J-S47015-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                           Appellee

                     v.

CHARLES L. SAUNDERS

                           Appellant               No. 1504 EDA 2013


            Appeal from the Judgment of Sentence April 18, 2013
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0903039-2006


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY MUNDY, J.:                         FILED AUGUST 29, 2014

      Appellant, Charles L. Saunders, appeals from the April 18, 2013

judgment of sentence of three and one-

imposed following the revocation of his probation. After careful review, we

affirm.

      The trial court summarized the relevant factual and procedural history

of this case as follows.

                 On September 15, 2008, [A]ppellant entered a
            plea of nolo contendre to indecent assault, simple
            assault and criminal trespass before the Honorable
            Karen Shreeves Johns and was sentenced to time


            ordered to submit to random drug screens and a
            stay away order was issued for the victim. On July

            probation, but ordered that [A]ppellant could be
            released to New Jerusalem Now drug treatment
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          program when a bed became available. Appellant
          was transported to New Jerusalem Now on October
          30, 2009.
          probation/parole was again revoked[;] however,
          sentencing was deferred pending the results of a
          mental health evaluation. Based upon the results of

          transferred to Mental Health Court which            is
          administered and supervised by th[e trial c]ourt.

               On July 1, 2010, [A]ppellant was sentenced to


          program when a bed became available. On July 21,
          2011 [A]ppellant was again found in violation and re-


          long[-]term inpatient program when a bed became
          available. On October 13, 2011, [A]ppellant was
          paroled to an inpatient treatment program at Walnut
          Manor House and the case was listed for status
          [conference] on November 17, 2011. On that date,
          [A]ppellant failed to appear in court as scheduled
          and a bench warrant was issued[ for his arrest]. On
          January 5, 2012, following a hearing, [A]ppellant
          was found in violation of his parole and sentenced to


                On August 1, 2012, [A]ppellant was released
          to an inpatient treatment program at Gaudenzia New
          Beginnings (Gaudenzia). On September 19, 2012,


          behaviors had been escalating. On October 9, 2012,
          Officer Ross received a report from Gaudenzia that
          [A]ppellant had become verbally and physically
          aggressive towards staff. Then[,] on October 16,
          2012, Officer Ross received information from
          Gaudenzia that [A]ppellant was attempting to
          contact the victim of his sexual assault through the
          mail, a violation of the stay[-]away order.
          Therefore, Officer Ross took [A]ppellant into custody
          and a violation hearing was scheduled. However,
          before the hearing could take place, [A]ppellant was

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              determined to be incompetent[] and remained
              hospitalized until he was found to be competent on
              April 11, 2013.     On April 18, 2013, a violation
              hearing was conducted where the aforementioned
              evidence was presented. Appellant was found in
              violation of his probation and sentenced to an

              incarceration and removed from the supervision of
              Mental Health Court.

Trial Court Opinion, 8/5/13, at 1-3 (internal citations omitted).         A timely

motion to reconsider sentence was filed on April 29, 2013, which was left

unresolved by the trial court.1 This timely notice of appeal followed on May

17, 2013.2

        On appeal, Appellant raises the following issue for our review.

              1.     Did [] the [trial] court fail to properly weigh

                                                        cant health
                     issues) versus the safety of the public, find
                     violations on the basis of evidence of question
                     probative value and imposes an excessive and
                     unreasonable       sentence      which     was
                     disproportionate to those alleged violations,
                     and impose a sentence contrary to the norms
____________________________________________
1
  A motion to modify or reconsider sentence following revocation of
probation must be filed within ten days of sentencing. See Pa.R.Crim.P.
                                        a sentence imposed after a revocation
shall be filed within 10 days of the date of imposition         he filing of a
motion to modify sentence will not toll the 30-day appeal period[
                                                                   ich was a

timely. See 1 Pa.C.S.A. § 1908 (providing that when the last day of a
calculated period of time falls on a Saturday or Sunday, such day shall be
omitted from the computation).
2
    Appellant and the trial court have timely complied with Pa.R.A.P 1925.



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                  of sentencing (including the requirements for a
                  sentence of total incarceration pursuant to 42
                  Pa.C.S.[A.] § 9771(c)), where the [trial] court

                  imprisonment] for technical violations?

              ief at 4.

      Our standard of review in assessing a sentence imposed following the

revocation of probation is well settled.

