J-S64025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JOSUE GABRIEL VEGA                      :
                                         :
                     Appellant           :   No. 2587 EDA 2017

            Appeal from the Judgment of Sentence July 12, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0013160-2014


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY OLSON, J.:                         FILED JANUARY 14, 2019

      Appellant, Josue Gabriel Vega, appeals from the judgment of sentence

entered on July 12, 2017, following the revocation of his probation. Upon

review, we affirm.

      The trial court summarized the facts and procedural history of this case

as follows:

      On January 9, 2015, [Appellant] pled guilty to possession [of a
      controlled substance] with the intent to deliver (“PWID”) and was
      sentenced to two years of probation. Following a violation of
      probation (“VOP”) hearing on October 6, 2016, [the trial court]
      found [Appellant] to be in violation of [his] probation [after he
      pled guilty to a second PWID conviction. Accordingly, the trial
      court] imposed a new period of five years of probation.

      On January 28, 2017, while on [] probation, [Appellant] was
      arrested for arson and related offenses.      On that date, the
      complainant, who has a son with [Appellant], contacted the police
      and informed them that [Appellant] had been threatening to kill
      her and her family after she asked him to leave their home. She
      also told police that on January 28, 2017, she was woken by her
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       aunt, who lives in a neighboring apartment, telling her that smoke
       was filling the apartment. [Appellant was seen] by the back door,
       setting a rag on fire and placing it near the door. The police
       arrived and arrested [Appellant,] who was sitting in a car outside
       of the building. The [f]ire [m]arshall confirmed that smoke and
       fire damage to the door and doorframe were a result of arson.

       On July 12, 2017, [Appellant] entered into a negotiated guilty plea
       to arson and simple assault on [another] docket [], and was
       sentenced to two (2) to four (4) years of confinement, followed by
       two years of probation. At that time, [the trial court] found
       [Appellant] to be in violation of its [prior term of] probation [],
       revoked probation, and imposed a VOP sentence of five to ten
       years of confinement, to run consecutive to the sentence imposed
       [for arson.1]

                               *               *     *

       On July 20, 2017, [Appellant] filed a motion for reconsideration of
       [his] VOP sentence. On August 11, 2017, [Appellant] filed a
       timely notice of appeal[. Appellant and the trial court timely
       complied with Pa.R.A.P. 1925. The trial court issued an opinion
       pursuant to Pa.R.A.P. 1925(a) on December 11, 2017 and an
       amended Rule 1925(a) opinion on April 26, 2018.]

Amended Trial Court Opinion, 4/26/2018, at 1-2 (superfluous capitalization

and statutory citations omitted).

       On appeal, Appellant presents the following issues for our review:

       1. Was not the lower court’s imposition of a five (5) to ten (10)
          year sentence of incarceration for a violation of probation an
          abuse of discretion where the court violated the requirements
          of 42 Pa.C.S.A. § 9721(b) of the Sentencing Code where the
          court failed to give individualized consideration to [A]ppellant’s

____________________________________________


1  Unrelated to this matter, Appellant was also on probation in another case,
before the same trial court judge. The trial court found Appellant in violation
of his probation in the other matter and sentenced him to eight years of
probation to run consecutively to the term of imprisonment for the current
violation of probation herein. That matter, however, is not presently before
us.

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         personal history, rehabilitative needs or background, and
         without explaining how, as a matter of law, this sentence was
         the least stringent one adequate to protect the community and
         serve the rehabilitative needs of [A]ppellant?

      2. Did not the lower court err and abuse its discretion by
         sentencing [Appellant] to an excessive period of incarceration?

Appellant’s Brief at 4.

      Appellant’s two issues are inter-related, so we will examine them

together. Appellant first claims:

      Following a violation of probation hearing[, A]ppellant was
      sentenced to five to ten years [of] incarceration.         Though
      [A]ppellant had appeared before [the trial court] on three
      separate negotiated guilty pleas and two violation of probation
      hearings, pre-sentence and psychiatric reports were never
      ordered for any of those hearings. Even though [A]ppellant
      waived a pre-sentence investigation report at the most recent
      guilty plea/violation hearing, it was still incumbent on the [trial]
      judge to have some knowledge of [A]ppellant’s background before
      imposing sentence. A new sentencing hearing is required.

