by the record. Garulle’s sole issue on appeal merits no relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2015




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