J-S04021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CLARENCE RAY PETERS,

                            Appellant               No. 1133 MDA 2014


          Appeal from the Judgment of Sentence entered June 4, 2014,
             in the Court of Common Pleas of Lackawanna County,
              Criminal Division, at No(s): CP-35-CR-0001316-2013
                          and CP-35-CR-0002006-2013


BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.

MEMORANDUM BY ALLEN, J.:                        FILED FEBRUARY 03, 2015

        Clarence Peters, (“Appellant”), appeals from the judgment of sentence

imposed following his convictions for possession of drug paraphernalia at

Docket No. 1316 of 2013, and possession of drug paraphernalia at Docket

No, 2006-2013.1 We affirm.

        On July 29, 2013, Appellant pled guilty at Docket No. 1316-2013 to

one count of possession of drug paraphernalia. On October 29, 2013, the

trial court sentenced Appellant to county intermediate punishment (“CIP”)

with work release, with three months to be served in the Lackawanna

____________________________________________


1
    35 Pa.C.S.A. §§ 780-113(a)(32).




*Retired Senior Judge assigned to the Superior Court.
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County Prison, to be followed by three months of house arrest, and a

consecutive 18 months of probation.2

       On October 19, 2013, Appellant pled guilty at Docket No. 2006-2013

to one count of possession of drug paraphernalia and was sentenced that

same day to one (1) year of probation consecutive to the sentence imposed

at Docket No. 1316-2013.

       On April 2, 2014, the trial court scheduled a revocation hearing based

on Appellant’s failure to comply with his CIP sentence.      At the hearing,

Appellant informed the trial court that he refused to participate in either

house arrest or work release because of his problems with drug addiction,

which he feared would recur if he left the Lackawanna County Prison;

Appellant also asserted that he did not have a residence plan necessary for

participation in the house arrest program. N.T., 4/2/14, at 2. Thereafter,

on June 4, 2014, the trial court revoked Appellant’s original sentences and

resentenced him to a term of imprisonment of six (6) to twelve (12) months

at Docket No. 1316-2013, and a consecutive six (6) to twelve (12) months

of imprisonment at Docket No. 2006-2013, for an aggregate sentence of



____________________________________________


2
   “Intermediate punishment is an alternative to total confinement.”
Commonwealth v. Stevenson, 850 A.2d 1268, 1272 (Pa. Super. 2004)
(en banc) (citing 42 Pa.C.S.A. § 9721(a). “Intermediate punishment is
described as the conditions that a court can place on a defendant in lieu of
total or partial confinement.” Commonwealth v. Koskey, 812 A.2d 509,
512 (Pa. 2002).



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twelve (12) to twenty-four (24) months of imprisonment in a state

correctional institution.

      Appellant filed a post-sentence motion on June 9, 2014, which the trial

court denied on June 10, 2014. This appeal followed. Both Appellant and

the trial court have complied with Pa.R.A.P. 1925.

      On appeal, Appellant argues that the trial court abused its discretion

when it sentenced him to a term of imprisonment of twelve (12) to twenty-

four (24) months in a state correctional institution.    Specifically, Appellant

claims that his sentence is unduly harsh and excessive, and that the trial

court failed to place adequate reasons on the record for the sentence.

Appellant’s Brief at 8-13.

      A challenge to the discretionary aspects of a sentence is not

appealable as of right.      Rather, Appellant must petition for allowance of

appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856

A.2d 1254, 1257 (Pa. Super. 2004).

            Before we reach the merits of this [issue], we must engage
      in a four part analysis to determine: (1) whether the appeal is
      timely; (2) whether Appellant preserved his issue; (3) whether
      Appellant's brief includes a concise statement of the reasons
      relied upon for allowance of appeal with respect to the
      discretionary aspects of sentence; and (4) whether the concise
      statement raises a substantial question that the sentence is
      appropriate under the sentencing code. The third and fourth of
      these requirements arise because Appellant's attack on his
      sentence is not an appeal as of right. Rather, he must petition
      this Court, in his concise statement of reasons, to grant
      consideration of his appeal on the grounds that there is a
      substantial question. Finally, if the appeal satisfies each of these



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     four requirements, we will then         proceed   to   decide   the
     substantive merits of the case.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations

omitted).

     Appellant has preserved his claim by filing a post-sentence motion and

timely notice of appeal.   Appellant has additionally included in his brief a

concise statement pursuant to Pa.R.A.P. 2119(f).     See Appellant’s Brief at

29-30.    Moreover, Appellant’s argument that the trial court failed to state

adequate reasons on the record for the sentence presents a substantial

question for our review. Commonwealth v. Booze, 953 A.2d 1263, 1268

(Pa. Super. 2008).     We therefore proceed to address the merits of this

appeal.

     Appellant was sentenced to an aggregate term of twelve (12) to

twenty-four (24) months of imprisonment after he was originally sentenced

to CIP, but refused to be released on work release or house arrest as

required by the terms of the sentence. As a result, Appellant was found to

be in violation of the conditions of his CIP sentence, and the trial court

revoked his sentence and resentenced him in accordance with 42 Pa.C.S.A. §

9773 (Revocation of county intermediate punishment sentence) which

provides:


     (a)     General rule.--The court may at any time terminate a sentence
             of county intermediate punishment or increase or decrease the
             conditions of a sentence pursuant to section 9763 (relating to
             sentence of county intermediate punishment).

