J-S05025-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellee         :
                                        :
           v.                           :
                                        :
ERIC KRUMM,                             :
                                        :
                       Appellant        :     No. 928 WDA 2014


       Appeal from the Judgment of Sentence Entered May 5, 2014,
           In the Court of Common Pleas of Crawford County,
           Criminal Division, at No. CP-20-CR-0000889-2010.


BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED FEBRUARY 03, 2015

     Eric Krumm (“Appellant”) appeals from the judgment of sentence

imposed after revocation of his probation. We affirm.

     Appellant appeared before the trial court on May 27, 2011, for

sentencing on a charge of unlawful contact with a minor, graded as a felony

of the third degree, 18 Pa.C.S. § 6318(b)(2).     The trial court sentenced

Appellant to incarceration for a term of eleven and one-half to twenty-four

months less one day followed by five years of probation.

     At the time of sentencing on the unlawful-contact conviction, Appellant

had a pending probation violation before another judge of the Crawford

County Court of Common Pleas.      The conviction underlying that violation

was for statutory sexual assault, 18 Pa.C.S. § 3122.1(a). That judge found
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Appellant violated his probation at a hearing on July 28, 2011, and

sentenced him to incarceration for a term of twelve to twenty-four months,

with credit for pre-sentence incarceration. Appellant’s two sentences were

aggregated into a state sentence,1 which Appellant served. Upon release, he

began serving the five-year probationary tail imposed in the case at hand.

     In response to a Notice of Alleged Probation Violation filed on April 16,

2014, Appellant appeared before the trial court on May 5, 2014, for a

Gagnon II2 hearing. Appellant admitted to violating his probation by using

controlled substances, failing to comply with sex offender rehabilitation and

treatment programs, making inappropriate contact with minors, and using

his computer to view pornography.      N.T., 5/5/14, at 6.    The trial court

revoked Appellant’s probation and sentenced to him to incarceration for

twelve to thirty-six months, followed by two years of probation. Sentencing

Order, 5/5/14.   Appellant filed a post-sentence motion on May 14, 2014,

which the trial court denied. This appeal followed. Appellant and the trial

court complied with Pa.R.A.P. 1925.



1
  Appellant’s aggregate sentence was treated as a state sentence pursuant
to 42 Pa.C.S. § 9762(2): “All persons sentenced to total or partial
confinement for . . . maximum terms of two years or more but less than five
years may be committed to the Bureau of Corrections for confinement[.]”
42 Pa.C.S.A. § 9762(2).
2
    See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (due process
requires probationer be given preliminary (Gagnon I) and final (Gagnon
II) hearing prior to revoking probation).

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        Appellant raises a single issue for our review:    “Are the sentences

imposed upon Mr. Krumm unreasonable, manifestly excessive, and an abuse

of discretion?” Appellant’s Brief at 4 (full capitalization omitted). According

to Appellant, the sentencing court erred by imposing a “severe” sentence

that violated the sentencing norms under the Pennsylvania Sentencing Code,

where “there were alternatives for treatment that did not involve total

confinement and . . . would have been adequate for [his] rehabilitation.” Id.

at 6.

        Appellant’s claim challenges the discretionary aspects of his sentence.

An appellant wishing to appeal the discretionary aspects of a probation-

revocation sentence has no absolute right to do so but, rather, must petition

this Court for permission to do so. Commonwealth v. Kalichak, 943 A.2d

285, 289 (Pa. Super. 2008); 42 Pa.C.S. § 9781(b).         However, before this

Court may review the merits of a challenge to the discretionary aspects of a

sentence, we must engage in a four-pronged analysis:

        [W]e 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. [708]; (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) (citing

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).                 See



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also Pa.R.Crim.P. 708, Cmt. (discussing proper preservation of issues

challenging discretionary aspect of sentence imposed following revocation

hearing).

      We note that Appellant has met the first three parts of the four-prong

test required prior to our review of the merits of a discretionary challenge to

a sentence: Appellant timely filed an appeal; Appellant preserved the issue

in a post-sentence motion; and Appellant included a statement pursuant to

Pa.R.A.P. 2119(f) in his brief. Thus, we assess whether Appellant has raised

a substantial question.

      A determination as to whether a substantial question exists is made on

a case-by-case basis. Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super.

2000). This Court will grant the appeal “only when the appellant advances a

colorable argument that the 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.”        Id. at

912–913.

