J-S35021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    RASHON LYLES

                             Appellant                 No. 1289 EDA 2018


         Appeal from the Judgment of Sentence Entered March 29, 2018
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0012088-2009


BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                       FILED SEPTEMBER 24, 2019

        Appellant, Rashon Lyles, appeals from the March 29, 2018 judgment of

sentence of 2½ to 5 years of incarceration imposed after his violation of

probation (“VOP”). We affirm.

        The trial court recited the pertinent factual and procedural history:

               On May 22, 2013, [Appellant] appeared before this [c]ourt
        and entered into an open plea agreement on the charges of
        possession with intent to deliver a controlled substance (PWID);
        one violation of the Uniform Firearms Act (VUFA), § 6106:
        carrying a firearm without a license; and criminal conspiracy. The
        matter was demandatorized and [Appellant] was sentenced to 5
        years reporting probation on each charge, to run concurrently with
        one another. [Appellant] was ordered to find employment, stop
        selling drugs, and pay costs and fees at a rate of $35 per month.

              On August 21, 2013, [Appellant] appeared before this
        [c]ourt for a status hearing. [Appellant] did not have a job and
        had not made any payments toward his costs and fees.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     [Appellant] was attending drug treatment at Wedge. Although
     [Appellant] was in technical violation, this [c]ourt scheduled
     another status hearing for November 25, 2013.

           On November 25, 2013, [Appellant] appeared for a second
     status hearing. [Appellant] was still attending drug treatment at
     Wedge, but was testing positive for drugs. Although [Appellant]
     was in technical violation, this [c]ourt ordered [Appellant] to earn
     his GED, receive job training, find a fast food job to start, and pay
     costs and fees. This [c]ourt warned [Appellant] that he needed to
     get into compliance or he would go to jail.

            On January 26, 2014, [Appellant] appeared before this
     [c]ourt for a third status hearing. [Appellant] stated that he was
     testing positive for drugs because his mother gave him Percocets.
     Although [Appellant] was in technical violation, this [c]ourt
     ordered [Appellant] to get a legitimate job, work on his GED,
     receive job training, and pay costs and fees at a rate of
     $35/month. This [c]ourt warned [Appellant] that he could not test
     positive for any drug use and allowed his probation to continue.

            On April 17, 2014, [Appellant] appeared before this [c]ourt
     for another hearing. This [c]ourt found him in technical violation
     for continued drug use and failure to comply with any of the terms
     and conditions of his probation. This time, the [c]ourt revoked his
     probation and sentenced him to 11½ to 23 months [of] county
     incarceration plus 5 years [of] reporting probation, with a
     stipulation that he serve his time at Hoffman Hal. This [c]ourt
     ordered [Appellant] to receive drug treatment, earn his GED,
     enroll in a job training program, seek and maintain employment,
     and undergo random urinalysis. [Appellant] was further ordered
     to pay applicable costs and fines at a rate of $35 per week. This
     [c]ourt warned [Appellant] that he would receive a state sentence
     if he violated again. On March 17, 2015, this [c]ourt granted
     [Appellant] work release, effective immediately.

           On March 29, 2018, [Appellant] appeared before this [c]ourt
     for another violation of probation hearing. First, this [c]ourt
     reviewed [Appellant’s] conduct and behavior since his original
     open guilty plea before this court in 2013. This [c]ourt also
     reviewed the probation department’s summary report, which
     indicated that [Appellant] tested positive for marijuana
     throughout 2016 and 2017, that he remained unemployed, and
     that he last reported to his probation officer on October 18, 2017.
     [Appellant] absconded thereafter and wanted cards were issued

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      on December 18, 2017. The probation report recommended
      revocation and a period of incarceration.

Trial Court Opinion, 10/17/18, at 1-3.

      At the conclusion of the March 29, 2018 VOP hearing, the trial court

imposed sentence as set forth above.        Appellant filed a timely motion for

reconsideration on April 5, 2018, but the trial court never addressed it.

Appellant filed this timely appeal on April 27, 2018. He raises a single issue:

             Did not the trial court abuse its discretion and violate the
      Sentencing Code by sentencing [Appellant] to 2½ to 5 years of
      state incarceration, a manifestly excessive sentence for technical
      violations of his probation?

Appellant’s Brief at 3.

      Before we address the merits, we must determine whether Appellant

has preserved a challenge to the trial court’s sentencing discretion.

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

Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015). Appellant

filed a timely motion for reconsideration presenting his issue to the trial court,

and he filed a timely notice of appeal.        His brief contains the requisite

statement of reasons relied upon for allowance of appeal pursuant to Pa.R.A.P.

2119(f). This Court has treated the issue Appellant presents as a substantial



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question. Commonwealth v. Parlante, 823 A.2d 927, 929-30 (Pa. Super.

2003). We therefore turn to the merits.

      Upon revoking probation, the trial court may choose any sentencing

option that existed at the time of the original sentencing.          42 Pa.C.S.A.

§ 9771(b).    Instantly, the trial court found that total confinement was

necessary to vindicate its authority, as per § 9771(c)(3) of the Judicial Code.

