J-A07002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

NATHAN ALLEN BIELSKI

                            Appellant                     No. 793 WDA 2016


               Appeal from the Judgment of Sentence May 3, 2016
               In the Court of Common Pleas of Armstrong County
               Criminal Division at No(s): CP-03-CR-0000269-2008


BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                                    FILED MAY 23, 2017

      Appellant, Nathan Allen Bielski, appeals from the judgment of sentence

entered on May 3, 2016, wherein the trial court sentenced Appellant to two

to four years of imprisonment following the revocation of his probation. We

affirm.

      The trial court recited the facts and procedural history of this case as

follows:

           [Appellant] was charged by information filed July 29, 2008,
           with one count of stalking, 18 Pa.C.S.A. § 2709.1(a)(1),
           which is a felony of the third degree. [Appellant] pled guilty
           to the stalking charge on September 8, 2008. [Appellant]
           also pled guilty to stalking in a parallel case filed at Criminal
           No. 2008-00270. On December 2, 2008, [Appellant] was
           sentenced to a term of probation of 4 years, which was in




*Retired Senior Judge assigned to the Superior Court.
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       the mitigated range of the sentencing guidelines.
       [Appellant’s] sentence was to be served consecutively to the
       sentence imposed at No. 2008-00270, which was for a term
       of incarceration of 159 days to 2 years minus one day, with
       159 days’ credit for time served.

       On March 3, 2009, the Commonwealth filed a petition to
       revoke [Appellant’s] parole based on [his] failure to comply
       with certain conditions of parole.           Although [the
       Commonwealth] filed [the petition] at No. 2008-00269,
       [Appellant] would have been on parole at No. 2008-00270
       and would not have completed his maximum sentence as of
       March 3, 200[9].        The petition was granted with
       [Appellant’s] consent on March 24, 2009, and [Appellant]
       was immediately re-paroled. [Appellant’s] parole at No.
       2008-00270 was again revoked on June 1, 2010. The
       revocation petition and adjudication was not filed at No.
       2008-00269.     [Appellant] thereafter filed two petitions
       pursuant to the Post Conviction Relief Act (“PCRA”), 42
       Pa.C.S.A. § 9541 et seq., which were dismissed as
       untimely. [Appellant] appealed the [PCRA c]ourt’s order
       denying his second petition, after which he filed a third
       [PCRA] petition, which the [PCRA c]ourt dismissed as
       premature. The appeal ultimately was dismissed by [this]
       Court on March 12, 2012 because of [Appellant’s] failure to
       comply with Pa.R.A.P. 3517.

       The Commonwealth filed a petition to revoke [Appellant’s]
       probation on May 10, 2013, in which it alleged that
       [Appellant] failed to pay costs, fines, and/or restitution,
       failed to report to the probation department as directed,
       and failed to report a change of address. With his consent,
       the [trial c]ourt revoked [Appellant’s] probation on May 28,
       2013, and re-sentenced him the same day to a term of
       probation of 4 years.

       The Commonwealth filed another revocation of probation
       petition on May 11, 2015, in which it alleged that
       [Appellant] had[:] 1) committed new offenses, 2) used
       alcoholic beverages and/or controlled substances without a
       prescription, and 3) failed to obtain permission to leave
       Pennsylvania. The [trial c]ourt again revoked [Appellant’s]
       probation on January 26, 2016, and he was resentenced on
       May 3, 2016 [to two to four years of incarceration, with 201


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          days of credit for time served.] The May 3, 2016 judgment
          of sentence is the subject of the instant appeal.

Trial Court Opinion, 8/10/2016, at 1-3 (citations omitted; footnotes

incorporated).

        Appellant filed a motion to modify his sentence on May 9, 2016. The

trial court denied relief on May 19, 2016. Appellant filed a pro se notice of

appeal on May 19, 2016. The trial court appointed counsel who requested

transcripts   from   the   probation   revocation   hearing   and   subsequent

sentencing hearing. On July 18, 2016, the trial court ordered Appellant to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). Appellant complied timely on August 8, 2016. The trial

court issued an opinion on August 10, 2016.

        On appeal, Appellant presents the following issues for our review:


  I.      Where [Appellant’s] probation is revoked and he is
          sentenced to a term of incarceration of 2-4 years in [s]tate
          [p]rison and the sentencing court fails to state on the record
          the reasons for imposing that sentence in violation of 42
          Pa.C.S.A. § 9721(b), did the sentencing court abuse its
          discretion?

