J-S03036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 MICHAEL JOYNER                          :
                                         :   No. 1101 EDA 2017
                    Appellant

          Appeal from the Judgment of Sentence February 28, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0713981-2001


BEFORE:    BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED MARCH 23, 2018

      Appellant Michael Joyner appeals the judgment of sentence entered by

the Court of Common Pleas of Philadelphia County after the revocation of his

probation and parole.   Appellant claims he was denied a prompt revocation

hearing and asserts that the lower court abused its discretion in imposing his

third revocation sentence. We affirm.

      On November 28, 2001, following a bench trial, Appellant was convicted

of Possession of a Controlled Substance with Intent to Deliver (PWID). On

January 25, 2002, Appellant was sentenced to 11½ to 23 months incarceration

to be followed by three years’ reporting probation. After Appellant was paroled

on August 8, 2002, he immediately absconded from court supervision.

      On March 18, 2003, Appellant was arrested and again charged with

PWID. In this new case, on May 29, 2003, he was convicted of PWID. On


____________________________________
* Former Justice specially assigned to the Superior Court.
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August 28, 2003, Appellant appeared for his first probation/parole violation

(VOP) hearing, was found in direct violation of his probation/parole, and was

sentenced to serve his back time in addition to a consecutive three years’

probation. On May 4, 2004, Appellant was paroled to Wedge Medical Center.

On August 16, 2004, Appellant again absconded from supervision. Wanted

cards were issued for his arrest.

      Thereafter, Appellant was subsequently arrested in New Jersey for four

new drug related charges.     On June 7, 2005, Appellant was arrested and

charged in New Jersey for possession of a controlled substance. On December

13, 2005, Appellant was arrested and charged again in New Jersey for

possession of a controlled substance. On January 30, 2006, Appellant was

convicted of both of these charges and sentenced to three years’ probation.

On August 30, 2006, Appellant was arrested and charged in New Jersey with

two counts of possession of a controlled substance.       On April 3, 2007,

Appellant was convicted on both counts and sentenced to five years’

probation. On July 28, 2010, a New Jersey court revoked his probation and

sentenced him to four years’ incarceration on the first three charges and five

years’ incarceration on his fourth charge. On May 23, 2013, the New Jersey

Department of Corrections paroled Appellant.

      On July 12, 2013, in a second VOP hearing, the Philadelphia Court of

Common Pleas found Appellant in direct and technical violation of his

probation/parole due to his New Jersey convictions and his absconding from

supervision in 2004. The revocation court sentenced Appellant to 11½ to 23

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months incarceration to be followed by three years’ probation with the

recommendation that he be sent to Hoffman Hall. The revocation court also

imposed sentencing conditions such as drug treatment, parenting classes,

anger management counseling as well as to maintain employment and pay

mandatory court costs and supervision fees. Inexplicably, on April 3, 2014,

Appellant was again paroled from Hoffman Hall.

     Appellant attended two subsequent status hearings. On July 22, 2014,

Appellant admitted he had not paid anything towards his fines and costs,

claimed that he was attempting to further his education, and was granted

permission to attend community college.     On October 24, 2014, Appellant

appeared at another status hearing, again admitting that he had not paid

anything towards his costs and fees, did not enroll in community college, but

was employed at McDonald’s. The lower court ordered Appellant to pay $175

towards his costs and fees before his next status hearing.

     On December 15, 2014, after Appellant failed to appear at his scheduled

status hearing, a bench warrant was issued for his arrest.    Thereafter, on

January 23, 2015, Appellant was again arrested and charged in New Jersey

for Possession of a Controlled Substance. On November 23, 2015, Appellant

was convicted of this new charge. He remained in New Jersey custody until

he was returned to Philadelphia on February 6, 2017.

