J-S18002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

GREGORY DALTON

                          Appellant                   No. 541 WDA 2017


      Appeal from the Judgment of Sentence imposed March 14, 2017
            In the Court of Common Pleas of Allegheny County
             Criminal Division at No: CP-02-CR-0010917-2011


BEFORE: STABILE, J., MUSMANNO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                             FILED JUNE 25, 2018

      Appellant, Gregory Dalton, appeals from the judgment of sentence

imposed on March 14, 2017 in the Court of Common Pleas of Allegheny County

following revocation of his probation. Appellant contends the trial court failed

to consider and apply all relevant sentencing criteria.     We disagree and,

therefore, affirm.

      In its Rule 1925(a) opinion, the trial court provided the following

synopsis of the facts underlying this case:

      [I]n the early morning hours of August 9, 2011, [Appellant] was
      a guest at the home of Shane Anderson on Tioga Street in the
      Homewood section of the City of Pittsburgh. The adults were
      engaged in drug activity including crack cocaine and marijuana,
      while Anderson’s two (2) children, ages one (1) and three (3) slept
      on a mattress in another room. At some point [Appellant] went
      into the room where the children were sleeping and went to sleep,
      leaving his loaded handgun on the bed. At approximately 1 a.m.,
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       Zymiere (3-years old) awoke, got ahold of [Appellant’s] gun and
       shot himself in the head.

Rule 1925(a) Opinion, 11/1/17, at 2.

       As reflected in the procedural history provided by the court, Appellant

was charged with involuntary manslaughter, carrying a firearm without a

license, and recklessly endangering another person (REAP). 1 Id. at 1. On

January 12, 2012, he entered into a guilty plea to involuntary manslaughter

and REAP. The firearms charge was withdrawn. Id. The trial court sentenced

him to a term of probation of five years. Appellant did not file post-sentence

motions or a direct appeal. Id. at 2.

       No further action was taken until January 14, 2014, when
       [Appellant] appeared before this court for a probation violation
       hearing, having been convicted of false identification to law
       enforcement []. At the conclusion of the hearing, this court
       continued [Appellant’s] probation.     Again, no post-sentence
       motions were filed and no direct appeal was taken.

       [Appellant] next appeared before this court on March 14, 2017 for
       a probation violation hearing, having been convicted of simple
       assault [] and of criminal mischief and disorderly conduct []. At
       the conclusion of the hearing, this court revoked [Appellant’s]
       probation and imposed a term of imprisonment of two and one
       half (2½) to five (5) years. Timely post-sentence motions were
       filed and were denied on April 11, 2017. This appeal followed.

Id. (some capitalization omitted).




____________________________________________


1 18 Pa.C.S.A. §§ 2504(a), 616(a)(1), and 2705, respectively. We note that
Appellant, whose date of birth is March 9, 1993, was eighteen years of age at
the time of Zymiere’s death.

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      Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant asks us to consider one issue on appeal:

      I.    Did the trial court fail to consider and apply all of the
            relevant sentencing criteria, including the protection of the
            public, the gravity of the offense/violation, and especially
            [Appellant’s] character and rehabilitative needs, as required
            under 42 Pa.C.S.A. § 9721(b) (sentencing generally;
            general standards)[?]

Appellant’s Brief at 5.   As such, Appellant presents a challenge to the

discretionary aspects of his sentence.

      “A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right.” Commonwealth v. Grays,

167 A.3d 793, 815 (Pa. Super. 2017) (citation omitted). Before we can reach

the merits of a discretionary aspects challenge,

      [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. 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. at 815-16 (quoting Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006) (citations omitted)).   Here, Appellant filed a timely notice of

appeal, preserved the issue in his post-sentence motions, and included a

statement in compliance with Pa.R.A.P. 2119(f).          Therefore, we must

determine whether Appellant has presented a substantial question that his

sentence is not appropriate under the Sentencing Code. “The determination


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of what constitutes a substantial question must be evaluated on a case-by-

case basis.” Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super.

2015) (en banc) (citation omitted).

       Appellant contends he has raised a substantial question because a claim

of an excessive sentence, combined with an allegation the trial court did not

consider mitigating factors, presents a substantial question. Appellant’s Brief

at 17 (citing Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super 2005)).

Further, if the trial court fails to consider relevant sentencing criteria, including

protection of the public, gravity of the underlying offense, and an appellant’s

rehabilitative needs, a substantial question is raised.          Id. at 18 (citing

Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012)).                     The

Commonwealth suggests Appellant has not raised a substantial question

because he is actually alleging that the trial court “did not adequately

consider” various factors. Commonwealth Brief at 9 (citations omitted).          We

find the Commonwealth’s argument unpersuasive. Based on the authorities

cited by Appellant, we conclude he has presented a substantial question and

we shall consider the merits of his sentencing issue.

      With respect to initial sentencing proceedings, our Supreme Court “has

reinforced the notion that a trial court has broad discretion in sentencing a

defendant, and concomitantly, the appellate courts utilize a deferential

standard of appellate review in determining whether the trial court abused its

discretion in fashioning an appropriate sentence.”            Commonwealth v.


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Pasture, 107 A.3d 21, 27 (Pa. 2014) (citing Commonwealth v. Perry, 32

A.3d 232 (Pa. 2011) and Commonwealth v. Walls, 926 A.2d 957 (Pa.

2007)). As the Pasture Court explained, broad sentencing discretion and a

deferential standard of appellate review are warranted because “the

sentencing court is in the best position to measure various factors and

‘determine the proper penalty for a particular offense based upon an

evaluation of the individual circumstances before it.’” Id. (quoting Perry, 32

A.3d at 236) (in turn quoting Walls, 926 A.2d at 961 (citations omitted)).

