J-A11026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    THOMAS JAMES KOLLIAS                       :
                                               :
                       Appellant               :   No. 1463 MDA 2018

         Appeal from the Judgment of Sentence Entered August 3, 2018
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0002330-2003


BEFORE: BOWES, J., OLSON, J., and STABILE, J.

MEMORANDUM BY OLSON, J.:                           FILED SEPTEMBER 13, 2019

        Appellant, Thomas James Kollias, appeals from the judgment of

sentence entered on August 3, 2018. We affirm.

        On August 18, 2003, Appellant pleaded guilty to receiving stolen

property and criminal attempt to commit criminal trespass.1 That day, the

trial court sentenced Appellant to serve a term of one to two years in prison

for the receiving stolen property conviction, followed by a term of five years

of probation for the attempted criminal trespass conviction.

        On April 1, 2010, April 16, 2013, and December 1, 2016, the trial court

revoked Appellant’s probation and, each time, the trial court resentenced

Appellant to serve a term of probation for the underlying attempted criminal

trespass conviction. See Probation Order, 4/1/10, at 1 (sentencing Appellant

____________________________________________


1   18 Pa.C.S.A. §§ 3925(a) and 901(a), respectively.
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to serve seven years of probation); Special Probation Order, 4/16/13, at 1

(sentencing Appellant to serve seven years of probation); Probation Order,

12/1/16, at 1 (sentencing Appellant to serve a term of four years of

probation).

      On July 3, 2018, while Appellant was still on probation, the Court of

Common Pleas of Delaware County sentenced Appellant to serve a term of

four to 23 months in jail for a simple assault conviction. See N.T. Revocation

Hearing, 8/3/18, at 2. As a result of Appellant’s arrest and conviction, the

Commonwealth began revocation of probation proceedings against Appellant.

      During the August 3, 2018 violation of probation hearing, Appellant

stipulated to violating his probation and the trial court resentenced Appellant

to serve a term of 20 months to five years in prison for the underlying

attempted criminal trespass conviction. Id. at 11.

      On August 8, 2018, Appellant filed a timely motion to modify sentence.

In relevant part, Appellant’s motion to modify sentence declared:

        6. [At the sentencing hearing,] the Adult Probation Office
        recommended [that the trial court sentence Appellant to
        serve] two to seven years in [a State Correctional Institution
        (“SCI”)], with time credit of 405 days.

        7. [Appellant] requested a county sentence, with 405 days
        credit, followed by probation as the [trial] court deemed
        appropriate.

        8. [The trial] court then sentenced [Appellant] to a term of
        imprisonment of 20 months to [five] years SCI, with 405 days
        credit. . . .




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        9. [Appellant] is requesting probation to follow the probation
        that he already will be serving in Delaware [County], or in
        the alternative, a county sentence followed by probation.

                                     ...

        11. [Appellant] requests that the [trial] court consider the
        following factors in regard to sentencing:

            a. [Appellant] will be on supervision for an extended
            amount of time in Delaware County due to the sentence
            on the new charges, and the . . . [sentences at other
            docket numbers].

            b. [Appellant] has significant mental health issues that
            require treatment and medication and if [Appellant] is
            sent to state prison, he will likely decompensate and not
            receive the treatment that he would be able to obtain on
            county supervision.

            c. [Appellant] is required to enroll in treatment within 10
            days of release from Delaware County and will also have
            drug and alcohol, psychological and psychiatric
            evaluations as part of his Delaware County supervision.

        WHEREFORE, [Appellant] prays that [the trial court] consider
        his petition requesting a modification of the sentence
        imposed upon him, and that [the trial court] reduce and
        modify the sentence imposed upon him.

Appellant’s Motion to Modify Sentence, 8/8/18, at 2-3 (emphasis and some

capitalization omitted).

      On August 27, 2018, the trial court denied Appellant’s motion to modify

sentence. Trial Court Order, 8/27/18, at 1. Appellant filed a timely notice of

appeal on August 31, 2018. Appellant raises the following claims in his brief:

        A. Appellant’s re-sentence of [20] months to [five years’]
        incarceration was a manifest abuse of discretion due to the
        overall excessiveness of his sentence from a 2003 conviction.



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            1. The trial court failed to comply with 42 Pa.C.S.A.
            § 9771(b) when imposing sentence.

            2. Using the factors in 42 Pa.C.S.A. § 9781(d), [the
            Superior] Court should vacate the sentence because the
            specific circumstances make this sentence manifestly
            unreasonable.

                a.   Under    42    Pa.C.S.A.   § 9781(d)(1),    the
                circumstances of the case and Appellant’s history of
                severe mental illnesses merit considerable weight in
                overturning his sentence.

                b. The [trial] court’s findings pursuant to 42 Pa.C.S.A.
                § 9781(d)(3) were insufficient to justify the sentence
                imposed.

