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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                      :    IN THE SUPERIOR COURT OF
                                                                 PENNSYLVANIA

                 v.


    DEMETRIUS SMITH

                          Appellant                   :     No. 2969 EDA 2017

            Appeal from the Judgment of Sentence August 24, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0006929-2013

BEFORE:        LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                                   FILED AUGUST 12, 2019

        Demetrius Smith appeals from the judgment of sentence entered

following the revocation of his probation. He argues the court abused its

discretion and imposed an excessive sentence. We affirm.

        In March 2014, Smith entered            a   negotiated guilty plea to one count of

receiving stolen property, 18 Pa.C.S.A.              §    3925(a) ("2014 conviction"). The

trial court sentenced him pursuant to the negotiated plea to time served to 23

month's incarceration and two years' probation.

        In February 2017, Smith was arrested and charged with possession with

intent to deliver     a   controlled substance ("PWID"), 35 P.S.          §   780-113(a)(30),
carrying   a   firearm without    a   license, 18 Pa.C.S.A.     §   6106, carrying   a   firearm

in public in     Philadelphia, 18 Pa.C.S.A.          §    6108, possession of    a   controlled

substance, 35         Pa.C.S.A.       §    780-113(a)(30), and possession of drug
paraphernalia, 18 Pa.C.S.A.           §   780-113(a)(32) (collectively "2017 charges").

      Former Justice specially assigned to the Superior Court.
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        The court held   a   Daisey Kates' hearing, where      a   police officer testified

to the facts underlying the 2017 charges, including that empty marijuana

containers,    a   bag filled with marijuana, and a handgun were found in a car

driven by and registered to Smith. The trial court revoked Smith's probation

for the 2014 conviction. Later, in August 2017, the trial court sentenced him

to four to eight years' imprisonment.

        Prior to sentencing, the trial court received   a   pre -sentence investigation

report ("PSI"). At sentencing, Smith argued that he had been compliant with

probation and noted that he had been "told mistakenly by probation that he

no longer needed to           report," and noted that they "clarified the whole

situation." N.T., 8/17/17, at 6-7.     He argued   that he was still on probation, but

they would not have made such          a   mistake if he had been noncompliant with

supervision.   Id. at   7. He   further pointed out that he had     a   difficult childhood,

and that he had young children, for whom he wanted to be present, and that

he had employment. Smith presented the               testimony of the owner of             a

company for whom he worked, who said he would be willing to hire Smith if

the court granted Smith work release. N.T. 8/24/17, at 12. In addition, the

mother of his child testified on Smith's behalf. Id. at 18-20.

        The trial court stated:

           Well, I've listened to everybody. Okay. And I have reviewed
           the [PSI] as well as your criminal history and the nature of


1  Commonwealth v. Kates, 305 A.2d 701, 708-09 (Pa. 1973) (trial court
may conduct probation/parole revocation proceedings before conclusion of
trial based on charges leading to revocation claim).
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          the violation that was brought forth before me. I am
          extremely concerned about the safety of this community
          with you in it based upon, particularly, the facts of the
          incident that was brought before me that violated the terms
          of your supervision. I was also concerned by the fact that
          this is not your first go -around.
          All right. I find that the factors under Section 9714 have
          been amply met. The most important factor that I have
          before me is the fact that I consider you to be prone to
          commit criminal offenses in the future and constant[ly] a
          danger to the community.
          I note that unlikea lot of folks that come before me, Mr.
          Smith, your mom, who raised you, worked extremely hard
          to help keep you on the right side of the law. You went in
          completely the opposite direction.


          But you did bad things. And my view of you is that you are
          going to continue to do that, because when you were
          assigned to my probation and parole you - the
          Commonwealth negotiated a considerable break for you.
          With that, however, I told you straightforward what would
          happen if you came back before me. I know I did. And this
          is not an oops type of infraction of my probation.

          The circumstances of this new arrest and information given
          to this Court through the Daisey Kates hearing tells me
          that indeed you didn't listen to one word iota, and you're a
          man who is supposed to be a good father. Your actions
          dictate otherwise.
          I'm not saying you're a bad person. I'm saying you did bad
          things, and I think you're going to continue to do so. And I
          think you disrespected the Court in every way, shape and
          form with this offense, and I do believe that the structure
          that I'm imposing and will impose is required to get through
          to you and protect our community.
          Confinement is necessary with you. Since county didn't
          work, it'll be through the state, and it will have encompassed
          therein very strict conditions. So to the single charge of
          receiving stolen property, felony of the second-degree, the
          sentence of this Court is that you serve a minimum of four

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          years state time incarceration to the maximum eight years
          state time incarceration. I do not recommend release at the
          minimum.
N.T., 8/24/17, at 22-24.

        Smith filed   a   Petition for Reconsideration of VOP Sentence, which the

trial court denied.