42 Pa.C.S.A. § 9771(c)(3).

            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 discloses that the judgment exercised was manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014), appeal

denied, 109 A.3d 678 (Pa. 2015).

      Appellant relies on Commonwealth v. Cottle, 462 A.2d 598 (Pa.

1981), in which our Supreme Court concluded that a VOP sentence of total

confinement was not warranted where the defendant, on his own initiative,

had obtained gainful employment and completed an alcohol rehabilitation

program. His only violation was technical, a failure to report for several years.

Id. at 599. The Supreme Court reasoned as follows:

             To ignore [the defendant’s] efforts in his own behalf and act
      solely on the basis of his failure to comply with the court’s
      directive, would place form over substance. It would ignore the
      ultimate objective that has been achieved and the fact that, that
      accomplishment resulted from the efforts of the offender himself.
      We are here faced with a man who has demonstrated that he is

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      now able to live successfully in the community. The imposition of
      the maximum sentence at this point in [the defendant’s] life would
      be more punitive than corrective in nature. Moreover, it may very
      well destroy that which has already been accomplished, i.e., his
      readjustment.     We cannot conclude that the legislature, in
      subparagraph (c), intended that a court should place a greater
      emphasis upon a perceived offense to its dignity than the basic
      objectives of the sentencing process.

Id. at 602.

      We find Cottle distinguishable on its facts. Here, Appellant consistently

failed to find suitable employment and consistently failed drug tests over a

period of nearly five years.   At an earlier VOP proceeding, the trial court

sentenced Appellant to county incarceration and warned him that a state

sentence would follow if he continued to fail to comply with the terms of his

probation. Appellant absconded from probation after his then-girlfriend filed

a complaint with the probation department. Unlike the defendant in Cottle,

Appellant has never demonstrated that he is now able to live successfully in

the community. The trial court imposed the current state sentence only after

progressing from probation to county incarceration without successfully

achieving rehabilitation. We discern no abuse of discretion in the trial court’s

decision to impose incarceration in order to vindicate its authority.

      Appellant also claims that, even if incarceration is warranted, the trial

court abused its discretion in imposing an excessive sentence, and that the

court “failed to consider or even mention a single way in which this sentence

addressed the protection of the public, the gravity of the offense or




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[Appellant’s] rehabilitative needs.” Appellant’s Brief at 17. The applicable law

is well settled:

            In determining whether a sentence is manifestly excessive,
      the appellate court must give great weight to the sentencing
      court’s discretion, as he or she is in the best position to measure
      factors such as the nature of the crime, the defendant’s character,
      and the defendant’s display of remorse, defiance, or indifference.

Colon, 102 A.3d at 1043. In addition, the trial court must state on the record

the reasons for its resentencing after a VOP proceeding. Id. at 1044. The

trial court’s rationale need not be as detailed as it would be for an original

sentence, because the “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 [Presentence Investigation]

during the initial sentencing proceedings.” Commonwealth v. Pasture, 107

A.3d 21, 28 (Pa. 2014).

      The record belies Appellant’s claim. At the VOP proceeding, the trial

court explained that its sentence was considerably lower than the statutory

maximum (27 years), and that Appellant’s repeated course of conduct

warranted it. N.T. VOP Hearing, 3/29/18, at 12-14. The court explained that

at first it allowed Appellant to remain on probation despite evidence at status

hearings that Appellant repeatedly violated the conditions of his probation.

Id. The court progressed to a county sentence with a warning that further

violations would result in a state sentence. Id. at 12-13. In the trial court’s

estimation, Appellant “never took this Court’s sentence seriously from the very



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beginning.” Id. at 14. We conclude that the trial court’s justification was

more than sufficient. As the Supreme Court noted in Pasture, a VOP court is

familiar with a defendant’s history and the facts and circumstances of the

offense.

       Appellant also relies on Parlante, in which this Court held that a VOP

sentence was excessive. There, the defendant was sentenced in November

1998 to one year of probation for forgery and drug possession. In February

of 2001, after numerous technical violations, the trial court resentenced her

to 4 to 8 years of incarceration. This Court concluded that some period of

incarceration was warranted, but that the sentence was excessive because the

trial court failed to consider her age, family history, rehabilitative needs, her

presentence report, and the fact that her offenses were nonviolent. Id. at

930.    We conclude that Parlante is distinguishable for several reasons.

Appellant’s pattern of misconduct and flouting the court’s authority had

persisted for nearly five years, whereas the trial court in Parlante imposed

its sentence just over two years after the defendant started serving probation.

Appellant had failed to avail himself of opportunities to rehabilitate after nearly

five years of repeated warnings from the trial court. Appellant’s sentence is




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considerably shorter than the sentence issued in Parlante, and well below the

applicable statutory maximum.1 We discern no abuse of discretion.

       In summary, Appellant has failed to offer any argument to overcome

the great weight we must afford a VOP court’s sentencing discretion.     We

therefore affirm the judgment of sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/19




____________________________________________


1  The sentence at issue in Parlante was less than the statutory maximum,
but the opinion does not specify how far below the maximum. Grading of
forgery varies based on the circumstances of the offense. 18 Pa.C.S.A.
§ 4101(c).

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