J-S33031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

JARROD BODZER

                          Appellant                  No. 1557 WDA 2015


         Appeal from the Judgment of Sentence September 9, 2015
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0011482-2014


BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                             FILED APRIL 11, 2016

      Appellant, Jarrod Bodzer, appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas, following

revocation of his intermediate punishment and probation. We affirm.

      The relevant facts and procedural history of this case are as follows.

On June 2, 2014, Appellant broke into the victim’s Ford Explorer while it was

parked   in   the   victim’s   driveway.     Appellant    took   compact   discs,

approximately ten dollars, and various other items from the center console

of the vehicle. The trial court continues:

         On December 17, 2014, [Appellant] pled guilty to theft
         from a motor vehicle, his third or subsequent theft offense
         within five years, a third-degree felony. [Appellant’s] plea
         violated his probation from prior convictions on January 6,
         2012, for two counts of theft from a motor vehicle.
         Additionally, he had prior convictions from September 23,
___________________________

*Former Justice specially assigned to the Superior Court.
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          2013, for theft from a motor vehicle and September 30,
          2013, [for] two charges of receiving stolen property. The
          plea was accepted as entry into the Drug Court Program.
          [Appellant] was sentenced to 18 months[’] intermediate
          punishment plus 12 months[’] probation, under the terms
          and conditions of the Drug Court Program.

          [Appellant] was placed at Alpha House on January 6, 2015.
          On March 2, 2015, [Appellant] appeared before this [c]ourt
          for a progress hearing but he absconded later that day.
          He was arrested on the outstanding warrant on April 6,
          2015, and had a Gagnon I[1] hearing on April 20, 2015.
          [Appellant] was returned to Alpha House on May 6, 2015.
          On June 20, 2015, [Appellant] again absconded from Alpha
          House. He was arrested on an outstanding warrant on
          August 1, 2015, and had a Gagnon I hearing on August
          17, 2015. [Appellant] was not forthcoming on August 21,
          2015, when the Probation Office’s Drug Court Specialist
          attempted to reevaluate him[;] therefore, [Appellant] was
          determined not to be a proper participant in the Drug
          Court Program.

          [Appellant] violated his sentence and appeared before this
          [c]ourt for a probation [and intermediate punishment]
          violation hearing and resentencing on September 9, 2015.
          This [c]ourt determined that [Appellant] had violated his
          sentence and revoked his admission to the Drug Court
          Program.     This [c]ourt resentenced [Appellant] to a
          standard range sentence of incarceration for 18 to 36
          months.

          During the violation hearing, this [c]ourt noted that
          “[Appellant] has been on uninterrupted supervision from
          the Allegheny County Adult Probation Office for the past
          four years. During that time, he was afforded multiple
          opportunities of treatment. [Appellant] was accepted into
          Drug Court because he would have benefited from the
          structured program.”

____________________________________________


1
  Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656
(1973).



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(Trial Court Opinion, filed December 17, 2015 at 1-2) (internal citations to

the record omitted).        On September 18, 2015, Appellant timely filed a

motion for reconsideration of sentence.          While the motion was pending,

Appellant filed a timely notice of appeal on October 8, 2015.2 On October

28, 2015, the court ordered Appellant to file a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b). The court entered

an order denying Appellant’s post-sentence motion on November 2, 2015.

Appellant timely filed a Rule 1925(b) statement on November 20, 2015.

       Appellant raises the following issue for our review:

          DID THE TRIAL COURT ABUSE ITS DISCRETION BY
          IMPOSING A CLEARLY UNREASONABLE SENTENCE THAT
          WAS    DISPROPORTIONATE   TO   THE NATURE  OF
          [APPELLANT’S] PROBATION VIOLATIONS AND THE
          GRAVITY OF THE UNDERLYING OFFENSE?

(Appellant’s Brief at 4).

       Appellant argues his revocation sentence is disproportionate to the

nature of his technical violations of intermediate punishment and probation.

Appellant contends he took full responsibility for his actions, apologized to

the court, and explained he left the treatment facility only after the director

told him he would be forced to leave. Appellant also asserts his sentence is

excessive in light of the trifling nature of the underlying theft offense, which

____________________________________________


2
  See Pa.R.Crim.P. 708(E) (stating motion to modify sentence imposed after
revocation shall be filed within ten days of date of imposition; filing of
motion to modify sentence will not toll thirty-day appeal period).