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      (b)   Revocation.--The court may revoke a sentence of county
            intermediate punishment upon proof of a violation of specific
            conditions of the sentence. Upon revocation and subject to
            section 9763(d), the sentencing alternatives available to the
            court shall be the same as the alternatives available at the time
            of initial sentencing. Upon a revocation of county intermediate
            punishment for any reason specified by law, the attorney for the
            Commonwealth may file notice, at any time prior to
            resentencing, of the Commonwealth's intention to proceed under
            an applicable provision of law requiring a mandatory minimum
            sentence. Consideration shall be given to the time served in the
            county intermediate punishment program.

      (c)   Hearing required.--A court shall not revoke or increase the
            conditions of a sentence of county intermediate punishment
            without a hearing at which the court shall consider the record of
            the initial sentencing proceeding as well as the conduct of the
            defendant while serving a sentence of county intermediate
            punishment.      A hearing is not required to decrease the
            conditions of the sentence.

      Appellant argues that in resentencing, the trial court failed to provide

on the record adequate reasons in accordance with 42 Pa.C.S.A. § 9721(b),

which sets forth the general standards applicable to sentencing, in pertinent

part as follows:

            [T]he court shall follow the general principle that the
            sentence imposed should call for confinement that is
            consistent with the protection of the public, the gravity of
            the offense as it relates to the impact on the life of the
            victim and on the community, and the rehabilitative needs
            of the defendant.     The court shall also consider any
            guidelines for sentencing and resentencing adopted by the
            Pennsylvania Commission on Sentencing ...

            In every case in which the court ... resentences an
            offender following revocation of probation, county
            intermediate punishment        or State  intermediate
            punishment ... the court shall make as a part of the
            record, and disclose in open court at the time of

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            sentencing, a statement of the reason or reasons for
            the sentence imposed.

42 Pa.C.S.A. § 9721(b) (emphasis added).

      Here, the record reflects that the proceedings to revoke Appellant’s

original CIP sentence were initiated after Appellant’s refusal to comply with

the conditions which required him to participate in a work release program

and serve a portion of his sentence on house arrest.         See Trial Court

Opinion, 10/31/14, at 4. Based on Appellant’s refusal to comply with his CIP

sentence, the trial court scheduled a revocation hearing on April 2, 2014. At

the hearing, Appellant’s counsel explained Appellant’s refusal to comply with

his CIP sentence:

      [Regarding Appellant’s] refusal to do either work release or
      house arrest, basically, [Appellant] told me he has an addiction.
      It’s heroin. He doesn’t want to risk drug use which is why he
      doesn’t want to go on work release. And he doesn’t really have
      a legitimate home plan for him to go on house arrest.

N.T., 4/2/14, at 2.

      The trial court responded by offering Appellant a sentence of State

Intermediate Punishment (“SIP”), instructing Appellant that “with State IP ...

you could get yourself some treatment if that’s your concern.” Id. at 3. The

trial court then continued the sentencing hearing for Appellant to evaluate

whether he would like to participate in a SIP program.

      On June 4, 2014, the trial court convened a second hearing, at which

Appellant rejected the trial court’s proposal of a SIP sentence, and asked the

trial court to instead impose a sentence that would allow him to remain in

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Lackawanna County rather than be transferred to the State Department of

Corrections. Specifically, Appellant stated:

            I just want to say I don’t want you to take me refusing
      State IP as disrespect by any means. [With regard to the
      original County IP sentence] when it was time for me to go to
      house arrest ... it wasn’t a good time for me to go home. I
      wasn’t ready. It was only 90 days. I still had things to work
      out.

N.T., 6/4/14, at 2-3.       Thereafter, the trial court resentenced Appellant to

twelve (12) to twenty-four (24) months of imprisonment in a state

correctional institution.

      Based on our review of the record, we disagree with Appellant’s

contention that the trial court failed to place adequate reasons on the record

for the sentence.     The record is replete with the trial court’s efforts to

accommodate Appellant’s rejection of a CIP sentence that required him to be

released on work release/house arrest. To this end, the trial court offered

Appellant the option of participating in a SIP program, through which

Appellant could receive treatment for his drug addiction.       After Appellant

rejected the offer of SIP, the trial court sentenced him to a term of

imprisonment of twelve (12) to twenty-four (24) months.             Appellant is

dissatisfied with the trial court’s decision to sentence him to serve his term

of imprisonment in a state correctional facility rather than the Lackawanna

County Jail. Appellant’s dissatisfaction with the trial court’s refusal to place

him in the Lackawanna County jail for the remainder of his sentence does

not constitute an abuse of discretion in light of the trial court’s efforts to

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accommodate Appellant’s rehabilitative needs by offering him both county

and state intermediate punishment, both of which Appellant rejected.       “A

sentencing court has broad discretion in choosing the range of permissible

confinements which best suits a particular defendant and the circumstances

surrounding his crime.    However, the choices must be consistent with the

protection of the public, the gravity of the offense, and the rehabilitative

needs of the defendant.” Commonwealth v. Moore, 617 A.2d 8, 12 (Pa.

Super. 1992).    The trial court clearly considered Appellant’s rehabilitative

needs and the protection of the public and the various sentencing

alternatives available. The fact that Appellant elected not to proceed with

his CIP sentence and also rejected the trial court’s offer of SIP with drug

rehabilitation services, does not constitute an abuse of the trial court’s

discretion.

      For the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2015




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