J-S48022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellee

                       v.

LARRY SERRANO-GOMEZ

                             Appellant                 No. 56 MDA 2014


           Appeal from the Judgment of Sentence December 6, 2013
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0002469-2012


BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.***

MEMORANDUM BY JENKINS, J.:                          FILED OCTOBER 03, 2014

        Appellant   Larry    Serrano-

judgment of sentence of 2½-

                                                                     arole and

probation within a one year period. We affirm.

        On November 8, 2012, appellant pled guilty to three counts at

information number 2469-2012: one count of defiant trespass1, one count of

disorderly conduct2 and one count of making, and repairing and/or selling

offensive weapons3.         The court sentenced appellant to time served to 12


____________________________________________


***
     Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 3503.
2
    18 Pa.C.S. § 5503.
3
    18 Pa.C.S. § 904.
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imprisonment plus one year of probation on the offensive weapons charge.

The court ordered the sentences on all three counts to run concurrently.

        On the same date (November 8, 2012), appellant pled guilty at

information number 2481-2012 to five counts: three counts of simple

assault (second degree misdemeanor)4, one count of drug paraphernalia5

and one count of stalking6.           On all counts except the drug paraphernalia

count, the court sentenced appellant to concurrent terms of time served to

                                                                     n.   On the drug

paraphernalia count, the court sentenced appellant to one year of probation

to run concurrently with the other counts.            All sentences ran concurrently

with the sentences imposed at number 2469-2012.

        The aggregate sentence on both informations was time served to 23



        Appellant   violated    his    parole    by   failing   to   attend   scheduled

appointments with his parole/probation officer on January 17, 2013, January

29, 2013, and February 6, 2013.                  Accordingly, on May 2, 2013, at

information    number      2469-2012,      the    Honorable     Joseph    Madenspacher

____________________________________________


4
    18 Pa.C.S. § 2701.
5
    35 P.S. § 780-113(32).
6
    18 Pa.C.S. § 2709.1.



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revoked but continued7                                       -3 of number 2469-



2469-2012 in place.

       At information number 2481-2012, Judge Madenspacher revoked

parole on counts 1-3 and 5 and sentenced appellant to the balance of his

maximum sentence. Judge Madenspacher also revoked probation on count

4 of information number 2481-2012 and sentenced appellant to time served



in counts 1-3 and 5 in place.

       On June 28, 2013, appellant appeared before the Honorable David

Ashworth due to failing a drug test for opiates on May 15, 2013.            Judge

Ashworth revoked parole on counts 1-3 of information number 2469-2012

and sentenced appellant to the balance of his maximum sentence, and he



parole on counts 1-5 of information number 2481-2012 and sentenced
____________________________________________


7

simultaneo
since the only sentencing option available upon revocation of parole is
recommitment to serve the balance of the initially imposed term of
imprisonment.    Commonwealth v. Kalichak, 943 A.2d 285, 290


then immediately reparoled him.           Ultimately, our uncertainty about Judge
                                            fect the outcome of this appeal, since

sentence imposed at a subsequent revocation hearing was manifestly
excessive. See pp. 6-11, infra.



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                                                                                  -

2012 ran concurrently with his sentence at number 2469-20128.

       On September 17 and 18, 2013, appellant engaged in threatening and

assaultive behavior while in residential treatment at a drug rehabilitation

clinic (Nuestra Clinica), which he was attending as a condition of his

sentence at the above informations.              Due to these incidents, the clinic

discharged appellant from further treatment.

       On October 31, 2013, appellant appeared at a revocation hearing

before the Honorable Dennis Reinaker.               Judge Reinaker continued the

proceedings pending a pre-sentence investigation.

