J-S81031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    DAVID NORMAN WILLIG, SR.,

                             Appellant               No. 1098 MDA 2017


             Appeal from the Judgment of Sentence June 12, 2017
                in the Court of Common Pleas of Berks County
              Criminal Division at No.: CP-06-CR-0001138-2014


BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED APRIL 24, 2018

        Appellant, David Norman Willig, Sr., appeals from the judgment of

sentence entered on June 12, 2017, following the revocation of his probation.

On appeal, Appellant contends that the evidence was insufficient to sustain

the revocation of probation and challenges the discretionary aspects of his

sentence. For the reasons discussed below, we affirm.

        We take the underlying facts and procedural history in this matter from

the trial court’s September 5, 2017 opinion and our independent review of the

certified record.

              On July 11, 2014, Appellant was sentenced to three years
        of probation after pleading guilty to a first degree misdemeanor
        charge of [b]ad [c]hecks, 18 Pa.C.S.A. [§] 4105(a)(1). Although

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*   Retired Senior Judge assigned to the Superior Court.
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     Appellant made a $2,000.00 or $3,000.00 restitution payment to
     the victim prior to sentencing, he still owed $11,065.25. The
     sentence order directed Appellant to pay this restitution balance
     in monthly installments of $200.00 until satisfying the total
     amount.

           On March 20, 2017, a Gagnon I hearing was held due to
     Appellant’s failure to pay on fines and costs. At the hearing, it
     was learned that Appellant had made payments of only $105.00
     toward the restitution due and no payments toward costs. A
     Gagnon II hearing was scheduled on the charge of failure to pay
     on fines, costs, and restitution as directed.         After two
     continuances, the hearing was held on June 12, 2017.

            Appellant did not contest the fact that he did not make his
     restitution payments as ordered. He argued that he did not
     willfully violate the sentence order; rather, he was unable to pay.
     He offered a letter from his doctor setting forth a number of
     medical conditions that he claimed made him unable to work, but
     yet, he also testified to working odd jobs. He offered a set of bills
     for utilities and rent that appeared to be current and not in
     arrears. He acknowledged that he smokes cigarettes, perhaps a
     pack or pack and a half per week; however, the [trial c]ourt did
     not find the amount of smoking to be credible. Appellant averred
     that his only income is public assistance—medical and food
     stamps, no cash—and sporadic child support from his ex-wife. He
     has full custody of his 13- and 14-year-old children, and he has
     temporary custody of and supports four unrelated children aged
     11, 15, 16, and 18.

           The [trial c]ourt found that while Appellant might not have
     been purposely avoiding his obligation to pay restitution and
     costs, he was certainly making conscious choices to spend his
     money in a way that left nothing for his victim. [It] revoked
     Appellant’s probation and resentenced him to another three years
     of probation. The [trial c]ourt also ordered Appellant to pay
     $100.00 per month, instead of the previously ordered $200.00 per
     month, toward restitution and waived the $40.00 per month
     supervisory fee. Rather than allowing the matter to continue to
     languish, a status hearing was scheduled for November 7, 2017[,]
     to review Appellant’s compliance or lack thereof.

          Appellant    filed  a   [p]ost-[s]entence    [m]otion    for
     reconsideration on June 22, 2017, which the [trial c]ourt denied.

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      On July 11, 2017, Appellant filed a [n]otice of [a]ppeal. By [o]rder
      dated July 25, 2017, the [trial c]ourt ordered Appellant to file a
      concise statement of errors complained of on appeal. [See
      Pa.R.A.P. 1925(b)]. Appellant filed a [c]oncise [s]tatement on
      August 11, 2017, complaining that the [trial c]ourt abused its
      discretion in revoking Appellant’s probation without finding that
      Appellant’s failure to pay restitution was willful and in imposing an
      additional three years of probation because the sentence violates
      the standard norms of the sentencing guidelines. [On September
      5, 2017, the trial court filed an opinion. See Pa.R.A.P. 1925(a).]

(Trial Court Opinion, 9/05/17, at 1-3).

      On appeal, Appellant raises the following questions for our review.

      A. Whether the [trial] court abused its discretion in revoking
         [Appellant’s] probation based solely on his inability to pay
         costs, fees, and restitution, without finding that his failure to
         pay was willful[?]

      B. Whether the [trial] court abused its discretion in imposing an
         additional three years of probation revocation for a technical
         violation, because the sentence violates the standard norms of
         the sentencing guidelines[?]

(Appellant’s Brief, at 4).