            3. Appellant’s re-sentence was disproportional and
            contrary to fundamental sentencing norms.

            4. Appellant asks this [Court] to consider the controversy
            surrounding perpetual probation as a factor in finding
            abuse of discretion.

Appellant’s Brief at i-ii (emphasis omitted).

      Appellant’s claims challenge the discretionary aspects of his sentence.

See Commonwealth v. Lee, 876 A.2d 408 (Pa. Super. 2005) (claim that the

trial court erred in imposing an excessive sentence is a challenge to the

discretionary aspects of a sentence). We note that, in an appeal following the

revocation of probation, our scope of review includes discretionary aspects of

sentencing claims. Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.

Super. 2013) (en banc). With respect to our standard of review, we have held

that “sentencing is a matter vested in the sound discretion of the sentencing

judge, whose judgment will not be disturbed absent an abuse of discretion.”

Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001).

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Moreover, pursuant to statute, Appellant does not have an automatic right to

appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b).

Instead, Appellant must petition this Court for permission to appeal the

discretionary aspects of his sentence. Id.

     As this Court has explained:

        [t]o reach the merits of a discretionary sentencing issue, we
        conduct a four-part analysis to determine: (1) whether
        appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
        903; (2) whether the issue was properly preserved at
        sentencing or in a motion to reconsider and modify sentence,
        Pa.R.Crim.P. [708(E)]; (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.
        § 9781(b).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007); see also

Cartrette, 83 A.3d at 1042 (“issues challenging the discretionary aspects of

a sentence [following the revocation of probation] must be raised in a

post-sentence motion or by presenting the claim to the trial court during the

sentencing proceedings. Absent such efforts, an objection to a discretionary

aspect of a sentence is waived”); Commonwealth v. Kalichak, 943 A.2d

285, 289 (Pa. Super. 2008) (“when a court revokes probation and imposes a

new sentence, a criminal defendant needs to preserve challenges to the

discretionary aspects of that new sentence either by objecting during the

revocation sentencing or by filing a [motion to modify] sentence”).




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J-A11026-19



       The claims Appellant advances in his brief were not raised at the

resentencing hearing or in Appellant’s motion to modify his sentence. 2 See

N.T. Revocation Hearing, 8/3/18, at 11-12; Appellant’s Motion to Modify

Sentence, 8/8/18, at 1-3; N.T. Motion to Modify Sentence Hearing, 8/27/18,

at 1-5; Pa.R.Crim.P. 708(E). Therefore, Appellant waived the discretionary

aspects of sentencing claims he currently raises on appeal. Cartrette, 83

A.3d at 1042.

       Moreover, even if Appellant had properly preserved his current claims

(which he did not), the claims would fail. Since Appellant was sentenced

following the revocation of probation, the sentencing guidelines do not apply

to Appellant's sentence. 204 Pa.Code § 303.1(b); Commonwealth v.

Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006). Nevertheless, in sentencing

Appellant, the trial court was required to “consider the general principles and

____________________________________________


2 We note that, in both Appellant’s brief and motion to modify sentence,
Appellant premised a claim for relief upon his “significant mental health
issues.”   However, the claims are materially distinct.          Specifically, in
Appellant’s brief, Appellant argued that his sentence is manifestly excessive
(in part) because his “mental health condition[s] clearly inhibit his ability to
adhere to probation conditions” and his recidivism “indicate[s] a legitimate
mental disability that is beyond Appellant’s ability to change or control.”
Appellant’s Brief at 23-24. Appellant did not raise this mens rea claim in his
motion to modify sentence. Rather, within Appellant’s motion to modify
sentence, Appellant argued only that his mental health issues favored
probation because his mental health issues “require treatment and medication
and if [Appellant] is sent to state prison, he will likely decompensate and not
receive the treatment that he would be able to obtain on county supervision.”
Appellant’s Motion to Modify Sentence, 8/8/18, at 2. Therefore, the claim
raised in Appellant’s motion to modify sentence did not preserve the claim
Appellant raised in his brief to this Court.


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J-A11026-19



standards of the Sentencing Code.” Commonwealth v. Russell, 460 A.2d

316, 322 (Pa. Super. 1983). Section 9721 expresses these general principles

in the following manner:

        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(b).

      Further, as we have held:

        In addition to issuing a sentence 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,” a [violation of
        probation (“VOP”)] court must also consider, for example,
        whether the sentence imposed is “essential to vindicate the
        authority of the court,” and must give “due consideration . .
        . to the time spent serving the order of probation.”

Commonwealth v. Derry, 150 A.3d 987, 994 (Pa. Super. 2016) (corrections

omitted), quoting 42 Pa.C.S.A. §§ 9721(b) and 9771.

