J-S43041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

MANUEL NOEL NEGRON

                        Appellant                 No. 1986 MDA 2015


          Appeal from the Judgment of Sentence October 13, 2015
             In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0004438-2013
                                        CP-36-CR-0005341-2012
                                        CP-36-CR-0005346-2012
                                        CP-36-CR-0005903-2012


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED JULY 15, 2016

     Appellant Manuel Noel Negron appeals from the judgment of sentence

entered on October 13, 2015 in the Lancaster County Court of Common

Pleas following revocation of Appellant’s probation and parole. Judgment of

sentence for the conspiracy conviction (count 2) at docket CP-36-CR-

0005903-2012 is vacated.     Judgment of sentence is affirmed for all other

counts.

     On April 3, 2013, Appellant entered an open guilty plea at docket

numbers CP-36-CR-0005341-2012 (“docket 5341”) and CP-36-CR-0005346-

2012 (“docket 5346”). At docket 5341, he pled guilty to intimidation of a
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witness,1 and at docket 5346 he pled guilty to burglary, theft by unlawful

taking, and conspiracy to commit burglary.2 On that same date, at CP-36-

CR-0005903-2012 (“docket 5903”), Appellant entered a negotiated guilty

plea to theft and conspiracy to commit theft.

        The trial court sentenced Appellant that same day.            At docket 5341,

the    trial   court   sentenced    Appellant    to   time   served   to   23   months’

incarceration followed by 3 years’ probation for the intimidation of a witness

conviction. At docket 5346, the trial court imposed sentences of time served

to 23 months’ incarceration followed by 3 years’ probation for the burglary

conviction and the conspiracy to commit burglary conviction. The theft by

unlawful taking conviction merged for sentencing purposes. At docket 5903,

the trial court sentenced appellant to three years’ probation for the theft

conviction and three years’ probation for the conspiracy to commit theft

conviction. The sentences were imposed concurrently.

        On October 31, 2014, Appellant entered a negotiated guilty plea at

docket CP-36-CR-0004438-2013 (“docket 4438”) to retail theft,3 and the

trial court sentenced him to two years’ probation.




____________________________________________


1
    18 Pa.C.S. § 4952(a)(1).
2
    18 Pa.C.S. §§ 3502(a), 3921, and 903(c), respectively.
3
    18 Pa.C.S. § 3929.



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       On July 29, 2015, the trial court found Appellant in violation of his

probation and parole, revoked his probation and parole, and ordered a pre-

sentence investigation report.

       On October 13, 2015, the trial court sentenced Appellant to an

aggregate term of two to five years’ incarceration.4

       On October 21, 2015, Appellant filed a post-sentence motion, which

the trial court denied that same day. On November 12, 2015, Appellant filed

a timely notice of appeal. Both Appellant and the trial court complied with

Pennsylvania Rule of Appellate Procedure 1925.

       Appellant raises the following issue on appeal:

          Was a sentence of two to five years[’] incarceration for
          technical violations of probation manifestly excessive and
          an abuse of the court’s discretion?

Appellant’s Brief at 5.

       Appellant’s issue challenges 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,

____________________________________________


4
  At docket 5341, the trial court sentenced Appellant to 1 to 2 years’
incarceration for the intimidation of a witness conviction. At docket 5346,
the trial court sentenced Appellant to 2 to 5 years’ incarceration for the
burglary conviction and 2 to 5 years’ incarceration for the conspiracy to
commit burglary conviction. At docket 5903, the trial court sentenced
Appellant to 1 to 2 years’ incarceration for the theft by unlawful taking
conviction and 1 to 2 years’ incarceration for the conspiracy conviction. At
docket 4438, the trial court sentenced Appellant to serve the unexpired
balance of his sentence.



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1064 (Pa.Super.2011) (citing Commonwealth v. Sierra, 752 A.2d 910,

912 (Pa.Super.2000)).       Before this Court can address a discretionary

challenge, we must engage in a four-part analysis to determine:

         (1) whether the appeal is timely; (2) whether Appellant
         preserved his issue; (3) whether Appellant’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 sentencing code.

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

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

also Allen, 24 A.3d at 1064.