  II.     Where [Appellant’s] probation is revoked and he is
          sentenced to a term of confinement and the sentencing
          court fails to consider and state on the record the
          sentencing factors set forth in 42 Pa.C.S.A. § 9771(c), did
          the sentencing court abuse its discretion?

Appellant’s Brief at 8.




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      Both of Appellant’s claims challenge the trial court’s discretion in

imposing his sentence and we will review them together.           Our standard of

review is as follows:

        Sentencing is a matter vested in the sound discretion of the
        sentencing judge, and a sentence will not be disturbed on
        appeal absent a manifest abuse of discretion. In this
        context, an abuse of discretion is not shown merely by an
        error in judgment. Rather, the appellant must establish, by
        reference to the record, that the sentencing 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.

                            *          *            *

        When imposing sentence, a court is required to consider the
        particular circumstances of the offense and the character of
        the defendant. In considering these factors, the court
        should refer to the defendant's prior criminal record, age,
        personal characteristics and potential for rehabilitation.

        An appellant is not entitled to the review of challenges to
        the discretionary aspects of a sentence as of right. Rather,
        an appellant challenging the discretionary aspects of his
        sentence must invoke this Court's jurisdiction. We
        determine whether the appellant has invoked our
        jurisdiction by considering the following four factors:

            (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).

        What constitutes a substantial question must be evaluated
        on a case-by-case basis. A substantial question exists only
        when the appellant advances a colorable argument that the

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        sentencing judge's actions were either: (1) inconsistent with
        a specific provision of the Sentencing Code; or (2) contrary
        to the fundamental norms which underlie the sentencing
        process. A claim that a sentence is manifestly excessive
        might raise a substantial question if the appellant's Rule
        2119(f) statement sufficiently articulates the manner in
        which the sentence imposed violates a specific provision of
        the Sentencing Code or the norms underlying the
        sentencing process.

                           *         *           *

        The sentencing court may, in an appropriate case, deviate
        from the guidelines by fashioning a sentence which takes
        into account the protection of the public, the rehabilitative
        needs of the defendant, and the gravity of the particular
        offense as it relates to the impact on the life of the victim
        and the community. In doing so, the sentencing judge
        must state of record the factual basis and specific reasons
        which compelled him or her to deviate from the guideline
        ranges. When evaluating a claim of this type, it is necessary
        to remember that the sentencing guidelines are advisory
        only.

Commonwealth v. Kearns, 150 A.3d 79, 84–86 (Pa. Super. 2016)

(internal citations and quotations omitted).

      Here, Appellant preserved his sentencing issues in a post-sentence

motion to modify his sentence, filed a timely notice of appeal, and included a

statement pursuant to Pa.R.A.P. 2119(f) in his appellate brief.     Moreover,

Appellant has presented a substantial question for our review.              See

Commonwealth v. Derry, 150 A.3d 987 (Pa. Super. 2016) (the sentencing

court's failure to consider the statutory sentencing factors under 42

Pa.C.S.A. §   9721(b) presents a substantial question         to   review   the

discretionary aspects of sentences imposed for violations of probation; a


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claim that a sentence is manifestly excessive and constitutes too severe a

punishment raises a substantial question). Thus, we proceed to the merits

of Appellant’s claims.

      In his first issue presented, Appellant contends, “[t]he record is devoid

of any notion that the sentencing court considered any of the factors set

forth in Section 9721(b), i.e., 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.” Appellant’s Brief at 19-20. In his second issue, Appellant

claims, “the record is devoid of information showing the [trial] court

considered the sentencing factors under 42 Pa.C.S.A. § 9771(c) in

sentencing [Appellant] to total confinement for violating probation.” Id. at

22.   More specifically, Appellant avers he was not convicted of another

crime.   Id.   He also argues that a sentence of total confinement was not

necessary to vindicate the authority of the court or because he was likely to

commit another crime as all of his probation revocations, two prior

revocations and the one at issue, were for technical violations. Id. at 22-25.

      Under 42 Pa.C.S.A. § 9721(a), in determining the sentence to be

imposed, the trial court shall consider and select one of seven options,

including a sentence of total confinement, and may impose it consecutively

or concurrently to other sentences. See 42 Pa.C.S.A. § 9721(a)(4).          The

trial court is required to consider a sentence that “is consistent with the


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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.” Id.

