J-S62005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

ERNEST RICARDO DIXON,

                            Appellant                    No. 1843 WDA 2014


            Appeal from the Judgment of Sentence October 9, 2014
              in the Court of Common Pleas of Allegheny County
              Criminal Division at No.: CP-02-CR-0010816-2011


BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED DECEMBER 09, 2015

        Appellant, Ernest Ricardo Dixon,1 appeals from the judgment of

sentence imposed following the second revocation of his probation.              He

claims the sentencing court failed to consider his rehabilitative needs, and

the sentence was excessive.          He also claims the denial of thirty-five days’

credit for time served resulted in an illegal sentence.            We affirm the

judgment of sentence as to Appellant’s claim of excessiveness. However, we

remand to the trial court for a hearing on Appellant’s claim to credit for time

served.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Appellant’s surname is alternatively spelled “Dixson” in the record before
us, including in his own brief.
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       The charges underlying each of the violations of probation arose out of

Appellant’s repeated assaults on his paramour, Shakiya Starkey, and the

endangerment of their two infant children.2 In the original assault, Appellant

grabbed Ms. Starkey by her hair, struck her multiple times, and strangled

her until it appeared she was about to pass out.     He also told their infant

daughter that he was going to shoot her mommy, and that she was going to

die today, although in fact he did not follow through.      (See Affidavit of

Probable Cause, 8/25/11, at 1-3).

       In the charge at issue, Appellant entered a negotiated guilty plea to

simple assault, in exchange for the nolle prossing of the numerous other


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2
   Specifically, Appellant was charged by Criminal Information filed on
October 14, 2011 with the following offenses that occurred on August 25,
2011: Count 1–Aggravated Assault, Serious Bodily Injury (18 Pa.C.S.A. §
2702(a)(1)); Counts 2 & 3–Endangering the Welfare of Children (18
Pa.C.S.A. § 4304); Count 4–Terroristic Threats (18 Pa.C.S.A. § 2706(a)(1));
Count 5–False Imprisonment (18 Pa.C.S.A. § 2903); and, Count 6–
Recklessly Endangering Another Person (18 Pa.C.S.A. § 2705).            On
November 3, he entered a negotiated guilty plea to the amended Count 1 of
Simple Assault (18 Pa.C.S.A. § 2701(a)(1)) as well as to Counts 4, 5, and 6
with a term of probation to be set by the court, conditioned on no contact
with the victim, completion of the DACC (Domestic Abuse Counseling
Center) program, and completion of a drug and alcohol evaluation, with
follow-up treatment. In exchange, Counts 2 and 3 were withdrawn. The
trial court accepted the guilty plea, and imposed a sentence of two years’
probation at Count 1. No further penalty was imposed at Counts 4, 5, and
6. On May 10, 2012, the trial court found Appellant violated his probation
by a criminal conviction and it imposed a new term of two years’ probation.
Appellant was once again ordered to have no contact with the victim. (See
generally, Trial Court Opinion, 5/20/15, at 1-2).




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charges against him. (See Trial Ct. Op., at 1-2). He received a sentence of

two years’ probation.3

       On October 9, 2014, the trial court revoked Appellant’s probation (for

the second time) based on new criminal convictions and technical violations.

As recommended by the Probation Office, the court sentenced him to a term

of incarceration of one to two years, effective that day, with credit for 256

days’ time served, from December 23, 2013 to September 4, 2014. (See

N.T. Hearing, 10/09/14, at 3-5).               Specifically, the trial court noted that

Appellant was in technical violation of probation, because he never reported

to the probation office and failed to comply with any of the conditions of

probation, as confirmed by the Probation Office. (See Trial Ct. Op., at 4;

see also N.T. Hearing, at 2-4).4

       Appellant made no contemporaneous objection at sentencing, but

through counsel filed a motion to reconsider sentence on October 16, 2014,

averring that the trial court failed to consider his rehabilitative needs and

that he believed his sentence to be excessive. (See Motion to Reconsider

Sentence, 10/16/14, at 1). The trial court denied the motion. (See Order,

10/22/14).
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3
  In related charges, not at issue in this appeal, Appellant was sentenced to
time served. (See id. at 2).
4
  At the review hearing, a witness from the probation office confirmed that
Appellant was in complete non-compliance with the requirements of
probation. (See N.T. Hearing, at 2-3).



