J-S13004-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    JAMIE SKURSKY

                             Appellant                  No. 959 MDA 2019


          Appeal from the Judgment of Sentence entered May 16, 2019
               In the Court of Common Pleas of Luzerne County
               Criminal Division at No: CP-40-CR-0001054-2017


BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.:                               FILED JUNE 16, 2020

        Appellant, Jamie Skursky, appeals from the judgment of the sentence

the Court of Common Pleas of Luzerne County entered May 16, 2019. On

appeal, Appellant challenges the discretionary aspects of his sentence. We

affirm.

        The trial court summarized the relevant background as follows.

        On June 9, 2017, [Appellant] entered a guilty plea to false reports,
        harassment, flight to avoid apprehension, and resisting arrest in
        two separate cases. During a traffic stop on August 8, 2016,
        [Appellant] gave police the name of an individual he was
        acquainted with rather than properly identifying himself.
        [Appellant] was ultimately charged with those offenses at Case
        Number 1052 of 2017.        When officers attempted to serve
        [Appellant] with an arrest warrant for false reports and
        harassment on March 9, 2017, [Appellant] fled from officers and
        resisted arrest. He was charged with those offenses at Case
        Number 1054 of 2017.
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*   Retired Senior Judge assigned to the Superior Court.
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        After pleading guilty, [Appellant] was originally sentenced on
        August 28, 2017 at [the instant case] to twelve months in the
        Intermediate Punishment Program (IPP) – in lieu of incarceration
        – for flight to avoid apprehension and twelve months of
        consecutive probation for resisting arrest for an aggregate term
        of supervision of two years. The first 60 days of IPP were to be
        served while on electronic monitoring. [Appellant] was also
        required to pay court costs. After a December 7, 2017 Motion to
        Modify was granted in part, [Appellant]’s sentence for flight to
        avoid apprehension was modified from an IPP sentence to twelve
        months of probation.

        On November 7, 2018, while serving his twelve month
        probationary sentence for resisting arrest, a Probation Violation
        Report was prepared by the Luzerne County Department of
        Probation Service Adult Probation and Parole Division (“Probation
        Services”).    The report alleged that [Appellant] committed
        technical violations while on probation. Specifically, [Appellant]
        failed to report as directed for a period of two months and was in
        arrears toward his financial responsibilities. At his [Gagnon II]1
        proceeding on May 16, 2019, [Appellant] admitted to having
        committed both technical violations.

        Based on [Appellant]’s admission to violating terms of probation,
        [the sentencing court] immediately revoked his probation and
        resentenced him to a standard range sentence[2] of six to twelve
        months incarceration in the Luzerne County Correctional Facility.
        Additionally, [the sentencing court] ruled that [Appellant] had 106
        days of credit for time already served and that he was immediately


____________________________________________


1   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

2 The sentencing court, however, recognized that sentencing guidelines were
not applicable to revocation of probations sentences, and that the sentence
imposed would fall within the standard range if the sentencing guidelines were
applicable. See Trial Court Opinion, 8/13/19, at 2, n.7; N.T. 5/16/19, at 4-5.
See also 204 Pa. Code § 303.1(b) (The sentencing guidelines do not apply to
sentences imposed as a result of the following: “accelerated rehabilitative
disposition; disposition in lieu of trial; direct or indirect contempt of court;
violations of protection from abuse orders; revocation of probation, county
intermediate punishment or state intermediate punishment, except as
provided in 204 Pa. Code Chapter 307; or revocation of parole.”).

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      eligible for re-entry program after serving four months of his
      minimum sentence.

      [Appellant] filed a Motion to Modify Sentence on May 23, 2019,
      which was denied on May 30, 2019. On June, 2019, Appellant
      filed a timely Notice of Appeal from the judgment of sentence.
      After being ordered to do so, [Appellant] filed a Concise Statement
      of Matters Complained of on Appeal [] on July 12, 2019.

Trial Court Opinion, 8/13/19, at 1-2 (footnotes and citations to the record

omitted).

      Our standard of review for challenges to the discretionary aspects of a

sentence is well settled.     We apply an abuse of discretion standard.

Additionally, because challenges to the discretionary aspects do not entitle an

appellant to appellate review as of right, an appellant challenging the

discretionary aspects of his sentence must invoke this Court’s jurisdiction by

satisfying a four-part test to determine: 1) whether the appellant has filed a

timely notice of appeal; (2) whether the issue was properly preserved at

sentencing or in a motion to reconsider and modify sentence; (3) whether the

appellant’s brief has a fatal defect; and (4) whether there is a substantial

question that the sentence appealed from is not appropriate under the

Sentencing Code. See Commonwealth v. Moury, 992 A.2d 162, 169-70

(Pa. Super. 2010).

      For purposes of our review, we accept that Appellant has met the above

test. Thus, we will address the merits of his contentions.