      However, the imposition of a sentence of total confinement upon the

revocation of probation is governed separately by 42 Pa.C.S.A. § 9771,

which states:

        (c) Limitation on sentence of total confinement.—The court
        shall not impose a sentence of total confinement upon
        revocation unless it finds that:

        (1)     the defendant has been convicted of another
                crime; or

        (2)     the conduct of the defendant indicates that it is
                likely that he will commit another crime if he is
                not imprisoned; or

        (3)     such a sentence is essential to vindicate the
                authority of the court.

42 Pa.C.S.A. § 9771(c).

      This Court has concluded that when a trial court imposes a sentence of

total confinement upon the revocation of probation, it must consider both

Sections 9721 and 9771:

        Section 9771(c) mandates a [violation of probation (VOP)]
        court's consideration of additional factors at sentencing not
        addressed by Section 9721(b). Consequently, a VOP court is
        not confined to only consider the factors set forth in Section
        9721(b), that is, it is not cabined by Section 9721(b).
        Instead, a VOP court must also consider the dictates of
        Section 9771(c), given the unique aspects of VOP sentences
        not applicable when a court issues the initial sentence.

Derry, 150 A.3d at 994 (emphasis omitted).

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     In this case, just prior to sentencing, the trial court stated:

        […Y]ou say that you’ve only been here once before on this
        case. But, there was a revocation [petition] filed on or
        about March 3, 2009, at this case number. There was a
        [p]etition to [r]evoke [p]robation filed on May 10, 2013,
        alleging that you failed to report a change of address, failed
        to report to probation, failed to maintain a payment of fines
        and costs. [The trial court] granted both of those petitions.
        A third petition was filed at this number on May 1, 2015.
        And, there again, you were alleged to have violated the
        criminal statutes, failed to refrain from the use, possession,
        transportation, [and] consumption of alcoholic beverages
        and failed to obtain permission prior to leaving the state.

        So, you are saying that you’ve only been here once is
        simply not consistent with the record.      Warrants were
        issued for you. And, that’s how you were brought back.
        You were originally sentenced [] in the mitigated range on
        these charges, if [] recall[ed].    But, you managed to
        continue to violate and [] the adult probation office has
        been more than patient.

        And your statement here today [] simply reiterates [this].
        You have no insight. You feel everything is somebody else’s
        fault, that it’s not you. It’s the world. [] Unfortunately, you
        have too much history with the [c]ourt here.

        [The trial court] finds that you are not amenable to
        supervision. And continued violations simply manifest your
        indifference toward complying with the [trial c]ourt’s
        condition[s]. So, perhaps the Department of Corrections
        [(DOC)] can get you the help that you need in order to
        avoid re-incarceration. [The trial court] concur[s] with the
        parole officer’s conclusion that the DOC is better suited to
        address your legal and addiction issues. All right. []

        (Sentence given)

N.T., 5/3/2016, at 13-14.

     Based upon all of the foregoing, we discern no abuse of discretion in

sentencing Appellant.      The trial court focused primarily on Appellant’s

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rehabilitative needs, cataloguing the number of times the trial court imposed

probation and the subsequent revocations for non-compliance.                 The trial

court outright stated, as required under Section 9721, that Appellant has

consistently shown he is not amenable to rehabilitation through probation.

The trial court also expressed its concern that Appellant flaunted his

indifference to his prior sentences by not taking probation seriously and that

a term of incarceration was necessary to vindicate its authority under

Section 9771. The trial court considered both Sections 9721 and 9771 and

stated its reasons for the imposition of a sentence of total confinement.

Thus, we discern no abuse of discretion.

          Finally, prior to sentencing, the trial court had the benefit of an

updated, pre-sentence investigation report dated March 2, 2016. Id. at 4-5.

Appellant confirmed that the information contained therein was accurate.

Id. at 5.           When a sentencing court has the benefit of a pre-sentence

report, we must presume that the sentencing judge was aware of, and duly

considered,         any    mitigating   information   contained   therein.        See

Commonwealth v. Raven, 97 A.3d 1244, 1254 n.12 (Pa. Super. 2014),

citing Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988).                     The record

reflects     that    the   sentencing   court   considered   Appellant’s     individual

circumstances before imposing a sentence of total confinement after

properly revoking his probation.          Accordingly, Appellant is not entitled to

relief.


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     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




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