J-S08007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                      v.                       :
                                               :
                                               :
DAVID MEADIUS                                  :
                                               :
                Appellant                      :   No. 539 WDA 2017

           Appeal from the Judgment of Sentence February 7, 2017
    In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0004482-2012


BEFORE:      LAZARUS, J., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY LAZARUS, J.:                               FILED APRIL 06, 2018

       David Meadius appeals from his judgment of sentence, entered in the

Court of Common Pleas of Allegheny County, following revocation of his

probation.1 After careful review, we affirm.

       The trial court summarized the facts of this case as follows:

       On January 17, 2012, [Meadius] was traveling east on Forbes
       Road in the Monroeville area. There were vehicles stopped in front
       of [him], and he was unable to stop in time. He swerved to avoid
       the cars directly in front of him, crossed into the left lane directly
       in the path of the victim’s vehicle, and the two cars collided. The
       Monroeville Police were called to the scene. At the scene, the
       Monroeville Police determined that [Meadius] did not have proof
       of insurance or a valid driver’s license. Further, the Monroeville
       Police performed a check and found that [his] operating privileges
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1 On January 17, 2013, Meadius pleaded guilty to one count of accidents
involving death or personal injury while not properly licensed, 75 Pa.C.S.A. §
3742.1(a) and (b)(2), driving while operating privilege is suspended or
revoked, 75 Pa.C.S.A. § 1543(a) or (b), and operation of a motor vehicle
without required financial responsibility, 75 Pa.C.S.A. § 1786(f).
____________________________________
* Former Justice specially assigned to the Superior Court.
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        were under suspension. [Meadius’] position is that the above-
        described incident was “just an accident.”

        This case involves an accident in which [Meadius] was driving
        without a license or insurance. The parties stipulated to the
        affidavit of probable cause, the police report, the medical records,
        and [Meadius’] driving record to form the factual basis for the plea
        in this case. The parties also agreed to the restitution amount in
        this case and said agreement was memorialized on the record.

        The [trial] [c]ourt addressed the restitution issues at both the
        guilty plea hearing and the sentencing hearing. The district
        attorney called the victim in this case, Valerie Turkowski, to testify
        at the sentencing hearing. [] Turkowski provided testimony
        regarding the accident, her injuries, and the effects her injuries
        have had on her life. Regarding restitution, at the guilty plea
        hearing, the parties agreed that the total amount of restitution to
        be paid is $30,487.43. At the sentencing hearing, the [trial]
        [c]ourt said that the total is broken down as follows: the sum of
        Twenty-Nine Thousand Five Hundred Eighty-Seven Dollars and
        Forty-Three Cents ($29,587.43) to AMCO Insurance and Nine
        Hundred Dollars ($900.00) to [] Turkowski. The defendant was
        sentenced to sixty [] days [i]ntermediate [p]unishment, five []
        years[’] probation, and ordered to pay restitution in the amount
        of $30,487.43. After entering the guilty plea the defendant filed
        a direct appeal [], claiming that [the trial] court erred in ordering
        restitution in this case. On November 26, 2014, the judgment of
        sentence was affirmed.

        Throughout the history of this case, [Meadius] has made no real
        effort to comply with the conditions of his sentence, or the
        conditions of his probation. First, [the trial court] afforded him
        the opportunity to serve his sixty [] day sentence for [d]riving
        [u]nder [s]uspension on county intermediate punishment.
        [Meadius] never complied with that sentence, failed to report to
        probation and failed to appear at his Gagnon II2 violation hearing
        on January 12, 2015. [Meadius] was lodged in the Allegheny
        County Jail on February 12, 2015 and released on April 23, 2015.
        [Meadius] began making payments toward restitution and costs in
        February 2016[.] . . . On December 19, 2016, [Meadius] was
        scheduled for a Gagnon II violation hearing to address issues of
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2   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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       reporting and payment. At that time the hearing was postponed
       until February 7, 2017, to allow [Meadius] to document physical
       limitations and disability which would prevent him from reporting
       and limit his ability to pay costs and restitution. On February 7,
       2017, the defendant appeared for the hearing and testified
       regarding medical issues but did not present the requested
       documentation. [The trial court] revoked his probation and
       []imposed a five year probation, ordered [Meadius] to report
       monthly and make regular monthly payments toward court costs
       and restitution.

