J-S62002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DANIEL EDWARD FORD

                            Appellant                No. 1411 WDA 2014


              Appeal from the Judgment of Sentence July 28, 2014
               in the Court of Common Pleas of Allegheny County
                Criminal Division at No.: CP-02-CR-0002565-2012


BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 17, 2015

        Appellant, Daniel Edward Ford, appeals from the judgment of sentence

imposed on July 28, 2014 following the revocation of his probation, to an

aggregate sentence of not less than forty-eight nor more than 150 months’

incarceration, followed by a three-year period of probation. We affirm.

        The relevant facts and procedural history of this case are as follows.

Appellant was charged by criminal information with thirty-four counts1 of

related sexual offenses. On September 18, 2012, Appellant pleaded guilty

to two counts of unlawful contact with a minor in violation of 18 Pa.C.S.A.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Specifically, Appellant was charged with four counts of unlawful contact
with a minor, six counts of criminal solicitation, four counts of corruption of
minors, five counts of body piercing a minor, four counts of criminal use of a
communication facility, and one count of selling obscene/sexual materials.
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§ 6318(a)(1) (Counts 1 and 7). The Commonwealth withdrew the remaining

thirty-two counts as part of the negotiated plea. On September 18, 2012,

Appellant was sentenced on Count 1 to not less than eleven months and

twenty-nine days nor more than one year, eleven months, and twenty-nine

days’ incarceration followed by an eight-year term of probation, and

sentenced on Count 7 to a concurrent sentence of a ten-year term of

probation to commence after confinement.         (See Trial Court Order of

Sentence, 9/18/12). Appellant was also required to register under Megan’s

Law for a period of ten years. (See id.).

        Between July 22, 2013 and April 7, 2014, the trial court2 conducted

seven sex offender court review hearings. (See Criminal Docket No. CP-02-

CR-0002565-2012, Court of Common Pleas of Allegheny County). On July

28, 2014, the trial court conducted a Gagnon II3 revocation of probation

hearing because of numerous violations of the terms of Appellant’s probation

including hanging out with younger girls, having their phone numbers on his

cell phone, continuing to engage in deceptive practices, texting a sixteen

year old girl, and being in possession of four cell phones, one of which had

internet access. (See N.T. Probation Violation Hearing, 7/28/14, at 3).
____________________________________________


2
  The Gagnon II hearing was conducted by the same trial court judge who
conducted the sex offender court review hearings and who sentenced
Appellant on his original charges on September 18, 2012.
3
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).




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      During the Gagnon II hearing, the trial court had the benefit of a

presentence investigation report, (see id. at 2), heard argument and

testimony from Appellant and his counsel seeking to mitigate and explain

the probation violations, (see id. at 6-13, 15-17, 21-23), and heard

testimony about Appellant’s ongoing “concussion syndrome” related to brain

injury. (See id. at 9-10, 18).

      At the conclusion of the Gagnon II hearing, the trial court found that

Appellant had a clear need for sex-offender mental health treatment and

that it was not successful in the community. (See id. at 4-5, 23). The court

also found that Appellant presented a very high risk scenario given his

multiple issues during supervision and his prior record. (See id. at 23-24).

Therefore, the trial court revoked Appellant’s probation and imposed a

sentence of not more than twenty-four nor less than seventy-five months’

incarceration on each count, to be served consecutively, followed by a three-

year period of probation, resulting in an aggregate sentence of not more

than forty-eight nor less than 150 months’ incarceration, followed by a

three-year period of probation. (See id. at 24).

      After the trial court denied Appellant’s post-sentence motion for

modification of sentence, except to the limited extent that he receive all time

credit due, Appellant’s counsel filed a timely notice of appeal on August 27,




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2014.    He filed his Rule 1925(b) concise statement on February 9, 2015.4

See Pa.R.A.P. 1925(b).          On March 30, 2015, the trial court entered its

1925(a) opinion. See Pa.R.A.P. 1925(a).

        Appellant raises one question for our review:

         I.   Did the trial court abuse its discretion by sentencing
              [Appellant] to [forty-eight] to 150 months of incarceration,
              when it failed to consider and apply all the required
              sentencing factors under 42 Pa.C.S.A. § 9721 and 42
              Pa.C.S.A. § 9725, specifically [Appellant’s] Nature, History,
              Characteristics and Rehabilitative Needs?

(Appellant’s Brief, at 6).

