J-A14001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

STEPHEN LLOYD,

                          Appellant                 No. 2206 EDA 2016


       Appeal from the Judgment of Sentence Entered June 16, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0002896-2016


BEFORE: BENDER, P.J.E., BOWES, J., and SHOGAN, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED AUGUST 16, 2017

      Appellant, Stephen Lloyd, appeals from the judgment of sentence 2½-

5 years’ imprisonment, imposed following the trial court’s revocation of his

parole and future-effective probation for technical violations.       Herein,

Appellant challenges the discretionary aspects of his sentence. After careful

review, we affirm.

      In February of 2016, Appellant was caught stealing $180 worth of

merchandise from a retail store in Philadelphia. The details of that crime are

not germane to the instant appeal. However, on April 14, 2016, Appellant

entered a negotiated guilty plea to retail theft before the trial court. Trial

Court Opinion (TCO), 10/7/16, at 1.      The court sentenced Appellant, in

accordance with the negotiated plea, to 11½-23 months’ incarceration, and

a consecutive term of 4 years’ probation.    Id.   Appellant was immediately
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paroled as part of his plea deal.              Id.   However, as a condition of his

probation and future-effective probationary term, Appellant was also ordered

to immediately enter into an inpatient drug treatment program. Ultimately,

Appellant did not comply with that condition, among others.1            Id. at 1-2.

Consequently, “Probation Officer Russell Gamble filed a Gagnon II report

indicating that [Appellant] had failed to comply with the terms of his

probation.” Id. at 1.

       Subsequently,

              [o]n June 16, 2016, [Appellant] appeared in front of th[e
       trial c]ourt for a Violation of Probation hearing, where testimony
       from Probation Officer Michelle Clancey, as well [as Appellant],
       confirmed the information in Officer Gamble’s report. After
       reviewing the facts as set forth by the probation department,
       th[e trial c]ourt found [Appellant] to be in direct violation of his
       probation. Th[e trial c]ourt revoked [Appellant]’s probation and
       issued a new sentence of two and one half (2.5) to five (5) years
       of confinement. [Appellant] subsequently filed a timely Notice of
       Appeal to the Pennsylvania Superior Court. On September 2,
       2016, [Appellant] field a [Pa.R.A.P. 1925(b) statement], alleging
       that th[e trial c]ourt abused its discretion [by] issuing an
       unreasonable sentence. On September 6, 2016, [Appellant] filed
       a [s]upplemental [s]tatement alleging that th[e trial c]ourt erred
       in that it: abused its discretion in issuing an unreasonable
       sentence; failed to balance the gravity of the offense and
       protection of the public with [Appellant]’s rehabilitative needs;
       failed to abide by the requirement of 41 Pa.C.S. § 9771(c); and,
       failed to order a pre-sentence[] report without stating the
____________________________________________


1
  As detailed in the trial court’s opinion, on April 20, 2016, Appellant failed to
report to a van service for transportation to the inpatient drug-treatment
facility, and then subsequently failed to report to the probation department
several times over the following six weeks. Id. at 2. Appellant also tested
positive for cocaine when he finally did report on June 3, 2016 (although
Appellant did self-report his relapse in this regard). Id.



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      reasons for not ordering said report on the record. Upon review
      of the record, th[e trial c]ourt concedes that it erred in failing to
      state the reasons for dispensing with a pre-sentence report.

Id. at 2-3.

      The trial court filed its Rule 1925(a) opinion on October 7, 2016.

Appellant now presents the following questions for our review:

      1. Did not the [trial] court violate [42 Pa.C.S. § 9721(b)] and
      impose an unreasonable sentence of two-and-a-half to five years
      for technical violations of probation by failing to balance the
      gravity of the violation with [A]ppellant's rehabilitative needs?

      2. Did not the [trial] court violate [42 Pa.C.S. § 9771(c)] by
      imposing a sentence of total confinement for technical violations
      of probation where [A]ppellant had not been convicted of a new
      crime, took responsibility for his relapse, and continued attempts
      to attend drug treatment?