      Appellant raised his discretionary aspects of sentence issue in a timely

post-sentence motion, filed a timely notice of appeal, and included a

statement of reasons relied upon for allowance of appeal pursuant to

Pennsylvania Rule of Appellate Procedure 2119(f) in his brief.     We must,

therefore, determine whether his issue presents a substantial question and,

if so, review the merits.

      “The determination of whether a particular issue raises a substantial

question is to be evaluated on a case-by-case basis.” Commonwealth v.

Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011) (quoting Commonwealth v.

Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)). 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

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(Pa.Super.2013) (quoting Commonwealth v. Naranjo, 53 A.3d 66, 72

(Pa.Super.2012)).

      Appellant challenges the imposition of total confinement following his

technical parole violations as excessive.           Such a challenge raises a

substantial question.    Commonwealth v. Crump, 995 A.2d 1280, 1282

(Pa.Super.2010)     (stating,   “[t]he   imposition    of   a   sentence     of   total

confinement after the revocation of probation for a technical violation, and

not a new criminal offense, implicates the ‘fundamental norms which

underlie the sentencing process,’” and finding substantial question raised).

Because Appellant raises a substantial question, we will address the merits

of his issue.

      “Sentencing is a matter vested within the discretion of the trial court

and will not be disturbed absent a manifest abuse of discretion.”            Crump,

995 A.2d at 1282 (quoting Commonwealth v. Johnson, 967 A.2d 1001

(Pa.Super.2009)).    “An abuse of discretion requires the trial court to have

acted with manifest unreasonableness, or partiality, prejudice, bias, or ill-

will, or such lack of support so as to be clearly erroneous.”              Id. (citing

Commonwealth v. Walls, 926 A.2d 957 (Pa.2007)). “A sentencing 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.”          Id. at 1283 (citing Malovich, 903

A.2d 1247).     Further, “[w]here pre-sentence reports exist, we shall . . .

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presume that the sentencing judge was aware of relevant information

regarding the defendant’s character and weighed those considerations along

with mitigating statutory factors.” Commonwealth v. Antidormi, 84 A.3d

736, 761 (Pa.Super.2014) (quoting Commonwealth v. Devers, 546 A.2d

12, 18 (Pa.1988)).

       When sentencing a defendant following the revocation of probation,

“the sentencing alternatives available to the court shall be the same as the

alternatives available at the time of initial sentencing.” 42 Pa.C.S. § 9771(b)

(probation).    In revocation proceedings, “the sentencing court must follow

the general principle 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.”           Commonwealth v.

Cartrette, 83 A.3d 1030, 1040–1041 (Pa.Super.2013). Moreover, when re-

sentencing a defendant following revocation, courts must consider the record

of the sentencing proceeding as well as the conduct of the defendant while

on probation. 42 Pa.C.S. § 9771(d).5

       The trial court found:


____________________________________________


5
  Where a court resentences a defendant 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.” 42 Pa.C.S. § 9721(b).




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       Prior to imposing sentence, the [c]ourt confirmed with
       Appellant and his counsel that all pertinent information
       contained in the PSI Report was accurate. (N.T.S. at 2-4).
       The [c]ourt then considered that information, including
       Appellant’s family history, health, and mental health
       history. Id. at 10. The [c]ourt noted that Appellant
       completed anger management classes once, but refused to
       go a second time because he did not believe it worked.
       Id.

       The [c]ourt considered Appellant’s drug and alcohol
       history, noting that Appellant partied every weekend after
       previously being released from [Lancaster County Prison]
       and smoked marijuana daily until his most recent arrest.
       (N.T.S. at 10 -11). The [c]ourt also considered the fact
       that Appellant refused to comply with a court-ordered drug
       and alcohol evaluation that was to be conducted on
       September 14, 2015, which was to be done as part of the
       pre-sentence investigation. Id. at 11.

       The [c]ourt noted that Appellant is 21 years old, an age of
       sufficient maturity to understand the significance of his
       acts. (N.T.S. at 12). The [c]ourt also noted Appellant
       completed the 11th grade at McCaskey High School, before
       dropping out because he was arrested. Id. The [c]ourt
       considered Appellant’s ability to read, write, and
       understand the English language, noting there is nothing
       to indicate a lack of intellectual ability that would prevent
       Appellant from understanding the significance of his acts or
       the difference between right and wrong. Id. at 12-13. The
       [c]ourt also cited Appellant’s limited work history, briefly
       holding jobs until he was either arrested or fired. Id. at
       13.

