J-S61020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

DAVID LEONARD CROMWELL

                            Appellant               No. 272 WDA 2014


          Appeal from the Judgment of Sentence of January 14, 2014
             In the Court of Common Pleas of Allegheny County
              Criminal Division at No.: CP-02-CR-0001256-2012


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                         FILED OCTOBER 17, 2014

       David Leonard Cromwell appeals from the judgment of sentence

entered on January 14, 2014, which was imposed by the trial court following

revocation of his probation for both technical and direct violations.     We

affirm.

       The trial court set forth the following summary of the case in its

opinion of June 2, 2014:

       [Cromwell] was charged with Robbery—Serious Bodily Injury,1
       Terroristic Threats,2 Simple Assault3 and Public Drunkenness4 in
       relation to a theft which occurred on December 30, 2011 outside
       the Comet News shop in Braddock.            On May 23, 2012,
       [Cromwell] appeared before [the c]ourt and, pursuant to a plea
       agreement, pled guilty to a reduced charge of Robbery—Threat
       of Bodily Injury5 and the remaining charges were withdrawn. On
       August 28, 2012, [Cromwell] was sentenced to a term of
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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      imprisonment of 11½ to 23 months plus an additional term of
      probation of three (3) years. No Post-Sentence Motions were
      filed and no direct appeal was taken.
         1
             18 Pa.C.S.A. § 3701(a)(1)(i)[.]
         2
             18 Pa.C.S.A. § 2706(a)(1)[.]
         3
             18 Pa.C.S.A. § 2701(a)(3)[.]
         4
             18 Pa.C.S.A. § 5505[.]
         5
             18 Pa.C.S.A. § 3701(a)(1)(iv)[.]

      On January 14, 2014, [Cromwell] appeared before [the c]ourt
      for a probation violation hearing as the result of a new conviction
      of Theft of Services at CC 201312807 as well as technical
      violations including . . . failing to report to behavior classes and
      assessments, testing positive on three (3) occasions for cocaine
      and marijuana and being confrontational with his supervising
      officer.   At that hearing, [the c]ourt revoked [Cromwell’s]
      probation and imposed a term of imprisonment of two (2) to five
      (5) years. A timely Motion to Reconsider Sentence was filed and
      denied on January 31, 2014.

Trial Court Opinion (“T.C.O.”), 6/2/2014, at 1-2.

      Cromwell timely appealed on February 13, 2014.         See Pa.R.Crim.P.

708(E). On April 14, 2014, the trial court ordered Cromwell to file a concise

statement of errors complained of on appeal, and he complied the next day.

See Pa.R.A.P. 1925(b). The court entered its opinion pursuant to Pa.R.A.P.

1925(a) on June 2, 2014.

      Cromwell raises one question for our review:         “Did the trial court

abuse its discretion in sentencing Mr. Cromwell to two to five years’ of [sic]

incarceration without considering his rehabilitative needs, as required by 42

Pa.C.S.A. § 9721, and by imposing a sentence that is disproportionate to the

nature of his violations?” Cromwell’s Brief at 5.


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      Cromwell’s challenge to the discretionary aspects of his revocation

sentence is within this Court’s scope of review.    See Commonwealth v.

Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013).            “Revocation of a

probation sentence is a matter committed to the sound discretion of the trial

court and that court’s decision will not be disturbed on appeal in the absence

of an error of law or an abuse of discretion.” Commonwealth v. Ahmad,

961 A.2d 884, 888 (Pa. Super. 2008) (citation omitted).      In addition, our

standard of review is well-settled:

      [T]here is no absolute right to appeal when challenging the
      discretionary aspect of a sentence.       42 Pa.C.S. § 9781(b).
      Rather, an [a]ppeal is permitted only after this Court determines
      that there is a substantial question that the sentence was not
      appropriate under the sentencing code. In determining whether
      a substantial question exists, this Court does not examine the
      merits of the sentencing claim.

