J-S28013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                         v.

EDWARD JOSEPH WALKER,

                         Appellant                     No. 1939 MDA 2014


           Appeal from the Judgment of Sentence October 15, 2014
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0003813-1999


BEFORE: BOWES, ALLEN, and LAZARUS, JJ.

MEMORANDUM BY BOWES, J.:                                 FILED JUNE 05, 2015

     Edward Joseph Walker appeals from the October 15, 2014 judgment of

sentence of two to four years incarceration, which was imposed following his

violation of probation. We affirm.

     The record reveals the following.      Appellant pled guilty to statutory

sexual assault, indecent assault, and corruption of minors on February 12,

2001. On the statutory sexual assault charge, Appellant was sentenced to

time served to two years less one day at the Lancaster County Prison and

eight years of probation to be served consecutively.         On the remaining

charges,   the   court   sentenced   Appellant   to   probation   to   be   served

concurrently.

     Thereafter, Appellant violated his probation on two occasions by using

illegal drugs, but he was paroled immediately.            In September 2005,
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Appellant violated his probation when new charges were filed against him

and he was sentenced to the unexpired balance of his parole sentence and a

consecutive eight years of probation.       Following violation of probation in

August 2009 for new charges, Appellant was sentenced to two to four years

incarceration, followed by four years of probation.

      After his release, and while on probation in 2013, Appellant violated

his probation on two occasions when he was charged with false identification

to law enforcement and disorderly conduct. In January and February 2014,

Appellant twice failed to report to the probation office. Appellant appeared

on July 17, 2014, for a probation and parole violation hearing and was found

in violation. He was sentenced on October 15, 2014, to two to four years

incarceration in a state facility.

      Appellant filed a timely post-sentence motion in which he alleged that

his sentence was excessive because the court did not consider his psychiatric

issues and drug abuse problems.       The motion was denied and this appeal

followed on November 14, 2014. Appellant complied with the court’s order

to file a Pa.R.A.P. 1925(b) concise statement of issues complained of, the

court penned its Rule 1915(a) opinion, and the matter is now ripe for

disposition.

      Appellant raises one question for our review:

      I.       Was a sentence of two to four years incarceration for a
               probation violation manifestly excessive as to constitute

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            too severe a punishment and contrary to the fundamental
            norms underlying the sentencing process?

Appellant’s brief at 4.

      Appellant’s claim relates to the discretionary aspects of his sentence.

To adequately preserve such a claim, he must first present the issue at

sentencing or in a post-sentence motion. Commonwealth v. Cartrette, 83

A.3d 1030, 1042 (Pa.Super. 2013) (en banc). He must also “preserve the

issue in a court-ordered Pa.R.A.P. 1925(b) concise statement and a

Pa.R.A.P. 2119(f) statement.” Id. Even then, there is no absolute right to

an appeal when challenging the discretionary aspect of a sentence.         An

appellant must also raise a substantial question, which is a colorable claim

that the sentence was not appropriate under the sentencing code.

      Appellant has satisfied the prerequisites to discretionary sentencing

review.   He timely filed a motion to modify his sentence raising the same

issue he argues herein. He filed the within appeal and again raised the issue

in his Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Appellant’s brief contains the requisite Pa.R.A.P. 2119(f) statement.

He avers therein that in sentencing him to total confinement for a probation

violation, the sentencing court failed to consider his need for inpatient

rehabilitation and mental health treatment. We have held that such claim

presents a substantial question.   See Commonwealth v. Riggs, 63 A.3d

780, 786 (Pa.Super. 2012) (failure to consider, inter alia, the rehabilitative

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needs of the appellant as required under 42 Pa.C.S. § 9721(b) presents a

substantial question).

      Hence, we turn now to the merits of Appellant’s claim. The sentencing

court has broad discretion because we recognize that it 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. Riggs, 63 A.3d 780, 785 (Pa.Super. 2012) (quoting

Commonwealth v. Andrews, 720 A.2d 764, 768 (Pa.Super. 1998)).             In

order to find that a trial court imposed an "unreasonable" sentence, we must

determine that the sentencing court imposed the sentence irrationally and

that the court was "not guided by sound judgment."      Commonwealth v.

Walls, 926 A.2d 957, 961 (Pa. 2007).

      Appellant argues that an aggregate sentence of two to four years

incarceration for a probation violation was manifestly excessive and contrary

to the fundamental norms underlying the sentencing process. He avers that

the sentencing court failed to properly consider his need for mental health

treatment and drug rehabilitation in fashioning his sentence.        For the

reasons that follow, we find no support in the record for Appellant’s

contentions.

      The sentencing court was aware that Appellant had been addicted to

drugs since he was seventeen years old and that he suffered from


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schizophrenia and bi-polar disorder.       N.T. Sentencing, 10/15/14, at 3.

Counsel advised the court that his client needed dual diagnosis treatment

and was willing to participate in a long-term mental health program and

address his substance abuse.     Id. at 4.   According to Appellant, the trial

court focused exclusively on his seven prior probation and parole violations

and the nature of the underlying offense and did not give these factors

proper consideration.

      The record belies Appellant’s claim. The trial court had the benefit of a

pre-sentence investigation and two psychological reports that detailed

Appellant’s addiction and mental illness. In addition, the court stated on the

record that it had received four letters and pictures from Appellant and that

it had read everything.     Id. at 6.    Certainly, the court was aware of

Appellant’s seven or eight probation and parole violations for drug use,

failure to report, new offenses, and failure to provide a change of address.

The court also noted that Appellant had the ability and skills to work steadily

but had no history of consistent employment. Id. at 7. However, despite

“help from Philhaven, the Lancaster Guidance Center, Family Services,

Pathfinders, The Boys and Girls Club, HAS, Ponessa, Lynn Anderson,

Brenneman Consulting, Ephrata Community Hospital, Krug Counseling,

Sotomayer Counseling, Dr. Dougherty, and Ponessa again,” the court noted




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that Appellant continued to “thumb his nose at his obligations on Probation

and Parole” in order to use drugs. Id. at 8.

     At   the    sentencing   hearing,    the   court   demonstrated   extensive

knowledge of Appellant’s mental health history and drug use. Regardless,

the court found that “incarceration is warranted because a lesser sentence

would depreciate the seriousness of his continued violations of his position

on either parole or probation.”          Id. at 9-10.     The court specifically

recommended, however, that Appellant be sent to a state institution with a

dual diagnosis program and that he be given all opportunities for educational

and vocational programs. Id. at 10.

     The record indicates that the sentencing court considered all of the

relevant sentencing factors in fashioning its sentence. Based on our review,

we do not find the sentence excessive or any abuse its discretion in its

imposition.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2015



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