      “The determination of whether a particular case raises a substantial

question is to be evaluated on a case-by-case basis. Generally, however, in

order to establish that there is a substantial question, the appellant must show

actions by the sentencing court inconsistent with the Sentencing Code or

contrary to the fundamental norms underlying the sentencing process.”

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal

citations omitted). “When considering the merits of a discretionary aspects of

sentencing claim, we analyze the sentencing court's decision under an abuse


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of discretion standard.” Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa.

Super. 2015). “An abuse of discretion is more than just an error of judgment

and, on appeal, a trial court will not be found to have abused its discretion

unless the record discloses that the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias, or ill-will.”

Commonwealth v. Lane, 424 A.2d 1325, 1328 (Pa. 1981) (quotations

omitted).

       Appellant claims: 1) “the new sentence was manifestly unreasonable

considering the circumstances of this case,” as the trial court failed to give

adequate weight to Appellant’s “severe mental health issues;” 2) the trial

court “failed to consider 42 Pa.C.S.A. § 9771(b) when imposing total

confinement,” in that the trial court failed to give “due consideration . . . to

the time [Appellant] spent serving the order of probation;” 3) the “re-sentence

violates the general sentencing principles in 42 Pa.C.S.A. § 9721(b) because

it was disproportional to the violations;” and, 4) the trial court’s “findings

pursuant to 42 Pa.C.S.A. § 9781(d)(3) were insufficient to justify the sentence

imposed.”3 See Appellant’s Brief at 15-31.



____________________________________________


3 Appellant’s final numbered sub-claim – requesting that this Court “consider
the controversy surrounding perpetual probation as a factor in finding abuse
of discretion” – reiterates his claim that the trial court “failed to consider 42
Pa.C.S.A. § 9771(b) when imposing total confinement,” in that the trial court
failed to give “due consideration . . . to the time [Appellant] spent serving the
order of probation.” See Appellant’s Brief at 30.


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      Even if the claims were preserved and presented substantial questions

for our review, the claims would fail. We will consider the first three numbered

claims together.

      First, at sentencing, the trial court was well aware of – and thoroughly

considered – Appellant’s mental health issues and the time Appellant spent

serving the prior orders of probation. See N.T. Sentencing, 8/3/18, at 5-6

(Appellant’s attorney informed the trial court of Appellant’s mental health

problems); N.T. Sentencing, 8/3/18, at 3-4 (the Commonwealth noted

Appellant’s prior time serving probation); c.f. Commonwealth v. Rhoades,

8 A.3d 912, 919 (Pa. Super. 2010) (holding that, when “the sentencing court

had the benefit of a pre-sentence investigation report, we can assume the

sentencing court was aware of relevant information regarding the defendant's

character and weighed those considerations”).         Further, the trial court

meticulously weighed the facts and considered the necessary statutory factors

when it sentenced Appellant to serve a term of 20 months to five years in

prison. As the trial court explained:

        Considering the procedural history, the recommendation of
        both Commonwealth and [Appellant], the allocution of
        [Appellant] and his background, as well as balancing the
        punitive needs of the Commonwealth with the rehabilitative
        needs of [Appellant] and his inability to succeed with the
        lesser restrictions of probation, the sentence imposed is not
        manifestly excessive nor grossly disproportionate to the
        crime and is supported by the record. It should [] be noted
        that the sentence imposed was a lesser minimum sentence
        than requested by the supervising probation officer. The
        sentence was also imposed concurrently with [Appellant’s]



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       new Delaware County conviction in light of the court's
       concern with the potential issue of aggregation of sentences.

       The court is permitted to revoke an order of probation upon
       proof of the violation of specified conditions and has available
       all the sentencing alternatives that existed at the time of
       initial sentencing. While due consideration should be given
       to the time spent serving the order of probation, it is one of
       many factors to consider. Although not required, the court
       considered the traditional sentencing factors, including the
       likelihood that probation with its lesser restrictions could
       rehabilitate [Appellant]. 42 Pa.C.S.A. § 9771(c) permits total
       confinement upon probation revocation. It lists three factors
       that indicate the appropriateness of incarceration.            The
       existence of any one of them shows the appropriateness of
       the type of sentence imposed on [Appellant]. In this case,
       all the listed factors existed on some level for him, weighing
       in favor of total confinement. First, [Appellant] was convicted
       of a new crime. Second, the conduct of [Appellant] over the
       time since August of 2003 shows that it is likely that he will
       commit another crime if he is not imprisoned, having three
       new convictions in addition to technical violations.
       [Appellant] himself stated that he wasn't sure he could ever
       finish a term of probation. Third, total incarceration is
       appropriate when such a sentence is essential to vindicate
       the authority of the court. [Appellant] was given four
       opportunities to comply with a probationary sentence before
       incarceration was imposed.             He was given repeated
       opportunities to comply and was unable to comply with the
       conditions of probation, most importantly to remain crime
       free. To impose another term of probation would undermine
       the authority of the court. [At sentencing, the] trial court
       noted, “I have cut you some amazing breaks already with
       regard to this docket. And nevertheless, you have kept
       getting into difficulties, so I don't see any choice but to in fact
       impose a state sentence this time around.”

