J-S44004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERNEST CHAMBERS                            :
                                               :
                       Appellant               :   No. 787 WDA 2018

            Appeal from the Judgment of Sentence April 25, 2018
    In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0012980-2014


BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                          FILED SEPTEMBER 12, 2019

       Appellant, Ernest Chambers, appeals from the judgment of sentence

entered on April 25, 2018, following the revocation of his probation. After

review, we affirm.

       On February 11, 2015, Appellant entered an open guilty plea at trial

court docket number 12980-2014. N.T., 2/11/15, at 2. Appellant pleaded

guilty to one count each of: flight to avoid apprehension, trial or punishment;

fleeing or attempting to elude police officers; false reports to law enforcement

authorities; accidents involving damage to attended vehicle or property; and

driving while operating privilege is suspended or revoked.1 Id. at 2-5. The

trial court sentenced Appellant to concurrent terms of eleven and one-half to

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118 Pa.C.S. § 5126 (a), 75 Pa.C.S. § 3733, 18 Pa.C.S. § 4906 (a), 75 Pa.C.S.
§ 3743, and 75 Pa.C.S. § 1543, respectively.
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twenty-three months of incarceration, followed by three months of probation,

on the charges of flight to avoid apprehension and fleeing or attempting to

elude police officers.2 Sentencing Order, 2/11/15. The trial court imposed no

further penalty on the remaining charges. Id.

       While serving the concurrent probationary terms of his sentences at trial

court docket number 12980-2014, Appellant was charged with and pleaded

guilty to robbery in Westmoreland County. N.T., 4/25/18, at 6. As a result

of the robbery conviction, the trial court held a violation of probation hearing

on April 25, 2018. The trial court revoked Appellant’s probation at trial court

docket number 12980-2014, and it resentenced Appellant to concurrent terms

of two and one-half to five years of incarceration. Id. at 11-12. On May 4,

2018, Appellant filed a timely post-sentence motion that the trial court denied

on May 8, 2018. Appellant filed a timely notice of appeal, and both the trial

court and Appellant complied with Pa.R.A.P. 1925.

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

consideration:

       In revoking and re-sentencing [Appellant] to an aggregate
       sentence of 2½-5 years’ total state confinement, whether the trial
       court abused its sentencing discretion by ignoring the gravity of
       [Appellant’s] offense as it related to the impact on the life of the
       victim and on the community, and the rehabilitative needs of
       [Appellant], in violation of 42 Pa.C.S.A. § 9721(b)?



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2Flight to avoid apprehension and fleeing or attempting to elude police officers
were both graded as felonies of the third degree. Sentencing Order, 2/11/15.

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Appellant’s Brief at 6.

      Appellant’s issue presents a challenge to the discretionary aspects of his

sentence, and it is well settled that “[t]he right to appellate review of the

discretionary aspects of a sentence is not absolute.”      Commonwealth v.

Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014). When an appellant challenges

the discretionary aspects of a sentence, the appeal should be considered a

petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155,

163 (Pa. Super. 2007).

      As we observed in Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.

Super. 2010) (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)):

      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a four-part test:

              [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).

Id. at 170. Whether a particular issue constitutes a substantial question about

the appropriateness of a sentence is a question to be evaluated on a case-by-

case basis.    Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.

2001).



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        Here, the first three requirements of the four-part test are met:

Appellant filed a timely appeal; Appellant preserved the issue in his post-

sentence motion; and Appellant included a statement raising this issue in his

brief pursuant to Rule 2119(f). Moury, 992 A.2d at 170. Therefore, we must

determine whether Appellant has raised a substantial question.

        In order to determine whether Appellant has raised a substantial

question, we examine the Rule 2119(f) statement.            Commonwealth v.

Ahmad, 961 A.2d 884, 886-887 (Pa. Super. 2008). Allowance of appeal will

be permitted only when the appellate court determines that there is a

substantial question that the sentence is not appropriate under the Sentencing

Code.3 Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006). A

substantial question exists where an appellant sets forth a plausible argument

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

contrary to the fundamental norms underlying the sentencing process. Id.

        In his Pa.R.A.P. 2119(f) statement, Appellant asserts that the trial court

abused its discretion by imposing an excessive sentence by resentencing him

to a period of incarceration of two and one-half to five years of incarceration

but failed to consider relevant sentencing criteria, including the protection of

the public, the gravity of the underlying offense, and the rehabilitative needs

of Appellant pursuant to 42 Pa.C.S. § 9721(b). Appellant’s Brief at 22, 25. A



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3   42 Pa.C.S. § 9701 et seq.