                   In considering an appeal from a sentence
            imposed following the revocation of probation, our
            review is limited to determining the validity of the
            probation revocation proceedings and the authority
            of the sentencing court to consider the same
            sentencing alternatives that it had at the time of the
            initial sentencing.    Revocation of a probation
            sentence is a matter committed to the sound
            disc
            will not be disturbed on appeal in the absence of an
            error of law or an abuse of discretion.

Commonwealth v. Williams, 997 A.2d 1205, 1208 (Pa. Super. 2010)

                                                   is not merely an error of

judgment, but if in reaching a conclusion the law is overridden or misapplied

or the judgment exercised is manifestly unreasonable, or the result of

partiality, prejudice, bias, or ill will, as shown by the evidence or the record,

                          Commonwealth v. Burns, 988 A.2d 684, 689 (Pa.

Super. 2009) (en banc) (citation omitted), appeal denied, 8 A.3d 341 (Pa.



revocation proceedings is encompassed b




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Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en

banc).



whether this appeal is properly before us.       Pennsylvania Rule of Appellate



each ruling or error that the appellant intends to challenge with sufficient



The Rule also

deemed to include every subsidiary issue contained therein which was raised

                       Id. at 1925(b)(4)(v). Finally, any issues not raised in

accordance    with   Rule   1925(b)(4)   will   be   deemed   waived.   Id.   at

1925(b)(4)(vii).

     Our Supreme Court has held that Rule 1925(b) is a bright-line rule.

             Our jurisprudence is clear and well-settled, and
             firmly establishes that: Rule 1925(b) sets out a
             simple bright-line rule, which obligates an appellant
             to file and serve a Rule 1925(b) statement, when so
             ordered; any issues not raised in a Rule 1925(b)
             statement will be deemed waived; the courts lack
             the authority to countenance deviations from the

             ad hoc exceptions or selective enforcement;
             appellants and their counsel are responsible for

             violations may be raised by the appellate court sua
             sponte, and the Rule applies notwithstanding an

             1925 is not clear as to what is required of an
             appellant, on-the-record actions taken by the
             appellant aimed at compliance may satisfy the rule.
             We yet again repeat the principle first stated in

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           [Commonwealth v.] Lord, [719 A.2d 306 (Pa.

           preserve    their claims  for   appellate    review,
           [a]ppellants must comply whenever the trial court
           orders them to file a Statement of Matters
           Complained of on Appeal pursuant to Pa.R.A.P. 1925.
           Any issues not raised in a Pa.R.A.P. 1925(b)
                                              Id.] at 309

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (footnote omitted).

     Of the four separate claims Appellant raises in the instant appeal, the

Commonwealth avers two are waived. First, the Commonwealth argues that

Appellant waived his claim, that the trial court failed to consider his

rehabilitative needs because he did not include it within his Rule 1925(b)




                                                                  o the trial




                                    Commonwealth v. Johnson, 51 A.3d

237, 246 (Pa. Super. 2012) (citation omitted), appeal denied, 63 A.3d 1245




is also waived for failure to include it in his Rule 1925(b) statement.

                       see also Hill, supra




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raised in the Appell

Therefore, we deem this claim waived as well.

     The remaining two issues raised by Appellant are that his sentence

was disproportionate to the technical nature of his violations and that the

trial court imposed a sentence of total incarceration without complying with

                                                -14. We note that Appellant



arguments pertain to the discretionary aspects of his sentence.



                                                        Commonwealth v.

Edwards, 71 A.3d 323, 329 (Pa. Super. 2013) (citation omitted), appeal

denied, 81 A.3d 75 (Pa

a sentence must be considered a petition for permission to appeal, as the

                                                Commonwealth v. Ahmad,

961 A.2d 884, 886 (Pa. Super. 2008).

           [Therefore, b]efore we reach the merits of this
           [issue], we must engage in a four part analysis to
           determine: (1) whether the appeal is timely; (2)
           whether Appellant preserved his issue; (3) whether

           reasons relied upon for allowance of appeal with
           respect to the discretionary aspects of sentence;
           and (4) whether the concise statement raises a
           substantial question that the sentence is appropriate
           under the sentencing code. The third and fourth of
           these requirements arise
           on his sentence is not an appeal as of right. Rather,
           he must petition this Court, in his concise statement
           of reasons, to grant consideration of his appeal on

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            the grounds that there is a substantial question.
            Finally, if the appeal satisfies each of these four
            requirements, we will then proceed to decide the
            substantive merits of the case.

Edwards, supra at 329-330 (citations omitted).

