J-S23028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

ADAM CEYKOVSKY

                            Appellant                     No. 2969 EDA 2015


            Appeal from the Judgment of Sentence August 28, 2015
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0001338-2012


BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                     FILED JULY 15, 2016

        Adam Ceykovsky appeals from the judgment of sentence entered

August 28, 2015, in the Northampton County Court of Common Pleas, upon

the second revocation of his probation, and made final by the denial of post-

sentence motions on September 12, 2015. Ceykovsky originally pled guilty

on June 21, 2012, to one count of accidents involving death or personal

injury,1 and two summary offenses.2            That same day, the court sentenced

him a 12-month period of probation, as well as fines and restitution.

Following the revocation, the court sentenced him to serve 12 to 24 months’
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. § 3742(a).
2
    75 Pa.C.S. §§ 4703(a) and 3714(a).
J-S23028-16


incarceration, to be followed by two years’ probation.        The sole issue on

appeal is a challenge to the discretionary aspects of sentencing.        After a

thorough review of the submissions by the parties, the certified record, and

relevant law, we affirm the judgment of sentence.

       The trial court set forth the factual and procedural history as follows:

             On June 21, 2012, [Ceykovsky] pled guilty to the following
       charges: 1) Accidents Involving Death or Personal Injury, a
       misdemeanor of the first degree; 2) Operating a Vehicle Without
       a Valid Inspection, a summary offense; and 3) Careless Driving,
       a summary offense. On that same date, [Ceykovsky] was
       sentenced by the Honorable Stephen G. Baratta to serve twelve
       (12) months of county probation and to pay restitution in the
       amount of $42,670.00. On October 25, 2012 and August 23,
       2013, [Ceykovsky] was to appear for probation violation
       hearings. He failed to appear and a bench warrant [was] issued.

              On September 6, 2013, [Ceykovsky] came before the
       Court for a Gagnon[3] II hearing due to receiving new charges
       and for technical violations. At that time, his initial probation
       sentence was revoked, and Judge Baratta resentenced him to
       serve twelve (12) months of county probation. Subsequently,
       [Ceykovsky] was before this Court on September 11, 2014 for a
       Gagnon I hearing due to technical violations.         This Court
       extended [Ceykovsky]’s probation for twelve (12) months in
       order for [Ceykovsky] to make his required payments. On March
       6, 2015, [Ceykovsky] was scheduled for a Gagnon I hearing, but
       he failed to appear, and a bench warrant [was] issued.

              On July 9, 2015, [Ceykovsky] again appeared before the
       Court for a Gagnon I hearing for failing to report as directed and
       for failing to make payments toward court costs, fines, and
       restitution. On July 17, 2015, a Gagnon II hearing was held
       before Judge Baratta at which time [Ceykovsky]’s probation was
       revoked. Judge Baratta ordered that [Ceykovsky] undergo a
____________________________________________


3
   Gagnon v. Scarpelli, 411 U.S. 778 (1973) (discussing revocation
hearings).



                                           -2-
J-S23028-16


       drug and alcohol evaluation. A re-sentencing hearing was to be
       held upon completion of the drug and alcohol evaluation and
       following a hearing in the Northampton County Drug Court. On
       August 20, 2015, [Ceykovsky]’s application to the Northampton
       County Drug Court was denied.

              [Ceykovsky] appeared before the undersigned judge on
       August 28, 2015 for a Gagnon II hearing due to committing
       technical violations, specifically, failing to report as directed and
       failing to make regular payments. The Court found [Ceykovsky]
       in violation of his probation and sentenced him to serve twelve
       (12) to twenty-four (24) months in a state correctional facility,
       followed by a consecutive period of state probation of twenty-
       four (24) months.

            On September 8, 2015, [Ceykovsky] file a Motion for
       Reconsideration of Sentence. This Court denied [the] same on
       September 12, 2015.