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claim that the sentencing court failed to consider the factors set forth in

Section 9721(b) in conjunction with an assertion that the sentence imposed

was manifestly excessive raises a substantial question. Commonwealth v.

Roane, 204 A.3d 998, 1002-1003 (Pa. Super. 2019). Because we conclude

that Appellant has presented a substantial question, we proceed with our

analysis.

      When reviewing the probation-revocation proceedings, this Court is

limited to determining the validity of the proceedings, the legality of the

sentence, and the discretionary aspects of the sentence imposed.                 See

Commonwealth v. Cartrette, 83 A.3d 1030, 1033-1034 (Pa. Super. 2013)

(explaining that, notwithstanding prior decisions which stated our scope of

review in revocation proceedings is limited to the validity of the revocation

proceedings and the legality of sentence, this Court’s scope of review on

appeal      from   revocation   sentencing   also   includes   challenges   to   the

discretionary aspects of the sentence imposed).           “[T]he revocation of a

probation sentence is a matter committed to the sound discretion of the trial

court and that court’s decision will not be disturbed on appeal in the absence

of an error of law or an abuse of discretion.” Commonwealth v. MacGregor,

912 A.2d 315, 317 (Pa. Super. 2006).

      Additionally, when imposing a sentence following the revocation of

probation, the trial court is limited only by the maximum sentence that it could

have imposed originally at the time it ordered the probationary sentence.


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Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000); 42 Pa.C.S.

§ 9771(b). Once probation has been revoked, a sentence of total confinement

may be imposed if “(1) the defendant has been convicted of another crime[.]”

42 Pa.C.S. § 9771(c)(1); Fish, 752 A.2d at 923.

        Furthermore, because the Sentencing Guidelines do not apply to

sentences imposed following the revocation of probation,4 we are guided by

the provisions of 42 Pa.C.S. § 9721, which provide the general standards that

a court is to apply in sentencing a defendant. Commonwealth v. Ferguson,

893 A.2d 735, 739 (Pa. Super. 2006).

              When imposing a sentence, the sentencing court must
        consider the factors set out in 42 Pa.C.S. § 9721(b), that is, the
        protection of the public, gravity of offense in relation to impact on
        victim and community, and rehabilitative needs of defendant, and
        it must impose an individualized sentence. The sentence should
        be based on the minimum confinement consistent with the gravity
        of the offense, the need for public protection, and the defendant’s
        needs for rehabilitation.

Id. In addition, in all cases where the court “resentences an offender following

revocation     of   probation,     county      intermediate   punishment   or   state

intermediate punishment or resentences following remand, the court shall

make as a part of the record, and disclose in open court at the time of

sentencing, a statement of the reason or reasons for the sentence imposed.”

42 Pa.C.S. § 9721(b).          Guided by these standards, we must determine

whether the court abused its discretion by imposing a “manifestly excessive”


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4   204 Pa. Code § 303.1.

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sentence that constitutes “too severe a punishment.” Ferguson, 893 A.2d at

739. Moreover, this Court has explained that when the “sentencing court had

the benefit of a presentence investigation report (‘PSI’), we can assume the

sentencing court ‘was aware of relevant information regarding defendant’s

character and weighed those considerations along with mitigating statutory

factors.’” Moury, 992 A.2d at 171.

      In its Pa.R.A.P. 1925(a) opinion, the trial court addressed Appellant’s

issue as follows:

            In the sole issue raised by [Appellant] on appeal he
      contends that it was an abuse of discretion in imposing the
      concurrent sentences of 2½ to 5 years [of] confinement at his
      probation violation hearing because the sentences ignore 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
      [Appellant], factors that are required to be considered in imposing
      a sentence as required by 42 Pa.C.S.A. §9721 which provides, in
      pertinent part, as follows:

            “In selecting from the alternatives set forth in
            subsection (a), the court shall follow the general
            principle 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
            [Appellant].” 42 Pa. C.S.A. § 9721 (b)[.]

            The record in this case establishes that [Appellant] has an
      extensive hi[s]tory of criminal offenses beginning in 1999. This
      history is discussed in detail in presentence reports of March 22,
      2016 and April 11, 2018 which reflect [Appellant’s] convictions in
      1999, 2003, 2006 and 2014. When a presentence report is
      obtained it is presumed that the sentencing court reviewed and
      considered the report and weighed all relevant factors in
      fashioning the [Appellant’s] sentence. Commonwealth v. Fowler,
      893 A.2d 758, 767 (Pa.Super.2006).

