J-S74041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 JOSE M. ACOSTACORONA                      :
                                           :
                    Appellant              :   No. 3337 EDA 2017

        Appeal from the Judgment of Sentence Entered July 21, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0003571-2015,
                         CP-51-CR-0011733-2015


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

MEMORANDUM BY McLAUGHLIN, J.:                          FILED APRIL 23, 2019

      Jose M. Acostacorona appeals from the judgment of sentence entered

on July 21, 2017, following his violation of probation (VOP). Acostacorona

challenges the discretionary aspects of his sentence and maintains that the

VOP court erred by imposing an illegal sentence. We affirm in part and vacate

in part.

      This case stems from three separate incidents that resulted in charges

against Acostacorona, which the trial court consolidated for trial. In June 2014,

Acostacorona got into an argument with his former girlfriend, Veronica Flores,

punched her in the head multiple times and threatened to kill her. Several

months later, Acostacorona twice broke into Flores’s apartment to threaten

and sexually assault her.
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        In September 2016, Acostacorona pled nolo contendere to one count of

simple assault, two counts of indecent assault, two counts of unlawful

restraint, and one count of terroristic threats.1 In all, the court imposed 11½

to 23 months with immediate parole on the indecent assault convictions,

followed by 10 years of probation on the remaining charges. More particularly,

the sentence broke down as follows: for each of the two indecent assault

convictions, 11½ to 23 months’ imprisonment, concurrent, with immediate

parole; for each of the two unlawful restraint convictions, five years’

probation, consecutive; and for the simple assault conviction, five years’

probation, concurrent with the other probation sentences. The trial court also

ordered Acostacorona to have no contact with the victim, Flores.

        However, Flores filed a complaint with the Philadelphia Adult Probation

and Parole Department (“APPD”) in June 2017, alleging that Acostacorona had

called her several times immediately after he was released from jail. She also

stated that he had attempted to make contact with her via Facebook, even

though he was prohibited from having social media accounts as a condition of

his probation. On July 21, 2017, the court held a VOP hearing where it

determined that Flores’s accusations were credible.

        Accordingly, the VOP court found Acostacorona in violation and

resentenced him. Defense counsel suggested that the court impose “the 11

and a half to 23 on” the simple assault conviction, and “impose the same

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1   18 Pa.C.S.A. §§ 2701, 3126, 2902, 2706.

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probation sentences” on the other charges. N.T., 7/21/17, at 74-75. Defense

counsel stated, “In other words, the sentences would be exactly the same

except for instead of the two years’ probation on the simple assault, Your

Honor is imposing 11 and a half to 23 months.” Id. at 75. The court agreed

to the suggestion, stating, “I think it makes sense. So on the . . . unlawful

restraint, that’s an M1, put five years. The terroristic threats, five years. That’s

ten, and then a concurrent two years’ probation on the indecent assault.” Id.

The court summarized the sentence, “So it nets out to ten years [of probation]

on [the terroristic threats and unlawful restraint charges] and 11 and a half to

23 months on the simple assault. . . .” Id. Notably, although the court

originally sentenced Acostacorona to prison for the indecent assault charges,

with immediate parole, upon revocation, it gave him new probation sentences

on those charges.

      Acostacorona filed a motion for reconsideration of his VOP sentence

arguing that his sentence was manifestly excessive. The VOP court denied the

motion and the instant timely appeal followed.

      Acostacorona raises the following issues for our review:

      1. Was not the sentence of incarceration for a first-time technical
         violation of probation manifestly excessive and unreasonable?

      2. Were not the new probationary sentences on the two counts of
         indecent assault illegal, as the original sentences on those
         charges were for incarceration without a term of probation, and
         therefore the court did not have jurisdiction to impose new
         sentences on those charges?

Acostacorona’s Br. at 3.


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       Acostacorona’s first issue challenges the discretionary aspects of his

sentence. Thus, we begin by noting “a [c]hallenge to the discretionary aspects

of a sentence is not appealable as of right.” Commonwealth v. Green, ---

A.3d ---, 2019 Pa.Super. 39 (Pa.Super. 2019). Before reviewing the merits of

his claim, we must determine whether: (1) the appeal is timely; (2) the issue

was preserved at sentencing or in a post-sentence motion; (3) the brief

includes a Pa.R.A.P. 2119(f) statement;2 and (4) a substantial question is

presented. See id.

       Here, Acostacorona’s appeal is timely, he preserved his issue in a post-

sentence motion, and he provides a Rule 2119(f) statement. Specifically he

contends that his VOP sentence was manifestly excessive because his violation

of the no-contact order did not warrant incarceration. Acostacorona’s claim

raises a substantial question. See Commonwealth v. Williams, 69 A.3d

735, 740 (Pa.Super. 2013) (finding claim “court imposed a sentence

unreasonably disproportionate to her crimes and unduly excessive” raised

substantial question). Therefore, we now proceed to a review of the merits of

Acostacorona’s claim.

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

abuse of discretion. Commonwealth v. Bullock, 170 A.3d 1109, 1123


____________________________________________


2 “An appellant who challenges the discretionary aspects of a sentence in a
criminal matter shall set forth in a separate section of the brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).

