J-S54023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

HANK CALVIN PETRILLO

                            Appellant                   No. 131 WDA 2017


            Appeal from the Judgment of Sentence November 30, 2016
                In the Court of Common Pleas of Clearfield County
               Criminal Division at No(s): CP-17-CR-0000381-2016


BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                        FILED NOVEMBER 16, 2017

       Hank Calvin Petrillo appeals from the November 30, 2016 judgment of

sentence entered in the Clearfield County Court of Common Pleas following

his conviction for possession with intent to deliver a controlled substance

(“PWID”) and conspiracy to commit PWID.1 We affirm.

       The trial court set forth the history of this case as follows:

            [O]n November 22, 2016, [Petrillo] entered Open Pleas of
            Guilt to Possession with Intent to Deliver a Controlled
            Substance [(“PWID”)], and Criminal Conspiracy to Commit
            [PWID], both being ungraded Felonies.      [Petrillo] was
            consequently sentenced to concurrent periods of
            incarceration for each count, both having a minimum

____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
           35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 903, respectively.
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           period of twenty-seven (27) months and a maximum
           period of fifty-four (54) months.

              On November 30, 2016, [Petrillo] filed a Post-Sentence
           Motion to Modify Sentence, which was ultimately denied by
           this Court on December 22, 2016 following argument.
           [Petrillo] then filed a timely Notice of Appeal on January
           16, 2016.

Opinion pursuant to Pa.R.A.P. 1925(a), 2/10/17, at 1 (“1925(a) Op.”).

       On appeal, Petrillo raises the following issue:

           Whether the sentencing court abused its discretion when it
           denied [Petrillo]’s request for the sentencing order to
           include authorization to participate in the Department of
           Correction[s’] Motivational Boot Camp[2] in that it: failed
           to indicate why [Petrillo] would be inappropriate for
           placement in a Motivational Boot Camp, failed to account
           for the rehabilitative need of [Petrillo], and was manifestly
           unreasonable to not grant [Petrillo]’s request[.]

Petrillo’s Br. at 5 (full capitalization omitted).

       Petrillo is challenging the discretionary aspects of his sentence.

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,



____________________________________________


       2
         Motivational Boot Camp is a six-month program in which eligible
inmates may participate. The program “provide[s] for rigorous physical
activity, intensive regimentation and discipline, work on public projects,
substance abuse treatment services licensed by the Department of Health,
continuing education, vocational training, prerelease counseling and
community corrections aftercare.” 61 Pa.C.S. § 3903. Section 3904(b) of
the Prisons and Parole Code grants the sentencing judge “the discretion to
exclude a defendant from eligibility if the judge determines that the
defendant would be inappropriate for placement in a motivational boot
camp.” 61 Pa.C.S. § 3904(b).



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1064 (Pa.Super. 2011).      Before we address such a challenge, we first

determine:

        (1) whether the appeal is timely; (2) whether [a]ppellant
        preserved his issue; (3) whether [a]ppellant’s brief
        includes a concise statement of the 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 [S]entencing [C]ode.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).

     Petrillo filed a timely notice of appeal, preserved his claim in a timely

post-sentence motion, and included in his brief a concise statement of

reasons relied upon for allowance of appeal pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f).     We must now determine whether he has

raised a substantial question that the sentence is inappropriate under the

sentencing code and, if so, review the merits.

     We evaluate whether a particular issue raises a substantial question on

a case-by-case basis.   Commonwealth v. Dunphy, 20 A.3d 1215, 1220

(Pa.Super. 2011). A substantial question exists where a defendant raises a

“plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa.Super. 2013) (quoting

Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa.Super. 2012)).




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      Petrillo claims that the trial court abused its discretion by not

designating him as eligible for placement in the Motivational Boot Camp

program. In essence, Petrillo argues that because participation in boot camp

would best serve his rehabilitative needs, particularly his need for “more

intensive drug addiction counseling as opposed to the traditional prison

setting,” the trial court should have “authoriz[ed] him for boot camp.”