       On December 6, 2013, Mr. Caldero, an employee at the clinic, testified

that on September 16, 2013, appellant made intimidating comments to

other participants in the program. N.T., !2/6/13, p. 5. Mr. Caldero testified

that on September 17, 2013, appellant threatened a 63 year old participant

and took the television remote control from him. Id., pp. 6-7. A younger

participant came to the older participant's defense, and appellant began a

____________________________________________


8
                                               parole, we infer from the
record that Judge Ashworth permitted appellant to return to the street
instead of recommitting appellant to prison.    We make this inference
because just 2 ½ months after appearing before Judge Ashworth, appellant
committed the violation discussed below that resulted in his revocation
hearing before Judge Reinaker on December 6, 2013 and the sentence
presently before us for review.



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physical altercation with the younger participant and ripped a towel bar from

the bathroom wall to use against him.      Id., pp. 8-12. On September 18,

2013, appellant returned to Nuestra Clinica to retrieve his belongings after

learning that he was discharged unsuccessfully from the program. Id., pp.

9-10. Inside the office, he became aggressive towards Mr. Caldero and then

toward another counselor.       Appellant was told to leave, and when he

refused, the police came, but he continued to act aggressively in police

presence. Id., pp. 10-11.

      Judge Reinaker sentenced appellant as follows:

              On information 2481[-
              revoked, and he is sentenced to the unexpired
              balance on Counts 1, 2, 3, 4 and 5. [Appellant] will
              be paroled effective immediately without petition on
              that information.

              On information 2469[-]2012, on Counts 1 and 2,

              sentenced to the unexpired balance. Again, he will
              be paroled effective immediately without petition on
              Counts 1 and 2.          With regard to Count 3,
                                                             n are
              revoked.      He is sentenced to a period of
              incarceration of not less than 2 ½ nor more than 5
              years. He is to be given credit for any time served
              that he has served to date with regard to this
              violation. The sentence on Count 3 of information
              2469[-]2012 begins today.

Id., p. 20.

      On December 13, 2013, appellant filed a timely motion to modify

sentence. The court never ruled on his motion to modify. On January 3,




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2014, he filed a timely notice of appeal9. Both appellant and the trial court

complied with Pa.R.A.P. 1925.

       The lone issue raised in this appeal is whether Judge Reinaker abused

his discretion by imposing a sentence of 2½-

                                                         raises a discretionary

challen



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

Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.Super.2000)).                 An

appellant must satisfy a four-

when challenging the discretion aspects of a sentence:

              (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

              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.

Allen, 24 A.3d at 1064.

       Appellant filed a timely notice of appeal, preserved the issue in post-

sentence motions, and included a statement of reasons pursuant to Rule
____________________________________________


9
 A motion to modify a sentence imposed after revocation of probation does
not toll the 30 day appeal period. Pa.R.Crim.P. 708(D). Thus, although

appeal, his appeal was still timely.



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2119(f) in his brief. We must therefore determine whether his issue raises a

substantial question.



question is to be evaluated on a case-by-                Commonwealth v.

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

Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)). A substantial question exists

where a defendant raises a plausible argument that the sentence violates a

provision of the sentencing code or is contrary to the fundamental norms of

the sentencing process. Id. (quoting Commonwealth v. Titus, 816 A.2d

251, 255 (Pa.Super.2003)).

      Appellant argues his sentence is contrary to the fundamental norms of



probation. Appellant writes:

            Defendant was discharged from a drug and alcohol
            treatment facility for fighting with another resident.
            No criminal charges were filed. Defendant claimed to
            be the victim of retaliation. Defendant received a cut
            requiring hospital treatment. The other resident was
            not injured. The court's sentence exceeded by far
            the recommendation of the probation department,
            which was 6 months.

Brief for Appellant, p. 14. Since Judge Reinaker imposed the maximum term

of imprisonment (2½-5 years) for technical violations of probation, we agree

that appellant raises a substantial question.   Commonwealth v. Sierra,

752 A.2d 910, 913 (Pa.Super. 2000) ("the imposition of Sierra's sentence of

total confinement, at the statutory maximum for her underlying offense,

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following revocation of probation for a technical parole/probation violation -

and not for a new criminal offense - is, on its face, so disproportionate as to

implicate the fundamental norms which underlie the sentencing process

(internal citations omitted).

