J-S32030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JAMES CIVELLO                           :
                                         :
                   Appellant             :   No. 1773 EDA 2018

        Appeal from the Judgment of Sentence Entered May 24, 2018
   In the Court of Common Pleas of Montgomery County Criminal Division
                     at No(s): CP-46-CR-0005339-2011


BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY NICHOLS, J.:                         FILED AUGUST 20, 2019

     Appellant James Civello appeals from the judgment of sentence imposed

for a violation of his probation.   Appellant contends that the trial court’s

violation of probation (VOP) sentence of nine months’ to three years’

imprisonment was manifestly excessive. We affirm.

     We state the facts and procedural history as set forth by the trial court:

     On June 25, 2012, [Appellant] entered an open guilty plea to one
     count of corruption of minors and was sentenced on September
     13, 2012 to serve no less than time-served and no more than
     twenty-three months. This sentence was to be followed by three
     years’ probation. After multiple violations, revocations, and jail
     time, [Appellant] was released again on parole. During this period
     of supervision, he was charged in Bucks County, Pennsylvania
     with [driving under the influence (DUI)]: Highest Rate of Alcohol
     and related offenses. On April 25, 2018, [Appellant] entered a
     negotiated guilty plea. [Appellant] then stipulated to the direct
J-S32030-19


        and technical violations of his parole[1]for the underlying offense
        and the Gagnon [hearing2] proceeded to sentencing before th[e
        trial c]ourt on May 24, 2018. [Appellant] was re-sentenced to a
        term of imprisonment for no less than nine months to no more
        than three years in a state correctional institution.

        [Appellant] filed a post-sentence motion for reconsideration of his
        sentence on June 1, 2018 which was denied. A notice of appeal
        was thereafter filed in a timely manner. Following receipt of the
        aforementioned notice, this Court, pursuant to Pa.R.A.P. [] 1925,
        directed [Appellant] to submit a concise statement of error
        complained of on appeal. Upon the grant of leave for an extension
        of time, [Appellant]’s statement was filed.

Trial Ct. Op., 5/24/18, at 1-2.

        Appellant raises the following question on appeal: “Was the sentence of

nine months to three years of total confinement on a probation violation

manifestly excessive?” Appellant’s Brief at 4.

        On appeal, Appellant asserts that the trial court failed to consider his

mental illness as a mitigating factor for the purposes of sentencing. Id. at

10-11. Appellant further contends that the trial court improperly focused on

Appellant’s mental health needs to justify a longer state sentence. Id. at 11.

Appellant emphasizes that “[t]he fact that county facilities are inadequate to

treat disabled inmates does not provide justification for a longer term of

confinement” in a state correctional institution. Id. at 11-12.

        Appellant also claims the trial court erred in finding that he was not

amendable to treatment. Id. at 12-13. In support, Appellant takes issue with
____________________________________________


1 Although the trial court stated it sentenced on a revocation of parole, the
record indicates that the new sentence was for a violation of probation.

2   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

                                           -2-
J-S32030-19



the trial court’s statement that he “absconded” from treatment facilities. Id.

Appellant asserts that the trial court failed to acknowledge that he voluntarily

sought treatment for his mental illness, which caused him to miss two

scheduled polygraph examinations. Id. at 12-13. Appellant further explains

that he was discharged from a mandatory counseling program because he was

unable to pay for a third polygraph examination upon his release from a

hospital. Id. at 12. Appellant concludes that the trial court gave undue weight

to his technical violations as evidence that he could not be treated in the

community. Id. at 12-13.

      Lastly, Appellant contends that the trial court did not give “due

consideration” to Appellant’s previous time spent on probation prior to the

revocation. Id. at 10. In support, Appellant notes that he already served

“2.27 years and 122 days of probation.” Id. at 14. Appellant emphasizes

that he had no criminal record prior to his initial conviction for corruption of

minors. Id. at 10.

      “[C]hallenges to the discretionary aspects of sentencing do not entitle

an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,

991 (Pa. Super. 2016) (citation omitted). Rather, before reaching the merits

of such claims, we must 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. [708]; (3) whether appellant’s brief
      [complies with] 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).

                                     -3-
J-S32030-19



Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa. Super. 2016) (citation

omitted).

      Here, Appellant timely filed a notice of appeal, preserved his claim in a

post-sentence motion, and included a concise statement of reasons relied

upon for allowance of appeal in his brief. See id. Additionally, the claim that

the trial court imposed an excessive sentence by failing to consider all relevant

sentencing factors presents a substantial question. See Commonwealth v.

Swope, 123 A.3d 333, 339 (Pa. Super. 2015). Therefore, we will review

Appellant’s claim.

      In matters involving the discretionary aspects of a VOP sentence, our

standard of review is as follows:

      Sentencing is a matter vested within the discretion of the trial
      court and will not be disturbed absent a manifest abuse of
      discretion. 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.

Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa. Super. 2012) (citation

omitted).   “[T]his Court’s 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).

      The statute governing the modification or revocation of probation

provides:

      § 9771. Modification or revocation of order of probation

                                    *    *    *

                                        -4-
J-S32030-19



      (b) Revocation.—The court may revoke an order of probation
      upon proof of the violation of specified conditions of the probation.
      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.

      (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. § 9771(b)-(c).

      Further, this Court has held that the trial court must consider the

sentencing factors contained in 42 Pa.C.S. § 9721(b). See Cartrette, 83 A.3d

at 1040-41; Derry, 150 A.3d at 995. Specifically, the trial court must follow

the principles “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.” See Derry, 150 A.3d at 993 (quoting

Cartrette, 83 A.3d at 1040-41) (emphasis omitted); see also 42 Pa.C.S. §

9721(b).

      When imposing a VOP sentence, the trial court “need not undertake a

lengthy discourse for its reasons for imposing a sentence or specifically



                                       -5-
J-S32030-19



reference the statutes in question.” Commonwealth v. Pasture, 107 A.3d

21, 28 (Pa. 2014). As the Pennsylvania Supreme Court explained:

     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
     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 [pre-sentence
     investigation report (PSI)] during the initial sentencing
     proceedings.

Pasture, 107 A.3d at 28.       Where a PSI exists, we “presume that the

sentencing judge was aware of the relevant information regarding the

defendant’s character and weighed those considerations along with mitigating

statutory factors.” Commonwealth v. Walls, 926 A.2d 957, 967 n.7 (Pa.

2007) (citation omitted).

     Instantly, the trial court explained its sentencing decision as follows:

     All right then, the [c]ourt has the benefit of a presentence
     investigation and report, together with the Rise Above report and
     the Probation Department’s report. The [c]ourt has carefully
     considered those, in addition to the information supplied today by
     counsel and [Appellant].

     His family history and background are set forth in the report, as
     is his physical and mental condition, also drug and alcohol and his
     education. I have considered all these things.

     The Rise Above report does recommend that he be placed in a
     drug and alcohol rehabilitation program, such as a halfway house,
     after he is released from prison, and continue to work with sexual
     offender therapy and continue work with a psychiatrist.

     The Probation Department notes that this is [Appellant]’s third
     violation of supervision for some of the same type of behavior.

                                    -6-
J-S32030-19


      Here, as I said, he had a new arrest that was a serious matter.
      He failed to report. He absconded. This is not appropriate
      behavior.

      His initial crime led to a prison sentence. That was a serious case.
      Then his violation, as noted, he had a six month initial violation
      and a nine month violation.

      Certainly a prison sentence is necessary to vindicate the authority
      of the [c]ourt and the Probation and Parole Department. He hasn’t
      fared well under supervision. I will sentence him as follows:

      He will undergo imprisonment for not less than nine months nor
      more than three years. He’ll be sent to the Department of
      Corrections.

      The [c]ourt will make a note that he should receive mental health
      treatment, if possible.

N.T., 5/24/18, at 9-11.

      Following our review, we find no reversible error.        The trial court

considered Appellant’s mental health needs, as well as the apparent lack of

success Appellant had attempting to address those issues through voluntary

admissions to mental health facilities in the community. Although it does not

appear from the record that Appellant absconded from those facilities, the trial

court was entitled to consider Appellant’s own statements that the treatment

he voluntarily received was inadequate.

      Moreover, the trial court did not give undue weight to Appellant’s

technical violations, which included his failure to appear for two polygraph

examinations, and his eventual discharge from mandatory treatment based

on his inability to pay for a third polygraph examination. Appellant previously

violated his probation by having contact with the victim of his underlying

conviction for corruption of a minor, and, as noted by the trial court, the

                                     -7-
J-S32030-19



instant revocation proceeding was initiated based in part on a new DUI

conviction.   Lastly, the trial court had the PSI, which was prepared in

anticipation of the VOP sentencing hearing, and we can presume it was aware

of the relevant sentencing factors contain in the report, including the length

of time Appellant spent on probation. See Walls, 926 A.2d at 967 n.7.

      In sum, we conclude that the trial court adequately considered all

relevant sentencing factors. See Derry, 150 A.3d at 995. Appellant has not

identified a reversible abuse of discretion in the trial court’s decision to impose

a VOP sentence of nine months to three years’ confinement.                     Cf.

Commonwealth v. Sheller, 961 A.2d 187, 192 (Pa. Super. 2008) (noting

that even if the trial “court relies on a factor that should have not been

considered, there is no abuse of discretion when the decision of the [trial]

court has significant other support” (citations omitted)).       Accordingly, we

discern no basis to disturb the trial court’s sentence. See Schutzues, 54

A.3d at 98.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/19




                                       -8-