Trial Court Opinion, 11/18/2015, at 1-2. Ceykovsky filed a timely4 notice of

appeal on September 28, 2015.5

       In his sole issue on appeal, Ceykovsky contends the trial court

imposed a sentence which is manifestly excessive or inconsistent with the

Pennsylvania     Sentencing      Code    because   the   court   failed   to   consider



____________________________________________


4
     Because September 27, 2015 fell on a Sunday, Ceykovsky had until
September 28th to file an appeal. See Commonwealth v. Leatherby, 116
A.3d 73, 86 (Pa. Super. 2015) (“When computing the 30–day filing period
‘[if] the last day of any such period shall fall on Saturday or Sunday ... such
day shall be omitted from the computation.’ 1 [Pa.C.S.] § 1908.”).
5
   On October 1, 2015, the trial court ordered Ceykovsky to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Ceykovsky filed a concise statement on October 22, 2015. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on November 18, 2015.



                                           -3-
J-S23028-16


mitigating evidence that he presented. Ceykovsky’s Brief at 5. Specifically,

he states:

      The [trial c]ourt has imposed a manifestly excessive sentence
      without considering that [Ceykovsky] would attend outpatient
      treatment while being incarcerated through Northampton County
      Prison’s work release program. The [trial c]ourt has imposed a
      manifestly excessive sentence which does not allow [Ceykovsky]
      to have the ability to repay his restitution. The result of actions
      by the [trial c]ourt is inconsistent with the sentencing code and
      contrary to the fundamental norms underlying the sentencing
      process. The sentence therefore cannot stand.

Id. at 12.

      As presented, Ceykovsky’s issue challenges the discretionary aspects

of his sentence. See Commonwealth v. Lutes, 793 A.2d 949 (Pa. Super.

2002) (explaining argument that sentence is manifestly excessive challenges

discretionary aspects of sentencing).    The standard of review for a claim

challenging a discretionary aspect of sentencing is well-established:

            Sentencing is a matter vested in the sound discretion of
      the judge, and will not be disturbed on appeal absent a manifest
      abuse of discretion. An abuse of discretion is not shown merely
      by an error in judgment. Rather, the appellant must establish,
      by reference to the record, that the sentencing court ignored or
      misapplied the law, exercised its judgment for reasons of
      partiality, prejudice, bias or ill will, or arrived at a manifestly
      unreasonable decision.

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted), appeal denied, 980 A.2d 607 (Pa. 2009).

      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.

                                     -4-
J-S23028-16


Super. 2007) (citations and quotation marks omitted). To reach the merits

of a discretionary issue, this Court must determine:

       (1) whether appellant has filed a timely notice of appeal; (2)
       whether the issue was properly preserved at sentencing or in a
       motion to reconsider and modify sentence; (3) whether
       appellant’s brief has a fatal defect; and (4) whether there is a
       substantial question that the sentence appealed from is not
       appropriate under the Sentencing Code.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)

(footnotes omitted).

       Here, Ceykovsky filed a timely notice of appeal and included the

requisite statement pursuant to Pa.R.A.P. 2119(f) in his appellate brief.6

Moreover, his post-sentence motion was timely filed.7    Therefore, we may

proceed to determine whether Ceykovsky has presented a substantial

question that the sentence appealed from is not appropriate under the

Sentencing Code.        Commonwealth v. Edwards, 71 A.3d 323, 330 (Pa.

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

____________________________________________


6
   As the Commonwealth points out, Ceykovsky’s Rule 2119(f) statement is
technically not the requisite separate statement “immediately preced[ing]
the argument on the merits[.] See Pa.R.A.P. 2119(f). Nevertheless, as will
be discussed below, his argument does offer “substantial (therefore,
sufficient) compliance with the rule to permit limited review as to whether a
‘substantial question’ is raised.” Commonwealth v. Darden, 531 A.2d
1144, 1147 (Pa. Super. 1987).
7
   Contrary to the Commonwealth’s assertion that Ceykovsky’s statement
was filed one day late, we note the last day of the ten-day period afforded
by the trial court fell on Labor Day, September 7, 2015. See Pa.R.Crim.P.
708(E). Therefore, Ceykovsky’s statement was timely filed the next day.