      In addition, issues challenging the discretionary aspects of a
      sentence must be raised in a post-sentence motion or by
      presenting the claim to the trial court during the sentencing
      proceedings. Absent such efforts, an objection to a discretionary
      aspect of a sentence is waived. Furthermore, a defendant is
      required to preserve the issue in a court-ordered Pa.R.A.P.
      1925(b) concise statement and a Pa.R.A.P. 2119(f) statement.

Id. at 1042 (case citations and quotation marks omitted).

      Cromwell has raised a challenge to the discretionary aspects of his

sentence in his Rule 1925(b) statement, and his brief contains a statement

of reasons for allowance of appeal from the discretionary aspects of his

sentence pursuant to Rule 2119(f).     See Cromwell’s Brief at 13-17; see

also Cartrette, 83 A.3d at 1042.         The Commonwealth contends that



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Cromwell has waived one of his challenges because he did not preserve the

issue in his post-sentence motion; to wit, that the trial court failed to

consider his rehabilitative needs.1 See Commonwealth’s Brief at 9-10. We

disagree.

       Upon review of Cromwell’s sentencing hearing, we conclude that he

raised the issue of the trial court’s purported failure to consider his

rehabilitative needs before the trial court. Counsel for Cromwell discussed

his bipolar disorder and traumatic brain injury, which have been exacerbated

by Cromwell’s drug use.         Notes of Testimony (“N.T.”) Sentencing Hearing,

1/14/2014, at 5-6.         Given the opportunity to speak, Cromwell himself

stated, “I feel that I need more of rehabilitation than incarceration.” Id. at

8.   Therefore, he “present[ed] the claim to the trial court during the

sentencing proceedings.” Ahmad, 961 A.2d at 888.

       Thus, we may proceed to determine whether Cromwell has raised a

substantial question that the sentence was not appropriate under the

sentencing code, which then would permit us to examine the merits of his

sentencing claims. See id.

       From an appellant’s Rule 2119(f) statement, the Superior Court
       decides whether to review the discretionary aspects of a
       sentence based upon a case-by-case determination as to
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1
       Cromwell’s other claim, that his sentence was disproportionately
harsh, was presented to the trial court in his post-sentence motion. See
Petition to Reconsider Sentence, 1/14/2014, at 2 ¶ 6. The Commonwealth
does not challenge the preservation of this issue.



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     whether a substantial question concerning the sentence exists.
     To demonstrate that a substantial question exists, a party must
     articulate reasons why a particular sentence raises doubts that
     the trial court did not properly consider [the] general guidelines
     provided by the legislature.

Commonwealth v. Mouzon, 812 A.2d 617, 621-22 (Pa. 2002) (citations

omitted).

     Here, Cromwell argues that his revocation sentence of not less than

two nor more than five years’ incarceration raises a substantial question

because:

     [t]he [c]ourt did not consider Mr. Cromwell’s rehabilitative needs
     and imposed a disproportionally harsh sentence in light of the
     nature of his probation violations.      While the trial court
     acknowledged Mr. Cromwell was suffering from severe brain
     trauma and had an ongoing substance abuse issues [sic], it did
     not consider any avenues to address Mr. Cromwell’s need for
     treatment and rehabilitation.

Cromwell’s Brief at 16.    Cromwell has failed to articulate a substantial

question that the sentence is inappropriate under the Sentencing Code.

     A claim that the sentence fails to consider an appellant’s rehabilitative

needs and that the sentence was manifestly excessive fails to raise a

substantial question.   Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa.

Super. 2013) (citing Commonwealth v. Mobley, 581 A.2d 949, 952 (Pa.

Super. 1990)); see also Commonwealth v. Coss, 695 A.2d 831, 833 (Pa.

Super. 1997) (holding that, when the sentence imposed falls within the

statutory limits, an appellant’s claim that a sentence is manifestly excessive

fails to raise a substantial question); Commonwealth v. Bershad, 693



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A.2d 1303, 1309 (Pa. Super. 1997) (holding that a claim that a trial court

failed to appropriately consider an appellant’s rehabilitative needs does not

present a substantial question).

