J-S44009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHANE MULHERN                              :
                                               :
                       Appellant               :   No. 687 EDA 2018

          Appeal from the Judgment of Sentence December 22, 2015
      In the Court of Common Pleas of Bucks County Criminal Division at
                       No(s): CP-09-CR-0002906-2012,
                           CP-09-CR-0002926-2012


BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                             FILED AUGUST 17, 2018

       Shane Mulhern appeals nunc pro tunc from the judgment of sentence,

entered in the Court of Common Pleas of Bucks County, after he violated his

probation after pleading guilty to accidents involving death or personal injury,

75 Pa.C.S.A. § 3742(a), theft by unlawful taking, 18 Pa.C.S.A. § 3921(a), and

related charges.1 After review, we affirm.

       The trial court summarized the factual history of this case as follows:

       On June 18, 2012, [Mulhern] plead[ed] guilty to [a]ccidents
       [i]nvolving [d]eath or [p]ersonal [i]njury, [t]heft by [u]nlawful
       [t]aking, and other related charges. As a result, the Honorable
       Rea B. Boylan . . . sentenced [Mulhern] to serve not less than one
       (1) year, nor more than two (2) years, in a [s]tate [c]orrectional

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1
  Unauthorized use of a motor vehicle, 18 Pa.C.S.A. § 3928(a); theft of
property lost, mislaid or delivered by mistake, 18 Pa.C.S.A. § 3924; and
driving while operating privileges suspended or revoked, 75 Pa.C.S.A. §
1543(a).
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       [i]institution, with a consecutive term of thirty-six (36) months of
       probation. [Mulhern] concluded serving his term of confinement
       as of June 18, 2014, whereupon he began serving his term of
       probation.

       Gabe Dominguez was assigned as [Mulhern’s] probation officer for
       his thirty-six (36) month probation term. [Probation Officer]
       Dominguez first visited [Mulhern] on June 24, 2014 and conducted
       a urine analysis test, which revealed that [Mulhern] was positive
       for [m]arijuana. [Mulhern] was given a warning at that time.
       [Probation Officer] Dominguez [again] tested [Mulhern] on July
       23, 2014, [and] [Mulhern] again tested positive for marijuana.

       [Probation Officer] Dominguez continued to test [Mulhern] at
       regular intervals. On August 6, 2014 and August 19, 2014,
       [Mulhern] tested positive for marijuana and cocaine both times.
       [Mulhern] again tested positive for marijuana on September 9,
       2014. After a conference with supervisors on September 12,
       2014, [Mulhern] was placed on GPS monitoring.

       On September 24, 2014, [Probation Officer] Dominguez observed
       [Mulhern’s] behavior during a group therapy session at a
       [Treatment Accountability for Safer Communities (“]TASC[“)]
       program[,] where [Mulhern] humorously commented about
       purchasing marijuana from Colorado and having it sent via courier
       to Pennsylvania.     In [Probation Officer] Dominguez’s view,
       [Mulhern] exhibited behavior inconsistent with someone trying to
       overcome drug addiction. Later that same date, [Mulhern] tested
       positive for marijuana and cocaine, but was again given a warning.
       [Mulhern] [again] tested positive for marijuana and cocaine on
       October 7, 2014 and October 10, 2014.

Trial Court Opinion, 3/20/18, at 1-2 (citations to record omitted).

       On November 6, 2014, the trial court held a Gagnon I2 hearing to

determine whether probable cause existed to support the conclusion that

____________________________________________


2
  Gagnon v. Scarpelli, 411 U.S. 778 (1973) (previously sentenced
probationer is entitled to preliminary and final revocation hearings); see also
Morrissey v. Brewer, 408 U.S. 471 (1972) (parolee is entitled to minimum
due process protections because of possible deprivation of liberty inherent in
parole revocation proceedings).

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Mulhern violated his probation. Following a Gagnon II hearing on December

22, 2014, the trial court sentenced Mulhern to fifteen to thirty-six months’

imprisonment with a recommendation that Mulhern serve his sentence in a

therapeutic community. On December 31, 2014, Mulhern filed a motion for

reconsideration of sentence, which the trial court denied the same day.

Mulhern filed two subsequent untimely notices of appeal, which this Court

quashed.

