J-S11003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellee

                     v.

GARY BONNER, III,

                           Appellant               No. 1369 WDA 2015


           Appeal from the Judgment of Sentence August 5, 2015
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0012913-2012


BEFORE: OLSON, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                             FILED JUNE 20, 2017

      Appellant, Gary Bonner, III, appeals from the judgment of sentence

entered on August 5, 2015 in the Court of Common Pleas of Allegheny

County, as made final by the denial of post-sentence motions. We affirm.

      The trial court summarized relevant factual and procedural history in

this case is as follows.

      [Appellant] was charged with [i]nvoluntary [d]eviate [s]exual
      [i]ntercourse [(18 Pa.C.S.A. § 3123(a)(7))] and [u]nlawful
      [c]ontact with a [m]inor [(18 Pa.C.S.A. § 6318.1)].          He
      appeared before [the trial c]ourt on February 11, 2013 and,
      pursuant to a plea agreement with the Commonwealth, pled
      guilty to one (1) count of [s]tatutory [s]exual [a]ssault [(18
      Pa.C.S.A. § 3122.1(a)(1))]. The remaining charge was
      withdrawn.     He was immediately sentenced to a term of
      probation of five (5) years. No [p]ost-[s]entence [m]otions were
      filed and no direct appeal was taken.

      [Appellant] next appeared before [the trial c]ourt for review
      hearings on May 6, 2013 and September 16, 2013. On both


*Former Justice specially assigned to the Superior Court.
J-S11003-17


        occasions [Appellant] was noted to be out of compliance, but
        [the trial c]ourt continued his probation with special conditions.

        [Appellant] next appeared before [the trial c]ourt on August 5,
        2015 for a violation hearing. At the conclusion of that hearing,
        [Appellant’s] probation was revoked and [the trial c]ourt
        imposed a term of imprisonment of one and one-half (1½) to
        five (5) years. A timely [p]ost-[s]entence [m]otion was filed and
        was granted in part as to the issue of credit for time served but
        denied in all other respects on August 31, 2015.

Trial Court Opinion, 6/23/16, at 1-2. This timely appeal followed.1

        Appellant raises three questions for our review:

        Is the revocation sentence of one and one-half (1½) to five (5)
        years of incarceration for a probation violation manifestly
        excessive and an abuse of discretion in that the trial court failed
        to consider, as it must, all required sentencing factors set forth
        in the sentencing code, specifically, 42 Pa.C.S.A. § 9771(c), 42
        Pa.C.S.A. § 9721(b), and 42 Pa.C.S.A. § 9725, including the
        young age of [Appellant], his lack of a prior record, the technical
        nature of his violations, and his strong family support?

        Is    the    revocation  of   sentence    manifestly    excessive,
        unreasonable, and an abuse of discretion where the trial court
        failed to order a pre-sentence investigation report, failed to
        provide reasons for not ordering said report, and, in fact, the
        trial court denied defense counsel’s request to order and obtain a
        report?

        Is the revocation sentence manifestly excessive, unreasonable,
        and an abuse of discretion where the trial court relied upon
        incorrect information in imposing sentence?

Appellant’s Brief at 5.

        In his brief, Appellant contends that the trial court abused its

discretion by imposing a manifestly excessive sentence that did not account
____________________________________________


1
    Both Appellant and the trial court have complied with Pa.R.A.P. 1925.



                                           -2-
J-S11003-17


for the factors identified in 42 Pa.C.S.A. §§ 9721(b) (general standards in

imposing sentence), 9725 (criteria for imposing a sentence of total

confinement), and 9771(c) (limitation on sentences of total confinement

when revoking probation). Appellant also argues that the court abused its

discretion in failing to order a pre-sentence investigation report as provided

in Pa.R.Crim.P. 702.         Lastly, Appellant claims the trial court relied upon

inaccurate information when it imposed sentence.         These claims challenge

the discretionary aspects of Appellant’s sentence. See Commonwealth v.

Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010) (claim alleging that sentence

is excessive challenges discretionary aspects of punishment, not its legality),

appeal denied, 25 A.3d 328 (Pa. 2011).2

       “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.” Commonwealth v. Clarke, 70 A.3d 1281,

1287 (Pa. Super. 2013) (citation omitted). Appellant does not have an

automatic right to appeal the discretionary aspects of his sentence. See 42


____________________________________________


2
  Contrary to the trial court’s observation, see Trial Court Opinion, 6/23/16,
at 4 (noting that appellate review following revocation of probation is limited
to the validity of the revocation proceedings and the legality of a sentence),
our review of an appeal from a revocation sentence includes discretionary
sentencing challenges. See Commonwealth v. Cartrette, 83 A.3d 1030,
1034 (Pa. Super. 2013 (en banc).             When considering discretionary
sentencing     challenges,    we   review    the   entire    certified  record.
Commonwealth v. Walls, 926 A.2d 957, 961 n.1 (Pa. 2007).



