J-S34040-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,           :      IN THE SUPERIOR COURT OF
                                        :            PENNSYLVANIA
                 Appellee               :
                                        :
                   v.                   :
                                        :
RANDY LEE KOPF,                         :
                                        :
                 Appellant              :      No. 112 WDA 2018

        Appeal from the Judgment of Sentence September 29, 2017
            in the Court of Common Pleas of Venango County
           Criminal Division at No(s): CP-61-CR-0000506-2017
                                       CP-61-CR-0000792-2005

BEFORE:    BOWES, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:             FILED: August 7, 2018

     Randy Lee Kopf (Appellant) appeals from the September 29, 2017

judgment of sentence entered after a guilty plea at CR No. 506-2017, which

triggered the revocation of his probation at CR No. 792-2005, and the entry

of a new judgment of sentence in that case. We affirm.

     The trial court summarized the procedural history as follows.

          With respect to [Appellant’s] criminal case at CR No. 792-
     2005, [Appellant] was found guilty by jury verdict of two
     ungraded drug felonies and one ungraded drug-related
     misdemeanor on June 12, 2006. The [trial c]ourt subsequently
     sentenced [Appellant] on August 18, 2006[ to] an aggregate
     sentence of 45 to 96 months’ incarceration and 60 months’
     probation to run consecutive to the term of imprisonment
     imposed.

     … [Appellant] pled guilty to fleeing and eluding police… for
     events that transpired on July 12, 2017. Because [Appellant]
     accrued these new charges while still serving probation on his


*Retired Senior Judge assigned to the Superior Court.
J-S34040-18


     case at CR No. 792-2005, the [trial c]ourt revoked his probation
     after having a Gagnon II[1] hearing on the matter on August 21,
     2017. Thereafter, the [trial c]ourt sentenced [Appellant] for the
     new offenses, which are docketed at CR No. 506-2017, as well
     as for the probation revocation at CR No. 792-2005 on
     September 29, 2017.

Trial Court Opinion, 12/6/2017, at 1-2 (record citations and footnote

omitted).

     At CR No. 506-2017, the trial court sentenced Appellant to a term of 6

to 24 months’ imprisonment for fleeing and eluding.        At his probation

revocation case, CR No. 792-2005, the trial court sentenced Appellant to a

term of incarceration of 12 to 24 months’ imprisonment for conspiracy to

commit possession with intent to deliver (PWID), to be served consecutive to

the period of incarceration imposed at CR No. 506-2017. Thus, Appellant’s

aggregate sentence was 18 to 48 months’ imprisonment.

     Appellant filed a post-sentence motion alleging that the trial court

abused its discretion by failing to consider all relevant sentencing factors,

and by failing to run his sentences concurrently. Motion to Reconsider and

1

     When a parolee or probationer is detained pending a revocation
     hearing, due process requires a determination at a pre-
     revocation hearing, a Gagnon I hearing, that probable cause
     exists to believe that a violation has been committed. Where a
     finding of probable cause is made, a second, more
     comprehensive hearing, a Gagnon II hearing, is required before
     a final revocation decision can be made.

Commonwealth v. Sims, 770 A.2d 346, 349 (Pa. Super. 2001) (citations
omitted).



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Modify Sentence, 10/6/2017, at ¶¶ 4, 5. The trial court issued an opinion on

December 6, 2017, denying Appellant’s motion.         This timely-filed appeal

followed.2

      On appeal, Appellant argues that the trial court “abused its discretion

by imposing a sentence without giving consideration to all the relevant

sentencing factors under 42 Pa.C.S.[ §] 9721(b), including [Appellant’s]

character and gravity of the offense[.]” Appellant’s Brief at 4.

      Appellant challenges the discretionary aspects of his sentence.     We

consider his issue mindful of the following.

      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 [a] 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.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)

(internal citations and quotation marks omitted).


2 Appellant complied with Pa.R.A.P. 1925(b). The trial court complied with
Pa.R.A.P. 1925(a) by filing a statement referring this Court to its December
6, 2017 opinion.



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      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.[] § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

      Appellant has satisfied the first three requirements: he timely filed a

notice of appeal; he sought reconsideration of his sentence in a post-

sentence motion; and his brief includes a Pa.R.A.P. 2119(f) statement.

Therefore, we now consider whether Appellant has raised a substantial

question for our review.

      Appellant contends in his 2119(f) statement that the trial court “did

not adequately consider all of the relevant factors.” Appellant’s Brief at 8.

Such a claim does not present a substantial question for our review.

Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (“[A]

claim of inadequate consideration of mitigating factors does not raise a

substantial   question   for   our   review.”   (citation   and   quotation   marks



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omitted)).   However, in his post-sentence motion, concise statement of

matters complained of on appeal, and the statement of the question

involved on appeal in his brief, Appellant has couched this claim in terms of

a failure to consider certain mitigating factors.   See Motion to Reconsider

and Modify Sentence, 10/6/2017, at ¶ 5 (arguing that the trial court “abused

its discretion in that the court imposed a sentence without giving

consideration to all the relevant factors under 42 Pa.C.S.[ §] 9721(b)”);

Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of On Appeal,

2/5/2018 (stating same); Appellant’s Brief at 4 (stating same). Thus, to the

extent Appellant challenges the trial court’s failure to consider altogether

certain subsection 9721(b) factors, he has raised a substantial question, and

we will address the merits of his claim. See Commonwealth v. Derry, 150

A.3d 987, 995 (Pa. Super. 2016).