     Twenty-two days later, on February 28, 2017, Appellant proceeded to

his third VOP hearing and was found in direct and technical violation of his

probation and parole. The lower court revoked his probation and parole and

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resentenced him to 2½ to 5 years’ imprisonment.              On March 7, 2017,

Appellant filed a post-sentence motion.          On March 28, 2017, he filed this

appeal while his post-sentence motion was still pending.1

       Appellant raises two issues for our review on appeal:

       1. Was not [Appellant] denied his right to a speedy revocation
          hearing in violation of Pa.R.Crim.P. 708, when his hearing was
          delayed for 15 months after his conviction in the criminal case
          constituting a direct violation of his probation, and [A]ppellant
          was substantially prejudiced by the delay?

       2. Does not the sentence of 2½ to 5 years total confinement
          represent an abuse of discretion in that it was manifestly
          excessive and unreasonable, inconsistent with the Sentencing
          Code and fundamental norms underlying the sentencing
          process, not necessary to vindicate the authority of the court,
          and contrary to what was necessary to foster the rehabilitative
          needs of [A]ppellant, a drug addict and nonviolent offender
          who already served substantial time in New Jersey and was
          successfully engaged in rehabilitative programs there?

Appellant’s Brief, at 3.

       Appellant first claims his right to a prompt revocation hearing was

violated when his violation hearing was scheduled more than fifteen months

after the New Jersey conviction that served as the basis for the revocation.

As an initial matter, we must determine whether Appellant waived this issue

for review. “[T]he failure to make a timely and specific objection before the


____________________________________________


1 “An appellant whose revocation of probation sentence has been imposed
after a revocation proceeding has 30 days to appeal [the] sentence from the
day [the] sentence is entered, regardless of whether or not [he or] she files a
post-sentence motion.” Commonwealth v. Parlante, 823 A.2d 927, 929
(Pa.Super. 2003) (citing Pa.R.Crim.P. 708(D)).


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trial court at the appropriate stage of the proceedings will result in waiver of

the issue.” Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa.Super. 2016).

This Court has held that a speeding revocation hearing claim must be raised

and preserved at the revocation proceeding, or it will be deemed waived.

Commonwealth v. Collins, 492 Pa. 405, 407, 424 A.2d 1254, 1254 (1981).

       Upon review of the transcript from the third revocation hearing, it is

clear that Appellant did not object to the delay of which he now complains of

on appeal. Instead, Appellant waited to raise this claim in his post-sentence

motion, which the revocation court did not rule on before Appellant filed this

appeal.    As a result, we find Appellant has waived his challenge to the

timeliness of his revocation hearing by failing to properly preserve it with a

timely objection in the lower court.

       Second, Appellant raises various challenges to the trial court’s discretion

in imposing his revocation sentence.2 When reviewing such a challenge, we

adhere to the following standard:

              Sentencing is a matter vested in the sound discretion of
       the sentencing judge, and a sentence will not be disturbed on
       appeal absent a manifest abuse of discretion. In this context, an
       abuse of discretion is not shown merely by an error in judgment.
       Rather, the appellant must establish by reference to the record,
       that the sentencing court ignored or misapplied the law, exercised
       its judgment for reasons of partiality, prejudice, bias or ill will, or
       arrived at a manifestly unreasonable decision.

Commonwealth v. Raybuck, 915 A.2d 125, 128 (Pa.Super. 2006).

____________________________________________


2 Appellant concedes on appeal that he violated the terms and conditions of
his probation.

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      Appellant's challenge to the discretionary aspects of his sentence does

not entitle him to appellate review as of right. Commonwealth v. Allen, 24

A.3d 1058, 1064 (Pa.Super. 2011). Prior to addressing such a challenge, this

Court engages in a four-part analysis to determine whether: the appeal is

timely; Appellant preserved his issue; Appellant's brief contains a concise

statement of the reasons relied upon for allowance of appeal pursuant to

Pa.R.A.P. 2119(f); and the statement raises a substantial question that

the sentence is inappropriate under the Sentencing Code. Commonwealth

v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013), appeal denied, 621 Pa. 692,

77 A.3d 1258 (2013); see also Pa.R.A.P. 2119(f).

      In this case, Appellant filed a timely notice of appeal and preserved

several claims in a timely motion for reconsideration of his sentence.