                                           -3-
J-S11003-17


Pa.C.S.A. § 9781(b).      Instead, Appellant must petition this Court for

permission to appeal the discretionary aspects of his sentence. Id.

     As this Court explained:

     To reach the merits of a discretionary sentencing issue, we
     conduct a four-part analysis to determine:           (1) whether
     appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903;
     (2) whether the issue was properly preserved at sentencing or in
     a motion to reconsider and modify sentence, 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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007); see also

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008) (“when

a court revokes probation and imposes a new sentence, a criminal defendant

needs to preserve challenges to the discretionary aspects of that sentence

either by objecting during the revocation sentencing or by filing a

post-sentence motion”).    In this case, Appellant filed a timely notice of

appeal and properly preserved his claims in a post-sentence motion.

Appellant’s brief also contains a statement pursuant to Pa.R.A.P. 2119(f).

Thus, we turn to whether the appeal presents a substantial question.

     As we have explained:

     The determination of whether a particular case raises a
     substantial question is to be evaluated on a case-by-case basis.
     Generally, however, in order to establish that there is a
     substantial question, the appellant must show actions by the
     sentencing court inconsistent with the Sentencing Code or
     contrary to the fundamental norms underlying the sentencing
     process.



                                    -4-
J-S11003-17



Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal

citations omitted).

        In his Rule 2119(f) statement, Appellant contends that:      1) the trial

court failed to consider and weigh the relevant factors set forth in 42

Pa.C.S.A. § 9721(b); 2) the record does not meet the criteria for imposing

total confinement as a revocation sentence; 3) the trial court imposed an

unreasonable sentence in that it failed to place sufficient reasons for its

sentence on the record; 4) the trial court refused to obtain a pre-sentence

investigation report without explaining the reasons for its refusal on the

record; and, 5) the trial court relied upon factually erroneous information in

imposing its sentence.        Appellant’s Brief at 16-18. This Court recently

reaffirmed that a defendant presents a substantial question for review where

he challenges the revocation court’s failure to consider the factors found in

§ 9721(b).      See Commonwealth v. Derry, 2016 WL 6776292, *6 (Pa.

Super. Nov. 15, 2016); see also Commonwealth v. Cartrette, 83 A.3d

1030, 1042-1043 (Pa. Super. 2013) (en banc) (in appeal from violation of

probation sentence, substantial question presented by claim that sentencing

court did not consider appropriate sentencing factors found in § 9721(b)).

Moreover, this Court has held that a substantial question is raised where the

trial   court   fails   to   consider   a   defendant’s   individualized   needs.

Commonwealth v. Serrano, 2015 WL 6776287, *2 (Pa. Super. Nov. 15,

2016). We have also determined that “a claim that a particular probation

revocation sentence is excessive in light of its underlying technical violations

                                        -5-
J-S11003-17



can present a question that we should review.”                     Commonwealth v.

Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006) (citation omitted). Lastly,

we have said that a sentencing court’s failure to state adequate reasons for

dispensing with a pre-sentence report raises a substantial question.                 See

Commonwealth           v.     Kelly,    33   A.3d    638,   640   (Pa.   Super.   2011).

Accordingly, we now turn to the merits of Appellant's sentencing claims.

       In sentencing Appellant, the trial court was required to “consider the

general principles and standards of the Sentencing Code.” Commonwealth

v. Russell, 460 A.2d 316, 322 (Pa. Super. 1983). Section 9721 expresses

these general principles in the following manner:

         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.

42 Pa.C.S.A. § 9721(b).          In addition, 42 Pa.C.S.A. § 9771(c) permits the

trial court to impose a sentence of total confinement in order to vindicate its

authority. 42 Pa.C.S.A. § 9771(c).

       Here,   the    trial    court    imposed     Appellant’s   original   probationary

sentence and subsequently presided over review hearings on May 6, 2013

and September 16, 2013.3               The court’s lengthy involvement in this case,

together with its statements on the record, demonstrate an ample basis
____________________________________________


3
  Despite Appellant’s failure to comply with the conditions of his probation,
the court continued his supervision on these prior occasions.



                                             -6-
J-S11003-17



from which to infer that the court was thoroughly familiar with Appellant’s

history, character, rehabilitative needs, and conduct while on supervision.

