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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
SHAKEEM WILLIAMS,                        :          No. 368 EDA 2019
                                         :
                         Appellant       :


        Appeal from the Judgment of Sentence Entered January 7, 2019,
                 in the Court of Common Pleas of Lehigh County
                Criminal Division at No. CP-39-CR-0002442-2018


BEFORE: STABILE, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED FEBRUARY 14, 2020

        Shakeem Williams appeals from the January 7, 2019 judgment of

sentence entered in the Court of Common Pleas of Lehigh County following

revocation of appellant’s probation and resentencing appellant to one to

two years’ incarceration in a state correctional institution. We affirm.

        The record reflects that on July 23, 2018, appellant pleaded guilty to

one count of manufacture, delivery, or possession with intent to manufacture

or deliver a controlled substance at trial court docket CP-39-CR-0002442-

2018 (“CR-2442-2018”).1         The sentencing court imposed a sentence of

12 months’ probation. On September 5, 2018, appellant’s probation officer

found appellant to be in possession of a small amount of marijuana and a




1   35 P.S. § 780-113(a)(30).
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firearm.    (Notes of testimony, 1/7/19 at 3-5.)    On September 10, 2019,

appellant was charged with violating his probation at CR-2442-2018 due to

appellant’s new arrest, for among other charges, possession of marijuana –

small amount for personal use2 and for having contact with a deadly weapon.

(“Probation/Parole Intermediate Punishment Violation Warrant,” 9/10/18.)

        On January 7, 2019, the sentencing court conducted a Gagnon II

hearing3 where appellant admitted to violating his probation at CR-2442-2018.

The sentencing court revoked appellant’s probation at CR-2442-2018 and

resentenced appellant to one to two year’s incarceration in a state correctional

institution.

        On January 15, 2019, appellant filed a petition for reconsideration,

which the sentencing court subsequently denied.       Appellant filed a timely

notice of appeal.    The sentencing court ordered appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant timely complied. On March 18, 2019, the sentencing court filed an

Order stating that it was relying on the Gagnon II notes of testimony to

satisfy the requirements of Rule 1925(a).


2   35 P.S. § 780-113(a)(31)(i).

3 Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v.
Ferguson, 761 A.2d 613 (Pa.Super. 2000) (explaining when parolee or
probationer is detained pending revocation hearing, due process requires
determination at pre-revocation hearing (Gagnon I hearing) of probable
cause to believe violation was committed, and upon finding of probable cause,
second, more comprehensive hearing (Gagnon II hearing) follows before trial
court makes final revocation decision).


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      Appellant sets forth the following issue for our review:         “Was the

sentence imposed by the [sentencing] court manifestly excessive or otherwise

unjustified based upon the lack of any proportional punishment based upon

the nature of [appellant’s] probation violation and need for rehabilitation?”

(Appellant’s brief at 8.)    Appellant’s claim presents a challenge to the

discretionary aspect of appellant’s sentence.

            A challenge to the discretionary aspects of sentencing
            does not entitle an appellant to review as of right. An
            appellant challenging the discretionary aspects of his
            sentence must invoke this [c]ourt’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, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184 (Pa.Super. 2016)

(footnote, quotation marks, and some citations omitted).

      Here, the record reflects that appellant filed a timely notice of appeal,

preserved his issue by filing a petition for reconsideration of sentence, and

included a Rule 2119(f) statement in his brief. Therefore, we will examine

whether appellant’s claim raises a substantial question.

            [A] determination of what constitutes a substantial
            question must be evaluated on a case-by-case basis
            and such question exists only when an appellant
            advances a colorable argument that the sentencing
            judge’s actions were either inconsistent with a specific
            provision of the Sentencing Code or contrary to the


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            fundamental    norms    underlying    the   sentencing
            process.

Bynum-Hamilton, 135 A.3d at 184 (citation omitted).

      Here, appellant’s claim that the length of his sentence was excessively

harsh and the sentence was unreasonably disproportionate to his probation

violation raises a substantial question. (See appellant’s brief at 12; see also

Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa.Super. 2006)

(stating, “claims that a penalty is excessive and/or disproportionate to the

offense can raise substantial questions”).) Therefore, we proceed to consider

the merits of appellant’s discretionary sentencing claim.

      “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.” Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.Super.

2015), appeal denied, 126 A.3d 1282 (Pa. 2015).

            Upon revoking one’s 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.A. § 9771(b).
            However, the imposition of total confinement upon
            revocation requires a finding that [appellant] has been
            convicted of another crime, his conduct indicates it is
            likely he will commit another crime if he is not
            imprisoned, or such a sentence is essential to
            vindicate the court’s authority of the court.
            42 Pa.C.S.A. § 9771(c).

Bynum-Hamilton, 135 A.3d at 184-185 (Pa.Super. 2016) (quotation marks,

ellipsis, and some citations omitted).     A sentencing court may commit a

defendant to a state correctional institution or a county prison when the


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maximum term of incarceration is two years or more.                     42 Pa.C.S.A.

§ 9762(a)(2).

      Here,    appellant   characterized   his    parole   violations   as   “minor,”

“technical” violations and contends that while             incarceration may be

appropriate, a lesser sentence should have been imposed and he should have

been incarcerated in the county prison, not the state correctional institution.

(Appellant’s brief at 17.) The record demonstrates, however, that appellant’s

probation violation was the result of, among other things, appellant’s arrest

for possession of marijuana – small amount for personal use. This new arrest

is more than a minor, technical violation of his probation. The record also

reveals that appellant was an admitted gang member. (Notes of testimony,

1/7/19 at 4.) When appellant’s probation officer asked appellant if he was in

possession of a gun, appellant stated “no” but a loaded gun was subsequently

found in his bed. (Id. at 4-8.) Although appellant was aware he was not to

possess a firearm while on probation at CR-2442-2018, appellant continued

to possess a firearm.      (Id.)   Gun registration records did not reveal that

appellant lawfully purchased the gun.        (Id. at 4.)     The sentencing court

determined appellant was dangerous.              (Id. at 8.)     Furthermore, the

sentencing court accepted the probation officer’s recommendation that the

local county prison was unable to supervise appellant at this point. (Id. at 5.)




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      Based upon our review of the record, we find no abuse of discretion on

the part of the sentencing court in resentencing appellant to one to two years’

incarceration in a state correctional institution.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 2/14/20




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