J-S10045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOHN LAROCCO

                            Appellant                 No. 2452 EDA 2016


           Appeal from the Judgment of Sentence dated July 7, 2016
               In the Court of Common Pleas of Carbon County
             Criminal Division at No(s): CP-13-CR-0000743-2010

BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY SOLANO, J.:                               FILED MAY 12, 2017

        Appellant John Larocco appeals from the judgment of sentence

imposed after the trial court revoked his probation.     He contends that his

sentence is manifestly excessive. We affirm.

        In 2010, Appellant was charged with eighteen counts of burglary,1 as

well as numerous other related offenses. According to Appellant, he

committed the burglaries to support his drug addiction. Appellant’s Brief at

5. In 2012, he pleaded guilty to five counts of burglary and was sentenced

to a total of three to six years of incarceration, followed by five years of

special probation.2         The special provisions of probation included that

____________________________________________
1
    18 Pa.C.S. § 3502.
2
  The sentences were as follows: 12-24 months’ incarceration, followed by 5
years’ probation (Count 3); 12-24 months’ incarceration (Count 6)
(Footnote Continued Next Page)
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Appellant was to undergo a mental health evaluation within sixty days and

to   have   a   “zero     tolerance”     threshold   for   possession,   control,   and

consumption of alcoholic beverages and non-prescribed medication.                   On

October 27, 2014, after having completed his minimum sentence, Appellant

was paroled.     As conditions of his parole, Appellant was required, among

other things, to abstain from drug possession and use, as well as to undergo

a mental health evaluation within sixty days.

      While on parole, in April of 2015, Appellant was charged with several

criminal offenses after he left the scene of a traffic accident and the agent

investigating the accident found marijuana in Appellant’s home.              Appellant

also (1) had contact with another drug offender (his girlfriend), (2) tested

positive for heroin twice in 2016, and (3) failed to obtain the required mental

health evaluation. N.T., 5/27/16, at 6-11.

      On March 9, 2016, Agent Kiley Sock of the Pennsylvania Board of

Probation and Parole filed a motion to revoke Appellant’s special probation

based on Appellant’s positive test for heroin.3 Appellant waived his Gagnon



                       _______________________
(Footnote Continued)
(consecutive); 12-24 months’ incarceration (Count 7) (consecutive); 12-24
months’ incarceration (Count 15) (concurrent); and 12-24 months’
incarceration (Count 18) (concurrent).
3
   Appellant’s probation had not yet begun. However, Appellant “does not
dispute that his probation could be revoked prior to him beginning it.”
Appellant’s Brief at 13 n.1 (citing Commonwealth v. Hoover, 909 A.2d
321, 323 (Pa. Super. 2006)).



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I hearing, and the trial court held a Gagnon II hearing on May 27, 2016.4

Agent Sock testified regarding Appellant’s conduct since his release in

October of 2014, and recommended a state sentence because:

          [Appellant] was given multiple upon multiple opportunities
          to succeed. He was placed in several positions to succeed
          by state parole. And all the time that was given to him to
          adjust to society and to getting himself on track, he
          disregarded it all. He never took any advice from the
          agent to proceed based on – from the beginning with the

____________________________________________
4
    We have explained the probation/parole revocation procedure as follows:

       “At the preliminary [Gagnon I] hearing, a probationer or
       parolee is entitled to notice of the alleged violations of probation
       or parole, an opportunity to appear and to present evidence in
       his own behalf, a conditional right to confront adverse witnesses,
       an independent decisionmaker, and a written report of the
       hearing.” Gagnon v. Scarpelli, [411 U.S. 778, 786 (1973)]
       . . . . Thus, the Gagnon I hearing is similar to the preliminary
       hearing afforded all offenders before a Common Pleas Court
       trial: the Commonwealth must show probable cause that the
       violation was committed.

       The Gagnon II hearing entails, or may entail, two decisions:
       first, a “consideration of whether the facts determined warrant
       revocation.” “The first step in a Gagnon II revocation decision
       . . . involves a wholly retrospective factual question: whether the
       parolee [or probationer] has in fact acted in violation of one or
       more conditions of his parole [or probation].”          Gagnon v.
       Scarpelli, supra, 411 U.S. at 784 . . . . It is this fact that must
       be demonstrated by evidence containing “probative value.”
       “Only if it is determined that the parolee [or probationer] did
       violate the conditions does the second question arise: should the
       parolee [or probationer] be recommitted to prison or should
       other steps be taken to protect society and improve chances of
       rehabilitation?” [Id.]

Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000) (some
citations omitted).



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            criminal offenses all the way that we upgraded to heroin
            use.