Trial Court Opinion, 9/12/17, at 2-4.

       On March 9, 2017, Meadius filed a timely pro se notice of appeal. On

March 15, 2017, the trial court appointed counsel to represent Meadius on

appeal. Both the trial court and Meadius have complied with Pa.R.A.P. 1925.

Meadius raises one issue on appeal:

       Whether the trial court abused its discretion and/or erred as a
       matter of law by revoking [Meadius’] probation and imposing a
       new sentence of five years’ probation simply because a significant
       amount of restitution was still outstanding in his case, especially
       when the trial court found that [Meadius] had no willfully failed to
       pay restitution.3
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3 The Commonwealth, however, argues that Meadius’ sole issue on appeal, as
presented here, challenges the discretionary aspects of the sentence imposed
following the revocation of his probation.

       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. It is also now accepted that in an appeal following the
       revocation of probation, it is within our scope of review to consider
       challenges to both the legality of the final sentence and the
       discretionary aspects of an appellant's sentence.




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____________________________________________


Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) (internal
citation omitted).

       Meadius entered an open guilty plea on January 17, 2013, and on July
11, 2013, the trial court sentenced him to five years’ probation, sixty days
intermediate punishment, related fines/suspension or driving privileges, and
restitution. See Commonwealth v. Dalberto, 648 A.2d 16, 21 (Pa. Super.
1994) (“We believe that justice requires that we treat this case as an ‘open’
plea and permit an appeal to the discretionary aspects of sentencing.”).
Accordingly, Meadius may challenge the discretionary aspects of his sentence.

       This Court has stated that

       [c]hallenges to the discretionary aspects of sentencing do not
       entitle an appellant to appellate review as of right. Prior to
       reaching the merits of a discretionary sentencing issue:

              [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.
              [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).

       Objections to the discretionary aspects of a sentence are generally
       waived if they are not raised at the sentencing hearing or raised
       in a motion to modify the sentence imposed at that hearing.

Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006) (some
citations and punctuation omitted) (emphasis added).

       [W]hen the appellant has not included a Rule 2119(f) statement
       and the appellee has not objected, this Court may ignore the
       omission and determine if there is a substantial question that the
       sentence imposed was not appropriate, or enforce the
       requirements of Pa.R.A.P. 2119(f) sua sponte, i.e., deny
       allowance of appeal. However, this option is lost if the appellee



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       Brief of Appellant, at 5.

       Meadius avers that his challenge to the imposition of a new sentence

following revocation of his probation implicates a sufficiency issue, rather than

a challenge to the discretionary aspects of his sentence. Specifically, Meadius

argues that the trial court erroneously revoked his probation sentence and

imposed a new five-year term of probation without sufficient evidence of a

violation.

       When we consider an appeal from a sentence imposed following
       the revocation of probation, “[o]ur review is limited to determining
       the validity of the probation revocation proceedings and the
       authority of the sentencing court to consider the same sentencing
       alternative that it had at the time of the initial sentencing.
       Revocation of a probation sentence is a matter committed to the
       sound discretion of the trial court and that court’s decision will not
       be disturbed on appeal in the absence of an error of law or an
       abuse of discretion.


____________________________________________


       objects to a [Rule] 2119(f) omission. In such circumstances, this
       Court is precluded from reviewing the merits of the claim and the
       appeal must be denied.

Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004) (citations
omitted).

       Instantly, Meadius has failed to include in his brief a statement of
reasons for allowance of appeal pursuant to Rule 2119(f). Additionally, the
Commonwealth has objected to the absence of a Rule 2119(f) statement in
its brief. See Commonwealth v. Brougher, 978 A.2d 373, 375 (Pa. Super.
2009) (“[C]laims relating to the discretionary aspects of a sentence are waived
if an appellant does not include a Pa.R.A.P. 2119(f) statement in his brief and
the opposing party objects to the statement’s absence.”). Accordingly,
Meadius’ has waived any claims relating to the discretionary aspects of his
sentence for purpose of appellate review.



