J-S41007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MARTENUS I. SAUNDERS,

                            Appellant                 No. 2863 EDA 2015


        Appeal from the Judgment of Sentence Entered August 24, 2015
                In the Court of Common Pleas of Chester County
                           Criminal Division at No(s):
                            CP-15-CR-0003260-2010
                            CP-15-CR-0004120-2014


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

MEMORANDUM BY BENDER, P.J.E.:                           FILED JUNE 23, 2016

        Appellant, Martenus I. Saunders, appeals from the judgment of

sentence of an aggregate term of 12 to 24 months’ incarceration, followed

by 5 years’ probation, imposed after his terms of probation and parole were

revoked in two separate cases. Appellant solely challenges the discretionary

aspects of his sentence. We affirm.

        A detailed recitation of the facts and procedural history of Appellant’s

two cases is unnecessary to our disposition of the issue he raises on appeal.

We only briefly note that Appellant’s underlying cases, consolidated below,

involve convictions for offenses including statutory sexual assault (18

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*
    Former Justice specially assigned to the Superior Court.
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Pa.C.S. § 3122.1), indecent assault of a person less than 13 years old (18

Pa.C.S. § 3126(a)(7)), corruption of minors (18 Pa.C.S. § 6301(a)(1)), and

harassment (18 Pa.C.S. § 2709(a)(4)).               While serving terms of probation

and parole imposed for those convictions, Appellant repeatedly violated the

terms of his supervision by not attending or participating in a daily sex

offender    treatment     program      in   which    Appellant   was   enrolled.1   A

probation/parole revocation hearing was conducted on August 24, 2015, at

the close of which Appellant’s probation and parole terms were revoked and

the above-stated, aggregate sentence was imposed.

       Appellant filed a timely post-sentence motion, which was denied on

September 3, 2015.          He then filed a timely notice of appeal and also

complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Herein, he presents one issue

for our review: “Did the [c]ourt commit [an] abuse of discretion in imposing

a state sentence of 1 to 2 years followed by 5 years[’] probation on CR-

3260-10, as well as the concurrent sentences on CR-4120-2013, all of which

were outside the probation guidelines of three to five months, in disregard of




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1
  This was the second time Appellant violated his probation/parole and was
resentenced in these two cases. See Appellant’s Brief at 12-13.




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[Appellant’s] mitigating condition of having both intellectual and physical

disabilities?” Appellant’s Brief at 10.2

       Our   standard     of   reviewing       Appellant’s   discretionary   aspects   of

sentencing claim is as follows:

       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.

       The right to appellate review of the discretionary aspects of a
       sentence is not absolute, and must be considered a petition for
       permission to appeal. An appellant must satisfy a four-part test
       to invoke this Court's jurisdiction when challenging the
       discretionary aspects of a sentence.

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2
  Preliminarily, we note that while Appellant does not explain his reference to
the ‘probation guidelines,’ according to the Commonwealth:
       The guidelines that [Appellant] is referring to are guidelines
       developed by the Chester County Adult Probation Department to
       assist  their   officers in  making    consistent  sentencing
       recommendations. These guidelines are not binding upon the
       Chester County Adult Probation Department, [n]or the Chester
       County Court of Common Pleas.

Commonwealth’s Brief at 21-22.         Appellant cites no legal authority to
support his suggestion that the Chester County Adult Probation Department
guidelines must be considered by the court when imposing a sentence
following the revocation of a defendant’s probation/parole. Moreover, “it is
well settled that the [state] sentencing guidelines do not apply to sentences
imposed as a result of probation or parole revocations….” Commonwealth
v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001) (citations, internal
quotation marks, and brackets omitted).




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      [W]e conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal; (2) whether the
      issue was properly preserved at sentencing or in a motion to
      reconsider and modify sentence; (3) whether appellant's brief
      has a fatal defect; and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate
      under the Sentencing Code.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (internal

citations omitted).

      Here, Appellant has filed a timely notice of appeal, and he also

preserved his sentencing claim in a post-sentence motion.       In Appellant’s

brief, he sets forth a statement in accordance with Pa.R.A.P. 2119(f),

arguing that he has presented a substantial question for our review.

      A substantial question will be found where an appellant advances
      a colorable argument that the sentence imposed is either
      inconsistent with a specific provision of the Sentencing Code or is
      contrary to the fundamental norms which underlie the
      sentencing process. At a minimum, the Rule 2119(f) statement
      must articulate what particular provision of the code is violated,
      what fundamental norms the sentence violates, and the manner
      in which it violates that norm.

Id. (citation omitted).

      In his Rule 2119(f) statement, Appellant avers that the revocation of

probation and parole (and, thus, his resultant sentence) was premised on his

failure to attend and participate in sex offender counseling, yet the court

failed to take into account that attending the STAR program, to which

Appellant had been assigned, required him to travel “more than two hours

away by public transportation” on a daily basis.      Appellant’s Brief at 13.

According to Appellant, traveling to this extent was extremely difficult



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because he “suffers [from] Cerebral Palsy, and has an IQ that tested at 49,

which is indicative of significant sub-average intellectual functioning.”