       The [c]ourt reviewed a psychological evaluation of
       Appellant from November 3, 2008, when Appellant was 14
       years old, which indicated that Appellant responded to the
       evaluation with active resistance, he was antisocial, he had
       multiple suspensions from school for disrespecting
       teachers, and he was diagnosed with ADHD and
       oppositional defiant disorder. (N.T.S. at 11). The [c]ourt
       also considered a psychological evaluation from January of
       2011, when Appellant was 16 years of age, during which
       time Appellant was disinterested and disrespectful of the
       evaluator. Id. Appellant was diagnosed with conduct

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       disorder due to repeated altercations with his peers, total
       disregard of authority figures, and noncompliance with the
       law. Id. at 11-12.

       The [c]ourt noted that Appellant has been in and out of jail
       since the age of 15. (N.T.S. at 15). In 2008, as a
       juvenile, Appellant was adjudicated delinquent for
       propulsion of missiles into an occupied vehicle. Id. at 14.
       In that case, Appellant threw rocks from a railroad
       overpass onto a highway striking the windshield of a
       moving automobile, because he was bored. Id. Appellant
       reportedly showed no remorse. Id. As an adult, Appellant
       has convictions for burglary, theft, conspiracy to commit
       burglary and theft, intimidation of a witness, and retail
       theft. Id.

       The [c]ourt considered the gravity of the offenses for
       which Appellant was before the [c]ourt for violations, as
       they related to the impact on the life of the victims and/or
       community.     (N.T.S. at 13).    In 2012, Appellant was
       convicted of burglary for entering the residence of another
       person through a third floor window with a juvenile co-
       defendant and stealing property while the homeowner was
       on vacation.     Id.    Appellant was also convicted of
       intimidating a witness for threatening to assault the
       individual who provided the police with information about
       his involvement in that burglary. Id.

       The [c]ourt considered the nature and circumstances of
       Appellant’s violations, as well as Appellant’s conduct while
       on court supervision. (N.T.S. at 10). Appellant’s first
       violation was in September 2010 as a juvenile. Id. at 14.
       His second violation was in February 2011, also as a
       juvenile. Id. The third violation was in October 2013 as
       an adult, for new criminal charges.        Id.   The fourth
       violation occurred in May 2014 for a new charge, placing
       an irate telephone call to his probation officer, dishonesty
       about where he was living, and repeatedly lying to his
       probation officer. Id. at 14-15. The fifth violation was in
       December 2014, for failing to appear for three
       appointments, having a very poor attitude, being
       disrespectful of adult probation and parole, and ongoing
       anger issues. Id. at 15. The sixth and current violation
       occurred on July 29, 2015, for missed appointments and
       because Appellant’s whereabouts were unknown. Id.

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       As the [c]ourt noted, Appellant was making his fourth
       violation appearance on these charges since 2013, and his
       sixth overall violation appearance since 2010. (N.T.S. at
       15).     When considering new charges and violations,
       Appellant was making his ninth overall appearance in
       court. Id. As such, the [c]ourt noted there was little to
       indicate that Appellant had made any attempt to change
       his lifestyle or that he is amenable to rehabilitation. Id. at
       14.

       The [c]ourt considered Appellant’s statement contained in
       the PSI Report, as well as his demeanor and statements
       made by Appellant to his probation officer prior to his most
       recent violation. (N.T.S. at 12, 15). While demonstrating
       very negative behavior, Appellant told his probation officer
       to just “violate me. I can do time standing on my head.”
       Id. at 15.      On another occasion, Appellant told his
       probation officer he would “just smile at the judge” and he
       would be released. Id. Moreover, Appellant refused to
       pay money for anger management treatment while
       spending money taking women to dinner or shopping,
       telling his probation officer his personal life was none of
       their business. Id. at 15-16.

       Finally, the [c]ourt considered the comments made by
       Appellant’s counsel and the recommendation of the
       probation officer, who believed a state prison sentence
       might be warranted because Appellant has continued to
       demonstrate the same negative behavior. (N.T.S. at 12,
       15). Additionally, the [c]ourt considered the penalties
       authorized by the Pennsylvania Legislature for the crimes
       committed, as well as the guidelines of the sentencing
       code. Id. at 12.

