J-S02009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellee

                    v.

MIGUEL RODRIGUEZ,

                          Appellant                No. 3265 EDA 2014


          Appeal from the Judgment of Sentence October 30, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0015925-2010


BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED FEBRUARY 25, 2016

      Appellant, Miguel Rodriguez, appeals from the judgment of sentence

entered on October 30, 2014, following the revocation of his probation.

We affirm.

      The trial court set forth the relevant facts and procedural history of

this matter as follows:

            Appellant entered a negotiated guilty plea on December 6,
      2012, to possession with the intent to distribute controlled
      substances. See docket at CP-51-CR-0015295-2010. He was
      sentenced by this court to a term of eleven and one-half to
      twenty-three months’ incarceration, followed by a maximum of
      three years’ probation. Id.

             On March 20, 2014, this court found Appellant to be in
      violation of the terms of his probation. Id. Previously, on
      January 7, 2014, a detainer was issued because of two positive
      drug tests.    See Gagnon I Hearing Summary, 01/07/2014.
      Appellant had tested positive for marijuana and PCP on
      11/05/2013 and 12/19/2013. Id. Due to Appellant’s violations
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       and continued use of illegal narcotics, this court re-sentenced
       Appellant to a new term of three years’ probation with drug
       treatment. See docket at CP-51-CR-0015295-2010.

              On October 30, 2014, another violation of probation
       hearing was held before this court. Notes of Testimony (“N.T.”),
       10/30/2014, at 1.         Appellant’s probation officer, Stewart
       McKendry, testified regarding Appellant’s status at that time. Id.
       at 5. Despite being on probation, Appellant repeatedly tested
       positive for illegal narcotics while in a treatment program. Id.
       There were seventy-two positive drug tests administered
       while Appellant was under supervision. Id. at 6. Appellant was
       terminated from his outpatient drug treatment program just
       prior to the hearing, and referred to a residential program. Id.
       at 5-7.      After testifying to Appellant’s behavior while on
       probation, Mr. McKendry recommended incarceration with
       further drug treatment, and testified that he did not feel
       Appellant was ready for an out-of-custody drug treatment
       program. Id. at 6. Appellant was resentenced to two and one-
       half to six years’ incarceration at that time. Id. at 9.

Trial Court Opinion, 5/28/15, at 2-3 (emphasis added).

       On   November       10, 2014,1       Appellant     filed    a   timely   motion      for

reconsideration,     which    the   trial      court   denied     in   an   order   filed   on

November 20, 2014. On December 1, 2014, Appellant filed a timely notice


____________________________________________


1
    Appellant’s motion was filed eleven days after sentencing. However,
because the tenth day fell on a Sunday, the motion was timely filed on
Monday, November 10, 2014. See Pa.R.Crim.P. 708(E) (stating that a
motion to modify a sentence imposed after revocation of probation shall be
filed within 10 days of the date of sentencing); and see 1 Pa.C.S. § 1908
(explaining that when any period of time is referred to in a statute, such
period shall be so computed as to exclude the first and include the last day
of such period; however, if the last day of any such period shall fall on
Saturday or Sunday, or on any day made a legal holiday by the laws of this
Commonwealth or of the United States, such day shall be omitted from the
computation).



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of appeal. Both Appellant and the trial court have complied with Pa.R.A.P.

1925.

        On appeal, Appellant raises the following issue for this Court’s

consideration:

        Did not the lower court err by imposing a manifestly excessive
        and grossly disproportionate sentence of 2½ to 6 years of
        incarceration where appellant had only committed technical
        violations of his probation?

Appellant’s Brief at 3.

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

An appellant seeking 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. 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

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



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challenging discretionary aspects of a sentence imposed following a

revocation hearing).

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

test:   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 next 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 avers that the sentence is

manifestly excessive and grossly disproportionate to the conduct at issue as

his probation violations were technical violations and not new criminal

offenses. Appellant’s Brief at 7-8. We conclude that Appellant has raised a

substantial question. See Commonwealth v. Colon, 102 A.3d 1033, 1043

(Pa. Super. 2014) (stating that the imposition of a sentence of total

confinement after the revocation of probation for technical violations as




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opposed to new criminal offenses, implicates the fundamental norms

underlying the sentencing process) (citation omitted).

