J-S29012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTHONY GOMEZ                              :
                                               :
                       Appellant               :   No. 3412 EDA 2017

              Appeal from the Judgment of Sentence June 14, 2017
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0006523-2016


BEFORE:       PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY PANELLA, J.                          FILED SEPTEMBER 14, 2018

        Anthony Gomez appeals from the judgment of sentence entered in the

Delaware County Court of Common Pleas, following the revocation of his

probation. Gomez challenges the discretionary aspects of his sentence. We

affirm.

        The relevant facts and procedural history are as follows. On October 20,

2016, Gomez pleaded guilty to one count each of theft by unlawful taking and

criminal trespass.1 The trial court sentenced Gomez to two years’ probation

for the theft conviction and 6 to 23 months’ imprisonment for the trespass

conviction.




____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 3921(a), and 3503(a)(1)(i), respectively.
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       Gomez was eventually released from prison. Immediately following his

release, he began to send threatening and harassing text and voice messages

to E. C., his ex-girlfriend, and J. C., her mother. The messages continued for

months, until April 2017, when the victims brought these messages to the

police and Gomez was charged with harassment. Gomez pled guilty to

summary harassment.

       Along with allegations of non-compliance with the terms of his probation

and parole, Gomez’s conviction triggered a probation and parole violation

hearing for his underlying charges. On June 14, 2017, the court held a hearing

and concluded that Gomez violated the terms of his probation and his parole.

The court revoked Gomez’s probation for his theft conviction and resentenced

him to 30 to 60 months’ imprisonment.2 While Gomez filed a post-sentence

motion challenging the discretionary aspects of his sentence for theft, he did

not file an appeal following the motion’s denial.

       Gomez filed a timely pro se PCRA petition seeking reinstatement of his

appellate rights. The PCRA court appointed counsel, and later reinstated

Gomez’s direct appeal rights nunc pro tunc. This timely appeal follows.




____________________________________________


2 The court also revoked Gomez’s parole for criminal trespass and recommitted
him to serve 351 days. Gomez does not challenge the revocation of his parole
in this appeal.




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       On appeal, Gomez contends that the court abused its discretion in

imposing sentence.3 Specifically, Gomez claims his sentence was excessive,

harsh, and unreasonable because it “far surpassed what was required to

protect the public, the complainants, and the community; went well beyond

what was necessary to foster [Gomez’s] rehabilitation; and was grossly

disproportionate to the crime.” Appellant’s Brief, at 8. Therefore, Gomez

asserts the revocation court committed reversible error.

       This claim challenges the discretionary aspects of Gomez’s sentence.

Initially, we note that our “scope of review in an appeal from a revocation

sentencing includes discretionary sentencing challenges.” Commonwealth v.

Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc).

       “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted).



____________________________________________


3 Gomez attempts to raise additional discretionary aspects of sentencing
claims in the argument section of his brief, i.e., that the trial court abused its
discretion by failing to consider various mitigating factors and failed to impose
an impartial sentence. See Appellant’s Brief, at 14-27. However, because
Gomez failed to include these issues in his statement of questions involved,
we cannot consider them. See Pa.R.A.P. 2116(a) (“No question will be
considered unless it is stated in the statement of questions involved or is fairly
suggested thereby.”); Pa.R.A.P. 2116(b) (“An appellant who challenges the
discretionary aspects of a sentence in a criminal matter shall include any
questions relating to the discretionary aspects of the sentence imposed … in
the statement required by paragraph (a).”)

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      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a four-part test:

      [We] conduct a four-part analysis to determine: (1) whether
      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 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).

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

marks and some citations omitted).

      Gomez filed a timely notice of appeal and preserved his claim in a timely

post-sentence motion. While Gomez’s brief does not contain a separate Rule

2119(f) statement, the Commonwealth has not objected to this defect. See,

e.g., Commonwealth v. Gould, 912 A.2d 869, 872 (Pa. Super. 2006).

Therefore, we will not find waiver on this basis. And, Gomez’s claim that his

sentence is unreasonable in light of the situation, and grossly disproportionate

to   his   crimes,   raises   a   substantial   question   for   our   review.   See

Commonwealth v. Vega, 850 A.2d 1277, 1280-1281 (Pa. Super. 2004)

(finding claim that sentence is excessive and disproportionate to the crime,

particularly in light of facts surrounding appellants’ background, raises a

substantial question for review). Therefore, we will address the merits of

Gomez’s claim.

            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. Simmons, 56 A.3d 1280, 1283-1284 (Pa. Super. 2012)

(citation omitted).