Petrillo’s Br. at 13.   Ordinarily, an allegation that a sentence failed to accord

proper weight to a sentencing factor, such as a defendant’s rehabilitative

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

Haynes, 125 A.3d 800, 807 (Pa.Super. 2015); Commonwealth v.

Cannon, 954 A.2d 1222, 1228-29 (Pa.Super. 2008); Commonwealth v.

Coolbaugh, 770 A.2d 788, 793 (Pa.Super. 2001); Commonwealth v.

Lawson, 650 A.2d 876, 881 (Pa.Super. 1994).                Petrillo has failed to

persuade us that his claim is outside the ordinary. Accordingly, Petrillo has

failed to raise a substantial question and we are without jurisdiction to

review his claim.

      Even had Petrillo raised a substantial question, we would conclude that

the trial court did not abuse its discretion. At sentencing, Petrillo requested

the trial court’s authorization to participate in the Motivational Boot Camp




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program.3 N.T., 11/22/16, at 6. The Commonwealth objected, arguing that

“I’m not sure . . . how that would work with the Jefferson County

sentence.[4]. . . I don’t think that’s necessarily a reasonable option for Mr.

Petrillo at this point.” Id. at 8. The Commonwealth also stated that it didn’t

“believe he’s an appropriate candidate, because of the length of his prior

record and multiple offenses contained therein.” Id. The trial court found:

           Much like sentencing generally, a court’s designation of a
           defendant as boot camp eligible is discretionary. See 61
           Pa.C.S. § 3904(b). Thus, the Court is not required to
           authorize a defendant’s participation in boot camp simply
           because a defendant requests this alternative. Moreover,
           even when a trial judge identifies a defendant as eligible
           for participation in boot camp, the defendant’s
           participation is contingent upon his approval by a
           motivational boot camp selection committee.        See 61
           Pa.C.S. § 3906(b).          Therefore, [Petrillo]’s actual
           participation in a motivational boot camp would have been
           uncertain even if the Court had granted his initial
           participation request. However, it remains that because
           the Court’s decision to deny [Petrillo]’s request for boot
           camp was entirely discretionary, the Court did not err in its
           decision.

1925(a) Op. at 2. We agree.
____________________________________________


       3
        In his post-sentence motion, Petrillo claimed he was eligible for the
program because he was an addict and because the Department of
Corrections evaluated him and determined “he was a fit and appropriate
candidate for [state intermediate punishment].” N.T., 12/22/16, 2-3. In
contrast, the Commonwealth argued that Petrillo had a “long and lengthy
prior record” and that Petrillo would not be an appropriate candidate. Id. at
4. The trial court denied Petrillo’s motion. Id. at 6.
       4
       At the time of sentencing, Petrillo was incarcerated in Jefferson
County on an unrelated conviction. N.T., 11/22/16, at 4.




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       Finally, to the extent that Petrillo claims that the trial court was

required to state its reasons for denying boot-camp eligibility on the record,

his claim is unavailing. Nothing in section 3904(b) requires a trial court to

state on the record its reasons for not finding a defendant eligible for the

Motivational Boot Camp program. See 61 Pa.C.S. § 3904(b).5

       Judgment of sentence affirmed.

       Judge Ott joins the memorandum.

       Justice Fitzgerald concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


____________________________________________


       5
           Section 3904(b) states:

            (b) Duties of sentencing judge.--The sentencing judge
            shall employ the sentencing guidelines to identify those
            defendants who are eligible for participation in a
            motivational boot camp.      The judge shall have the
            discretion to exclude a defendant from eligibility if the
            judge determines that the defendant would be
            inappropriate for placement in a motivational boot camp.
            The judge shall note on the sentencing order whether the
            defendant has been identified as eligible for a motivational
            boot camp program.

61 Pa.C.S. § 3904(b).



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Date: 11/16/2017




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