J-A26043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ERIC SCOTT HECK,

                            Appellant                 No. 305 MDA 2015


            Appeal from the Judgment of Sentence January 16, 2015
               in the Court of Common Pleas of Dauphin County
               Criminal Division at No.: CP-22-CR-0004604-2009


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 29, 2015

        Appellant, Eric Scott Heck, appeals from the judgment of sentence

entered on January 16, 2015, following the revocation of his probation. On

appeal, Appellant challenges the discretionary aspects of sentence. For the

reasons discussed below, we affirm the judgment of sentence.

        On August 9, 2010, Appellant pleaded guilty to charges of criminal

trespass, theft by unlawful taking, and criminal mischief.1 That same day,

the trial court sentenced him to not less than twenty nor more than sixty

months’ intermediate punishment (IP). Appellant did not file a direct appeal.


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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa. C.S.A. §§ 3503(a)(1)(ii), 3921(a), and 3304(a)(5), respectively.
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      On May 2, 2012, the trial court issued a bench warrant for Appellant

because of a violation of probation.      In December 2012, the trial court

continued Appellant’s revocation hearing pending an evaluation of his

eligibility for state IP (SIP).   On April 23, 2013, the trial court revoked

Appellant’s probation and sentenced him to not less than two years of SIP.

      On October 22, 2014, the Commonwealth received notice that

Appellant escaped from SIP and, therefore, had been expelled from it. (See

N.T. Sentencing, 1/16/15, at 2).       Because of that escape and criminal

conduct Appellant committed during his escape, the Commonwealth charged

him with additional crimes. (See id.).

      On January 16, 2015, following a revocation hearing, the trial court

sentenced Appellant to not less than four nor more than eight years of

incarceration for criminal trespass.    The court credited Appellant for time

served from July 28, 2009, through August 9, 2010, and from December 14,

2012, to January 16, 2015.

      On January 26, 2015, Appellant filed a post-sentence motion seeking

modification of his sentence. On February 16, 2015, the trial court denied

the motion. The instant, timely appeal followed.

      On February 19, 2015, the trial court ordered Appellant to file a

concise statement of errors complained of on appeal.            See Pa.R.A.P.

1925(b).   Appellant complied on March 4, 2015.        On March 10, 2015, the

trial court filed an opinion. See Pa.R.A.P. 1925(a).


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        On appeal, Appellant raises the following question for our review:

             Whether the trial court erred in denying Appellant’s post-
       sentence motion for modification of sentence where Appellant’s
       sentence is excessive and unreasonable and constitutes too
       severe of a punishment in light of the alleged gravity of the
       offense, the alleged probation violations, what is needed to
       protect the public, and Appellant’s rehabilitative needs?

(Appellant’s Brief, at 5).

       On appeal, Appellant challenges the discretionary aspects of his

sentence.2     In Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super.

2013) (en banc), an en banc panel of this Court held that “this Court’s scope

of review in an appeal from a revocation sentencing includes discretionary

sentencing challenges.” Cartrette, supra at 1034. Thus, Appellant’s claim

is properly before us.

       The right to appeal the discretionary aspects of a sentence is not

absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

2004), appeal denied, 860 A.2d 122 (Pa. 2004).            When an appellant

challenges the discretionary aspects of the sentence imposed, he must

present “a substantial question as to the appropriateness of the sentence[.]”

Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)

(citations omitted).      An appellant must, pursuant to Pennsylvania Rule of
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2
  We note that Appellant preserved his discretionary aspects of sentence
claim by filing a timely post-sentence motion for reconsideration of
sentence. See McAfee, infra at 275.




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J-A26043-15


Appellate Procedure 2119(f), articulate “a colorable argument that the

sentence violates a particular provision of the Sentencing Code or is contrary

to   the     fundamental   norms   underlying    the   sentencing    scheme.”

Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)

(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If

an appellant’s Rule 2119(f) statement meets these prerequisites, we

determine whether a substantial question exists. See Commonwealth v.

Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied,

759 A.2d 920 (Pa. 2000). “Our inquiry must focus on the reasons for which

the appeal is sought, in contrast to the facts underlying the appeal, which

are necessary only to decide the appeal on the merits.” Id. (emphases in

original).

      Here, Appellant has included a Rule 2119(f) statement in his brief.

(See Appellant’s Brief, at 8-10). In it, Appellant argues that the sentence

was excessive and unreasonable and constitutes too severe a punishment

because he pleaded guilty to the charges that constituted the basis for

revocation and because the sentence of total confinement was more severe

than his previous sentences of IP. (See id. at 9-10). This claim raises a

substantial question. See Commonwealth v. Schutzues, 54 A.3d 86, 98

(Pa. Super. 2012), appeal denied, 67 A.3d 796 (Pa. 2013).

           [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. . . . Once probation has been revoked, a sentence of

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       total confinement may be imposed if any of the following
       conditions exist: (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 court.

Commonwealth v. Edwards, 71 A.3d 323, 327 (Pa. Super. 2013), appeal

denied, 81 A.3d 75 (Pa. 2013) (citations omitted).

       Here, as discussed above, this is Appellant’s second revocation from

IP. Further, Appellant’s probation violation was an escape that led to new

criminal charges. (See Trial Court Opinion, 3/10/15, at 3). Thus, Appellant

has twice demonstrated his inability to conform to the requirements of IP.

(See id.). Lastly, Appellant’s sentence was well within the statutory limits.3

(See id.).    Thus, the record amply supports Appellant’s sentence of total

confinement, and his claim that the sentence was unreasonable is frivolous.

See Edwards, supra at 327.

       Further, even if this were not the case, Appellant’s one-paragraph

argument that his sentence is excessive is                underdeveloped.   (See

Appellant’s Brief, at 9-10).         It is settled that “we do not accept bald

assertions of sentencing errors.               Rather, Appellant must support his

assertions by articulating the way in which the court’s actions violated the

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3
  We note that the sentencing guidelines do not apply to sentences imposed
following a revocation of probation. See Commonwealth v. Williams, 69
A.3d 735, 741 (Pa. Super. 2013), appeal denied, 83 A.3d 415 (Pa. 2014)
(citation omitted).



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J-A26043-15


sentencing code.” Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa.

Super. 2006) (citation omitted). Appellant failed to do so. (See Appellant ‘s

Brief, at 9-10).   Appellant’s issue does not merit relief.   See Malovich,

supra at 1252.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2015




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