J-S96009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                          Appellee

                     v.

FREDRICK JAMES MIKELL,

                          Appellant                        No. 20 WDA 2016


     Appeal from the Judgment of Sentence Entered December 1, 2015
             In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0000976-2015


BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.

MEMORANDUM BY BENDER, P.J.E.:                           FILED JANUARY 23, 2017

      Appellant, Fredrick James Mikell, appeals from the judgment of

sentence of 15 to 30 months’ incarceration, followed by 3 years’ probation,

imposed after Appellant committed several technical violations of a term of

probation he was then serving.          Appellant solely argues that the court

fashioned an excessive revocation sentence and failed to consider his

rehabilitative needs. We affirm.

      The   facts   underlying     Appellant’s   case    are   unnecessary   to   our

disposition of his appeal. The trial court briefly summarized the procedural

history of his case, as follows:

            On July 15, 2015, Appellant … pled guilty to Escape.1 This
      [c]ourt sentenced him to [18] months[’] intermediate
      punishment ([h]ouse arrest) and [3] years[’] probation. On
      December 1, 2015, this [c]ourt found Appellant to have violated
      probation due to numerous technical violations and resentenced
      him to [15] to [30] months[’] incarceration and [3] years[’]
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      probation. Appellant’s Post[-]Sentence Motion was denied on
      December 10, 2015. Appellant filed a Notice of Appeal on
      December 30, 2015, and a [timely, Pa.R.A.P. 1925(b)] Concise
      Statement of Errors Complained of on [Appeal on] January 26,
      2016.
         1
             18 Pa.C.S. § 5121(a).

Trial Court Opinion (TCO), 5/13/16, at 2.

      On appeal, Appellant presents one question for our review:

      I. Was the sentence of 15 to 30 months of incarceration
      manifestly excessive and an abuse of discretion where the court
      did not consider the sufficiency of sanctions already imposed and
      the availability of community-based resources to address
      [Appellant’s] serious rehabilitative needs?

Appellant’s Brief at 4.

      Appellant challenges the discretionary aspects of his sentence.     It is

well-established that,

      [c]hallenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. Commonwealth v.
      Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
      challenging the discretionary aspects of his sentence must
      invoke this Court's jurisdiction by satisfying a four-part test:

         We 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).

      Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
      2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
      Objections to the discretionary aspects of a sentence are
      generally waived if they are not raised at the sentencing hearing
      or in a motion to modify the                 sentence imposed.


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     Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
     2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

     The determination of what constitutes a substantial question
     must be evaluated on a case-by-case basis. Commonwealth v.
     Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial
     question exists “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.” Sierra, supra at 912–13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

     Here, Appellant filed a timely notice of appeal, properly preserved his

issue for our review, and included a Rule 2119(f) statement in his brief to

this Court. Therein, Appellant asserts that his sentence is excessive because

the court violated the requirements of 42 Pa.C.S. § 9721(b) by failing to

consider his rehabilitative needs. We conclude that this claim constitutes a

substantial question for our review. See Commonwealth v. Caldwell, 117

A.3d 763, 770 (Pa. Super. 2015), appeal denied, 126 A.3d 1282 (Pa. 2015)

(concluding that the appellant’s assertion that his sentence was excessive,

“together with his claim that the court failed to consider his rehabilitative

needs upon fashioning its sentence, presents a substantial question”). Thus,

we will address the merits of Appellant’s sentencing challenge.

     Preliminarily, however, we note that:

     Sentencing is a matter vested in the sound discretion of the
     sentencing judge, and a sentence will not be disturbed on appeal
     absent a manifest abuse of discretion. In this context, 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,

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       exercised its judgment for reasons of partiality, prejudice, bias
       or ill will, or arrived at a manifestly unreasonable decision.

Caldwell, 117 A.3d at 770 (citation omitted).

       In challenging the trial court’s exercise of discretion in fashioning his

sentence, Appellant provides the following argument:

             At the time of sentencing, the [t]rial [c]ourt rejected the
       suggestion that [Appellant’s] rehabilitative needs would best be
       met by the imposition of new periods of probation supervision
       and continued counseling and treatment available in the
       community. His compliance could have been closely monitored
       by the probation officer to ensure the safety of the public and
       appropriate professional treatment could have actually
       effectuated a change in his continued antisocial behavior and
       ensure[d] compliance with the term of probation supervision.

Appellant’s Brief at 13 (citation to the record omitted).

       Appellant’s cursory argument fails to convince us that the trial court

abused its discretion in imposing his sentence. The trial court explains the

reasons underlying the term of incarceration it imposed, as follows:

             Appellant presented at his initial sentencing hearing on this
       charge as a repeat felony offender with a Prior Record Score of
       5, the highest possible.       Nevertheless, this [c]ourt gave
       Appellant a significant sentencing break, which was an
       opportunity for Appellant to establish his ability to conform his
       behavior to the reasonable rules of society.

             At the violation hearing less than four months later,
       Appellant was delinquent in paying his electronic monitoring
       fees, he had numerous window violations,[1] he tested positive
       for cocaine and marijuana, and he had failed to complete
       outpatient drug treatment. Rather than accept responsibility for
____________________________________________


1
  The court’s use of the term ‘window violations’ seemingly refers to the fact
that, “[o]n multiple occasions, [Appellant] was out of range of the electronic
monitor for unapproved periods of time.” Commonwealth’s Brief at 13.



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       his actions, he blamed his probation officer and his ankle
       bracelet for his violations.[2]  Appellant lied to this [c]ourt,
       stating that he was discharged from drug treatment because he
       was arrested.     In fact[,] he was discharged for lack of
       compliance and [was] arrested the following day. As Appellant
       has ignored his need for rehabilitation and treatment, and his
       ongoing behavior demonstrates the community’s need to be
       protected from him, this [c]ourt determined that incarceration
       was necessary both because his conduct indicated that it is likely
       he will commit another crime if he is not imprisoned and to
       vindicate the authority of the [c]ourt. Even so, in sentencing
       Appellant in the mitigated range of the Sentencing Guidelines,
       this [c]ourt gave Appellant the opportunity to reenter society as
       quickly as his rehabilitation can be effectuated. This [c]ourt’s
       sentence of confinement for a period of 15 to 30 month[s’] was
       not excessive.

TCO at 5.

       After reviewing the record in this case, the briefs of the parties, and

the discussion provided by the trial court in its opinion, we are convinced

that the court did not abuse its discretion in imposing Appellant’s sentence

of 15 to 30 months’ incarceration. Contrary to Appellant’s claim, the court

clearly considered his need for rehabilitation. However, the court ultimately

found that Appellant’s ongoing conduct, his refusal to accept responsibility

for his actions, his untruthful remarks to the court, and his decision not to

take advantage of the treatment opportunities that had previously been

presented to him, all demonstrated that Appellant is not currently amenable

to treatment outside of incarceration. The record supports that decision.

____________________________________________


2
  More specifically, Appellant “blame[d] his [probation officer] for not
checking an ankle bracelet that he claimed was dysfunctional.”      N.T.,
12/1/15, at 2.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2017




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