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      The Commonwealth establishes a probation violation meriting
      revocation when it shows, by a preponderance of the evidence,
      that the probationer’s conduct violated the terms and conditions
      of his probation, and that probation has proven an ineffective
      rehabilitation tool incapable of deterring probationer from future
      antisocial conduct.

Commonwealth v. Perreault, 930 A.2d 553, 557-58 (Pa. Super. 2007)

(internal citations omitted).

      [T]he reason for revocation of probation need not necessarily be
      the commission of or conviction for subsequent criminal conduct.
      Rather, this Court has repeatedly acknowledged the very broad
      standard that sentencing courts must use in determining whether
      probation has been violated[.] A probation violation is established
      whenever it is shown that the conduct of the probationer indicated
      the probation has proven to have been an ineffective vehicle to
      accomplish rehabilitation and not sufficient to deter against
      antisocial conduct.

Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014) (internal

citation and quotation marks omitted).

      “However, a term of probation may not be revoked for failure to pay

fines [and/or restitution] absent certain consideration by the revocation

court.” Commonwealth v. Ballard, 814 A.2d 1242, 1247 (Pa. Super. 2003).

“Prior to revoking probation on the basis of failure to pay . . . restitution, the

court must inquire into the reasons for a defendant’s failure to pay and []

make findings pertaining to the willfulness of the party’s omission.” Id. “A

proper analysis should include an inquiry into the reasons surrounding the

probationer’s failure to pay, followed by a determination of whether the

probationer made a willful choice not to pay.” Id., quoting Commonwealth

v. Eggers, 747 A.2d 174, 175 (Pa. Super. 1999).



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       In July 2013, the sentencing court advised Meadius that in addition to

his five-year term of probation, he was to pay restitution in the amount of

$29,587.43 to AMCO insurance and $900.00 to the victim and not operate a

motor vehicle without a valid license and insurance. N.T. Sentencing Hearing,

6/11/13, at 13. See Commonwealth v. Keenan, 853 A.2d 381, 382-83 (Pa.

Super. 2004) (“The primary purpose of his sentence of restitution is

rehabilitation by means of impressing upon him that his criminal conduct

caused the victim’s loss and that it was his responsibility to repair the [loss]

as far as possible.”).

       Meadius did not begin paying restitution until February 2, 2016,

approximately three years after the trial court sentenced him to pay

restitution.   Additionally, Meadius concedes that he has only paid $115.00

towards the $30,487.43 in restitution the trial court ordered him to

recompense. The trial court afforded Meadius an opportunity to state on the

record his reasons for failing to comply with his restitution sentence. See N.T.

Probation Revocation Hearing, 2/7/18, at 3-4. Meadius stated that he had

two strokes and a heart attack,4 that his income and rent are approximately

$1000 and $575 per month respectively, and that his then probation reporting

requirements are over burdensome.              Id. at 4.   Meadius’ counsel, Brandon

Ging, Esquire, did not contest that Meadius’ compliance with his restitution

sentence was inadequate. Id. at 3. Rather, Attorney Ging requested that the
____________________________________________


4 Meadius did not provide the trial court with any accompanying medical
records or documentation corroborating this claim.

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trial court place Meadius on extended probation in lieu of imprisoning him for

failure to comply with his restitution sentence. Id.

      Ultimately, review of the record indicates that Meadius has willfully failed

to comply with his restitution sentence, thus, constituting technical violations

of his probation; as Attorney Ging aptly stated, “the numbers speak for

themselves.” Id. at 2; see also Colon, supra. In light of the foregoing, and

based upon our review of the record, we conclude that the probation

revocation court did not commit an error of law or abuse of discretion in

revoking Meadius’ probation and imposing a new sentence of five years’

probation.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2018




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