                                           -5-
J-S23028-16


      With respect to whether an issue presents a substantial question, we

are guided by the following:

      The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis.                See
      Commonwealth v. Paul, 2007 PA Super 134, 925 A.2d 825
      (Pa. Super. 2007). “A substantial question exits 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.”
      Commonwealth v. Griffin, 2013 PA Super 70, 65 A.3d 932,
      2013 WL 1313089, *2 (Pa. Super. filed 4/2/13) (quotation and
      quotation marks omitted).

Edwards, 71 A.3d at 330 (citation omitted).

      As indicated above, Ceykovsky claims his sentence is manifestly

excessive or inconsistent with the Pennsylvania Sentencing Code because

the court failed to consider mitigating evidence that he presented.        See

Ceykovsky’s Brief at 5. We find that such a claim does raise a substantial

question.   See Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super.

2011) (“A claim that a sentence is manifestly excessive such that it

constitutes too severe a punishment raises a substantial question.”);

Commonwealth v. Perry,          883   A.2d   599,   602   (Pa.   Super.   2005)

(concluding appellant raised a substantial question when he jointly claimed

that a sentencing court imposed an excessive sentence and failed to

consider substantial mitigating factors).     Consequently, Ceykovsky has

raised a substantial question, and we will proceed to the merits of his claim.




                                      -6-
J-S23028-16


        “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, 322 (Pa. Super. 2006).                      “[A]

sentence should not be disturbed where it is evident that the sentencing

court    was     aware     of     sentencing   considerations   and     weighed   the

considerations in a meaningful fashion.” Commonwealth v. Fish, 752 A.2d

921, 923 (Pa. Super. 2000), appeal denied, 771 A.2d 1279 (Pa. 2001).

“[T]he scope of review in an appeal following a sentence imposed after

probation revocation is limited to the validity of the revocation proceedings

and     the    legality   of     the   sentence   imposed   following    revocation.”

Commonwealth v. Infante, 888 A.2d 783, 790 (Pa. 2005) (citation

omitted).

        Upon the revocation of a defendant’s probation, a trial court may

impose any sentencing option that was available under the Sentencing Code

at the time of the original sentencing, regardless of any negotiated plea

agreement. 42 Pa.C.S. § 9771(b); Commonwealth v. Wallace, 870 A.2d

838, 843 (Pa. 2005).            Moreover, “[t]he trial court is limited only by the

maximum sentence that it could have imposed originally at the time of the

probationary sentence.” Fish, 752 A.2d at 923. Section 9771(c), however,

limits the trial court’s authority to impose a sentence of total confinement

upon revocation unless one of three circumstances are present:


                                           -7-
J-S23028-16


      (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. § 9771(c).    Furthermore, it is well-established that “[t]echnical

violations can support revocation and a sentence of incarceration when such

violations are flagrant and indicate an inability to reform.” Commonwealth

v. Carver, 923 A.2d 495, 498 (Pa. Super. 2007).

      “In addition, 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] [f]ailure to comply

with these provisions shall be grounds for vacating the sentence or

resentence    and   resentencing   the   defendant.”     Commonwealth        v.

Cartrette, 83 A.3d 1030, 1040-1041 (Pa. Super. 2013) (internal quotations

omitted); 42 Pa.C.S. § 9721(b). “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. Crump, 995 A.2d 1280, 1282-1283 (Pa. Super. 2010),

appeal denied, 13 A.3d 475 (Pa. 2010).