Id. at 13.

      Appellant further maintains that

      the [trial] court in the present case seems to exclusively focus on
      the seriousness of the underlying crimes and violations rather
      than taking into consideration [A]ppellant’s background. While a
      period of incarceration may or may not be appropriate in this case,
      it is hard to see how the imposition of a five to ten [year] sentence
      of incarceration addresses either societal safety concerns or
      [A]ppellant’s rehabilitative needs. The lengthy sentence imposed
      is contrary to the fundamental norms underlying the sentencing
      process as required in 42 Pa.C.S.A. § 9721(b). The [trial] court
      failed to explain as a matter of law the instant sentence was the
      least stringent one adequate to protect the community and to
      serve the rehabilitative needs of [] [A]ppellant.

                           *             *          *



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      This sentence was an abuse of discretion as it was the imposition
      of a manifestly unreasonable, disproportionate and excessive
      sentence.

Id. at 19-20.

      “Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right.” Commonwealth v. Swope, 123 A.3d 333,

337 (Pa. Super. 2015)(citation omitted). Before this Court can address such

a discretionary challenge, an appellant must comply with the following

requirements:

      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court's jurisdiction by satisfying a four-part test:
      (1) whether appellant has filed a timely notice of appeal, see
      Pa.R.A.P. 902 and 903; (2) whether the issue was properly
      preserved at sentencing or in a motion to reconsider and modify
      sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's brief
      has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code.

Id.

      Here, Appellant filed a timely notice of appeal and preserved his issues

in a post-sentence motion. Further, Appellant's brief includes a concise

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

discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f). See

Appellant's Brief at 8–11.     We now must determine whether Appellant

presents a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code.

      We have previously held:




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      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. 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.

      Upon revoking probation, a sentencing court may choose from any
      of the sentencing options that existed at the time of the original
      sentencing, including incarceration. 42 Pa.C.S. § 9771(b).
      However, the imposition of total confinement upon revocation
      requires a finding that either “(1) the defendant has been
      convicted of another crime; or (2) the conduct of the defendant
      indicates that it is likely that he will commit another crime if he is
      not imprisoned, or (3) such a sentence is essential to vindicate
      the authority of the court.” 42 Pa.C.S. § 9771(c).

      An appellant making an excessiveness claim raises a substantial
      question when he 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.

      When imposing a sentence, the sentencing court must consider
      the factors set out in 42 Pa.C.S.A. § 9721(b), that is, the
      protection of the public, gravity of offense in relation to impact on
      victim and community, and rehabilitative needs of the defendant.

Swope, 123 A.3d at 338 (internal citations, original brackets, footnotes, and

some quotations omitted).

      This Court has held that “an excessive sentence claim—in conjunction

with an assertion that the court failed to consider mitigating factors—raises a

substantial question.” Id. at 339, citing Commonwealth v. Raven, 97 A.3d

1244, 1253 (Pa. Super. 2014). Moreover, an allegation that the trial court

failed to offer specific reasons for a sentence also raises a substantial question.

See Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011);

see also 42 Pa.C.S.A. § 9721(b) (“In every case in which the court imposes

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a sentence for a felony or misdemeanor [] the 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.”) (emphasis added). Thus,

we conclude that Appellant has raised a substantial question for our review.

     Our Supreme Court has previously determined:

     a trial court has broad discretion in sentencing a defendant, and
     concomitantly, the appellate courts utilize a deferential standard
     of appellate review in determining whether the trial court abused
     its discretion in fashioning an appropriate sentence. The reason
     for this broad discretion and deferential standard of appellate
     review is that the sentencing court is in the best position to
     measure various factors and determine the proper penalty for a
     particular offense based upon an evaluation of the individual
     circumstances before it. Simply stated, the sentencing court
     sentences flesh-and-blood defendants and the nuances of
     sentencing decisions are difficult to gauge from the cold transcript
     used upon appellate review. Moreover, the sentencing court
     enjoys an institutional advantage to appellate review, bringing to
     its decisions an expertise, experience, and judgment that should
     not be lightly disturbed.

