J-S73035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 FLORENCIO ROMAN QUINONES, III,             :
                                            :
                     Appellant              :        No. 803 MDA 2019

        Appeal from the Judgment of Sentence Entered May 1, 2019
              in the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-0003151-2014

BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                  FILED: FEBRUARY 7, 2020

      Florencio Roman Quinones, III (“Quinones”), appeals from the judgment

of sentence imposed following the revocation of his probation. Upon review,

we affirm.

      On September 30, 2015, Quinones pled guilty to one count of second-

degree robbery following a June 26, 2014 incident in which Quinones robbed

and assaulted his uncle in Reading, Pennsylvania. On the same day, the trial

court sentenced Quinones to eleven and one-half months to twenty-three

months in prison, to be followed by three years of probation, under the

supervision of the county probation office. Following his release, Quinones

was required to regularly report his whereabouts to the county probation

office. Following Quinones’s failure to report as directed after his last reporting

date of September 12, 2017, the trial court issued a bench warrant on January

26, 2018, alleging Quinones’s non-compliance with probation requirements.
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        A Gagnon II1 hearing was held on May 1, 2019.2 During the Gagnon

II hearing, Quinones admitted to violating his probation. N.T., 5/1/19, at 2.

Thereafter, the court found that Quinones had violated the conditions of his

probation, revoked his probation, and sentenced him to eleven and one-half

months to twenty-three months in prison, with credit for fifty-two days of time

served. Id. at 6-7. On May 7, 2019, Quinones filed a timely post-sentence

Motion to modify his sentence, which was denied on May 8, 2019. Quinones

filed his timely pro se Notice of Appeal, and a court-ordered Concise

Statement.3

        Quinones presents the following issue for our review:

        Whether the trial court abused its discretion when it imposed a
        sentence of eleven and one-half (11.5) to twenty-three (23)
        months [in prison] for [Quinones’s] first technical probation
        violations at his Gagnon II hearing[?]

Brief for Appellant at 10.



____________________________________________


1   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

2 The trial court indicates in its Pa.R.A.P. 1925(a) Opinion that Quinones was
“apprehended” at some point between the issuance of the bench warrant and
the Gagnon II hearing.           The record does not appear to reveal the
circumstances or the date on which Quinones was apprehended.

3On May 17, 2019, the trial court ordered Quinones to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. On June 20, 2019, after
Quinones failed to file his concise statement, the trial court filed a statement
with this Court requesting that we dismiss the appeal. On September 6, 2019,
we issued an Order remanding the matter to the trial court, in order to allow
Quinones to file his concise statement, nunc pro tunc. On September 9, 2019,
Quinones filed his counseled Concise Statement.

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      Quinones contends that the sentence imposed following the revocation

of his probation was excessive because the trial court “failed to take into

consideration numerous mitigating factors when fashioning [its] sentence for

the probation violations.” Id. at 19. In particular, Quinones argues that his

homelessness was the reason he did not change his address with his probation

officer and, prior to the violation, he had complied with all of the terms of his

probation for a period of nearly two years. Id. He also points out that he

expressed remorse for his failure to report during the Gagnon II hearing; the

violations that resulted in his new sentence were much less severe than the

original robbery conviction; and “[t]he conduct does not indicate that

[Quinones] is likely to commit another crime[; i]t only indicates that he is not

good at keeping appointments.” Id. at 20.

      “A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right.” Commonwealth v. Grays,

167 A.3d 793, 815 (Pa. Super. 2017).        First, an appellant challenging the

discretionary aspects of his sentence must invoke this Court’s jurisdiction by

satisfying a four-part test to determine

      (1) whether the 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 the 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).




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

marks and some citations omitted).

      Here, Quinones filed a timely Notice of Appeal, and properly preserved

the issue in a post-sentence Motion to modify his sentence on May 7, 2019.

Additionally, we detect no fatal defects in Quinones’s brief. Accordingly, our

analysis turns to whether Quinones has raised a substantial question.

      Quinones argues in his Rule 2119(f) Statement that “the sentencing

court failed to consider mitigating factors and the impact of the technical

violations on the community.” Brief for Appellant at 15. “[A]n allegation that

the sentencing court failed to consider mitigating factors generally does not

raise a substantial question for our review.” Commonwealth v. Rhoades,

8 A.3d 912, 918-19 (Pa. Super. 2010).           An appellate court “cannot look

beyond the statement of questions presented and the prefatory 2119(f)

statement    to   determine    whether      a   substantial   question   exists.”

Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012). Here,

Quinones has failed to raise a substantial question in his challenge to the trial

court’s alleged consideration of mitigating factors in his Rule 2119(f)

Statement. See Rhoades, 8 A.3d at 918-19.

      Even if we were to determine that Quinones had raised a substantial

question, we would conclude that his claim lacks merit.

      The imposition of sentence following the revocation of probation
      is vested within the sound discretion of the trial court, which,
      absent an abuse of that discretion, will not be disturbed on appeal.
      An abuse of discretion is more than an error in judgment—a
      sentencing court has not abused its discretion unless the record

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      discloses that the judgment exercised was manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014).

             The reason for this broad discretion and deferential standard
      of appellate review is that the sentencing court is in the best
      position to measure various factors and determine the proper
      penalty for a particular offense based upon an evaluation of the
      individual circumstances before it. Simply stated, the sentencing
      court sentences flesh-and-blood defendants and the nuances of
      sentencing decisions are difficult to gauge from the cold transcript
      used upon appellate review. Moreover, the sentencing court
      enjoys an institutional advantage to appellate review, bringing to
      its decisions an expertise, experience, and judgment that should
      not be lightly disturbed.

              The sentencing court’s institutional advantage is, perhaps,
      more pronounced in fashioning a sentence following the
      revocation of probation, which is qualitatively different than an
      initial sentencing proceeding. At initial sentencing, all of the rules
      and procedures designed to inform the court and to cabin its
      discretionary sentencing authority properly are involved and play
      a crucial role. However, it is a different matter when a defendant
      appears before the court for sentencing proceedings following a
      violation of the mercy bestowed upon him in the form of a
      probationary sentence. For example, in such a case, contrary to
      when an initial sentence is imposed, the Sentencing Guidelines do
      not apply, and the revocation court is not cabined by Section
      9721(b)’s requirement 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.” 42 Pa.C.S.A. § 9721.

Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (some citations and

quotation marks omitted).

      Upon the revocation of probation, a sentencing court may choose from

any of the sentencing options that existed at the time of the original sentence,

including incarceration. 42 Pa.C.S.A. § 9771(b). However, the imposition of


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total confinement upon revocation requires a finding that either “(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.” Id. at § 9771(c).

      Additionally, “[i]n every case in which the court … resentences an

offender following revocation of probation, … the court shall make as part of

the record, and disclose in open court at the time of sentencing, a statement

of the reason or reasons for the sentence imposed.” Id. at § 9721(b); see

also Pa.R.Crim.P. 708(D)(2) (providing that “[t]he judge shall state on the

record the reasons for the sentence imposed.”).             However, following

revocation of probation, the sentencing court need not undertake a lengthy

discourse for its reasons for imposing a sentence or specifically reference the

statutes in question. See Pasture, 107 A.3d at 28 (stating that “since the

defendant has previously appeared before the sentencing court, the stated

reasons for a revocation sentence need not be as elaborate as that which is

required at initial sentencing.”).

      Here, the record indicates that the trial court ably considered the

mitigating factors that Quinones brings to our attention on appeal. At the

Gagnon II hearing, Quinones testified to his ongoing homelessness, his

regret and his acceptance of responsibility for his failure to report, as well as

various personal setbacks that, he testified, made it more difficult to comply

with the terms of his probation. N.T., 5/1/19, at 3-6. At the conclusion of

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Quinones’s testimony, the trial court stated, on the record, its reasons for

imposing a sentence of total confinement:

      The troubling thing here is the initial charge[,] which brings us
      here[,] is a very serious one. It appears that [Quinones] had
      every opportunity to comply, and we wouldn’t be here right now
      if he had done so. And, instead, he stayed away until[,] I
      gather[,] he was apprehended a year and a half after his last
      report into the office, including the contact in January 2018.

Id. at 6.

      Our review of the record confirms that the trial court sufficiently

analyzed the evidence and testimony, including any potential mitigating

factors, in order to make a fully informed sentencing decision following the

revocation of Quinones’s probation.    As a result, we discern no abuse of

discretion by the trial court, and will not disrupt Quinones’s sentence on

appeal.

      Judgment of sentence affirmed.

      Judge Lazarus joins the memorandum.

      Judge Shogan concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/07/2020




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