      Appellant first contends that the trial court abused its discretion in

revoking Appellant’s probation for failure to pay without first making a finding

that his failure to pay was willful. (See id. at 14-17). We disagree.

            The procedures for revoking probation and the rights
      afforded to a probationer during revocation proceedings are well
      settled:

                   [w]hen a parolee or probationer is detained
            pending a revocation hearing, due process requires a
            determination at a pre-revocation hearing, a Gagnon
            I hearing, that probable cause exists to believe that a
            violation has been committed. Where a finding of
            probable cause is made, a second, more
            comprehensive hearing, a Gagnon II hearing, is

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           required before a final revocation decision can be
           made.

                   The Gagnon II hearing entails two decisions:
           first, a “consideration of whether the facts determined
           warrant revocation.” Morrissey v. Brewer, 408 U.S.
           471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). “The first
           step in a Gagnon II revocation decision . . . involves
           a wholly retrospective factual question: whether the
           parolee [or probationer] has in fact acted in violation
           of one or more conditions of his parole [or probation].”
           Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756,
           1761, 36 L.Ed.2d 656 (1973) (citing Morrissey,
           supra, 408 U.S. at 484, 92 S.Ct. 2593). It is this fact
           that must be demonstrated by evidence containing
           probative value. “Only if it is determined that the
           parolee [or probationer] did violate the conditions
           does the second question arise: should the parolee
           [or probationer] be recommitted to prison or should
           other steps be taken to protect society and improve
           chances of rehabilitation?” Gagnon v. Scarpelli,
           supra, 411 U.S. at 784, 93 S.Ct. 1756, (citing
           Morrissey v. Brewer, supra, 408 U.S. at 484, 92
           S.Ct. 2593, 33 L.Ed.2d 484). Thus, the Gagnon II
           hearing is more complete than the Gagnon I hearing
           in affording the probationer additional due process
           safeguards, specifically: (a) written notice of the
           claimed violations of [probation or] parole; (b)
           disclosure to the [probationer or] parolee of evidence
           against him; (c) opportunity to be heard in person and
           to present witnesses and documentary evidence; (d)
           the right to confront and cross-examine adverse
           witnesses (unless the hearing officer specifically finds
           good cause for not allowing confrontation); (e) a
           neutral and detached hearing body such as a
           traditional parole board, members of which need not
           be judicial officers or lawyers; and (f) a written
           statement by the factfinders as to the evidence relied
           on and reasons for revoking [probation or] parole.

     Further, we note that there is a lesser burden of proof in a
     Gagnon II hearing than in a criminal trial because the focus of a
     violation hearing is whether the conduct of the probationer
     indicates that the probation has proven to be an effective vehicle

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      to accomplish rehabilitation and a sufficient deterrent against
      future antisocial conduct. Thus, the Commonwealth need only
      prove a violation of probation by a preponderance of the evidence.

Commonwealth v. Allshouse, 969 A.2d 1236, 1240-41 (Pa. Super. 2009)

(some citations and quotation marks omitted).            Lastly, a claim that the

evidence was insufficient to sustain revocation is

      a question of law subject to plenary review. We must determine
      whether the evidence admitted at trial and all reasonable
      inferences drawn therefrom, when viewed in the light most
      favorable to the Commonwealth as the verdict winner, is sufficient
      to support all elements of the offenses. A reviewing court may
      not weigh the evidence or substitute its judgment for that of the
      trial court.

Commonwealth v. Perrault, 930 A.2d 553, 558 (Pa. Super. 2007), appeal

denied, 945 A.2d 169 (Pa. 2008) (citation omitted).

      In Bearden v. Georgia, 461 U.S. 660 (1983), the Supreme Court of

the United States held that a revocation court may not revoke a term of

probation   for   the   probationer’s   failure   to   pay   fines   absent   certain

considerations. Specifically, the High Court provided the following:

            We hold, therefore, that in revocation proceedings for failure
      to pay a fine or restitution, a sentencing court must inquire into
      the reasons for the failure to pay. If the probationer willfully
      refused to pay or failed to make sufficient bona fide efforts legally
      to acquire the resources to pay, the court may revoke probation
      and sentence the defendant to imprisonment within the
      authorized range of its sentencing authority. If the probationer
      could not pay despite sufficient bona fide efforts to acquire the
      resources to do so, the court must consider alternate measures of
      punishment other than imprisonment. Only if alternate measures
      are not adequate to meet the [s]tate’s interests in punishment
      and deterrence may the court imprison a probationer who has
      made sufficient bona fide efforts to pay. To do otherwise would
      deprive the probationer of his conditional freedom simply because,

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      through no fault of his own, he cannot pay the fine. Such a
      deprivation would be contrary to the fundamental fairness
      required by the Fourteenth Amendment.