N.T., 5/27/16, at 12.

       Appellant testified that he participated in a drug treatment program in

prison, and when he was released, he initially elected to continue treatment.

However, his attendance became “sporadic.” Agent Sock helped Appellant

get a job, but Appellant quit that job because he did not think it paid

enough. Appellant was unemployed for a month and a half, and then got a

seasonal job.      At some point, his drug use escalated from marijuana to

opiates.5     Agent Sock helped Appellant get admitted into another drug

treatment program, but Appellant stopped attending because he “didn’t

believe it was the right program for [him].” Appellant did not dispute that

he violated the terms of his supervision by using heroin or that he needed to

go back to state prison. N.T., 5/27/16, at 28-35, 37-38.

       At the conclusion of the May 27, 2016 hearing, the trial court found

that Appellant violated the terms of his supervision and deferred sentencing

to give further consideration to issues that had been raised. N.T., 5/27/16,

at 48. The trial court expressed its desire to impose a sentence that would

not only punish Appellant for his violations, but also “get him the help he

needs.” Id. at 40.

____________________________________________
5
   When he committed the burglaries, Appellant was using Xanax and
marijuana. N.T., 5/27/16, at 32.



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         On July 7, 2016, the trial court held another hearing. At that time, the

Commonwealth recommended a sentence of (1) five to ten years’ of

incarceration, or (2) three and one-half to seven years of incarceration,

followed by special probation; Appellant’s counsel suggested one to two or

two to four years of incarceration, and stated Appellant’s desire to “limit the

amount of special probation.” N.T., 7/7/16, at 3. The trial court imposed a

sentence of two and one-half to five years’ incarceration, followed by two

years of special probation. The court said it had given “serious thought over

the last several weeks as to what would be appropriate in [Appellant’s] case

[,] taking into consideration what the violations were.” Id. at 4. The court

expressed concern that Appellant had not been on parole long when the

violations occurred, and observed that Appellant’s prior participation in drug

treatment programs had been unsuccessful. Id. at 5.

         On July 15, 2016, Appellant filed a timely petition to reconsider his

sentence.6      The trial court, without expressly granting reconsideration,

scheduled a hearing for September 19, 2016. On August 5, 2016, Appellant

filed a timely notice of appeal.7


____________________________________________
6
    “Amotion to modify a sentence imposed after a revocation shall be filed
within 10 days of the date of imposition. The filing of a motion to modify
sentence will not toll the 30-day appeal period.” Pa.R.Crim.P. 708(E).
7
   On August 8, 2016, Appellant filed a pro se motion to modify sentence. At
a hearing on August 30, 2016, Appellant and counsel agreed that, due to the
filing of a notice of appeal, the trial court lacked jurisdiction over both the
(Footnote Continued Next Page)

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      Appellant raises the following issue:

      Whether the Trial Court abused its discretion when it imposed a
      manifestly excessive sentence of total confinement of two-and-
      a-half to five years followed by two years of consecutive
      probation that was based only on an alleged technical violation
      that Appellant tested positive for opiates in violation of zero
      tolerance.

Appellant’s Brief at 4.

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

appellant to an appeal as of right.” Commonwealth v. Glass, 50 A.3d 720,

726 (Pa. Super. 2012), appeal denied, 63 A.3d 774 (Pa. 2013). Before we

reach the merits of Appellant’s issue, we must determine whether:

      (1) the appeal is timely; (2) Appellant preserved his issue; (3)
      Appellant’s brief includes a concise statement of the reasons
      relied upon for allowance of an appeal with respect to the
      discretionary aspects of his sentence[], as required by Rule
      2119(f) of the Pennsylvania Rules of Appellate Procedure; and
      (4) that concise statement raises a substantial question that the
      sentence[] [was] inappropriate under the Sentencing Code.

Commonwealth v. Flowers, 149 A.3d 867, 870 (Pa. Super. 2016).

      Here, Appellant has satisfied the first three requirements: he filed a

timely appeal; preserved his issue in his July 15, 2016 petition for

reconsideration of sentence and his Pa.R.A.P. 1925(b) statement; and

included a Rule 2119(f) statement in his brief.       The trial court concluded,

and the Commonwealth argues, that Appellant failed to raise a substantial

question.    We disagree.         “An argument that the trial court imposed an
                       _______________________
(Footnote Continued)
counseled and pro se petitions. Thus, both petitions were denied on that
basis. Trial Ct. Op., 10/6/16, at 3-4.


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excessive sentence to technical probation violations raises a substantial

question.”   Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa. Super.