        But although appellant raises a substantial question, Judge Reinaker

acted within his discretion by imposing a term of 2½-5 years of

imprisonment.                       is a matter vested within the discretion of the

trial court and will not be disturbed absent a manifest abuse of discretion

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super.2010) (citing

Commonwealth v. Johnson,

of    discretion   requires   the    trial   court   to   have   acted   with   manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

                                                     Id. (citing Commonwealth v.

Walls, 926 A.2d 957 (Pa.2007)).




reasons for imposing a sentence or specifically reference the statute in

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



Crump, 995 A.2d at 1283 (citing Commonwealth v. Malovich, 903 A.2d

124                                                                                    -

sentence report, it is presumed that the court is aware of all appropriate

                                                   Commonwealth v. Ventura, 975


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A.2d 1128, 1134 (Pa.Super.2009) (citing Commonwealth v. Devers, 519

Pa. 88, 101 102, 546 A.2d 12, 18 19 (1988)).



his Rule 1925(a) opinion:

           After violating his probation on April 3, 2013[,]
           [appellant] was directed to complete a mental health
           evaluation and complete any treatment deemed
           necessary as one condition of sentence. On
           September 17th and 18th of 2013, [appellant] was
           found to be in violation of his probation based upon
           two incidents which resulted in him being discharged
           from Nuestra Clinica's residential treatment facility.
           The basis for the discharge was assaultive and
           threatening behavior. . .There were no criminal
           charges filed as a result of this discharge. As of
           October 13, 2013 (the date of the Probation Violation
           Hearing), [appellant] committed three probation
           violations in total. . .A pre-sentence investigation
           report was ordered and sentencing took place on
           December 6, 2013.

           Prior to sentencing the Court considered, in detail,
           the pre-sentence report as well as the sentencing
           guidelines and penalties authorized. At sentencing,
           the Court listened to both the comments of
           [appellant] and the arguments of counsel...After
           listening to defense counsel's arguments, the Court
           was made aware of and took into consideration
           numerous factors including [appellant]'s familial
           background and mental health issues. . .Further,
           defense counsel provided the Court with information
           pertaining         to      [appellant]'s      parental
           responsibilities...The Court properly considered all of
           the above factors and fashioned an individualized
           sentence appropriate for [appellant]. As such, the
           total confinement sentence in this case was imposed
           following the commission of three probation
           violations within a six month period. This sentence
           was necessary to vindicate the Court's authority and


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              is essential to prevent [appellant] from offending
              again.

Trial Court Opinion, pp. 3-4 (citations omitted). Since appellant committed

three violations of parole and probation within a short time period, and since

Judge Reinaker reviewed his pre-sentence report and held a comprehensive

revocation hearing before imposing sentence, we find that Judge Reinaker

acted within his discretion in sentencing appellant.

      One technical detail deserves mention. Normally, the only sentencing

option available upon revocation of parole is recommitment to serve the

balance of the initially-imposed term of incarceration. Kalichak, supra, 943



probation at the same time, even before the defendant has begun to serve

the probationary period of the sentence.     See Commonwealth v. Ware,

737 A.2d 251, 253-254 (Pa.Super.1999). When resentencing a defendant in

such a situation, like a straight probation violation resentencing, the court

has the same sentencing options that existed at the time of the original

sentencing. Id., 737 A.2d at 254. As a matter of form, it might have been



impose full

(4) resentence him to a new term of imprisonment which, when combined

with the parole back time, equaled 2 ½ - 5 years of imprisonment.         Id.

Nevertheless, we see no need to remand for resentencing along these lines,




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statutory limits, and appellant received credit for all time served.

      Judgment of sentence affirmed.

     Judge Donohue joins in the memorandum.

      Judge Platt concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/3/2014




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