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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    GARY DUNCAN                                :
                                               :
                       Appellant               :   No. 1649 WDA 2018

          Appeal from the Judgment of Sentence Entered April 4, 2018
     In the Court of Common Pleas of Jefferson County Criminal Division at
                       No(s): CP-33-CR-0000054-2007


BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                      FILED SEPTEMBER 13, 2019

        Gary Duncan appeals from the judgment of sentence entered following

the trial court’s revocation of his probation. Duncan argues that the trial court

imposed an excessive sentence. We affirm.

        The facts and procedural history of this case are as follows. On June 9,

2007, Duncan pled guilty to Involuntary Deviate Sexual Intercourse with a 13-

year-old girl.1 The trial court sentenced him to five to 10 years’ incarceration

followed by 10 years’ probation, with credit for time served. The court also

found him to be a sexually violent predator (“SVP”). Some of the conditions

of his probation included informing the Pennsylvania State Police (“PSP”) of

where he was employed as well as registering with PSP as an SVP. See Notice,




____________________________________________


1   18 Pa.C.S.A. § 3123(a)(7).
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filed 1/16/08. The court also ordered that Duncan pay restitution to the victim

as well as other fees. See Amended Sentence, filed 1/21/08.

        After completing his ten-year sentence of incarceration, Duncan was

released from prison. On February 14, 2017, the Jefferson County Adult

Probation Department alleged that Duncan had committed a technical

violation of probation by failing “to find an approvable home plan.” See Notice

of Charges and Hearing Rights & Written Request for Revocation, filed

2/14/17.2 The court held a hearing and ordered that Duncan be “released from

the bench forthwith to reside at his approved home plan at the Just for Jesus

Shelter.” See Review Hearing Order, filed 4/3/17.

        However, the Just for Jesus Shelter asked Duncan to leave, and as a

result, his probation officer filed a second revocation petition. The petition

alleged technical violations both for his having been asked to leave the shelter

and for his not having an approved home plan. See Notice of Charges and

Hearing Rights & Written Request of Revocation, filed 6/5/17. After a hearing,

the court ordered that Duncan remain in custody until the probation

____________________________________________


2   The revocation request provided the following:

        Offender maxed out about 2 weeks ago, has failed to find an
        approvable home plan. Last night he left the address he was given
        permission to temporarily reside at, went and stayed somewhere
        we did not approve or know about. He had a scheduled
        appointment with the agent today. When he was not found at his
        approved temp address the agent went looking for him. Finally,
        offender responded to phone call and met up with agent.

Revocation Request, filed 2/14/17.

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department approved a home plan. See Review Hearing Order, filed 6/9/17.

Following another revocation petition and further hearings, the court released

Duncan in July 2017 to a temporary home plan, with him to relocate by

January 1, 2018, to an approved home plan. See Gagnon Order, filed

7/21/17.

        Duncan’s probation officer filed the subject revocation petition in

November 2017. This petition alleged technical violations for Duncan’s failure

to inform PSP of his change in employment, his failure to register as an SVP

with PSP, and his failure to comply with his payment plan for his restitution

and fines.

        Before   the   court    decided    the   subject   revocation   petition,   the

Commonwealth instituted criminal charges against Duncan for failure to

comply with registration requirements and disorderly conduct.3 Duncan pled

guilty to the disorderly conduct charge and the Commonwealth nolle prossed

the failure to register charge.

        The court then held a Gagnon I4 hearing on the subject revocation

petition. A probation officer, Paul Ruffner, informed the court of Duncan’s

guilty plea and technical violations:

____________________________________________


3   18 Pa.C.S.A. §§ 4915.1(a)(1) and 5503(a)(4), respectively.

4 “When a parolee or probationer is detained pending a revocation hearing,
due process requires a determination at a pre-revocation hearing, a Gagnon
I hearing, that probable cause exists to believe that a violation has been
committed.” Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa.Super.
2000); see also Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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       Mr. Ruffner: . . . I would also like the court to take judicial notice
       of a plea and sentence in Indiana County which on March 2 nd,
       2018, he was sentenced to disorderly conduct. It was an M3. This
       does stem from a failure to register under Megan’s Law. That
       charge was nolle prossed, and he also has technical violations for
       condition No. 2, failed to abide by the verbal instructions from his
       supervising officer. He was advised verbally by telephone by
       Officer Oakes on October 12, 2017, to notify [PSP] of a change in
       employment status. Also on October 20th, 2017, during an office
       contact, he reported he had not notified [PSP] of his change in
       employment. He was also instructed to give the change of
       address. He failed to report that to the [PSP] as instructed.
       Condition 4 is, he’s been sentenced, and condition 11B, he [has]
       failed to complete his pay plan, with a balance of $1,146.64.

N.T., Gagnon I Hearing, 3/29/18, at 2.

       Duncan waived his right to counsel and admitted that he failed to

register with his probation officer and failed to inform PSP of his employment

changes. Id. at 3-4. The court ordered an updated Pre Sentence Investigation

report (“PSI”) and scheduled a Gagnon II5 hearing the following week. At

this hearing, Duncan again waived his right to counsel, and the trial court

revoked his probation and sentenced him to 10 to 20 years’ incarceration with

credit for time served. See N.T., Gagnon II Hearing, 4/4/18, at 2-3, 5. The

court placed the following explanation for the sentence on the record:

       The Court: Mr. Duncan, I’ve reviewed your [PSI]. I’ve considered
       your age, your background, your prior record, everything
       contained in the [PSI] and everything necessary for sentencing.