       Based on the foregoing, this [c]ourt found that Appellant
       has proven he will continue to be noncompliant. (N.T.S. at
       16).    Moreover, a sentence of total confinement was
       necessary because parole and probation have proven to be
       ineffective rehabilitation tools.5  Id.  Additionally, the
       [c]ourt determined that Appellant is not amenable to
       treatment or rehabilitation outside a correctional facility,
       but he is in need of treatment that can be provided most
       effectively by his commitment to an institution.        Id.
       Appellant’s past conduct indicates he is a danger to
       society, because he previously committed new crimes on

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       two separate occasions while on supervision and is likely to
       commit another crime if not incarcerated. Id. Finally,
       because Appellant has shown total disregard for his
       probation officer, the court, the criminal justice system,
       and the rules of law through the commission of crimes and
       repeated violations, a state prison sentence was essential
       to vindicate the authority of the court. Id. at 16-17.
       Consequently, Appellant’s sentence was not manifestly
       excessive, nor was it an abuse of the [c]ourt’s discretion.6
          5
            In lieu of incarceration, Appellant proposed that he
          be released to a halfway house to get his GED and
          deal with his addiction. (N.T.S. at 5-7). However,
          Appellant failed to produce a representative from the
          halfway house or any documentation to explain the
          program. Id. at 5. Moreover, as this [c]ourt noted,
          Appellant has resisted repeated similar efforts at
          treatment by his probation officer for the past
          several years, and it was the [c]ourt’s belief that
          Appellant was not sincere but was proposing such an
          option only to avoid a potential state prison
          sentence. Id. at 7-8.
          6
            As previously noted, Appellant’s original sentence
          of probation for count two criminal conspiracy to
          commit theft at Information number 5903-2012 was
          revoked on October 31, 2013.           See Violation
          Sentence Sheet, 10/31/13. At that time, Appellant
          was paroled on count two to a sentence of time
          served to 23 months in LCP. Id. Because Appellant
          was presently before the [c]ourt on count two for
          violating parole, and there was no consecutive
          probation imposed, the only sentence available to
          the [c]ourt on the parole violation was the unexpired
          balance    of   his   original    sentence.       See
          Commonwealth v. Holmes, 933 A.2d 57, 66 (Pa.
          2007) (a parole violator cannot be sentenced to a
          new sentence but instead can only be recommitted
          to the remainder of the original sentence).
          Therefore, on count two of said Information, there
          can be no probation revocation and Appellant’s
          sentence of imprisonment for a period of not less
          than one year nor more than two years on said count
          should be vacated. Nevertheless, this correction does


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              not in any way impact the aggregate sentence of two
              to five years[’] incarceration.

1925(a) Opinion, 1/6/2016, at 8-12.

       The trial court detailed its reasons for imposing a sentence of total

confinement and did not abuse its discretion when imposing the aggregate

sentence of 2 to 5 years’ incarceration following the probation and parole

violations.

       However, as noted by the trial court, on October 31, 2013 the trial

court had revoked Appellant’s probation at count 2 of docket 5903

(conspiracy conviction) and resentenced him to time served to 23 months’

imprisonment, with no sentence of probation. Accordingly, the trial court’s

October 13, 2015 judgment of sentence of 1 to 2 years’ imprisonment for a

violation of probation on count 2 at docket 5903 is illegal and is vacated.6

Consistent with the trial court’s observation, remand is not necessary, as the

trial court imposed the sentence concurrently, and the court’s overall

sentencing scheme is not impacted.




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6
  Following revocation of parole, a court “must recommit the parolee to
serve the remainder of the original sentence of imprisonment, from which
the prisoner could be re[-]paroled.” Commonwealth v. Holmes, 933 A.2d
57, 59 n.5 (Pa.2007). Further, “challenges to the legality of a sentence
cannot be waived and . . . a court may raise sentence illegality sua
sponte[.]” See, e.g., Commonwealth v. Watley, 81 A.3d 108, 118
(Pa.Super.2013).



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     Judgment of sentence for the conspiracy conviction (count 2) at docket

CP-36-CR-0005903-2012 vacated.     Judgment of sentence affirmed for all

other counts.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2016




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