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      This timely appeal followed, on November 7, 2014.        After a court-

approved extension, Appellant timely filed a statement of errors on March

31, 2015. See Pa.R.A.P. 1925(b). The trial court filed an opinion on May

20, 2015.    See Pa.R.A.P. 1925(a).

      Appellant presents two questions for our review on appeal:

            I. Was the one to two year sentence of incarceration
      imposed manifestly excessive, unreasonable, and an abuse of
      discretion where the court did not consider [Appellant’s]
      rehabilitative needs or his nature and characteristics?

            II. Does [Appellant] currently serve an illegal sentence, as
      the [trial] court did not give him full credit for time served?

(Appellant’s Brief, at 5).

      Appellant’s first issue challenges the discretionary aspects of his

sentence.    This Court has concluded that a challenge to a discretionary

sentencing matter after revocation proceedings is within the scope of its

review.     See Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.

Super. 2013). Nevertheless,

      “[T]here is no absolute right to appeal when challenging the
      discretionary aspect of a sentence.”      Commonwealth v.
      Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010); 42 Pa.C.S.
      § 9781(b). Rather, an “[a]ppeal is permitted only after this
      Court determines that there is a substantial question that the
      sentence was not appropriate under the sentencing code.”
      Crump, supra at 1282. In determining whether a substantial
      question exists, this Court does not examine the merits of the
      sentencing claim. Commonwealth v. Tuladziecki, 513 Pa.
      508, 522 A.2d 17 (1987).

           In addition, “issues challenging the discretionary aspects of
      a sentence must be raised in a post-sentence motion or by
      presenting the claim to the trial court during the sentencing

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     proceedings. Absent such efforts, an objection to a discretionary
     aspect of a sentence is waived.” Commonwealth v. Kittrell,
     19 A.3d 532, 538 (Pa. Super. 2011). Furthermore, a defendant
     is required to preserve the issue in a court-ordered Pa.R.A.P.
     1925(b) concise statement and a Pa.R.A.P. 2119(f) statement.
     Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa. Super. 2012).

Id. at 1042. Similarly,

     Such a challenge to the discretionary aspects of a sentence is
     not appealable as of right. Rather, Appellant must petition for
     allowance of appeal pursuant to 42 Pa.C.S.A. § 9781.
     Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super.
     2004).

        Before we reach the merits of this [issue], we must engage
        in a four part analysis to determine: (1) whether the
        appeal is timely; (2) whether Appellant preserved his
        issue; (3) whether Appellant’s brief includes a concise
        statement of the reasons relied upon for allowance of
        appeal with respect to the discretionary aspects of
        sentence; and (4) whether the concise statement raises a
        substantial question that the sentence is appropriate under
        the sentencing code.        The third and fourth of these
        requirements arise because Appellant’s attack on his
        sentence is not an appeal as of right. Rather, he must
        petition this Court, in his concise statement of reasons, to
        grant consideration of his appeal on the grounds that there
        is a substantial question. Finally, if the appeal satisfies
        each of these four requirements, we will then proceed to
        decide the substantive merits of the case.

     Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)
     (citations omitted); see also Commonwealth v. Kalichak, 943
     A.2d 285, 289 (Pa. Super. 2008) (“[W]hen a court revokes
     probation and imposes a new sentence, a criminal defendant
     needs to preserve challenges to the discretionary aspects of that
     new sentence either by objecting during the revocation
     sentencing or by filing a post-sentence motion.”).

Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014),

appeal denied, 109 A.3d 678 (Pa. 2015).


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        Here, Appellant has filed a motion for reconsideration of sentence, and

a timely appeal. Appellant’s brief contains a Rule 2119(f) concise statement

of reasons.     (See Appellant’s Brief, at 6-8).   Therefore, he has nominally

complied with the first and third pre-review requirements.        See Colon,

supra, at 1042-43.

        However, we note that Appellant’s Motion to Reconsider raised only

the failure to consider rehabilitative needs and the claim of an excessive

sentence. (See Motion to Reconsider Sentence, at 1).

        Therefore, Appellant has waived any claim to reconsideration based on

issues not timely presented to the trial court. Specifically, he has waived the

claims in his Rule 1925(b) statement that his sentence was contrary to the

Sentencing Code and violated fundamental norms underlying the sentencing

process, failed to consider the principles enunciated at 42 Pa.C.S.A.

