J-S33024-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                   Appellee                :
                                           :
              v.                           :
                                           :
LUIS TORRES,                               :
                                           :
                   Appellant               : No. 1734 EDA 2014

              Appeal from the Judgment of Sentence May 8, 2014,
                 Court of Common Pleas, Philadelphia County,
              Criminal Division at No(s): CP-51-CR-0004244-2011
                         and CP-51-CR-0008462-2011

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and LAZARUS, JJ.

MEMORANDUM BY DONOHUE, J.:                              FILED JUNE 10, 2015

      Luis Torres (“Torres”) appeals from the judgment of sentence entered

following the revocation of his probation. We affirm.

      The trial court summarized the factual history underlying this appeal

as follows:

              On June 2, 2011, [Torres] entered a negotiated plea
              to possession with intent to deliver a controlled
              substance (PWID) before the Honorable Joan Brown
              and was sentenced to [three] years [of] probation.
              On December 1, 2011, [Torres] again entered a
              negotiated plea to a second PWID before Judge
              Brown and received a sentence of [six to twenty-
              three] months [of] incarceration plus [three] years
              [of] probation. Although this was a direct violation,
              probation on the first sentence was continued. It was
              subsequently requested that supervision of [Torres’]
              cases be transferred to the Mental Health Court. On
              May 10, 2012, Judge Brown relinquished jurisdiction
              and [Torres] was formally admitted into Mental
              Health Court (MHC) upon his agreement to comply
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          with all the conditions of MHC, treatment, and
          probation/parole. As is the procedure in MHC,
          [Torres] was given initial mental health and other
          evaluations to determine his needs, and scheduled
          for status of mental health and treatment hearings at
          regular intervals to monitor his compliance and
          progress. At [Torres’] June 14, 2012 status hearing,
          his probation officer reported that [Torres] was not
          in compliance with his treatment program, was
          involved with the Latin Kings gang, was selling
          drugs, and had submitted two positive drug screens.
          However, despite these clear technical violations,
          [Torres] received no formal sanction, but was
          instead placed on increased reporting. At the June
          28, 2012 status hearing [Torres] remained non-
          compliant. This time [Torres] received a jury box
          sanction for his technical violations. At the July 12,
          2012 status hearing [Torres] was reported to be in
          compliance with his program. However, at the July
          19, 2012 hearing, [Torres] was again noncompliant
          and received a [thirty] day custody sanction for his
          technical violations. [Torres] completed his sanction
          and was reported in compliance with his program at
          the September 6, 2012 listing. On October 5, 2012,
          the [c]ourt was informed that [Torres] had incurred
          a new arrest for PWID on October 3, 2012. A
          violation hearing was scheduled but was continued
          pending the resolution of the open case. At the April
          25, 2013 status hearing, it was reported that the
          open case had been discharged and [Torres’]
          probation was continued.       At the May 30, 2013
          status hearing, [Torres] was reported in compliance
          with treatment but that he had not had contact with
          his case manager. At the June 20, 2013 and July 11,
          2013 status hearings, it was reported that [Torres]
          had been hospitalized for seizures but was still
          attending treatment. However, [Torres] failed to
          appear for the August 8, 2013 status hearing. His
          probation officer reported that [Torres] was not
          doing well and refusing help. On November 16,
          2013, [Torres] was arrested and charged with PWID
          and simple possession. On December 12, 2013, the
          [c]ourt ordered a forthwith mental health evaluation.



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            At the April 3, 2014 hearing, [Torres] pleaded guilty
            to possession in exchange for a sentence of [nine]
            months [of] probation. After a violation hearing, the
            [c]ourt granted the Commonwealth's motion to
            revoke [Torres’] probation based on his direct and
            technical violations. Sentencing on the violation was
            deferred so that [Torres] could provide the [c]ourt
            documentation from his physician regarding the
            interactions between his medications. At the May 8,
            2014, sentencing hearing, [Torres] failed to provide
            the documentation. Following the arguments of both
            counsel and testimony from [Torres], the [c]ourt
            sentenced [Torres] to concurrent sentences of [two
            to four] years [of] incarceration and made him
            [b]oot [c]amp eligible. Post[-]sentence motions were
            subsequently denied.

Trial Court Opinion, 9/16/14, at 1-3.   This timely appeal follows, in which

Torres presents the following issue for our review: “Was not the sentence of

two to four years [of] incarceration for [a] probation violation excessive and

unreasonable?”    Torres’ Brief at 4.    With this claim, Torres challenges

discretionary aspects of his sentence.1    “Challenges to the discretionary

aspects of sentencing do not entitle an appellant to review as of right.”

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011) (citation

omitted).