        Smith filed   a   timely Notice of Appeal. Smith filed   a   "Motion to Proceed

Pro Se On Appeal" and a "Motion To Remov[e] Counsel." This Court remanded

to the trial court for     a   hearing pursuant to Commonwealth v. Grazier, 713

A.2d 81 (Pa. 1998). The trial court held        a   hearing, where Smith withdrew his

requests for removal of counsel and to proceed pro se.

        Smith raises the following issue on appeal: "Was the trial court's

violation of probation sentencing inappropriate, manifestly excessive and an

abuse of discretion under the circumstances?" Smith's Br. at            5   (unnecessary

capitalization at 5).

        Smith argues the court did not fully investigate his background or review

the PSI. He further argues that the sentence was unduly harsh because it was

the maximum sentence, it was Smith's first probation violation and he had               a

"stellar" record of compliance. Smith's Br. at 14.         He also cites his belief   that
his probation period had ended, and notes that the new charges had not been

resolved. He adds that "the trial court sentenced [Smith] to the maximum

allowed by law without designating RRRI and stating that he should not be

released at his minimum." Smith's Br. at 14. Smith claims the court failed to

explore other options before sentencing him to the maximum sentence and


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that it was improper to discuss the facts of the new arrest without calling the
police officer as   a   witness.

        Smith challenges the discretionary aspects of his sentence. Thus, we

begin by noting "a [c]hallenge to the discretionary aspects of                                   a   sentence is

not appealable as of right." Commonwealth v. Green, 204 A.3d 469, 488

(Pa.Super. 2019). Before reviewing the merits of his claim, we must determine

whether: (1) the appeal                   is   timely; (2) the appellant preserved the issue at
sentencing or in        a   post -sentence motion; (3) the brief includes                             a   concise

statement of the reasons relied upon for allowance of appeal and (4)                                            a

substantial question            is   presented. See id.

        Here, Smith's appeal is timely, he preserved his issue in                            a   post -sentence

motion, and he provides               a   concise statement of reasons relied upon for appeal.

Specifically, he contends that his VOP sentence was manifestly excessive and

the court failed to consider his individual circumstances, including his "stellar"

record of compliance, and claims the new charges did not warrant imposition

of the allegedly excessive sentence. Such                         a   claim raises   a   substantial question.

See Commonwealth v. Williams, 69 A.3d 735, 740 (Pa.Super. 2013)

(finding claim that "court imposed                    a   sentence unreasonably disproportionate

to her crimes and unduly excessive" raised substantial question). Therefore,

we now proceed to           a    review of the merits of Smith's claims.

        We review a challenge to the discretionary aspects of sentencing for an

abuse of discretion. Commonwealth v. Bullock, 170 A.3d 1109, 1123

(Pa.Super. 2017). An abuse of discretion occurs where "the sentencing court

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ignored or misapplied the law, exercised its judgment for reasons of partiality,

prejudice, bias or ill -will, or arrived at                 a    manifestly unreasonable decision."

Id. (quoting Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa.Super.
2003)).

        Pursuant to Pennsylvania statute 42                           Pa.C.S.A.    §   9771(b), upon

revocation of probation, "the sentencing alternatives available to the court

shall be the same as were available at the time of initial sentencing." Further,

a   VOP court may impose a sentence of total confinement if it finds                         that "(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).

        "[A] sentencing court need not undertake                         a   lengthy discourse for its

reasons for imposing             a    sentence or specifically reference the statute in

question, but the record as                     a   whole must reflect the sentencing court's

consideration of the facts of the crime and character of the offender."

Commonwealth v. Schutzues,                           54 A.3d 86, 99 (Pa.Super. 2012) (quoting

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010)). "Where
[a PSI]   exist[s], we   .   .   .   presume that the [trial court] was aware of relevant

information      regarding           the       defendant's        character     and    weighed   those

considerations along with mitigating statutory factors." Commonwealth v.

Antidormi,    84 A.3d 736, 761 (Pa.Super. 2014).




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        The statutory maximum for receiving stolen property is ten years'

imprisonment. 18 Pa.C.S.A. §§ 106(3); 3903(a). The trial court sentenced

Smith to four to eight years' imprisonment. His original sentence was 23

months' incarceration. Therefore, the court imposed            a   sentence near the

maximum. 42 Pa.C.S.A.         §   9760(1). This was not an abuse of discretion.

        Although it was Smith's first violation of probation, the violation resulted

from an arrest on new criminal charges. Further, although Smith believed his

probation was complete, he still was on probation and the violation was an

arrest, not   a   violation of reporting requirements. The trial court heard the facts

underlying the new charges before finding that Smith violated probation, and

the court could consider such facts at sentencing. Here, at the sentencing, the

court considered the pre -sentence report, testimony from Smith's witnesses,

and other factors, in imposing sentence. Although Smith claims the trial court

failed to consider the PSI, the trial court stated it did, and Smith presents no

evidence to the contrary. The trial court took all factors into consideration

when imposing sentence, the sentence was not unduly harsh, and the court

did not abuse its discretion.

        Judgment of sentence affirmed.

Judgment Entered.




Jseph     Seletyn,
         D.
Prothonotary

Date: 8/12/19

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