        Appellant’s challenge effectively seeks review of the length of his

sentence and, accordingly, challenges the trial court’s exercise of discretion.

See Commonwealth v. Bonds, 890 A.2d 414, 417 (Pa. Super. 2005).

“[T]here is no absolute right to appeal when challenging the discretionary

aspect of a sentence.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042

(Pa. Super. 2013) (en banc) (quoting Commonwealth v. Crump, 995 A.2d

1280, 1282 (Pa. Super. 2010)).

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

considered a petition for permission to appeal[.]”         Commonwealth v.

Hoch, 936 A.2d 515, 518 (Pa. Super. 2007) (citation omitted). The Rules of

Appellate Procedure mandate that, to obtain review of the discretionary

____________________________________________


4
 Appellant was granted four extensions of time to file the Concise Statement
because transcripts were unavailable.



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aspects of a sentence, an appellant must include in his brief a concise

statement of reasons relied upon for allowance of appeal.        See Pa.R.A.P.

2119(f); see also 42 Pa.C.S.A. § 9781(b).       This statement must “raise a

substantial question as to whether the trial judge, in imposing sentence,

violated a specific provision of the Sentencing Code or contravened a

‘fundamental norm’ of the sentencing process.”             Commonwealth v.

Flowers, 950 A.2d 330, 331 (Pa. Super. 2008) (citations omitted).

      Here, Appellant’s 2119(f) statement raises a substantial question that

the   sentence   imposed   upon   revocation   of   his   probation   violates   a

fundamental norm underlying the sentencing process.         Appellant’s 2119(f)

concise statement claims that his sentence was not appropriate under the

sentencing code because “[t]he trial court did not consider the nature,

history, and characteristics of [Appellant] or his rehabilitative needs”, and

furthermore the “trial court did not address [Appellant’s] ongoing concussion

syndrome[.]”     (Appellant’s Brief, at 18; see id. at 15-19); see also

Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012).

      Our standard of review of an appeal from a sentence imposed

following the revocation of probation is well-settled:

      Our 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). Also,
      upon sentencing 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.



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Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006)

(case citations omitted). Furthermore, “it is well settled that the 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) (internal citations and quotation marks omitted).

       Here, Appellant pleaded guilty to two counts of unlawful contact with a

minor and was sentenced to not less than eleven months and twenty-nine

days nor more than one year, eleven months, and twenty-nine days’

incarceration followed by a ten-year term of probation.          (See Order of

Sentence,    9/18/12).     When    Appellant   entered   his   guilty   plea,   he

acknowledged that he was subject to a maximum punishment of ten years’

incarceration on both Counts 1 and 7.      (See N.T. Sentencing, 9/18/12, at

12).

       Appellant’s sentence upon revocation of probation, an aggregate

sentence of forty-eight to 150 months’ incarceration, was well below the

maximum sentence that the trial court could have imposed at the time of

the probationary sentence.      See Commonwealth v. Gheen, 688 A.2d

1206, 1207-08 (Pa. Super. 1997); see also MacGregor, supra at 317.

       Appellant’s challenge to the discretionary aspects of his sentence fails

to implicate the validity of the probation revocation proceedings or the

authority of the     sentencing court to consider the          same sentencing

alternatives that it had at the time of his initial sentencing.     See id.     A

review of the record indicates that the trial court was cognizant of

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Appellant’s   history   and   background    in   fashioning   his   sentence   and

furthermore, that the trial court had the benefit of a pre-sentence

investigation report.     (See N.T. Sentencing, 9/18/12; N.T. Probation

Violation Hearing, 7/28/14, at 2). “Our Supreme Court has ruled that where

[a] pre-sentence [investigation] report[] exist[s], the presumption will stand

that the sentencing judge was both aware of and appropriately weighed all

relevant information contained therein.” Commonwealth v. Ratushny, 17

A.3d 1269, 1273 n.8 (Pa. Super. 2011) (citations omitted).

      Accordingly, after independent review, we discern no basis on which to

find that Appellant’s sentence violated a particular provision of the

sentencing code or a fundamental norm of the sentencing process.               We

conclude that the trial court was well within its discretion in sentencing

Appellant to an aggregate sentence of not less than forty-eight nor more

than 150 months of incarceration.      Accordingly, Appellant’s allegation that

the trial court abused its discretion is without merit.

      Judgment of sentence affirmed.

      President Judge Gantman joins the Memorandum.

      Judge Jenkins concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2015




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