2012), appeal denied, 67 A.3d 796 (Pa. 2013).          Because Appellant has

raised a substantial question, we will consider the merits of his sentencing

claim.

      Our standard of review is deferential:

      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.     An abuse of discretion is more than an error in
      judgment – a sentencing court has not abused its discretion
      unless the record discloses that the judgment exercised was
      manifestly unreasonable, or the result of partiality, prejudice,
      bias or ill-will.

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000) (quotation

marks and citations omitted). When probation is revoked, “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. § 9771(b). Total confinement

may be imposed only if:

      (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.

Id. § 9771(c). Our Supreme Court has explained:




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      [A] trial court does not necessarily abuse its discretion in
      imposing a seemingly harsher post-revocation sentence where
      the defendant received a lenient sentence and then failed to
      adhere to the conditions imposed on him. In point of fact, where
      the revocation sentence was adequately considered and
      sufficiently explained on the record by the revocation judge, in
      light of the judge’s experience with the defendant and awareness
      of the circumstances of the probation violation, under the
      appropriate deferential standard of review, the sentence, if
      within the statutory bounds, is peculiarly within the judge’s
      discretion.

Commonwealth v. Pasture, 107 A.3d 21, 28-29 (Pa. 2014) (internal

citation omitted).

      Appellant “does not dispute that he violated [his] probation or that

incarceration was necessary based upon his conduct on supervision.”

Appellant’s Brief at 13. Rather, he contends that his sentence is “manifestly

excessive because it was based on a technical violation that was the result of

his drug addiction.”   Id. at 14.   Although Appellant’s heroin use was the

basis for the revocation, Appellant concedes that the trial court could

consider his other conduct “to determine whether total confinement was an

appropriate sentence.” Id. at 15.

      The trial court explained the reasons for Appellant’s sentence as

follows:

            Based upon the testimony given at the . . . hearings on
      May 27, 2016 and July 7, 2016, this Court concluded that
      [Appellant]’s initial bout in state prison had not been sufficient
      insofar as his drug rehabilitation was concerned, as [Appellant]
      had failed several urine tests.        The testimony established
      [Appellant] had graduated from a pill addiction to a heroin
      addiction, his work history after his release from prison was
      sporadic, and his drug and alcohol treatment attendance had

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      become increasingly infrequent. By [Appellant]’s own admission,
      he agreed another state sentence was necessary and would
      benefit him in his recovery. Considering all these factors, this
      Court sentenced [Appellant] to a term of incarceration that it
      believed would be in [Appellant]’s best interest and of a
      sufficient length to help [Appellant] overcome his drug addiction.

Trial Ct. Op. at 7-8 (footnotes omitted). We discern no abuse of discretion.

The trial court explained that its sentence was based on Appellant’s lack of

success on parole and need for further rehabilitation. We also note that the

sentence imposed was only slightly higher than the two to four years

suggested by Appellant’s counsel, see N.T., 7/7/16, at 3, and was well

below the statutory maximum for Appellant’s crime.        See 18 Pa.C.S. §

1103(1) (setting 20-year maximum for felony of the first degree).

      Appellant’s reliance on Commonwealth v. Parlante, 823 A.2d 927

(Pa. Super. 2003), is misplaced. In Parlante, this Court held that the trial

court abused its discretion in imposing a sentence of four to eight years of

incarceration after revoking Parlante’s probation.    Id. at 928.    While on

probation for possession of illegal drugs and three counts of forgery,

Parlante committed technical and substantive violations.     Id.    One of the

violations was underage drinking two days before Parlante’s twenty-first

birthday.     Id. at 928 n.1.    We vacated the four-to-eight-year prison

sentence because the trial court “based Parlante’s sentence solely on the

fact that her prior record indicated that it was likely that she would violate

her probation in the future but failed to consider other important factors.”

Id. at 930.

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      Unlike in Parlante, Appellant does not contend that the trial court

failed to consider important factors.   Indeed, the record indicates that the

trial court carefully considered not only the gravity of Appellant’s offense,

but also Appellant’s rehabilitative needs.   See N.T. 5/27/16, at 40; N.T.,

7/7/16, at 5, 8; Trial Ct. Op. at 7-8. Moreover, Appellant’s case is factually

distinguishable from Parlante. Appellant’s initial crime, burglary (a felony

of the first degree, for which he could have received a maximum sentence of

twenty years), was more serious than Parlante’s crimes of forgery and drug

possession. Moreover, the sentence Appellant received, two-and-one-half to

five years’ imprisonment, was less than Parlante’s sentence of four to eight

years. In sum, based upon our review of the record, we hold that the lower

court did not abuse its discretion in sentencing Appellant.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2017




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