      Regarding sentences imposed following the revocation of probation,

the Sentencing Code provides as follows:

      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.




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42 Pa.C.S. § 9771(c). Moreover, in addition to these considerations, a trial

court must also consider the factors set forth in subsection 9721(b) when

imposing a sentence following the revocation of probation. Derry, 150 A.3d

at 995.   That subsection provides, in relevant part, that when imposing a

judgment of sentence,

      the court shall follow the general principle 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. … In every case in
      which the court imposes a sentence for a felony or
      misdemeanor, modifies a sentence, resentences an offender
      following revocation of probation, county intermediate
      punishment or State intermediate punishment or resentences
      following remand, the court shall make as a part of the record,
      and disclose in open court at the time of sentencing, a statement
      of the reason or reasons for the sentence imposed.

42 Pa.C.S. § 9721(b).

      Instantly, Appellant contends that the trial court abused its discretion

by failing to consider his character and the gravity of the offense at the time

of sentencing. Appellant’s Brief at 4.

            During the hearing, [Appellant] made a statement
      enumerating the reasons his life had changed for the better
      including relocation, marriage, his home, a good job. That all
      was jeopardized when [Appellant] had his medical issues [and
      was] prescribed pain medication [that] opened the door to
      relapse.   Although the court had a lengthy discourse with
      [Appellant] relating to his desire for treatment, rehabilitative
      needs were all that were taken into account. The court did not
      take into account his great strides that were made by
      [Appellant] in aiming his life in a better direction nor did the
      court consider [that] the new offense was a misdemeanor, a far
      cry from the offense of 2005.         The rehabilitative needs


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      considered by the court were only available in state prison. No
      consideration was given to county programs. Alternatively, the
      court could have went [sic] a less restrictive route. A shorter
      sentence would expedite his re-entrance into society where
      [Appellant] could resume his successful reintegration into the
      community. A sentence on CR 506-2017 that was concurrent
      with the sentence at CR 792-2005 would have accomplished
      this.[3] [Appellant] demonstrated that he was amenable to
      probation because he had been released from jail since 2012 and
      the Commonwealth did not seek to revoke hi[s probation] until
      he incurred new charges in 2017.

Appellant’s Brief at 10 (citation to exhibit omitted).

      At the time Appellant was sentenced, the trial court stated that it was

imposing a sentence of total confinement because Appellant “has been

convicted of new crimes” and such a sentence “is necessary to vindicate the

authority of the court.” N.T., 9/29/2017, at 29. The trial court engaged in

an extensive dialogue with Appellant about his rehabilitative needs and

efforts, and recommended in Appellant’s sentencing order that he be placed

in SCI Mercer’s therapeutic community as soon as possible. Id. at 22-26,


3Appellant’s contention that the trial court abused its discretion by imposing
consecutive sentences does not raise a substantial question.

      A court’s exercise of discretion in imposing a sentence
      concurrently or consecutively does not ordinarily raise a
      substantial question.    Rather, the imposition of consecutive
      rather than concurrent sentences will present a substantial
      question in only the most extreme circumstances, such as where
      the aggregate sentence is unduly harsh, considering the nature
      of the crimes and the length of imprisonment.

Commonwealth v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015) (citations
and quotation marks omitted).



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29. In addition, the trial court explained in its opinion denying Appellant’s

post-sentence motion that the court considered the relevant sentencing

factors.

        [W]e also considered [Appellant’s] character and gravity of the
        offense in addition to considering [Appellant’s pre-sentence
        investigation report (PSI)].      With respect to [Appellant’s]
        character, the record of the sentencing hearing reflects that we
        read a letter written by [Appellant’s] wife regarding [Appellant’s]
        character, we considered the statement made by Attorney Bolton
        on [Appellant’s] behalf, and the statement made by [Appellant]
        on his own behalf. …

              Further, as is customary for all our sentencing
        proceedings, the [trial c]ourt generated a Pennsylvania
        Commission on Sentencing Guideline Sentencing Form based on
        the information contained in [Appellant’s] PSI prior to convening
        [Appellant’s] sentencing hearing.

Trial Court Opinion, 12/6/2017, at 8 (record citations omitted).

        Moreover, the trial court had the benefit of Appellant’s PSI report at

the time of sentencing. Id. at 14-15. “[W]here the sentencing judge had

the benefit of a [PSI] report, it will be presumed that he or she was aware of

the relevant information regarding the defendant’s character and weighed

those      considerations    along    with   mitigating    statutory    factors.”

Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016).

Based on the foregoing, we conclude that the trial court considered all

relevant sentencing factors and did not abuse its discretion in sentencing

Appellant. Accordingly, we affirm Appellant’s judgment of sentence.

        Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 8/7/2018




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