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            The offenses for which [Appellant] has been convicted
     include charges of possession and possession with intent to deliver
     controlled substances; possession of drug paraphernalia; false
     identification to authorities; resisting arrest; repeated offenses
     related to driving while operating privileges suspended or
     revoked; and driving unregistered vehicles. [Appellant] was also
     convicted of burglary, recklessly endangering another person and
     theft by unlawful taking related to a home invasion in
     Westmoreland County, Pennsylvania. In addition, the evidence at
     the probation violation hearing establishes repeated and
     continued failure to abide by conditions of probation which include
     fleeing rehabilitation facilities and repeated failures of drug tests.
     The presentence report of March 22, 2016 describes that
     [Appellant] was “not amendable to supervision and was in non-
     compliance of almost every rule that he had in place under the
     [Appellant’s] supervision plan.” (Presentence Report 3/22/16, p.
     5) It was also noted that [Appellant] was not reporting as directed
     and was found not to be living at his listed address and continually
     missing curfews. It was noted that he was given “chances to take
     advantage of treatment” but numerous attempts to help the
     [Appellant] were to “no avail”. (Presentence Report 3/22/16, p.
     5)[.]

           In this case the factors set forth in the sentencing code were
     properly considered. The facts surrounding the offense indicate
     that [Appellant] was driving without a license and when stopped
     by the police provided false information. [Appellant] then fled,
     crashing into another vehicle and lead police on a chase that
     endangered not only the police officers but the community as a
     whole. As noted above, [Appellant’s] conduct is not an isolated
     event but represents a pattern of repeated criminal conduct that
     has continued and escalated.

            The rehabilitative needs of [Appellant] were specifically
     considered. Despite the fact that [Appellant] was given numerous
     opportunities for treatment and rehabilitation through periods of
     probation, [Appellant] repeatedly ignored and violated the terms
     of his probation and demonstrated a disregard for outpatient
     opportunities for treatment and rehabilitation. The record clearly
     demonstrates that the sentence of incarceration was appropriate
     not only for the protection of the community as a whole but also
     to facilitate [Appellant’s] long term rehabilitation. Therefore, there


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      was no abuse of discretion in the sentences imposed on
      [Appellant].

Trial Court Opinion, 12/19/18, 4-6.

      After review, it is undisputed that Appellant violated the terms of his

probation by committing new crimes. N.T., 4/25/18, at 6-8. As a result, the

trial court had the authority to resentence Appellant to a term of total

confinement pursuant to 42 Pa.C.S. § 9771(c)(1). We reiterate that the trial

court was permitted to impose any sentence that was available to it at the

time of Appellant’s original sentencing. Fish, 752 A.2d at 923. Appellant’s

revocation sentence of two and one-half to five years of incarceration at each

count on trial court docket number 12980-2014 was within the sentencing

parameters available to the trial court when it initially sentenced Appellant.

See 18 Pa.C.S. § 1103(3) (providing maximum sentence of confinement of

seven years for a felony of the third degree).

      Moreover, and contrary to Appellant’s argument, the trial court did

consider the factors set forth in Section 9721, and it stated on the record the

reasons for the sentence imposed following the revocation of Appellant’s

probation. The record reflects that the sentencing court had the benefit of a

PSI report and was aware of Appellant’s history, rehabilitative needs, and

other mitigating factors, including Appellant’s family life and employment.

N.T., 4/25/18, at 2, 9. The trial court then acknowledged Appellant’s repeated

failures to abide by the conditions of his prior sentences of probation. Id. at

10-11. The trial court stated: “I hear you. You have to look at the record I’m

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looking at. You picked up four convictions, walked away from Renewal

[community corrections center], were involved in a home invasion, tested

positive [for drugs]. After a while, I can only give you so many breaks.” Id.

at 13.

         The record reflects that the trial court weighed all of these factors in

sentencing Appellant, and we discern no merit in Appellant’s argument. After

review, we conclude that the trial court’s resentencing of Appellant to an

aggregate term of two and one-half to five years of incarceration, allowing

credit for time already served, was not an abuse of discretion. Accordingly,

we affirm Appellant’s judgment of sentence.

         Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2019




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