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(Pa.Super. 2017). An abuse of discretion is present where “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.” Id.

      Pursuant to Pennsylvania statute 42 Pa.C.S. § 9771(b), upon revocation

of probation “the sentencing alternatives available to the court shall be the

same as were available at the time of initial sentencing.” Further, a VOP court

may impose a sentence of total confinement if 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). Moreover, we note that “[a] 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.” Commonwealth v. Schutzues, 54 A.3d 86, 99

(Pa.Super. 2012).

      In the instant case, the VOP court found that Acostacorona’s actions

indicated that he was likely to continue his criminal conduct and that

confinement was necessary to vindicate the authority of the court. See 42

Pa.C.S. § 9771(c). In its opinion, the VOP court explained:




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      In the present case, [Acostacorona] has shown that he is not a
      good candidate for community supervision. He previously received
      a probation-only sentence, which allowed him to rejoin the
      community immediately following his conviction. However, almost
      immediately after his release, [Acostacorona] had already begun
      a pattern of attempting to contact the complaining witness. In
      light of that very serious violation, the court found that an
      additional probation-only sentence would not defer further
      “passive-aggressive      behavior”     from      [Acostacorona].
      [Acostacorona’s] failure to abide by the rules of the court must
      not be tolerated. Based on [Acostacorona’s] repeated
      insubordinate conduct, this Court was well within its discretion to
      revoke [Acostacorona’s] supervision and impose a new sentence.

Tr. Ct.’s 1925(a) Op., 12/21/17, 4.

      We agree and conclude that the VOP court’s sentence was not excessive.

Indeed, Acostacorona committed a serious probation violation, almost

immediately, by contacting the victim in this case in direct violation of a no-

contact probation requirement. Moreover, this Court takes special note of

Acostacorona’s violent past conduct and the victim Flores’ courage in coming

forward. If Acostacorona should again violate his probation, we anticipate that

the trial court’s subsequent sentence would reflect the gravity of his escalating

criminal conduct and its inevitably deleterious effect on the victim. Instantly,

we hold that Acostacorona’s VOP sentence is not manifestly excessive. Thus,

Acostacorona’s first issue does not merit relief.

      Turning to his second issue, Acostacorona asserts that the VOP court

issued an illegal sentence by imposing two additional years of probation for

each count of indecent assault when he was originally sentenced to 11½ to 23

months incarceration on those charges, with no probation tail, and was

immediately granted parole. Specifically, Acostacorona contends that because

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he was not originally sentenced to probation on his indecent assault

convictions, his revocation of probation on the other charges did not permit

the VOP court to impose a new sentence on a conviction for which he was no

longer incarcerated. We agree.

      As a prefatory matter, we note that it is of no moment that Acostacorona

did not raise the issue of the legality of his sentence in the VOP court because

“an inquiry into the validity of a sentence is a question as to the legality of the

sentence, a non-waivable matter.” Commonwealth v. Smith, 678 A.2d

1206, 1207 (Pa.Super. 1996). Further, it is axiomatic that a parole-revocation

court does not have authority to impose a new penalty. Commonwealth v.

Kalichak, 943 A.2d 285, 290 (Pa.Super. 2008). “Rather, the only option for

a court that decides to revoke parole is to recommit the defendant to serve

the already-imposed, original sentence.” Id. Accordingly, the Commonwealth

concedes that because Acostacorona was on parole from his indecent assault

sentence and not on probation therefrom, his additional new sentence of

probation on his indecent assault convictions must be vacated and we agree.

      Our review of the record reveals that the VOP court was without

authority to impose additional terms of probation on Acostacorona’s indecent

assault convictions because he was not serving probation for those charges at

the time the VOP court revoked his probation on the other related charges.

Rather, he was on parole from his indecent assault sentences. Therefore,

Acostacorona’s sentence of two additional years of probation for each count

of indecent assault constituted an illegal sentence and must be vacated.

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      However, even though we are concerned about Acostacorona’s

egregious criminal conduct toward the victim Flores, we must vacate the illegal

portion of Acostacorona’s sentence without remanding for resentencing

because our disposition will not disturb the VOP court’s overall sentencing

scheme. See Commonwealth v. Thur, 906 A.2d 552, 569-70 (Pa.Super.

2006) (if this Court’s “decision does not alter the overall [sentencing] scheme,

there is no need for a remand.”). The VOP court explicitly stated on the record

that she intended to impose an aggregate sentence of 11 and a half to 23

months’ incarceration to be followed by ten years of probation. Thus, because

the four year sentence of probation for indecent assault was to be served

concurrently with Acostacorona’s other sentences, vacating the offending four

year term of probation would not in any way alter the VOP’s aggregate total

sentence. Therefore, in light of our standard of review and this Court’s role as

an error-correcting court, we are constrained to decline to remand for

resentencing.

      Judgment of Sentence imposed for violation of 18 Pa.C.S.A. § 3126

vacated. Judgment of Sentence affirmed in all other respects. Jurisdiction

relinquished.

Judge Lazarus joins the memorandum.

Judge Stabile concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/19




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