     The sentencing court's institutional advantage is, perhaps, more
     pronounced in fashioning a sentence following the revocation of
     probation, which is qualitatively different than an initial sentencing
     proceeding. At initial sentencing, all of the rules and procedures
     designed to inform the court and to cabin its discretionary
     sentencing authority properly are involved and play a crucial role.
     However, it is a different matter when a defendant reappears
     before the court for sentencing proceedings following a violation
     of the mercy bestowed upon him in the form of a probationary
     sentence. For example, in such a case, contrary to when an initial
     sentence is imposed, the Sentencing Guidelines do not apply, and
     the revocation court is not cabined by Section 9721(b)'s
     requirement 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.


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     Upon revoking 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). Thus,
     upon revoking probation, the trial court is limited only by the
     maximum sentence that it could have imposed originally at the
     time of the probationary sentence, although once probation has
     been revoked, the court shall not impose a sentence of total
     confinement unless it finds that:

           (1) the defendant has been convicted of another
           crime; or

           (2) the conduct of the defendant indicates that it is
           likely that he will commit another crime if he is not
           imprisoned; or

           (3) such a sentence is essential to vindicate the
           authority of the court.

     42 Pa.C.S. § 9771(c).

     Moreover, 42 Pa.C.S.A. § 9721(b) specifies that in every case
     following the revocation of probation, “the court shall make as a
     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.” See also Pa.R.Crim.P. 708 (indicating at the time of
     sentence following the revocation of probation, “[t]he judge shall
     state on the record the reasons for the sentence imposed.”).

     However, following revocation, a sentencing court need not
     undertake a lengthy discourse for its reasons for imposing a
     sentence or specifically reference the statutes in question. Simply
     put, since the defendant has previously appeared before the
     sentencing court, the stated reasons for a revocation sentence
     need not be as elaborate as that which is required at initial
     sentencing. The rationale for this is obvious. When sentencing is
     a consequence of the revocation of probation, the trial judge is
     already fully informed as to the facts and circumstances of both
     the crime and the nature of the defendant, particularly where []
     the trial judge had the benefit of a [pre-sentence investigation
     report] during the initial sentencing proceedings.


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Commonwealth v. Pasture, 107 A.3d 21, 27–28 (Pa. 2014) (case citations,

footnotes, and some quotations omitted).

      Here, Appellant concedes that he waived the preparation of a

pre-sentence investigation report before proceeding to both his initial

sentencing and upon revocation of probation.      Thus, it is disingenuous for

Appellant to argue now that the trial court did not have all of his background

information at its disposal when fashioning a sentence. Appellant should have

requested a sentencing continuance for the preparation of a pre-sentence

investigation report, but did not.   Moreover, we squarely reject Appellant’s

suggestion that the trial court was required to impose the least stringent

sentence under Section 9721(b).      See id. at 27 (revocation court is not

cabined by Section 9721(b)'s requirement 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.”).

      Regardless, although the trial court did not engage in lengthy discourse

when imposing Appellant’s sentence, the trial court stated its reasons on the

record.   First, the trial court noted that it presided over all of Appellant’s

criminal matters and recognized that Appellant’s pattern of criminal behavior

had escalated over the years. The most recent revocation proceeding was not

for technical violations of the terms of probation; Appellant committed new

crimes while on probation.      Moreover, Appellant’s other prior convictions

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were narcotics related, whereas Appellant most recently committed arson

while on probation, “put[ting] people in fear of their lives.” N.T., 7/12/2017,

at 12.   As such, the trial court felt it needed “to protect the public.”   Id.

Accordingly, the trial court determined that prior periods of probation were

ineffective rehabilitation efforts, arson was a serious and dangerous offense,

and the public deserved protection from further crime. The undisputed facts

of record make clear that such a determination did not constitute an abuse of

discretion. Finally, we note that Appellant has not suggested any mitigating

factors that the trial court should have considered. Hence, based upon all of

the foregoing, we discern no abuse of discretion in sentencing Appellant

following the revocation of his probation.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/14/19




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