§ 9721(b), (Sentencing Generally), and at 42 Pa.C.S.A. § 9781, (Appellate

Review of Sentence).5 (See Concise Statement, 3/31/15, at 2); see also

Colon, supra at 1042-43.6

        For the same reason, Appellant has waived the claims in his Rule

2119(f) Statement that the sentencing court acted out of “personal

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5
  We observe for clarity and completeness that the principles at section 9781
are guides for our appellate review, and as such cannot form a proper basis
for the assertion of trial court error.
6
    Moreover, on independent review, we find no basis for any of these claims.



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frustration, bias and ill-will,” and that he posed a “minimal threat to the

public at large” (presumably as opposed to Ms. Starkey in particular). (Rule

2119(f) Statement, at 2 [see Appellant’s Brief, at 7]).7

        Nevertheless, we conclude, as noted by the Commonwealth, that

Appellant’s assertion that the trial court failed to consider his rehabilitative

needs raises a substantial question. (See Commonwealth’s Brief, at 9); see

also Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013),

appeal denied, 86 A.3d 231 (Pa. 2014), (finding, inter alia, assertion that

trial court failed to account for appellant’s rehabilitative needs was

substantial question suitable for review).        Accordingly, we will review

Appellant’s first question.

        Appellant’s first claim does not merit relief. Our standard of review is

well-settled.

          The 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
____________________________________________


7
    Moreover, we would find no support in the record for these claims.



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       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). “[U]pon 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:

            (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, supra at 1043-44.

     Here, Appellant concedes that he was convicted of new offenses and

that the trial court had the legal authority to impose a sentence of total

confinement. (See Appellant’s Brief, at 14). Furthermore, he admits that

he “made mistakes.”   (Id. at 16).   Nevertheless, Appellant maintains that




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his “sentence is one of such unreasonableness that fairness demands

remand to the lower court.” (Id. at 19). We disagree.

      Appellant’s claim that the trial court did not consider his rehabilitative

needs is belied by the record. The court expressly noted at the hearing that

Appellant was an apparent long time drug user, who had not done anything

to rehabilitate himself, and in fact was in total technical non-compliance with

the terms of probation. (See N.T. Hearing, at 4). In context, the essential

implication of the court’s observations is that Appellant had failed to pursue

his rehabilitative needs while on probation by his total lack of compliance

with the terms of probation, and by his re-offending, against the same

victim, when released from incarceration.

      Furthermore, Appellant offers no pertinent authority in support of his

claims.   The caselaw he cites stands only for general principles, not in

dispute on this appeal.    Instead of specific caselaw, Appellant presents a

largely self-serving, fact-oriented narrative, by which he concludes, without

properly developing an argument or the support of pertinent authority, that

his sentence was the product of the judge’s personal frustration with him.

(See Appellant’s Brief, at 15).

      He suggests, again without pertinent argument or authority, that even

though he was a repeat violator, and totally non-compliant with the

conditions of probation, he was taking steps to improve himself, and that he




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should receive yet another term of probation.8            (See id. at 16-18).

Appellant fails to develop an argument that supports his assertions, or

shows an abuse of discretion.

       In particular, Appellant’s attribution of personal frustration to the

sentencing judge as the motivation for her sentence is sheer unsupported,

self-serving speculation, which lacks any foundation in the record.           On

independent review, we discern no basis on which to disturb the discretion of

the trial court. Appellant’s first claim fails.

       In his second claim, Appellant argues that the trial court did not give

him full credit for time served. (See id. at 19-21). He maintains that he

should receive an additional credit for thirty-five days of time served, from

September 4, 2014 to October 9, 2014. (See id. at 20). At sentencing, the

trial court granted credit for time served but only until September 4, 2014,

“because that’s when something happened, but I don’t know what.” (N.T.

Hearing, at 5).      Appellant, too, professes ignorance for the basis of the

alleged discrepancy. (See Appellant’s Brief, at 20-21).

       Accordingly, we remand this case to the trial court for a hearing

limited solely to review of whether Appellant is entitled to additional credit of



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8
  Notably, as evidence of his ability to rehabilitate himself on probation,
Appellant cites the class he took while incarcerated. (See Appellant’s Brief,
at 15).



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thirty-five days for time served during the interval at issue, September 4,

2014 to October 9, 2014.

      Judgment of sentence affirmed. Case remanded for hearing on credit

for time served. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/9/2015




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