Id. at 672 (footnote omitted).       We have stated that this means that a

revocation court must inquire into the reasons for a probationer’s failure to

pay and to make findings pertaining to the willfulness of his omission. See

Commonwealth v. Dorsey, 476 A.2d 1308, 1312 (Pa. Super. 1984).

      A proper analysis should include an inquiry into the reasons
      surrounding the probationer’s failure to pay, followed by a
      determination of whether the probationer made a willful choice
      not to pay, as prescribed by Dorsey. After making those
      determinations, if the court finds the probationer “could not pay
      despite sufficient bona fide efforts to acquire the resources to do
      so,” the court should then consider alternatives to incarceration in
      accordance with Bearden, [supra at 672].

Commonwealth v. Eggers, 742 A.2d 174, 176 (Pa. Super. 1999).

      Our review of the record in this case shows that the trial court conducted

a sufficient inquiry into Appellant’s ability to pay restitution. At the revocation

hearing, Appellant was thoroughly questioned on his finances. (See N.T.

Revocation Hearing, 6/12/17, at 3-7). Appellant did not contest that, in the

almost three years between sentencing and the revocation hearing, Appellant

had made a single payment of $105.00 towards restitution. (See id. at 2).

While Appellant claimed to be disabled and unable to work, he also admitted

to working “odd jobs.”      (Id. at 4).      Also, during this period, Appellant

continued to smoke cigarettes, and the trial court did not credit his statement

that he only smoked a pack and one-half a week. (See id. at 3-4, 6; Trial.

Ct. Op., at 2). Moreover, despite Appellant’s claims of poverty, he voluntarily

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took custody of four children of a friend and now supports them. (See N.T.

Revocation Hearing, at 4-5; Trial Ct. Op., at 2). Therefore, the trial court

concluded that Appellant made “conscious choices to spend his money in a

way that left nothing for his victim.” (Trial Ct. Op., at 2).   Further, despite

this finding, the trial court, in accordance with Bearden, supra, did not

imprison Appellant, but instead lowered his monthly payment obligation and

extended the period of probation. Thus, we conclude that, because the record

fails to show that Appellant made any bona fide efforts to pay restitution and,

instead, made deliberate choices to spend his money in other ways, the trial

court did not err in revoking Appellant’s probation. See Bearden, supra at

672; Cf Eggers, supra at 176 (finding that trial court had not complied with

Bearden where it made no inquiry into ability to pay and imprisoned

probationer despite evidence that Department of Welfare was deducting

restitution payments from welfare check and during periods of employment

probationer made regular additional payments). Appellant’s first claim lacks

merit.

       In his second issue, Appellant challenges the discretionary aspects of

his sentence.1     (See Appellant’s Brief, at 18-20).   In Commonwealth v.


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1 We note that Appellant preserved his discretionary aspects of sentence claim
by filing a timely post-sentence motion for reconsideration of sentence. (See
Post-Sentence Motion, 6/22/17, at unnumbered page 5); see also McAfee,
infra at 275.



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Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc), this Court held that

“[our] 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

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). [T]he


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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. . . . Commonwealth v. Edwards,

71 A.3d 323, 327 (Pa. Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013)

(citations omitted).

      In the instant matter, Appellant has failed to make any argument that

the extension of his probationary sentence “violate[d] a particular provision

of the Sentencing Code or is contrary to the fundamental norms underlying

the sentencing scheme.” Kimbrough, supra at 1263. In his post-sentence

motion, Appellant merely stated that “it would be fundamentally unfair for

[him] to remain under county supervision indefinitely simply due to his status

as an indigent and disabled individual.”          (Post-Sentence Motion, at

unnumbered page 5). In his Rule 2119(f) statement, Appellant simply quotes

general boilerplate law on the discretionary aspects of sentence but at no point

cites to any particular provision of the sentencing code violated by the

sentence. (See Appellant’s Brief, at 9-10). Thus, we find that Appellant has

failed to articulate a substantial question that his sentence violated the

sentencing scheme. See Kimbrough, supra at 1263. Appellant’s second

claim lacks merit.

      Accordingly, for the reasons discussed above, we affirm the judgment

of sentence.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/24/18




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