      Appellant first argues the sentencing court abused its discretion by

imposing a term of incarceration following revocation of probation due to

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technical violations. In this regard, Appellant properly noted that pursuant to

Section 9771(c), a sentence of total confinement after revocation of probation

is proper if one the following conditions occurs: (i) defendant has been

convicted of another crime, or (ii) the conduct of defendant indicates that he

is likely to commit another crime if not imprisoned, or (iii) if such a sentence

is essential to vindicate the authority of the court.

       Appellant addressed conditions (i) and (ii) in his argument, but never

addressed (iii), which is the reason provided by the sentencing court for

imposing a sentence of total confinement. In this regard, the sentencing court

noted that the term of imprisonment “was essential to vindicate the authority

of the court,” Trial Court Opinion, 8/13/19, at 5, after the trial court found

that Appellant’s failure to comply with the terms of the lenient sentence

previously imposed amounted to “disrespect [to the sentencing] court’s

authority and demonstrate[d] a disregard for the advantages he was afforded

by supervision.” Id. Appellant’s first claim, therefore, fails.3




____________________________________________


3 In connection with his first claim, Appellant also argues that the trial court
failed to consider Appellant’s rehabilitative needs and the absence of necessity
to incarcerate Appellant to protect the public. Appellant’s Brief at 8. The claim
is without merit. Section 9721(b)’s requirement 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[ ]” does
not apply to a revocation sentence. Commonwealth v. Pasture, 107 A.3d
21, 27 (Pa. 2014) (citing 42 Pa.C.S.A. § 9721(b)).


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      Next, Appellant argues that the sentencing court abused its discretion

in relying on the sentencing guidelines, and that by doing so it imposed a

harsher sentence. We disagree.

      The sentencing court clearly stated that the sentencing guidelines were

not applicable. A fair reading of the sentencing court references to sentencing

ranges suggests, at most, the sentencing court was aware of the sentencing

guidelines. Even if it did consider the guidelines, as Appellant suggests, it

would be just one factor, among others, considered by the sentencing court.

It is not an improper factor, nor does Appellant provide authority to the

contrary. Again, the trial court did not apply the sentencing guidelines, and

Appellant does not dispute that fact.

      Regarding the alleged harshness of the sentence, there is nothing in the

record or the law supporting his claim that the sentencing court abused its

discretion in imposing a term of imprisonment following revocation of

probation.

      Upon revocation of probation, “the sentencing alternatives available to

the court shall be the same as were available at the time of initial sentencing,

due consideration being given to the time spent serving the order of

probation.” 42 Pa.C.S.A. § 9771(b).

      Indeed,

      [t]he sentencing court’s institutional advantage is, perhaps, more
      pronounced in fashioning a sentence following the revocation of
      probation, which is qualitatively different than an initial sentencing
      proceeding. At initial sentencing, all of the rules and procedures

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     designed to inform the court and to cabin its discretionary
     sentencing authority properly are involved and play a crucial role.
     However, it is a different matter when a defendant reappears
     before the court for sentencing proceedings following a violation
     of the mercy bestowed upon him in the form of a probationary
     sentence. For example, in such a case, contrary to when an initial
     sentence is imposed, the Sentencing Guidelines do not apply, and
     the revocation court is not cabined by Section 9721(b)’s
     requirement 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.” 42 Pa.C.S. § 9771(b).

Pasture, 107 A.3d at 27.

     In Pasture, our Supreme Court also noted:

     [A]fter entering his plea, Pasture initially received a lenient
     sentence for aggravated indecent assault and corruption of
     minors. In fact, Pasture originally received a mitigated-range
     sentence, and the bulk of his sentence was probationary in nature.
     Despite this, he failed to adhere to the conditions imposed upon
     him, and the trial court, upon revocation of the probation, imposed
     a lengthier sentence, which was within the statutory bounds. We
     emphasize a trial court does not necessarily abuse its
     discretion in imposing a seemingly harsher post-revocation
     sentence where the defendant received a lenient sentence
     and then failed to adhere to the conditions imposed on him.
     See [Commonwealth v. Reaves, 923 A.2d 1119, 1122 n.5 (Pa.
     2007)]. In point of fact, where the revocation sentence was
     adequately considered and sufficiently explained on the record by
     the revocation judge, in light of the judge’s experience with the
     defendant and awareness of the circumstances of the probation
     violation, under the appropriate deferential standard of review,
     the sentence, if within the statutory bounds, is peculiarly within
     the judge’s discretion.

Id. at 28-29 (emphasis added).

     Here, similarly, the sentencing court observed that the imposition of a

harsher sentence as compared to the original sentence was necessary to


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restore the authority of the sentencing court after Appellant failed to comply

with the more lenient terms of the original sentence. The sentencing court

was aware of Appellant’s background (as it presided over the guilty plea

hearing), the nature of the violations, the original pre-sentence investigation

report, counsel’s arguments, and the probation officer’s recommendation.

      In light of the foregoing, we conclude that the sentencing court properly

exercised its discretion in imposing a sentence of total confinement. Under

the circumstances, the sentencing court did not abuse its discretion in

imposing a term of imprisonment. See Pasture, supra. Thus, Appellant is

not entitled to relief on this claim.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2020




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