       On May 18, 2015, Mulhern filed a petition pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, after which the

trial court granted Mulhern leave to filed a direct appeal nunc pro tunc.

Mulhern filed a direct appeal nunc pro tunc and the trial court, on October 12,

2017, complied with Pa.R.A.P. 1925(a).           However, this Court dismissed

Mulhern’s appeal for failure to comply with Pa.R.A.P. 3517.3 Mulhern filed

another PCRA petition on January 31, 2018, alleging ineffective assistance of

counsel. The trial court again granted Mulhern leave to file a direct appeal

nunc pro tunc. On February 26, 2018, Mulhern filed the instant appeal nunc

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3
    Rule 3517 provides as follows:

       Whenever a notice of appeal to the Superior Court is filed, the
       Prothonotary shall send a docketing statement form which shall
       be completed and returned within ten (10) days in order that the
       Court shall be able to more efficiently and expeditiously administer
       the scheduling of argument and submission of cases on appeal.
       Failure to file a docketing statement may result in dismissal of the
       appeal.

Pa.R.A.P. 3517.


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pro tunc.     Both parties have complied with Pa.R.A.P. 1925.         On appeal,

Mulhern raises the following issue for our review:

        Was the trial court’s sentence of December 22, 2014, of not less
        than fifteen (15) months nor more than thirty-six (36) months of
        total confinement, as a result of technical violations of parole
        and/or probation, an abuse of discretion in that the reasons for
        the sentence were not appropriately explained and placed upon
        the record, the sentence was not supported by the facts of the
        case, and [Mulhern] was not offered or permitted to exercise his
        right of allocution?

Brief of Appellant, at vi.

        Mulhern’s sole claim on appeal challenges the discretionary aspects of

his sentence. Before we reach the merits of Mulhern’s discretionary aspects

of sentence claim, we must first determine whether this Court has jurisdiction

in this case. It is well-settled that in order to invoke this Court’s jurisdiction

when raising a challenge to the discretionary aspects of a sentence, an

appellant must: (1) file a timely appeal; (2) preserve the issue he or she

wishes to present on appeal; (3) include in his or her brief a concise statement

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

discretionary aspects of sentence pursuant to Pa.R.A.P. 2119(f); and (4)

present a substantial question in his or her concise statement that the

sentence is not appropriate under the Sentencing Code.4 Commonwealth v.

Griffin, 65 A.3d 932, 935 (Pa. Super. 2013). An appellant must satisfy all

four requirements. Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super.

2013).
____________________________________________


4
    42 Pa.C.S.A. §§ 9701 - 9799.75.

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      Instantly, Mulhern has filed a timely notice of appeal nunc pro tunc and

has preserved his discretionary challenge by way of a post-sentence motion

for reconsideration of sentence. Mulhern has also included in his brief a Rule

2119(f) concise statement of reasons for allowance of appeal.          Having

determined Mulhern has satisfied the necessary procedural dictates, our

analysis turns to whether he has raised a substantial question that his

sentence is inappropriate under the Sentencing Code. See Brief of Appellant,

at 6-7.

      We determine the existence of a substantial question 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.
      Additionally, we cannot look beyond the statement of questions
      presented and the prefatory 2119(f) statement to determine
      whether a substantial question exists.

Commonwealth v. Diehl, 140 A.3d 34, 44–45 (Pa. Super. 2016) (internal

citations and quotation marks omitted).

      Mulhern, in his Rule 2119(f) statement, avers that the trial court abused

its discretion in imposing a sentence of total confinement for technical

violations of probation where it failed to state on the record its reason for

imposing his sentence and denied him his right of allocution.

      The Sentencing Code reveals that the legislature has given
      particular consideration to the appropriateness of sentences of
      total confinement following revocation of probation. See 42
      Pa.C.S.A. § 9771. On appeal from a revocation proceeding, we


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       find a substantial question is presented when a sentence of total
       confinement, in excess of the original sentence, is imposed as a
       result of a technical violation of parole or probation.

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

added).

       Instantly, in his Rule 2119(f) statement, Mulhern presents a plausible

argument that the trial court violated the fundamental norms underlying the

sentencing process.       Specifically, Mulhern argues the trial court abused its

discretion in imposing a sentence of total confinement for technical violations

of probation. Sierra, 752 A.2d at 913 (stating that substantial question is

presented when probation revocation sentence of total confinement, in excess

of original sentence, is imposed as result of technical violation of parole or

probation).5 Therefore, we proceed with a review of Mulhern’s issue on its

merits.