       The trial court is in the best position to determine the proper
       penalty for a particular offense based upon an evaluation of
       the individual circumstances before it. This is the basis for
       the broad discretion afforded to trial court judges. When
       considering the nature and circumstances of the offense and
       the history and characteristics of [Appellant] and the multiple
       opportunities the sentencing court had to observe [him],

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        there is no basis to conclude there was an abuse of discretion.
        The sentence entered in this case is not manifestly excessive
        nor grossly disproportionate to the actions of [Appellant].
        Sufficient reasons for the imposition of the sentence were
        placed on the record. The court's exercise of judgment was
        not manifestly unreasonable when contrasted to the facts,
        the guidelines, and the history of violations by [Appellant].
        The age of the original docket or the probation previously
        imposed were not ignored in this case.           [Appellant’s]
        allocution was carefully considered. [Appellant] indicated his
        belief that he could never complete a term of probation;
        indicating that probation would essentially be setting him up
        for additional failure. A sentence of incarceration was
        appropriate.

Trial Court Opinion, 7/5/19, at 4-6 (some citations omitted).

      The trial court’s careful analysis demonstrates that it carefully weighed

the totality of the facts and the necessary statutory factors prior to imposing

sentence.    The sentence the trial court imposed was not “manifestly

unreasonable” – and it certainly cannot be said that the sentence was “the

result of partiality, prejudice, bias or ill-will.” See Lane, 424 A.2d at 1328.

As such, the trial court did not abuse its discretion when it sentenced Appellant

to serve a term of 20 months to five years in prison.

      Finally, Appellant claims that the trial court abused its discretion when

it provided a “terse” and “insufficient” reason for his sentence during the

sentencing hearing. See Appellant’s Brief at 25-26. This claim fails.

      During the sentencing hearing, the trial court declared:

        I had the sheet that had the docket for the Delaware County
        [conviction]. . . . The sentence in this matter takes into
        consideration all of the information provided, as well as the
        history of this charge. [Appellant,] there [are] two problems
        that I have. One would be the problem of aggregation if I
        gave you even a county sentence, it would probably

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J-A11026-19


        aggregate into a state sentence. The second is I have cut
        you some amazing breaks already with regard to this docket.
        And[,] nevertheless, you have kept getting into difficulties so
        I don’t see any choice but to in fact impose a state sentence
        this time around.

        Sentence will be based upon the violations of the prior
        probation and the history. The sentence is that you shall be
        committed for a period of not less than 20 months, no more
        than five years to the Bureau of Corrections for confinement
        in a state correctional facility. . . . This sentence will be
        effective today, and will be concurrent with the sentence
        imposed at [the Delaware County docket].

N.T. Sentencing Hearing, 8/3/18, at 11.

     As our Supreme Court explained:

        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 reappears
        before the court for sentencing proceedings following a
        violation of the mercy bestowed upon him in the form of a
        probationary sentence.

                                     ...

        42 Pa.C.S. § 9721(b) specifies that in every case following
        the revocation of probation, “the court shall make as a 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.” See also Pa.R.Crim.P. 708(C)(2)
        (indicating at the time of sentence following the revocation of
        probation, “[t]he judge shall state on the record the reasons
        for the sentence imposed.”).

        However, following revocation, a sentencing court
        need not undertake a lengthy discourse for its reasons
        for imposing a sentence or specifically reference the
        statutes in question. Simply put, 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

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J-A11026-19


        sentencing. The rationale for this is obvious.           When
        sentencing is a consequence of the revocation of probation,
        the trial judge is already fully informed as to the facts and
        circumstances of both the crime and the nature of the
        defendant, particularly where, as here, the trial judge had the
        benefit of a PSI during the initial sentencing proceedings.

Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014) (emphasis

added) (footnote omitted).

     It is true that, during Appellant’s sentencing hearing, the trial court’s

record statement for imposing the sentence was not as detailed and elaborate

as it might have been for an initial sentence. However, under our Supreme

Court’s precedent, it did not need to be. Id. Here, the trial court complied

with 42 Pa.C.S.A. § 9721(b) by placing “a statement of the reason or reasons

for the sentence imposed” on the record.       See 42 Pa.C.S.A. § 9721(b);

Pasture, 107 A.3d at 27-28. Appellant’s claim that the statement was “terse”

or “insufficient” fails under our Supreme Court’s holding in Pasture.

     We thus conclude that, even if Appellant had not waived his claims on

appeal, the claims would have failed.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2019


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