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


1
  We note that “this Court's scope of review in an appeal from a revocation
sentencing includes discretionary sentencing challenges.” Commonwealth
v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc).


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            modify sentence, see Pa.R.Crim.P. 720; (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. (citation omitted). Torres filed a timely notice of appeal, raised this

claim in his post-sentence motion, and included a statement pursuant to

Pa.R.A.P. 2119(f) in his brief.    Accordingly, we consider whether he has

presented a substantial question that his sentence is not appropriate under

the Sentencing Code.

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.      Commonwealth v. Glass, 50 A.3d

720, 727 (Pa. Super. 2012).

            A substantial question exists where an appellant
            advances a colorable argument that the trial court's
            actions were inconsistent with a specific provision of
            the sentencing code, or contrary to the fundamental
            norms underlying the sentencing process. In
            determining whether a substantial question exists,
            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.

Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012)

(internal citations omitted).   Furthermore, this Court may not look beyond

the content of the 2119(f) statement to determine whether the appellant has

raised a substantial question. Id.




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      In his Rule 2119(f) statement, Torres alleges that his “sentence is

disproportionate to the conduct at issue, and not justified by sufficient

reasons[.]”     Torres’ Brief at 8.   This Court has previously held that this

presents   a    substantial   question   so    as   to   invoke   our   review,   see

Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa. Super. 2003), and so

we will review Torres’ claim.

      We begin by recognizing that

               [s]entencing is a matter vested within the discretion
               of the trial court and will not be disturbed absent a
               manifest abuse of discretion. An abuse of discretion
               requires the trial court to have acted with manifest
               unreasonableness, or partiality, prejudice, bias, or
               ill-will, or such lack of support so as to be clearly
               erroneous.

Commonwealth v. Schutzues, 54 A.3d 86, 98-99 (Pa. Super. 2012)

(internal citations omitted). Additionally, “[a] court may revoke an order of

probation upon proof of the violation of specified conditions of the probation.

Upon revocation 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 PaC.S.A. § 9771(b). Furthermore,

               in all cases where the court resentences an offender
               following revocation of probation ... 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 and
               failure to comply with these provisions shall be
               grounds for vacating the sentence or resentence and



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            resentencing the defendant. A trial 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. Colon, 102 A.3d 1033, 1044 (Pa. Super. 2014)

(internal citations omitted).

      Torres argues that his sentence was excessive in light of the nature of

his probation violation and the fact that this was his first violation. Torres’

Brief at 13.   He compares his situation with Parlante, arguing that if the

sentence in that case, “for a probationer who had violated her probation six

times, was deemed excessive at a maximum of eight years, surely [] Torres’

first violation of probation sentence should not mandate four years of

incarceration.” Id.

      The very premise of Torres’ argument – that this is his first probation

violation – is faulty. It is clear from the record that the violation that led to

the revocation of his probation was not an isolated or unique event. It is

notable that in making his argument, Torres does not acknowledge the

number and nature of his many probation violations, as detailed in the trial

court’s recitation of the facts above and as supported by the evidence of

record. See N.T., 5/8/14, at 8-10.

      Torres does not present argument regarding the second aspect of the

claim he presented in his Rule 2119(f) statement: that the trial court did not




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place sufficient reasons for the sentence imposed on the record. As such,

this argument is waived. See Commonwealth v. Hunzer, 868 A.2d 498,

516 (Pa. Super. 2005); Pa.R.A.P. 2119.       Nonetheless, we note that our

review of the record reveals that the trial court satisfied its obligation to

state the reasons for the sentence.     See Colon, 102 A.3d at 1044.       It

stated,

           Mr. Torres, you are a young individual who has a
           lifetime ahead of him.         You have so many
           opportunities available to you and I know when one
           is young sometimes we make very stupid mistakes
           because we really don’t understand all the
           consequences that are going to occur because of our
           actions.

           But, as I review your history I do believe that the
           non-reporting, the testing positive, failing to appear
           for court and your basic refusal to comply with all
           the conditions of mental health court and of course a
           direct violation with the new case, all of which
           indicates that you are not willing to follow the rules
           or regulations of this [c]ourt and so in order to
           vindicate the authority of this [c]ourt, protect the
           public, I do think that … a sentence of incarceration
           in the state in necessary.

           I will say, what I really believe will help you in terms
           of responsibility is [b]oot [c]amp, and what I’m
           going to do is sentence you on the violation matters
           to [two] to [four] years of incarceration. I’ll make
           you eligible for [b]oot [c]amp, you’ll receive credit
           for all times served.

N.T., 5/8/14, at 13-14. Having found no merit to Torres’ claims, we affirm

the judgment of sentence.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/10/2015




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