Appellant’s Brief at 13-14.         Appellant contends that these “practical

difficulties of attending [s]ex [o]ffender class[,]” and “the existence of other

options for treatment,” constituted “mitigating factors” that the court failed

to consider in imposing his sentence of 12 to 24 months’ incarceration. Id.

at 14.

         Essentially, Appellant claims that the trial court failed to give proper

weight to mitigating factors, which this Court has found does not present a

substantial question for our review.     See Commonwealth v. Disalvo, 70

A.3d 900, 903 (Pa. Super. 2013) (quoting Commonwealth v. Downing,

990 A.2d 788, 794 (Pa. Super. 2010) (“[T]his Court has held on numerous

occasions that a claim of inadequate consideration of mitigating factors does

not raise a substantial question for our review.”) (citation omitted)).

         In any event, even if this claim did present a substantial question, we

would deem it meritless. Initially, the court had the benefit of a presentence

report.     See N.T. Revocation/Resentencing Hearing, 8/24/15, at 8.        That

report indicated that Appellant had been late for his sex offender treatment

program, or left the program early, “in excess of 90 times….”          Id. at 3.

After the court noted this fact, defense counsel argued that Appellant’s

issues with attending the program were due to the fact that it took him over

two hours, by public transportation, to get there. Id. at 7-8. Counsel also

stressed that Appellant’s IQ was “very low[,]” and that with these

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difficulties, it was a   “significant burden” for Appellant to travel to the

program every day. Id. at 8.

      However, other information provided to the court demonstrated that

Appellant’s failure to attend, or participate in, the program was not based

only on the travel difficulties and his low IQ.     For instance, Appellant’s

probation officer informed the court that she had supervised Appellant “for

four or five years” and had “tried everything to get him to engage not only in

therapy but to … [get] a job, and he just will do what he wants to do.” Id.

at 10. The probation officer continued:

      Probation Officer: The last time we were in front of a judge for a
      revocation hearing, [Appellant] had asked for individual therapy.
      We set him up with a therapist at Human Services to address his
      anger issue one on one and anything else he wanted to discuss
      that he didn’t feel he could bring out in group, and he never
      went to any of the appointments. He would come in and tell me
      this long story about this discussion he had with his therapist,
      and I would call and the therapist is, like, he canceled his
      appointment. He never showed.

            So [Appellant’s] aunt asked me to bring him in to do
      community service with our community service work crew to
      have some idle time occupied. He didn’t like doing that after a
      while and stopped showing. He wanted to get a job. He said he
      didn’t want to do community service. He wasn’t getting paid for
      it. We got him a job with Handi-Crafters out in Coatesville and
      Thorndale. Eventually, that fell through because he didn’t like
      going. He would be late. He had problems with other people
      there. He kept getting thrown off the Rover Bus. He assaulted
      the bus driver.

            When he came in for the last revocation hearing, the …
      recommendation [was] to [assign Appellant to] the STAR
      program in Norristown. He would be in therapy [from] nine to
      three. He would have a structured day, but he wasn’t -- I
      couldn’t get him back on the Rover Bus. I called the company


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       and asked for, you know, would you please make a concession
       this one time and allow him back on and they said, no.

             His aunt then did say, [w]ell, you know, we’ll make sure
       he gets to the STAR program, but he is going to have to
       navigate public transportation at the time. … And [Appellant] is
       pretty -- he is pretty good at navigating public transportation.
       He was able to get there, but he wouldn’t set his alarm clock.

Id. at 10-12.

       After listening to the probation officer’s statements, the court

remarked that the information it had before it indicated that Appellant was

not “engaged” when he was at therapy; instead, Appellant would “lay [his]

head down and take naps and leave early.” Id. at 12. Appellant responded,

claiming that he “felt that [he] wasn’t sometimes being heard, and [he] just

gave up….”      Id.    However, the court stressed that Appellant’s probation

officer had “bent over backwards and tried to help [Appellant],” id. at 12-13,

but that Appellant did not do “what [he was] supposed to do over and over

and over again.” Id. at 14.

       Also notable to the court’s sentencing decision is the fact that defense

counsel conceded that Appellant needed sex offender treatment, and the

parties agreed that such treatment was not offered in the county jail. Id. at

16-17.     Considering Appellant’s failure to participate in the treatment

program while not incarcerated, the danger he posed to society,3 and the

lack of treatment programs offered by the county prison, the court

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3
  The court also was informed that during treatment, Appellant had admitted
to abusing two more victims under the age of seven. Id. at 3.



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concluded that a ‘state’ sentence of 12 to 24 months’ incarceration, with

credit for 6 months Appellant had previously served in the county jail, was

the most appropriate sentence in this case. See id. at 17-19.

      The record demonstrates that the revocation court carefully fashioned

a sentence that would serve Appellant’s rehabilitative needs while also

protecting the community.      The court clearly considered the mitigating

factors discussed by Appellant herein, but concluded, for the reasons

mentioned, supra, that a sentence of incarceration in a State Correctional

Institution was appropriate.    Therefore, even had Appellant presented a

substantial question for our review, nothing in the record supports his

assertion that the court abused its discretion in fashioning his sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2016




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