However, not all of those issues were also raised in his Statement of Reasons

for Allowance of Appeal pursuant to Rule 2119(f). Our review of the record

reveals that the only issue properly preserved in both Appellant’s post-

sentence motion and his 2119(f) statement was his claim that the trial court

“failed to consider relevant sentencing criteria, including the protection of the

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

Appellant.” See Petition to Vacate and Reconsider Sentence, 3/7/17, at 1, 3;

Appellant’s Brief, at 11.

      Thus, we proceed to consider whether Appellant has presented a

substantial question that his sentence is not appropriate under the Sentencing

Code. In doing so, we are mindful that “[t]he determination of what

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constitutes a substantial question must be evaluated on a case-by-case basis.”

Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa.Super. 2015), appeal

denied, 633 Pa. 774, 126 A.3d 1282 (2015) (citation omitted). In addition,

            [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.

Id.   Appellant’s argument that the trial court, in imposing sentence, failed to

consider the protection of the public and Appellant’s rehabilitative needs,

raises a substantial question. See Commonwealth v. Derry, 150 A.3d 987,

992 (Pa.Super. 2016) (concluding a claim the trial court failed to consider the

protection of the public, the gravity of the underlying offense, and the

appellant’s rehabilitative needs raises a substantial question in typical cases).

      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 that appellate review of a revocation sentence includes

discretionary sentence challenges). “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, 322 (Pa.Super.

2006).   Following the revocation of probation, the trial court may impose

a sentence of total confinement if any of the following conditions exist: the

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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.            Id. at

323. See also 42 Pa.C.S.A. § 9771(c).

      The Sentencing Guidelines do not apply to sentences imposed following

a revocation of probation, and when imposing its sentence 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 42 Pa.C.S.A. § 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 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.” Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super.

2010) (citation omitted), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010).




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      At the revocation hearing, the lower court expressed frustration at

Appellant’s failure to take advantage of its repeated attempts to help Appellant

work towards rehabilitation by sending him to drug-treatment programs

instead of state prison:

            This sentence is absolutely necessary because I’ve been
      trying to help this defendant with all his drug-related issues since
      2001. It is now 2017 and actually, nothing I did ever helped. I
      allowed him to go to three different programs in the county and
      none of those helped because he was still picked up in New Jersey
      for the same thing in 2015, so this sentence is necessary.

             I think that maybe he might do better in state prison, but if
      he doesn’t have the desire to kick his habit and stay out of trouble,
      then there is nothing that I would ever be able to do to help that
      situation, so I think this sentence is appropriate under the
      circumstances.

VOP Hearing, 2/28/17, at 27-28.

      In addition, in its Opinion filed pursuant to Pa.R.A.P. 1925(a), the lower

court provided further detail of its decision to impose the sentence in this case:

            Here, this Court considered all relevant information about
      [Appellant] that was available to this Court. [The court] reviewed
      [Appellant’s] criminal history on the record, reviewed the
      probation department report, listened to the recommendation of
      the Commonwealth and defense counsel, and heard what
      [Appellant] had to say when finding him in violation of his
      probation. As stated above, there is no requirement that this
      Court impose the minimum possible sentence. Rather, based
      upon [Appellant’s] repeated and continuing drug violations, this
      Court found it appropriate to sentence [Appellant] to 2½ to 5
      years state incarceration, with credit for time served.

VOP Hearing, 2/28/17, at 27-28.

      In light of the foregoing, Appellant’s claim that the trial court did not

consider the relevant sentencing factors is belied by the record. Appellant

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essentially asks this Court to reweigh the significance of each sentencing

factor found at Section 9721(b); we will not substitute our judgment in place

of the sentencing court's discretion.   See Commonwealth v. Macias, 968

A.2d 773, 778 (Pa.Super. 2009).

      To the contrary, we agree that Appellant's repeated refusal to abide by

the conditions of his probation evinced a prison sentence that was essential

to vindicate the authority of the court and for the protection of the public.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/18




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