      Herein, Appellant first argues that the sentence was disproportionate

to the technical natur                                          -14. Second,

Appellant argues that trial court imposed a sentence of total incarceration

without complying with Section 9771(c). Id. at 12-

are in compliance with the technical requirements to challenge the

discretionary aspects of a sentence.       See Edwards, supra at 330.

Appellant has filed a timely notice of appeal, raised these claims in a timely

motion for reconsideration of sentence, and has included a separate Rule

2119(f) statement.     See                         Therefore, we turn to the

substantial question analysis on these claims.



evaluated on a case-by-                    See Edwards, supra (citations

            A substantial question exists only when the appellant advances a



inconsistent with a specific provision of the Sentencing Code; or (2) contrary

to the fundamental norms which underlie                                   Id.

(citations omitted).




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at 15.   This Court has held that                             that a claim of

excessiveness of sentence does not raise a substantial question so as to



Commonwealth v. Kraft, 737 A.2d 755, 757 (Pa. Super. 1999), appeal

denied, 747 A.2d 366 (Pa. 1999).        However,    a claim that a particular

probation revocation sentence is excessive in light of its underlying technical



Commonwealth v. Carver, 923 A.2d 495, 497 (Pa. Super. 2007) (citations

omitted).




a substantial question. Commonwealth v. Malovich, 903 A.2d 1247, 1253

(Pa. Super. 2006).       Accordingly, Appellant has raised two substantial

questions for our review.



stated specific reasons for




            being transferred to Mental Health Court, his
            probation was revoked for technical violations on
            July 21, 2009[,] and February 3, 2010 by Judge
            Shreeves Johns. He was found in technical violation
            of his parole or probation for noncompliance with his
            court[-]ordered treatment programs on three
            occasions: on July 21, 2011, probation was revoked
            and [A]ppellant was re-sentenced to 6-23 months


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            parole was revoked and [A]ppellant was sentenced

            probation; and, the instant probation revocation,
            April 18, 2013, where the [trial c]ourt found that
            [A]ppellant had again violated the terms of his
            probation. Probation is a rehabilitative device to be
            used to assist the offender in his adjustment to life
            within society.    Over the course of the case,
            [A]ppellant was placed in four different rehabilitation
            programs without success. Based on the number of
            rehabilitation programs [A]ppellant had failed to
            successfully complete, the [trial c]ourt determined
            that probation was not an effective tool for
                                                  probation was
            incapable of deterring [A]ppellant from future
            antisocial behavior, and that a state sentence of
            incarceration was warranted.

Trial Court Opinion, 8/5/13, at 3-4 (internal citations omitted).

      Clearly, the trial court had articulable reasons for imposing a sentence

of state incarceration.   See id.

technical in nature, it does not follow that they are de minimis. Rather, the

trial court reasoned these violations were flagrant and indicative of the

Ap                                                                           See

Carver, supra

revocation and a sentence of incarceration when such violations are flagrant

                                              Moreover, the trial court stated on



placements that [Appellant has] left or have been provided for [Appellant

                                                                                ,

4/18/13, at 16.   Based on these considerations, we conclude the trial court


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did not abuse its discretion in imposing a three and one-

state incarceration.   See Williams, supra

argument also fails.

      Lastly, Appellant asserts the trial court failed to comply with Section

                                 -21. Section 9771(c) provides that the trial

court may impose a sentence of total confinement upon revocation of a

sentence of probation if one of the three enumerated circumstances applies.

The statute provides, in relevant part, as follows.

            § 9771. Modification or revocation of order of
            probation.



            (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

            (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).

total confinement after a probation revocation, the sentencing court is to

                                                        Commonwealth v.




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Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) (citations omitted), appeal

denied, 608 Pa. 661 (Pa. 2010).



[Appe

complete his treatment program. N.T., 4/18/13, at 16; see also Trial Court



incapable of deterring [Appellant]

4/18/13, at 18.    Accordingly, the trial court had the discretion to impose

incarceration to vindicate its authority. See Trial Court Opinion, 8/5/13, at

3-

where [A]ppellant had not complied with previous judicial efforts such as

                                                  citing Malovich, supra at

1254.     Therefore, we conclude that the trial court complied with Section

9771(c)(3) when it sentenced Appellant to total confinement following the

revocation of his probation, and as such, did not abuse its discretion. See

Williams, supra

                                                                    ents are



2013 judgment of sentence.

        Judgment of sentence affirmed.




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J-S47015-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2014




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