      In his Rule 2119(f) statement, Appellant argues “that inpatient

rehabilitation programs would . . . not have violated sentencing norms. That

total confinement was too sever[e] and unreasonable with alternatives

available for treatment. Thus, . . . his sentence, is unreasonable and . . .

manifestly excessive . . . .” Appellant’s Brief at 8. The record reflects that




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Appellant’s revocation was based on technical violations, not on new

charges. N.T., 5/5/14, at 3–4. Thus, we interpret Appellant’s challenge as

raising a substantial question for our review. Commonwealth v. Colon,

102 A.3d 1033 (Pa. Super. 2014) (citing Commonwealth v. Crump, 995

A.2d 1280, 1282 (Pa. Super. 2010) (“The 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.’”)).

      Our standard of review is well settled. We have explained that:

         [t]he 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.   Simmons,       56    A.3d   1280,   1283–84
      (Pa.Super.2012).

               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.

      Commonwealth        v.    Mouzon,       828     A.2d   1126,   1128
      (Pa.Super.2003).

           Upon revoking probation, a sentencing court may choose
      from any of the sentencing options that existed at the time of


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     the original sentencing, including incarceration. 42 Pa.C.S.A. §
     9771(b). “[U]pon revocation [of probation] ... the 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)
     (internal quotation marks and citations omitted). However, 42
     Pa.C.S.A. § 9771(c) provides that once probation has been
     revoked, a sentence of total confinement may only be imposed if
     any of the following conditions exist:

           (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).

Colon, 102 A.3d at 1043–1044.

     Our review of the record confirms that at the time of the Gagnon II

hearing:

     the [c]ourt had at its disposal all information relevant to
     Appellant’s original conviction, the Presentence Report which had
     been prepared for the Appellant’s original sentence, and the
     information provided by counsel for the Appellant, the
     Commonwealth, and Appellant’s probation officer. Additionally,
     the [c]ourt learned at the time of the . . . hearing that the
     Appellant had been paroled approximately six months before the
     violations occurred. The [c]ourt had received a letter on the
     Appellant’s behalf from Kristin Baker, as well as the Gagnon II
     notes which were prepared by the Adult Probation Department.
     The Gagnon II notes contained Appellant’s total accumulated
     credit at the relevant docket, the dates of any prior violations,
     the results of those violations, and the status of Appellant’s
     financial obligations.     Appellant had made only nominal
     payments at that time.


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Trial Court Opinion, 9/15/14, at 2. At the end of the hearing, the trial court

articulated its concerns regarding an appropriate sentence:

      The thought process is that if I give him a two and a half to five
      or one to five, that he’s going to max because they’re not letting
      anybody out on these charges and because it’s a violation and
      they’re not going to let him out and he’s going to max and he’s
      going to hit the streets with no supervision. . . .

                                    * * *

      I think [the concern is] legitimate. I think it’s one of the
      unforeseen consequences that the parole board’s decision in
      detaining these folks to max dates . . . . [A] lot of them that I
      do will have that one year probation tail just to get him so we
      have something over them and that’s why I’ll do a six year max
      with an one year probationary tail or whatever, but I’ll be honest
      with you, Mr. Krumm, you don’t belong in the county jail.
      You’ve already been in the state prison. It didn’t do what it was
      supposed to do. There’s nothing about my county jail or our
      county jail, this county jail that’s going to work any wonders, but
      I agree with the supervision piece and we can take care of that
      as well.

                                    * * *

      To let you out after a county sentence where I have no
      programming in that jail to help you with any of these things is
      to just create a situation that you’re going to be back again. My
      fear was you would be back again on a new charge, not just on a
      violation and because at that stage you’re talking about the rest
      of your life being served in jail. And the rules are different now
      and registration requirements are different and there’s a whole
      lot of pieces here. So my hope is that the only place these
      programs exist that are successful is the state facility. My hope
      is that they work.

N.T., 5/5/14, at 17–18, 20.




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      Additionally, the trial court provided a thorough and thoughtful

recitation of its reasons for the sentence imposed in its opinion to this Court:

             When Appellant came before the [c]ourt on May 5, 2014
      for his probation . . . violation hearing he was serving a five year
      probationary tail. At the time of the hearing the [c]ourt learned
      that Appellant was suffering from drug and alcohol issues
      including the use of marijuana and cocaine, that he had mental
      health issues including a diagnosis of depression, and that prior
      to his incarceration he was set to be discharged for unsuccessful
      performance of his sexual offender treatment and counseling
      program. The allegations were not of isolated drug use. Rather,
      the Appellant had tested positive for the use of cocaine and
      admitted to a Pennsylvania Board of Probation and Parole Agent
      that he had used cocaine one to three times per week over a
      period of one month. The Appellant also admitted that he
      committed several violations of his offender treatment and
      counseling obligations.       Appellant had used the internet to
      search for and view pornography and that he had acted sexually
      in response. Appellant also admitted that he engaged in online
      chats with females, which was a violation of his offender
      treatment obligations. The allegations the Appellant admitted to
      were set forth in Counts 5 and 8 of the April 14, 2014 Notice of
      Alleged Probation Violations.