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Appellant characterizes as a “minor property crime.”    Appellant concludes

this Court should vacate the judgment of sentence and remand for

resentencing.     Appellant challenges the discretionary aspects of his

sentence. See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002)

(stating claim that sentence is excessive challenges discretionary aspects of

sentencing).

     When reviewing the outcome of a revocation proceeding, this Court is

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

judgment of sentence imposed, and the discretionary aspects of sentencing.

Commonwealth v. Cartrette, 83 A.3d 1030, 1033-34 (Pa.Super. 2013)

(en banc).     Challenges to the discretionary aspects of sentencing do not

entitle an appellant to an appeal as of right.   Commonwealth v. Sierra,

752 A.2d 910 (Pa.Super. 2000).         Prior to reaching the merits of a

discretionary sentencing issue:

        [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).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

Objections to the discretionary aspects of a sentence are generally waived if


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they are not raised at the sentencing hearing or raised in a motion to modify

the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d

788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

      When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating a substantial question as to the

appropriateness    of   the    sentence   under    the   Sentencing     Code.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.

2119(f). A substantial question exists “only when the appellant advances a

colorable argument that the sentencing judge’s actions were either: (1)

inconsistent with a specific provision of the Sentencing Code; or (2) contrary

to the fundamental norms which underlie the sentencing process.” Sierra,

supra at 913.     See, e.g., Commonwealth v. Malovich, 903 A.2d 1247

(Pa.Super. 2006) (stating defendant raised substantial question with respect

to claim that revocation sentence was excessive in light of underlying

technical probation violations).

      “In general, 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.”

Commonwealth v. Hoover, 909 A.2d 321 (Pa.Super. 2006). Revocation of

intermediate punishment is treated similarly to revocation of probation for

purposes of appellate review. See Commonwealth v. Philipp, 709 A.2d


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920 (Pa.Super. 1998). In either case, the trial court “possesses the same

sentencing alternatives that it had at the time of initial sentencing.” Id. at

921. Following revocation of probation, the court may impose a sentence of

total confinement if any of the following conditions exist: the defendant has

been convicted of another crime; the conduct of the defendant indicates it is

likely he will commit another crime if he is not imprisoned; or, such a

sentence is essential to vindicate the authority of the court.             See 42

Pa.C.S.A. § 9771(c).

      Instantly, Appellant did not object to his sentence at the revocation

hearing. In his post-sentence motion, Appellant failed to raise his challenge

to his sentence as excessive due to the minor, nonviolent nature of the

underlying theft offense. Therefore, that challenge is waived. See Mann,

supra. Nevertheless, Appellant properly preserved his claim that the court

imposed an excessive sentence in light of Appellant’s technical violations of

intermediate punishment and probation, which does present a substantial

question. See Malovich, supra.

      Here, the court provided the following rationale for its sentencing

decision:

            [Appellant] had been provided an opportunity to
            participate in the Drug Court Program. [Appellant] was
            provided many chances to remain in the Drug Court
            Program, but he failed to take advantage of them. The
            record indicates that this [c]ourt properly considered the
            facts of the crime and the character of the offender before
            imposing a new sentence. [Appellant’s] behavior indicated
            that it is likely that he would commit another offense if he

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        was not imprisoned.

        Furthermore, a sentence of confinement was necessary to
        vindicate the authority of the [c]ourt.            [Appellant]
        repeatedly absconded from treatment programs and failed
        to comply with the terms of the Drug Court Program.
        Incarceration is proper where technical violations are
        flagrant and indicative of an inability to reform.

        The maximum sentence for the conviction was 7 years[’]
        incarceration. [Appellant’s] violation sentence of 18 to 36
        months was not illegal. … At the instant…revocation
        sentencing, this [c]ourt was authorized to impose any
        sentence that could have been imposed when [Appellant]
        was first convicted and sentenced.

        This [c]ourt’s standard range sentence of 18 to 36 months
        [of incarceration] with credit for time served was not
        manifestly excessive, unreasonable or an abuse of
        discretion.

(Trial Court Opinion at 3-4).   We accept the court’s analysis and see no

reason to disturb the sentence imposed. Accordingly, we affirm.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2016




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