     Our   standard   of   review   in   cases   involving   challenges   to   the

discretionary aspects of a sentence 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
     the original sentencing, including incarceration. 42 Pa.C.S.A. §
     9771(b). “Upon 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:


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            (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. Finally, this Court must show a high degree

of deference to the trial court’s sentencing determinations, because the trial

court is in the best position to determine the proper penalty for a particular

offense based upon an evaluation of the individual circumstances before it.

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (citation omitted).

      Here, the trial court, in its Pa.R.A.P. 1925(a) opinion, stated as

follows:

             In the instant case, Appellant was not convicted of a new
      crime prior to his revocation hearing. However, Appellant’s
      probation officer, Stewart McKendry, testified that Appellant
      tested positive for drugs over seventy times while on probation,
      despite attending a drug treatment program. N.T., 10/30/2014,
      at 5.     At a status listing two weeks prior to the hearing,
      Appellant was ordered to continue probation, with a new
      stipulation that he enter residential drug treatment.            Id.
      However, Mr. McKendry testified that during this two-week
      period, Appellant refused residential treatment, and again tested
      positive for illegal narcotics. Id. Mr. McKendry also testified that
      Appellant again refused treatment when he was taken into
      custody prior to the hearing. Id. Despite Appellant’s testimony
      at his October 30, 2014 hearing that he understood he had a
      drug problem and “told the court I need help,” he has not made
      good-faith efforts to comply with treatment programs while on
      probation. Id. at 7.


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                                   * * *

           In the instant case, not only does Appellant’s continued
     use of illegal narcotics make it highly likely that he will commit
     another crime if not incarcerated, he has also fl[ou]ted the
     authority of this court with his continued disregard of the terms
     of his probation. After being found in violation of probation
     seven months prior to this latest hearing, he was given another
     opportunity to avoid incarceration with a new probationary
     period. It is clear to this court that the authority of the court is
     vindicated by this sentence, because Appellant has previously
     disregarded this court’s authority on multiple occasions by
     continuing to ignore the conditions of his probation, which
     included abstaining from illegal drug use.

           Moreover, this court explained its sentencing decision at
     the hearing as follows:

           THE COURT: There’s been a lot of attempts to help
           you. Mr. McKendry is one of the real probation
           officers who goes out of his way to do things.
           There’s been programs with FIR and other places.

           I am somebody who strongly, strongly believes in
           treatment. But what I don’t believe in is when
           somebody is offered and reoffered, and I understand
           there’s ups and downs with drug treatment, but in
           your case I think [prison is] the only place you can
           go which will prevent your drug use and protect the
           community and help with drug treatment.

     N.T. 10/30/2014, at 9.

           This court gave Appellant multiple opportunities to succeed
     on probation. However, Appellant disregarded the conditions
     imposed upon him and continued to use illegal narcotics
     throughout his probation. Appellant had also previously violated
     probation and been resentenced several months prior to his
     October 30, 2014 hearing. At that time, he was given another
     opportunity to comply with probation, which he failed to do. For
     these reasons, this court found it necessary to revoke Appellant’s
     probation and resentence him to a term of two-and-one-half to
     six years’ incarceration.    Therefore, Appellant’s [] claim is
     without merit.

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Trial Court Opinion, 5/28/15, at 3-5.

       We agree with the trial court. Appellant committed more than seventy

violations of his probation and refused to put forth a good faith effort and

work toward sobriety.     The sentence imposed following the revocation of

probation was necessary to vindicate the authority of the court as it was

axiomatic that Appellant was going to continue his pattern of illegal drug

use.    Appellant repeatedly defied the trial court’s sentences and prior

attempts to provide rehabilitation without total confinement.      Appellant’s

violations of probation, while technical, were voluminous. Nothing about the

sentence imposed strikes this Court as excessive or as an abuse of

discretion; indeed, what is excessive is the number of failed drug screenings.

Accordingly, we affirm Appellant’s judgment of sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/25/2016




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