In imposing sentence, the court noted Appellant’s multiple technical

violations, including his possession of a cellular telephone with internet

access capabilities, his failure to report and maintain contact with his

probation officer for three months, his failure to report for drug screenings,

his discharge from sex offender treatment, and his failure to make payments

towards fines and costs. “Technical violations can support revocation and a

sentence of incarceration when such violations are flagrant and indicate an

inability to reform.”   Commonwealth v. Carver, 923 A.2d 495, 498 (Pa.

Super. 2007). Based upon the record before us, we are satisfied that the

trial court considered Appellant’s personal characteristics in fixing the

challenged sentence and that the court possessed sufficient grounds upon

which to conclude that a sentence of total confinement was essential to

vindicate its authority in the face of Appellant’s repeated transgressions.

      We are not persuaded by the arguments Appellant offers in support of

relief. Initially, Appellant contends that the trial court ignored the relevant

sentencing factors set forth in 42 Pa.C.S.A. § 9721(b) in that it failed to

mention Appellant’s youth, graduation from high school, work experience,

acceptance of responsibility, family supports, and rehabilitative needs. See

Appellant’s Brief at 23-24.    Although Appellant is correct that § 9721(b)

directs the trial court to consider certain factors and place the reasons for its

sentence on the record, our Supreme Court recently held that, following

                                      -7-
J-S11003-17



revocation, a sentencing court need not undertake lengthy discourse

regarding its punishment or specifically mention the statutes in question.

Commonwealth v. Pasture, 107 A.3d 21, 28 (Pa. 2014) (“[w]hen

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”).       Here, Appellant’s multiple technical

violations, committed after receiving lenient treatment following prior

noncompliance, were clearly the basis for the sentence imposed by the trial

court.     Under these circumstances, we see no reason to withdraw the

deference traditionally owed to the sentencing court or to vacate Appellant’s

revocation sentence.

         Appellant next argues that the trial court failed to impose an

individualized sentence and violated Pa.R.Crim.P. 702(A)(2)(a) in refusing,

without explanation, to order a pre-sentence report prior to Appellant’s

revocation sentencing. See Pa.R.Crim.P. 702(A)(2) (“The sentencing judge

shall place on the record the reasons for dispensing with the pre-sentence

investigation report if the judge fails to order a pre-sentence report” where

“incarceration for one year or more is a possible disposition under the

applicable sentencing statutes[.]”).   Appellant argues that he is entitled to

resentencing because of this omission by the court.

         This Court has provided “some latitude in how th[e requirement in

Rule 702] is fulfilled.” Commonwealth v. Carrillo–Diaz, 64 A.3d 722, 726

(Pa. Super. 2013).     Indeed, our case law does not require a pre-sentence

                                       -8-
J-S11003-17



report in all instances.   Commonwealth v. Goggins, 748 A.2d 721 (Pa.

Super. 2000) (en banc).         Instead, the critical inquiry is whether the

sentencing court was “[informed] of comprehensive information to make the

punishment fit not only the crime but also the person who committed it.”

Carrillo–Diaz, 64 A.3d at 725 (quotation omitted).

      We are convinced that the trial court was sufficiently aware of the

unique facts of the case to render an individually tailored punishment. The

sentencing court here demonstrated a working knowledge of Appellant's

character,   background,    and     his   response   to   supervisory   programs.

Moreover, while Appellant points to a lengthy list of factors that would be

included in a pre-sentence report (see Appellant’s Brief at 30-31), many of

the factors were brought to the court’s attention by both defense counsel

and Appellant’s probation officer. Under these circumstances, we conclude

that this claim merits no relief.

      Appellant’s final claim is that the trial court relied on inaccurate

information in imposing its revocation sentence. First, Appellant argues the

trial court erroneously believed that he maintained contact with the victim

for a significant period of time when, in fact, the basis for his plea was that

he engaged in a single proscribed sexual act. Second, Appellant points out

that, contrary to the court’s statement, the conditions of his probation did

not always preclude him from having access to computers. He notes that he

was permitted to use computers as part of his schoolwork when he originally

commenced supervision.        That exemption was removed, however, once

                                          -9-
J-S11003-17



Appellant graduated from high school. Upon review, we conclude that any

alleged misstatements by the court were fleeting in nature and wholly

unrelated to the core issues pertaining to the character, frequency, and

extent of Appellant’s undisputed violations of the terms of his probation.

Thus, Appellant’s final claim merits no relief.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2017




                                     - 10 -