            The Appellant had only been on the street for a period of
      months after having served a lengthy state prison sentence,
      which he had maxed out. The [c]ourt felt it appropriate to
      revoke the Appellant’s probationary sentence. After revoking
      the probationary sentence the [c]ourt then reviewed those
      sentencing factors as well as the facts and circumstances of the
      case and concluded that any incarceration at a location other
      than the State Correctional Institute was inappropriate.

            The [c]ourt, in reaching this conclusion, factored in
      Appellant’s lack of significant positive progress on the street and
      the relatively short period of time he was on the street before he
      lapsed into activity which constituted a violation of his probation.
      The [c]ourt’s assessment, based on the facts and circumstances
      of the case, was that Appellant’s period of incarceration and
      treatment had been unsuccessful in rehabilitating him or in


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      compelling him to conform his conduct to the demands of the
      law while subject to supervision. The Court also considered the
      fact that Appellant had maxed out while previously serving a
      state sentence.

             Upon revocation of Appellant’s probationary sentence the
      [c]ourt was permitted to impose any sentence it thought
      appropriate, after an evaluation of the circumstances
      surrounding Appellant’s new conviction, so long as the total
      global sentence imposed did not exceed the statutory maximum
      . . . . See Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.
      Super. 2008) (citing 42 Pa. C.S.A. § 9771(b)). Appellant was
      serving a 60 month probationary tail when his sentence was
      revoked . . . . The [c]ourt . . . limited the new sentence to 12 to
      36 months of incarceration followed by 24 months of probation
      supervision. The [c]ourt hoped that the probationary period
      would be supervised by the State Board of Probation and Parole
      for continuity purposes. The [c]ourt stressed the importance of
      programming at the state correctional level and indicated within
      the Sentence Order the [c]ourt’s desire that state correctional
      authorities consider Appellant’s programming needs when
      determining where he should be placed within the system. At
      the time of the Gagnon hearing Appellant had mental health,
      drug and alcohol, and ongoing sexual offender issues. Appellant
      was given appropriate consideration for his presentence
      incarceration.

Trial Court Opinion, 9/15/14, at 2–3.         Addressing Appellant’s sentencing

challenge specifically, the trial court explained as follows:

            While the [c]ourt understands that Appellant desires to
      serve his sentence somewhere other than the state facility,
      Appellant has clearly failed to establish that the [trial court]
      committed a manifest abuse of discretion in imposing the current
      sentence. This is especially true when considering that Appellant
      has already failed to appropriately reintegrate into society
      following a State Correctional Institution sentence, and shortly
      after release from incarceration for that sentence Appellant
      began engaging in illegal activities which constituted a violation
      of the terms of his probation. Upon release Appellant engaged
      in continuous drug use and in other activities which violated the


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      terms of his sexual offender treatment. The [c]ourt determined
      that this was dangerous considering Appellant’s prior sex-offense
      convictions and his apparent predilection to continue engaging in
      activities which brought him into contact with children. In
      considering these factors the [c]ourt fashioned a sentence to
      ensure public safety while taking Appellant’s rehabilitative needs
      into account. . . .      [T]he sentence imposed was wholly
      appropriate given the circumstances, was not in violation of the
      law, and for the reasons set forth on the record and in this
      opinion was not manifestly unreasonable.

Trial Court Opinion, 9/15/14, at 4–5.

      Upon review, we discern no abuse of the trial court’s discretion in

sentencing Appellant to total confinement.      The record supports the trial

court’s well-informed disposition.   As the trial court observed, Appellant’s

previous conduct indicates that it is likely he will commit another crime if he

is not imprisoned. 42 Pa.C.S. § 9771(c)(2). Indeed, within six months of

his release from prison, Appellant was violating his probation. Moreover, as

the trial court opined, a state sentence was the most appropriate means for

accessing programs designed to address Appellant’s mental, drug, and

alcohol issues, and to assist him with rehabilitation.

      In sum, Appellant has failed to establish 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. Simmons, 56 A.3d at 1283–1284. Accordingly, we hold that the

sentence imposed was not manifestly excessive or unreasonable.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/3/2015




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