      3. Did not the [trial] court abuse its discretion by failing to order
      a pre-sentence investigation [report (“PSI”),] where the hearing
      record contains no indication that the lower court had the
      "essential and adequate" information that would be contained in
      one?

      4. Did not the [trial] court abuse its discretion by failing to list its
      reasons for not ordering a [PSI] on the record, as required by
      the Pennsylvania Rules of Criminal Procedure?

Appellant’s Brief at 3-4.

      All of these claims concern the discretionary aspects of Appellant’s

sentence.     See Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa.

Super. 2015) (recognizing a claim that the trial court failed to consider a

defendant’s rehabilitative needs, at the expense of other 42 Pa.C.S. §

9721(b) factors, implicates the discretionary aspects of sentencing);

Commonwealth v. Schutzues, 54 A.3d 86, 95 (Pa. Super. 2012) (holding

that “[d]espite the mandatory language of § 9771(c), it is evident from

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[pertinent case law] that application of § 9771(c)(2) and (3) requires an

exercise of discretion by the trial court”); Commonwealth v. Flowers, 950

A.2d 330, 331 (Pa. Super. 2008) (holding “a claim that the court erred in

failing to order a PSI report raises a discretionary aspect of sentencing of

which a defendant's right to appellate review is exceptionally limited”).
            Challenges to the discretionary aspects of sentencing do
      not entitle an appellant to review as of right. Commonwealth
      v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
      challenging the discretionary aspects of his sentence must
      invoke this Court's jurisdiction by satisfying a four-part test:

         [W]e conduct a four-part analysis to determine: (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. Evans, 901 A.2d 528, 533 (Pa. Super.
      2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006)
      (internal citations omitted).   Objections to the discretionary
      aspects of a sentence are generally waived if they are not raised
      at the sentencing hearing or in a motion to modify the sentence
      imposed.     Commonwealth v. Mann, 820 A.2d 788, 794
      (Pa.Super.2003), appeal denied, 574 Pa. 759, 831 A.2d 599
      (2003).

            The determination of what constitutes a substantial
      question must be evaluated on a case-by-case basis.
      Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007).
      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.” Sierra, supra at 912-
      13.


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              As to what constitutes a substantial question, this Court
        does not accept bald assertions of sentencing errors.
        Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
        2006). An appellant must articulate the reasons the sentencing
        court's actions violated the sentencing code. Id.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).

        Instantly, Appellant filed a timely notice of appeal, and provided this

court with a Pa.R.A.P. 2119(f) statement in his brief. In that statement, he

asserts that each of his claims present a substantial question for our review.

Appellant’s Brief at 12-14. Appellant raised his first claim in a post-sentence

motion.      See Appellant’s Petition to Vacate and Reconsider Sentence,

6/24/16, at 2 ¶4.        Moreover, Appellant’s first claim raises a substantial

question for our review. See Commonwealth v. Riggs, 63 A.3d 780, 786

(Pa. Super. 2012) (holding the argument that “the trial court failed to

consider relevant sentencing criteria, including the protection of the public,

the gravity of the underlying offense[,] and the rehabilitative needs of” the

appellant, raises a substantial question).

        The Commonwealth argues that Appellant’s remaining claims, which

concern the trial court’s purported failure to adhere to the dictates of 42 Pa.

C.S. § 9771(c),2 and the court’s failure to order a PSI, were not preserved at
____________________________________________


2
    Section 9771(c) provides as follows:

        (c) Limitation on sentence of total confinement.--The court
        shall not impose a sentence of total confinement upon revocation
        unless it finds that:

        (1) the defendant has been convicted of another crime; or
(Footnote Continued Next Page)


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the sentencing hearing, nor in Appellant’s post-sentence motion.              See

Moury, supra.          After reviewing the record, we are compelled to agree.

“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”        Pa.R.A.P. 302(a).   Accordingly, Appellant’s second,

third, and fourth claims are waived.

      Appellant’s first claim must be analyzed under an abuse of discretion

standard:

      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. In this context, an abuse
      of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007)

(citation omitted).