      “Upon revocation the sentencing alternatives available to the court shall

be the same as were available at the time of initial sentencing, due

consideration being given to the time spent serving the order of probation.”

42 Pa.C.S.A. § 9771(b). And the revocation court may impose a sentence of

total confinement upon revocation if “the defendant has been convicted of

another crime[.]” Id., at (c)(1). “[T]he trial court is limited only by the

maximum sentence that it could have imposed originally at the time of the

probationary sentence.” Commonwealth v. Infante, 63 A.3d 358, 365 (Pa.

Super. 2013) (citation omitted).

      In addition, in all cases where the court resentences an offender
      following 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
      [and] [f]ailure to comply with these provisions shall be grounds
      for vacating the sentence or resentence and resentencing the
      defendant. 42 Pa.C.S. § 9721(b). A trial 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. Colon, 102 A.3d 1033, 1044 (Pa. Super. 2014) (citations

and quotation marks omitted).

      Here, the court placed the following reasons for imposing sentence on

the record at the revocation hearing:


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     All right. So I’m looking at this report, and I’m using this as a
     guideline to what I’m finding is the case here. Let’s go to #1,
     report to probation and parole officer as directed. By the way, I
     do not look at these allegations separately. I think that when
     taken together they paint a picture pretty accurately and credibly
     of a person who is the very opposite of someone who is responding
     to probation. What they present to me is someone who’s
     absolutely intent on evading and violating every concept
     connected to probation. And if you look at each one under a
     microscope if that was the only violation taken by itself, you might
     say, well, it doesn’t warrant a substantial punishment. Quite true.
     But what I’m talking about here is taking all these things together
     and looking at what they present to the [c]ourt by way of a unified
     picture of what [Gomez] is when he’s on probation. Report to
     probation/parole officer as directed. He never did it. He never did
     it. He had this weird notion in his mind that his case was going to
     be -- or was transferred to Philadelphia and it never was. Yet he
     continuously reported to Philadelphia asking -- raising a pretext
     that he’s actually reporting.

            So #2, obtaining permission from the probation officer
     before changing address. [Defense counsel], you say that he was
     easy to find. It’s not their obligation to find him whether it’s easy
     []or hard. He has to according to the sentencing sheet provide a
     verifiable address which he never did. They didn’t know where he
     was.
            #3, comply with municipal, county and state laws.
     Somehow he managed to convince somebody that this horrendous
     situation that he created with th[ese] women was something that
     was worthy of a summary offense. I find it incredible that that was
     the outcome of all this.

            Refrain from overt behavior which may endanger oneself or
     others. All this pattern of harassment and whatever else he was
     described as doing[,] the lowest point is the point at which this
     young woman was trying to deal with her addiction and he drew
     her back into addiction by providing her with drugs. That’s a major
     felony and there’s no doubt in my mind that he actually did that,
     and he may have done it more than once, and when he couldn’t
     do it anymore he started on a campaign of harassment, getting
     her fired. It’s incredible to me that he would confront her at her
     work before he got her fired. I can understand why she might have
     been dissatisfied with that approach.


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             Complete the special conditions. I don’t believe [Gomez’s
      witness] is telling the truth about that. He went to Philadelphia
      still under some kind of pretext that he was being supervised in
      Philadelphia to get treatment. I haven’t seen anything in the
      record and it needs to be there if I’m to believe it that he actually
      did that. It ain’t there.

             So and then we have this long, long criminal history. Many
      of these things have to deal with dealings in drugs and other
      things. The case in Montgomery County where he’s still alive [sic]
      and he’s under supervision or he’s going to be violated or looked
      to for violation from the 2012 harassment of these people. So
      there’s a quality of relentlessness about his behavior in a criminal
      context from early on. And I don’t think that there’s any prospect
      of any kind of rehabilitative probation or supervision for him other
      than a jail sentence. It’ll give the public and people relief from him
      for as long as the law would provide for. Therefore, I’m sentencing
      him to 30 to 60 months in a state correctional institution without
      RRI.

N.T., Revocation Hearing, 6/14/17, at 162-165 (paragraph demarcations

added).

      Based upon our independent review of the record, the revocation court’s

findings set forth above, and our scope and standard of review, we conclude

that the revocation court did not abuse its discretion in sentencing Gomez to

30 to 60 month’s imprisonment following the revocation of his probation. The

court clearly considered the facts surrounding Gomez’s violations, as well as

the evidence presented as to his character. See Colon, 102 A.3d at 1044.

Based upon its consideration of these factors, the court concluded that the

public would best be protected by giving Gomez a sentence of 30 to 60

months’ imprisonment. Gomez has failed establish that the 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.


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     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/14/18




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