      Further:

      The sentencing court’s institutional advantage is, perhaps, more
      pronounced in fashioning a sentence following the revocation of
      probation, which is qualitatively different than an initial sentencing
      proceeding. At initial sentencing, all of the rules and procedures
      designed to inform the court and to cabin its discretionary
      sentencing authority properly are involved and play a crucial role.
      However, it is a different matter when a defendant reappears
      before the court for sentencing proceedings following a violation
      of the mercy bestowed upon him in the form of a probationary
      sentence. For example, in such a case, contrary to when an initial
      sentence is imposed, the Sentencing Guidelines do not apply, and
      the revocation court is not cabined by Section 9721(b)’s
      requirement that “the sentence imposed should call for
      confinement that is consistent with the protection of the public,
      the gravity of the offense as it relates to the impact on the life of
      the victim and on the community, and the rehabilitative needs of
      the defendant.” 42 Pa.C.S. § 9721. See Commonwealth v.
      Reaves, 592 Pa. 134, 150, 923 A.2d 1119, 1129 (2007) (citing
      204 Pa. Code. § 303.1(b) (Sentencing Guidelines do not apply to
      sentences imposed as result of revocation of probation)).

      Upon revoking probation, “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 Pa.C.S. § 9771(b). Thus, upon
      revoking probation, the trial court is limited only by the maximum

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     sentence that it could have imposed originally at the time of the
     probationary sentence, although once probation has been
     revoked, the court shall not impose a sentence of total
     confinement unless 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. § 9771(c).

     Moreover, 42 Pa.C.S. § 9721(b) specifies that in every case
     following the 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.” See also Pa.R.Crim.P. 708(C)(2) (indicating at the
     time of sentence following the revocation of probation, “[t]he
     judge shall state on the record the reasons for the sentence
     imposed.”).

     However, following revocation, a sentencing court need not
     undertake a lengthy discourse for its reasons for imposing a
     sentence or specifically reference the statutes in question. Simply
     put, since the defendant has previously appeared before the
     sentencing court, the stated reasons for a revocation sentence
     need not be as elaborate as that which is required at initial
     sentencing. The rationale for this is obvious. When sentencing is
     a consequence of the revocation of probation, the trial judge is
     already fully informed as to the facts and circumstances of both
     the crime and the nature of the defendant, particularly where, as
     here, the trial judge had the benefit of a PSI during the initial
     sentencing proceedings. See Walls, [] 926 A.2d at 967 n. 7
     (“Where [PSI] exist[s], we shall continue to presume that the
     sentencing judge was aware of the relevant information regarding
     the defendant’s character and weighed those considerations along
     with mitigating statutory factors.”).

     . . . We emphasize a trial court does not necessarily abuse its
     discretion in imposing a seemingly harsher post-revocation
     sentence where the defendant received a lenient sentence and
     then failed to adhere to the conditions imposed on him.

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Id. at 27-28 (footnote omitted).

      As reflected in Appellant’s summary of argument, the gist of Appellant’s

claim is that the trial court “failed to consider relevant sentencing criteria,

including the protection of the public, the gravity of the underlying offense,

and the rehabilitative needs of [Appellant] as required by 42 Pa.C.S.A.

§ 9721(b).”     Appellant’s Brief at 13.   However, as is clear from the above

excerpt from Pasture, the sentencing court is not required to consider the

factors enumerated in Section 9721(b) when imposing a sentence following

revocation of probation. Instead, the court is free to impose any sentencing

alternative available at the time of original sentencing, including a sentence

of complete confinement when, as here, Appellant has been convicted of

another crime or his conduct indicates he is likely to commit another crime if

not imprisoned.     Moreover, following revocation, it is not necessary for a

sentencing court to engage in a lengthy discourse for its reasons for imposing

the sentence.

      Here, the sentencing court imposed a sentence that was available at the

time of initial sentencing and explained in sufficient detail the reasons for

imposing a sentence of incarceration.        See Notes of Testimony, Probation




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Violation Hearing, 3/14/17, at 8-11.2          The court referenced the underlying

crime itself that resulted in the death of a three-year old child, as well as

Appellant’s drug history, defiant trespass and assault charges, his earlier

probation violation, and his lack of any employment history.3 The court noted

the mitigating factor relating to Appellant’s entry of the involuntary

manslaughter plea but also noted his proxy score of eight, which suggested

Appellant was likely to re-offend. Id.

       Based on our review of the record and the relevant authorities, we find

no abuse of discretion on the part of the trial court in sentencing Appellant to

a term of incarceration following his revocation of probation. Therefore, we

shall not disturb the sentence imposed.

       Judgment of sentence affirmed.




____________________________________________


2From the hearing transcript, it is also clear that a PSI existed. See Notes of
Testimony, Probation Violation Hearing, 3/14/17, at 5.

3 Although Appellant’s counsel asserted that Appellant planned to obtain his
GED and had a job waiting for him if probation were continued, no explanation
was offered for his inability to complete his GED or obtain employment at any
time prior to the revocation hearing. See Notes of Testimony, Probation
Violation Hearing, 3/14/17, at 5-7. More than a year earlier, his probation
officer documented that he tried to help Appellant with a job search and to
obtain a birth certificate, social security card, and state identification card “all
to no avail due to his lack of motivation.” See Gagnon I Probation Violation
Report, 2/2/16, at 1. The record does not reflect any effort on Appellant’s
part during the intervening period toward obtaining his GED or securing
employment.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/2018




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