       Moreover, even if Cromwell had raised a substantial question, we

nonetheless would affirm the judgment of sentence.            Pursuant to our

sentencing code:

       The court may revoke an order of probation upon proof of the
       violation of specified conditions of the probation.          Upon
       revocation 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).

       Here, Cromwell concedes that he committed a substantive violation of

his probation when he was convicted for theft of services, and that he

incurred technical violations for, inter alia, failure to comply with reporting

requirements.       Cromwell’s Brief at 21.      We observe that the resulting

sentence of not less than two nor more than five years falls squarely within

the aggravated range of the guidelines set forth at the time of Cromwell’s

underlying sentencing.        See Guideline Sentence Form, 8/28/2012, at 1.2

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2
       It is well-settled that “Sentencing Guidelines do not apply to sentences
imposed following a revocation of probation.”             Commonwealth v.
Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006). We acknowledge the
guideline sentence from the underlying case only to the extent that it
demonstrates that Jones’ sentence for revocation was available at the time
of his initial sentencing. See 42 Pa.C.S.A. § 9771(b).



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Therefore, the trial court was permitted to revoke his probation and impose

a sentence available at the time of his initial sentencing. See 42 Pa.C.S.A.

§ 9771(b).

     Furthermore, at the sentencing hearing, the court availed itself of a

presentence report and stated its reasons for sentencing Cromwell on the

record. See Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super.

2005) (holding that, if sentencing court has the benefit of pre-sentence

investigation, it is presumed that the court was aware of relevant

information   regarding    a   defendant’s    character   and   weighed   those

considerations along with any mitigating factors); Commonwealth v.

Stewart, 867 A.2d 589, 593 (Pa. Super. 2005) (“[A] trial court judge has

wide discretion in sentencing and can, on the appropriate record and for the

appropriate reasons, consider any legal factor in imposing a sentence in the

aggravated range.”).

     Specifically, the trial court stated:

     The Court:        Well, Mr. Cromwell, when you first came to
          me, you had a prior record score of four. The [c]ourt is
          satisfied that you are suffering from traumatic brain injury,
          which means that the last thing in the world you need to
          do is to take drugs . . . and continue to commit crime.

     [Cromwell]:          Yes, ma’am.

     The Court:        You have been positive for drugs even when
          you were at the Day Reporting Center. You refused to go
          for a drug and alcohol evaluation. You have not reported
          on a regular basis. We had no way of contacting you. You
          were in jail once before, and that didn’t deter you from
          criminal activity.


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      [Cromwell]:     And I—excuse me. I have been seeking help
           while I was down the ACJ. I’m a graduate of the Hope
           Program, and I attend N.A. and A.A. meetings weekly. So
           I have been doing something—

      [Counsel for Cromwell]:     [The court is] referring to the fact
           that you were sent to Pyramid and didn’t go.

      The Court:       Right, not in the jail—you’re doing okay when
           you’re in jail. It’s when you’re out that your behavior is
           not acceptable.

      [Cromwell]:         Yes, ma’am.

      The Court:      It seems to me that your behavior is not
           amenable for county supervision, and I am going to revoke
           and order you to serve two to five years, with credit from
           September 8th of 2013.

            The record will reflect that the [c]ourt ordered, read and
            considered a presentence report as well as a rather
            exhaustive report from the probation office.

N.T. at 8-10. We agree with the trial court that the sentence that it imposed

was within the available sentencing ranges and was not in violation of our

general sentencing standards “either due to its length or the reasons

contained in the record for its imposition.”    T.C.O. at 4; see also 42

Pa.C.S.A. § 9721. Accordingly, we are satisfied that the trial court did not

abuse its discretion in revoking and sentencing Cromwell. Ahmad, 961 A.2d

at 888. Cromwell’s challenges to the discretionary aspects of his sentence

would not merit relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2014




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