      Appellant asserts that the trial court failed to balance his rehabilitative

needs against the “minor nature of the technical violation of supervision[,]”

which led to the revocation of his parole and probation. Appellant’s Brief at

16. Appellant argues that:
                       _______________________
(Footnote Continued)

      (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. § 9771(c).



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      [Appellant] missed his intake appointment at the Coatesville VA
      Medical Center, reported to probation inconsistently, and tested
      positive for cocaine.      He also re-scheduled his intake
      appointment well before the August status of compliance court
      date, kept in contact with the probation department, and took
      independent steps to address his relapse.

             Considering these relatively minor violations, balanced
      with Mr. Lloyd's need for drug treatment, the lower court's
      sentence is manifestly unreasonable and excessive. This is
      especially so considering that the lower court could have revoked
      Mr. Lloyd's parole and ordered him to serve back[-]time while
      participating in the county prison drug treatment program,
      among other more appropriate alternatives, rather than
      immediately resorting to state incarceration. Therefore, it was
      an abuse of discretion to re-sentence Mr. Lloyd to a period of
      total confinement over twice the length of his initial prison
      sentence for technical violations of probation.

Appellant’s Brief at 16-17 (footnote omitted).

      In response to this claim, the trial court stated:

            In the present case, [Appellant] pled guilty to Retail Theft
      under 18 Pa.C.S. § 3929 (a)(1), a felony of the third degree
      punishable by up to seven (7) years confinement. 18 Pa.C.S. §
      1103. Therefore, the new sentence of two and one half (2.5) to
      five (5) years confinement falls squarely within the statutory
      maximum.      This [c]ourt had ample reason to believe that
      [Appellant] will commit another crime if he is not imprisoned--
      his prior record, consisting of thirty two (32) Retail Theft
      convictions, and his lack of commitment to getting treatment for
      his substance abuse problem both indicate that it is likely he will
      re-offend. Further, this [c]ourt gave the [Appellant] a chance to
      voluntarily seek treatment. By failing to do so, he exhibited a
      lack of respect for this [c]ourt, necessitating a vindication of its
      authority.

             Contrary to [Appellant]'s assertions, this [c]ourt did in fact
      balance [Appellant]'s rehabilitative needs with the need to
      protect the community and the gravity of his offenses. After
      listening to testimony at the VOP hearing, this [c]ourt specifically
      stated that "I believe you need some serious help," but that "I
      believe that if I did send you or take you to the VA... you'd walk


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J-A14001-17


      in the front door and walk out the back. I really believe that. So
      this is a last ditch effort " N.T. 6/16/2016 at 15-16.

TCO at 4-5.

      We ascertain no abuse of the trial court’s sentencing discretion. First,

Appellant     was   originally   sentenced   to   a   term   of   11½-23   months’

incarceration, with a probationary tail of four years.        His new sentence of

2½-5 years’ incarceration is an increase of approximately 1½ - 3 years’

incarceration, but has no corresponding probationary tail. On its face, this is

an incremental and measured increase in punishment due to Appellant’s

violation of the terms of his probation and parole, not as drastic of a change

as Appellant suggests.

      Second, Appellant’s record of 32 prior convictions for retail theft,

without anything more, sufficiently indicates to this Court, as it did to the

trial court, that he has not been amenable to prior rehabilitative efforts by

the courts.    Furthermore, Appellant failed to take advantage of the trial

court’s leniency, violating multiple conditions of his parole and probation

within only a few months of his release from incarceration.

      Finally, we agree with the trial court that Appellant’s repeated

technical violations, occurring within such a short time after his release,

demanded a response by the court in terms of an escalation of criminal

sanctions, in order to vindicate the authority of the probationary sentence

imposed, as well as the conditional granting of parole to Appellant.           For

these reasons, we ascertain no manifest unreasonableness, partiality,



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prejudice, bias, or ill-will in the court’s resentencing decision. Accordingly,

we conclude that Appellant’s first, and only non-waived claim, lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2017




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