J-S39039-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                 Appellee                :
                                         :
                    v.                   :
                                         :
JOHN CHARLES BIRCHALL,                   :
                                         :
                 Appellant               :    No. 2115 MDA 2015

          Appeal from the Judgment of Sentence November 5, 2015
             in the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0000971-2012

BEFORE:     STABILE, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                     FILED JULY 26, 2016

      John Charles Birchall (Appellant) appeals from the November 5, 2015

judgment of sentence entered after the revocation of his probation.     We

affirm.

      Appellant has an extensive criminal history. At the docket number at

which this appeal was filed, Appellant was on probation following a guilty

plea to retail theft.    On September 1, 2015, the trial court found that

Appellant violated the terms of his probation by, inter alia, incurring new

criminal charges, failing to report for probation appointments, and lying to

the court.1 Trial Court Opinion, 1/5/2016, at 1-2. Following the preparation



1
  At the same time, and for the same reasons, the trial court revoked
Appellant’s parole at four other docket numbers related to Appellant’s
convictions for various theft-related crimes and simple assault. Trial Court
Opinion, 1/5/2016, at 1-2.

*Retired Senior Judge assigned to the Superior Court.
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and review of a presentence investigation, the trial court sentenced

Appellant to 30 to 60 months of imprisonment. Appellant timely filed a post-

sentence motion to modify sentence, then filed a notice of appeal before the

trial court ruled on the motion.

      On appeal, Appellant claims that his sentence is “manifestly excessive

as to constitute too severe a punishment and contrary to the fundamental

norms underlying the sentencing process.” Appellant’s Brief at 4.

      Appellant challenges the discretionary aspects of his sentence.     We

consider his question mindful of the following.

      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.

                                    ***

            When imposing sentence, a court is required to consider
      the particular circumstances of the offense and the character of
      the defendant. In considering these factors, the court should
      refer to the defendant’s prior criminal record, age, personal
      characteristics and potential for rehabilitation.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the


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      appellant has invoked our jurisdiction by considering the
      following four factors:

              (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. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

      Here, Appellant filed a notice of appeal after preserving the issue by

filing a motion to modify sentence.       Further, Appellant’s brief contains a

statement pursuant to Pa.R.A.P. 2119(f), wherein he appears to claim that

his sentence is excessive “in light of the underlying technical violations” of

the   terms     of   his   probation,   Appellant’s   Brief   at   8-9   (quoting

Commonwealth v. Carver, 923 A.2d 495 (Pa. Super. 2007); and that the

trial court failed to consider Appellant’s rehabilitative needs, id. at 9.

      A claim that the trial court failed to consider Appellant’s rehabilitative

needs does not raise a substantial question.2 See, e.g., Commonwealth v.



2
   Further, because the trial court had the benefit of a presentence
investigation report, it is presumed that it considered the relevant mitigating
factors. Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004)
(“[W]here the sentencing judge had the benefit of a presentence
investigation report, it will be presumed that he or she was aware of the
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.”).

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Griffin, 65 A.3d 932, 936-37 (Pa. Super. 2013) (collecting cases);

Commonwealth v. Lawson, 650 A.2d 876, 881 (Pa. Super. 1994) (holding

substantial question was not presented by claim that trial court ignored the

appellant’s rehabilitative needs).

      However, this Court has held that “[a]n argument that the trial court

imposed an excessive sentence to technical probation violations raises a

substantial question.” Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa.

Super. 2012). Accordingly, we review the merits of that claim.

      Regarding prison sentences imposed following the revocation of

probation, the Sentencing Code provides as follows:

      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

            (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).

      The trial court offered the following explanation for its sentence.

      [The trial c]ourt noted that at age 57, [Appellant] has sufficient
      maturity to understand the significance of his acts; he is
      intelligent enough to understand the significance of his acts,
      having received a high school diploma, and served in the United
      States Air Force; and he has work history, predominantly in the
      restaurant business, indicating he can follow instructions. [The


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     trial c]ourt also considered [Appellant’s] lengthy criminal record.
     More specifically, including the five criminal informations before
     the [c]ourt on the instant case, the [c]ourt noted that between
     1986 and 2012, [Appellant] amassed a criminal record consisting
     of convictions for aggravated assault with a weapon, robbery,
     simple assault, numerous trespass offenses, and at least a dozen
     retail thefts.      Additionally, the [c]ourt considered that
     [Appellant] has also been incarcerated in state correctional
     facilities in Kentucky, Arizona, Nevada, and Iowa.

            Th[e trial c]ourt also noted [Appellant’s] long-term, heavy
     abuse of drugs and alcohol. [It] further noted that [Appellant],
     over the period of years when he continuously engaged in
     criminal activity, also engaged in acts demonstrating a pattern of
     willful deception – he used in excess of twenty different aliases,
     provided more than five dates of birth, and offered at least six
     different social security numbers.         The [trial c]ourt also
     considered that [Appellant’s] propensity for dishonesty appears
     to still be ongoing; [Appellant] lied to the [c]ourt in 2014 when
     he appeared before the Honorable Margaret C. Miller relative to
     these same probation and parole sentences.              Specifically,
     [Appellant] informed the [c]ourt that he had a bed date at the
     Veterans’ Affairs Hospital in Lebanon, Pennsylvania when, in
     fact, the program [Appellant] claimed to be entering was not
     even in existence at that time. Additionally, upon his release
     from prison and placement on house arrest, [Appellant] failed to
     provide an approved address to serve his sentence. In addition
     to considering [Appellant’s] prior history, th[e trial c]ourt
     considered that [Appellant] has violated his probation and parole
     numerous times, dating back to at least 1989. The most recent
     violations – which include [Appellant’s] disappearance, [his]
     failure to report as required, and [his] receipt of new charges in
     Chester County, Pennsylvania – align with the clear pattern of
     dishonest and criminal behavior that [Appellant] has consistently
     engaged in for nearly the past three decades.

            Moreover, the [trial c]ourt considered the presentence
     report and the penalties authorized by the Legislature. The [trial
     c]ourt also properly accounted for the arguments of [Appellant’s]
     counsel, as well as the statements and character of [Appellant].
     In light of all factors reviewed on record, th[e trial c][ourt found
     incarceration was warranted because a lesser sentence would
     depreciate the seriousness of [Appellant’s] crimes, the


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      seriousness of his total lack of concern for court orders, and the
      length of time for which [Appellant] has constantly failed to be a
      part of the criminal justice system in Lancaster County.

Trial Court Opinion, 1/5/2016, at 5-7 (footnotes omitted).

      The trial court’s findings are supported by the record.      See N.T.,

11/5/2015, at 6-9. Those findings support its conclusion that probation has

been ineffective in rehabilitating Appellant and that a significant prison

sentence is necessary to vindicate the authority of the court and protect the

public.   See, e.g., Commonwealth v. Sierra, 752 A.2d 910, 915 (Pa.

Super. 2000) (holding no abuse of discretion in sentencing the defendant to

the statutory maximum following probation revocation where the judge

found the defendant “had been feigning certain mental problems as a means

to manipulate the criminal justice system” and “that she was a ‘time bomb

ticking’ with her history of violent behavior and that both she and society

needed protection”). Accordingly, we discern no abuse of discretion in the

trial court’s decision to sentence Appellant to 30 to 60 months of

imprisonment.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/26/2016


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