       And of course, we go back to the original offense involving an
       eight-year-old child, the sex offense, and your problems from a
       chronological standpoint in detail.
____________________________________________


5“Where a finding of probable cause is made, a second, more comprehensive
hearing, a Gagnon II hearing, is required before a final revocation decision
can be made.” Ferguson, 761 A.2d at 617.

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       Now, the last time we were here, Mr. Oakes of probation did not
       agree with the home plan, but I [let] you go there, and here we
       are with another violation, and you’ve failed to change. You got
       charged with failing to register.

                                           ***

       The Court: Well, for the violation I found, I mean, I think you’re a
       danger – [that’s] why I think Mr. Oakes’ recommendation is a little
       on the high end because you’re a risk to children.

Id. at 4-5.6

       Duncan told the court that he did not understand the sentence, and the

court reminded Duncan that it had told him multiple times that if he violated

his probation, the court would sentence him to “ten to twenty.” Id. at 6.

       Duncan filed a timely pro se post-sentence motion, which the court

denied. Duncan then retained counsel who filed a Petition for Reinstatement

of Post Sentencing and Appellate Rights Nunc Pro Tunc, which the trial court

granted. See Petition for Reinstatement of Post-Sentencing and Appellate

Rights Nunc Pro Tunc, filed 10/11/18; see also Opinion and Order of Court,

filed 10/18/18 (granting Petition for Reinstatement). Duncan then filed a

counseled post-sentence motion alleging that the sentence was excessive.

See Motion for Reconsideration of Sentence and/or Motion to Modify

Sentence, filed 10/26/18. The trial court denied the motion and this timely

appeal followed.


____________________________________________


6 Prior to sentencing Duncan, the court incorrectly stated that the victim in
this case was eight-years-old. The certified record reflects that the victim was
13-years-old.

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      Duncan raises one issue: “Did the trial court abuse its discretion when

it sentenced [Duncan] to a period of 10 – 20 years’ incarceration after

[Duncan] was found in violation of probation for having been convicted of a

Misdemeanor of the Third Degree while on this court’s probation?” Duncan’s

Br. at 5.

      Duncan challenges the discretionary aspects of his sentence. Therefore,

we must first determine whether: 1) the appeal is timely; 2) appellant

preserved the issue; 3) the brief includes a Pa.R.A.P. 2119(f) statement; and

4) the appellant has raised a substantial question. See Commonwealth v.

Foust, 180 A.3d 416, 438-39 (Pa.Super. 2018). Here, Duncan’s appeal is

timely, he preserved the issue in his post-sentence motion, and his brief

contains a Rule 2119(f) statement. We now turn to whether he has raised a

substantial question.

      Duncan maintains that the court’s “sentence was manifestly excessive,

an abuse of discretion and did not adequately consider the sentencing factors

it is required to consider pursuant to 42 Pa.C.S.A. § 9721.” Duncan’s Br. at 8.

This claim raises a substantial question. See Commonwealth v. Caldwell,

117 A.3d 763, 770 (Pa.Super. 2015) (en banc) (concluding claim of excessive

sentence that violates Sentencing Code raises a substantial question).

      On the merits, Duncan’s claim fails. Duncan asserts that his sentence is

excessive because “the Court was effectively sentencing [Duncan] to 10 years’

incarceration for a Disorderly Conduct conviction when the original underlying




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sentence was half the violation sentence.” Duncan’s Br. at 16. The record

belies Duncan’s argument.

      We review a challenge to the discretionary aspects of sentence for an

abuse of discretion. Commonwealth v. Blount, 207 A.3d 925, 934

(Pa.Super. 2019). “Upon revocation the sentencing alternatives available to

the court shall be the same as were available at the time of initial sentencing

. . .” 42 Pa.C.S.A. § 9771(b). Additionally, once the court revokes probation,

it may impose total confinement where:

      (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; or

      (3)   Such a sentence is essential to vindicate the authority of the
            court.

42 Pa.C.S.A. § 9771(c).

      Here, the trial court revoked Duncan’s probation following his conviction

for disorderly conduct and imposed a sentence of total confinement. Upon

revocation, the court’s sentencing alternatives became the same as when it

initially sentenced Duncan in 2007. Having been convicted of a crime graded

as a felony of the first degree, the court had the ability to sentence Duncan to

a total of 20 years. See 18 Pa.C.S.A. § 3123(a)(7) (representing that IDSI of

a child less than 16 years of age is a felony of the first degree); see also 18

Pa.C.S.A. § 1103(1) (setting maximum sentence for felony of the first degree

at 20 years’ imprisonment). The court pointed out Duncan’s repeated technical



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violations to his probation, some of which Duncan admitted, i.e., his failing to

register with his probation officer and his failing to inform PSP of his

employment       changes.   Thus,   the    trial   court   concluded   Duncan   was

noncompliant with “even the most basic rules, like keeping in touch with his

probation officer and not breaking any more laws.” Trial Court Opinion, filed

12/21/18, at 1. Additionally, the court concluded that this noncompliance was

a risk to children and “the [c]ourt was unwilling to give [Duncan] a chance to

commit a serious offense that could potentially alter his victim’s life forever.”

Id. at 2. In these circumstances, the revocation sentence was not an abuse

of discretion.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2019




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