       The imposition of sentence following the revocation of probation is

vested within the sound discretion of the probation revocation court, which,

absent an abuse of discretion, will not be disturbed on appeal. Id. A court

may sentence a defendant to total confinement subsequent to revocation

where any of the following conditions exist:
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5
   We observe that technical violations can be sufficient to trigger the
revocation of probation. See Commonwealth v. Infante, 888 A.2d 783,
791 (Pa. 2005) (“[T]he reason for revocation of probation need not necessarily
be the commission of or conviction for subsequent criminal conduct. Rather, .
. . [a] probation violation is established whenever it is shown that the conduct
of the probationer indicates the probation has proven to have been an
ineffective vehicle to accomplish rehabilitation and not sufficient to deter
against future antisocial conduct.” (citation omitted)).


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      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; and

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

Id.   at   1283    (emphasis     added).      When     imposing    a   sentence

of total confinement after a probation revocation, the sentencing court need

not undertake a lengthy discourse for its reasons for imposing a sentence or

specifically reference the statute in question, but the record as a whole must

reflect the sentencing court’s consideration of the facts of the crime and

character of the offender. Id.

      Here, the trial court revoked Mulhern’s probation after he repeatedly

failed drug tests (i.e., violated technically the terms of his probation) despite

multiple warnings from Probation Officer Dominguez. Mulhern tested positive

for every drug test administered following his release from prison.

Furthermore, the trial court adequately stated on the record its reasons for its

sentence, stating, in relevant part:

      The problem I have is that almost immediately after you were
      released you started using drugs, marijuana, then cocaine, and
      you had to know your parole officer was going to stop by and test
      you month in and month out. . . . Every month you had an
      appointment or visit from your probation officer and he tested
      you[,] you were positive, and it[ is] almost as if you completely
      disregarded his warnings.

                                       ...

      You need treatment[.] . . . I[ am] recommending a therapeutic
      community. . . . You need to get the drugs straightened out.

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       I wish I could do what you asked me to do, . . . but I think
       somebody who tests positive monthly after being given warnings,
       being told you are going back if you [do not] stop, just [cannot]
       stop.

N.T. Probation Revocation Hearing, 12/22/14, at 10-12. Sierra, supra.

       Moreover, contrary to Mulhern’s recitation of the facts, the trial court

provided Mulhern with an opportunity to exercise his right to allocution. Prior

to sentencing, the court must inform the defendant of his right to allocute

(i.e., a chance to address the court). Pa.R.Crim.P. 708(D)(1) (“At the time of

sentencing, the judge shall afford the defendant the opportunity to make a

statement on his or her behalf and shall afford counsel for both parties the

opportunity to present information and argument relative to sentencing.”).

       The trial court gave Mulhern the opportunity to allocute, which he did:

       TRIAL COURT: Anything else you want to say?

       MULHERN: Yes, there is. Just that I really have no life and I really
       [have] been trying to get back to school. I was accepted to the
       Harris School of Business, this [is] new information, I did[ not]
       know much about it. I[ am] maxing out from State Prison, I asked
       my grandmother what my grandfather [did], she told me he
       worked for the Federal Government[.] He died from Legionnaires’
       [d]isease, [which] made me want to make an impact for once.

N.T. Probation Revocation Hearing, 12/22/14, at 9-10. Moreover, in its Rule

1925(a) opinion, the trial court indicated that it considered Mulhern’s

statement in determining his sentence.6
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6
  Mulhern baldly asserts, with no citation to relevant case law, that although
the trial court permitted him to exercise his right to allocution, its gesture does
not satisfy the constitutional requirement that it inform him, on the record, of



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       Our review of the record confirms that the trial court stated its reasons

for revoking Mulhern’s probation at sentencing and granted him an

opportunity to exercise his right of allocution. In light of the foregoing, we do

not discern that the trial court abused its discretion in revoking Mulhern’s

probation and sentencing him to a term of total confinement.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2018




____________________________________________


his right to allocution. However, since Mulhern, in fact, did speak on his own
behalf at sentencing, we find this claim meritless; the record does not support
that he was deprived of his constitutional right to allocution.

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