                                     -8-
J-S23028-16


     Although Ceykovsky contends the sentence imposed by the trial court

following revocation was excessive, he does not assert the sentence imposed

by the court was beyond the statutory maximum.         Nor does the record

support such an assertion.     Furthermore, as the trial court found in

addressing the issue:

     [W]hen [Ceykovsky] came before the Court at the August 28,
     2015 Gagnon II hearing, [Ceykovsky]’s probation officer
     informed the Court that [Ceykovsky] owes payments in the
     amount of $43,118.95, $41,900 of which is restitution.
     Additionally, on at least five occasions, [Ceykovsky] missed
     appointments scheduled with his probation officer, and he pled
     guilty to a charge of public drunkenness in March of this year.
     Also in March of this year, [Ceykovsky] admitted to his then
     probation officer to using methamphetamine for about three
     months. [Ceykovsky] did admit himself into rehab from March
     11, 2015 to April 8, 2015, but he subsequently missed two
     additional appointments and was detained in Carbon County for
     committing violations there, including resisting arrest, public
     drunkenness, and disorderly conduct. From Carbon County,
     [Ceykovsky] was brought to Northampton County for violating
     the terms of his probation.

            As discussed above, [Ceykovsky] was denied acceptance
     into the Northampton County Drug Court program. The Drug
     and Alcohol evaluation, which Judge Barrata ordered, revealed
     that [Ceykovsky] gambles daily and has a gambling problem.
     With respect to [Ceykovsky]’s substance abuse, the evaluation
     revealed that up until June of this year, [Ceykovsky] was using
     methamphetamine daily for four years. Importantly, we note
     that during the Gagnon II hearing, [Ceykovsky] unashamedly
     told the Court that his use of methamphetamine was not as
     significant as the evaluation reported, but that he lied in Drug
     Court in order to make his case appear more severe so that he
     would be accepted into the program.

           We respectfully submit that the sentence [Ceykovsky]
     received in this case is appropriate and fully warranted under the
     circumstances. He has been before the Court several times for
     committing new charges and/or for technical violations. The

                                   -9-
J-S23028-16


     record demonstrates that [Ceykovsky] has, on numerous
     occasions, demonstrated an unwillingness to comply with the
     terms of his probation. [Ceykovsky] also has a criminal history
     involving drug use,1 and although he owes a substantial amount
     of restitution, he has chosen to gamble rather than make his
     regular payments.     These actions, along with [Ceykovsky]’s
     history of drug addiction, strongly indicate to this Court that
     [Ceykovsky] is likely to recidivate. Additionally, we considered
     [Ceykovsky]’s rehabilitative needs and [Ceykovsky]’s own
     testimony that he is a drug addict and that drugs are his own
     coping skill.    Based on these considerations, as well as
     [Ceykovsky]’s actions while on probation, confinement in state
     prison is the most appropriate rehabilitative setting for
     [Ceykovsky]. The County of Northampton has exhausted all of
     its resources on [Ceykovsky], and the only treatment options
     available to [Ceykovsky] at this time are in state prison as the
     county prison no longer has treatment options.
        1
          We note that [Ceykovsky] was previously incarcerated in
        state prison on a charge of possession with intent to
        deliver cocaine.

                                      …

            Further, [Ceykovsky]’s application to Drug Court was also
     carefully considered, but [Ceykovsky] was an unsuitable
     candidate for the program. Further, [Ceykovsky] admittedly
     clouded his application to Drug Court with lies about his history.
     It is clear that [Ceykovsky]’s intent upon his application to Drug
     Court was to manipulate the court system rather than to
     proactively ameliorate his issues by participating in the intensive
     Drug Court treatment program.          As a result, this Court’s
     sentence was appropriate as it was necessary to balance the
     interests of society and rehabilitate [Ceykovsky] as well as to
     vindicate the authority of the Court. [Ceykovsky] will be offered
     necessary treatment for his addictions in state prison.

Trial Court Opinion, 11/18/2015, at 4-6 (record citations omitted).

     Based on the trial court’s explanation, it is clear the court considered

the mitigating factors and the recidivist nature of Ceykovsky’s actions. As




                                    - 10 -
J-S23028-16


such, we accept the court’s analysis and see no reason to disturb the

sentence. Accordingly, we affirm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2016




                                    - 11 -
