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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                   v.                     :
                                          :
MATTHEW McKEE,                            :            No. 842 MDA 2014
                                          :
                        Appellant         :


           Appeal from the Judgment of Sentence, April 15, 2014,
            in the Court of Common Pleas of Lackawanna County
              Criminal Division at No. CP-35-CR-0002012-2013


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED FEBRUARY 02, 2015

      Matthew McKee appeals from the judgment of sentence of April 15,

2014, following his revocation of probation. We affirm.

      On October 25, 2013, appellant pled guilty to one count of delivery of

marijuana to an individual who was an undercover detective. At his guilty

plea hearing, counsel informed the judge that appellant had an outstanding

warrant in Michigan for a marijuana possession charge and records for other

marijuana possessions from a number of states.

      On   December     4,   2013,   appellant   was   sentenced   to   three   to

six months’ imprisonment to be followed by one year of probation.               On

March 7, 2014, a capias for appellant’s arrest was issued due to a violation

of his parole.   On April 15, 2014, a Gagnon II hearing was held, and

appellant admitted to failing to report to his probation officer and failing to


* Former Justice specially assigned to the Superior Court.
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undergo a drug and alcohol evaluation. The trial court noted that appellant

also had outstanding warrants from other states.             The trial court revoked

appellant’s probationary sentence and remanded him to the county jail for

3 to 12 months.      The court noted that appellant would “have considerable

credit toward that.” (Gagnon II hearing, 4/15/14 at 7.)

      Appellant filed a notice of appeal on May 13, 2014.            The trial court

ordered appellant to file a concise statement of errors complained of on

appeal within 21 days; appellant timely complied and the trial court has filed

an opinion.    On appeal, appellant challenges the discretionary aspects of

sentencing and raises the following issue for our consideration:          “Whether

the sentence imposed was inappropriately harsh and excessive and an abuse

of discretion for technical violations of probation?” (Appellant’s brief at 4.)

      The sentence imposed 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.

Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001), quoting Commonwealth

v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000) (other citations omitted).

See also Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013)

(en banc) (holding that this court’s scope of review on appeal from a

probation revocation sentence includes discretionary sentencing challenges).

As the Coolbaugh court observed:




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            We recently summarized our standard of review and
            the law applicable to revocation proceedings as
            follows:

                        Our     review    is    limited   to
                  determining the validity of the probation
                  revocation proceedings and the authority
                  of the sentencing court to consider the
                  same sentencing alternatives that it had
                  at the time of the initial sentencing.
                  42 Pa.C.S.A. § 9771(b) . . . . Also, upon
                  sentencing following a revocation of
                  probation, the trial court is limited only
                  by the maximum sentence that it could
                  have imposed originally at the time of
                  the probationary sentence. Finally, it is
                  the law of this Commonwealth that once
                  probation has been revoked, a sentence
                  of total confinement may be imposed if
                  any of the following conditions exist:

                  (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
                        court.

                  42 Pa.C.S.A. § 9771(c).

Id., quoting Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.Super. 2000)

(other citations omitted).   We also note that the sentencing guidelines do

not apply to sentences imposed as the result of probation revocations. Id.

(citations omitted).



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           An appellant wishing to appeal the discretionary
           aspects of a probation-revocation sentence has no
           absolute right to do so but, rather, must petition this
           Court for permission to do so. [Commonwealth v.
           Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)];
           42 Pa.C.S.A. § 9781(b). Specifically, the appellant
           must present, as part of the appellate brief, a
           concise statement of the reasons relied upon for
           allowance of appeal. Malovich, 903 A.2d at 1250;
           Pa.R.A.P. 2119(f). In that statement, the appellant
           must persuade us there exists a substantial question
           that the sentence is inappropriate under the
           sentencing code.     Malovich, 903 A.2d at 1250;
           Pa.R.A.P. 2119(f).

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.Super. 2008).

           In general, an appellant may demonstrate the
           existence of a substantial question by advancing a
           colorable argument that the sentencing court’s
           actions were inconsistent with a specific provision of
           the sentencing code or violated a fundamental norm
           of the sentencing process. Malovich, 903 A.2d at
           1252. While this general guideline holds true, we
           conduct a case-specific analysis of each appeal to
           decide whether the particular issues presented
           actually form a substantial question. Id. Thus, we
           do not include or exclude any entire class of issues
           as being or not being substantial. Id. Instead, we
           evaluate each claim based on the particulars of its
           own case. Id.

Id. at 289-290.

     In his Rule 2119(f) statement, appellant claims that the sentence

imposed for his probation violations was harsh, excessive, and an abuse of

discretion for technical violations of probation.       The Commonwealth

concedes this issue raises a substantial question. See Sierra, 752 A.2d at

913 (“[o]n appeal from a revocation proceeding, we find a substantial



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question is presented when a sentence of total confinement, in excess of the

original sentence, is imposed as a result of a technical violation of parole or

probation.”).

      Our review of the record indicates appellant’s technical violations

included failing to report to his probation officer immediately upon his

release from prison, failing to complete a full drug and alcohol evaluation,

and new charges stemming from appellant’s status as a fugitive from justice.

(Gagnon II hearing, 4/15/14 at 4.) At the Gagnon II hearing, appellant’s

counsel stated that when appellant was released from the Lackawanna

County prison, he was under the impression that there were no outstanding

warrants.   (Id. at 5.)   However, that was not the case.        We note the

Commonwealth does not argue that appellant committed any new crimes.

      Appellant acknowledges that technical violations of probation can

support revocation and a sentence of incarceration under certain conditions;

such as, when the violations are flagrant and indicate an inability to reform.

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

However, appellant argues “there was no anti-social behavior involved

herein” and “his behavior did not threaten anyone.”       (Appellant’s brief at

13.) Appellant contends that his lengthy jail sentence of 3 to 12 months was

unwarranted. (Id.)

      In his Rule 1925(a) opinion, the trial court explained its reasons for

the sentence imposed:



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             This court determined that probation was no longer
             appropriate for [appellant] since he admitted to
             failing to report to his probation officer and failing to
             undergo a drug and alcohol evaluation. There were
             also a number of out of state detainers against him
             that were pending even at the time of his guilty plea,
             so his attorney’s assertion that he was under the
             impression that there were no outstanding warrants
             is without merit. This court decided that probation
             was not effective for [appellant] since he failed to
             comply with the most basic conditions of his
             probation. The court thus imposed an appropriate
             and lawful sentence of incarceration.

Trial court opinion, 7/8/14 at 3.

      Based on the above, the trial court decided appellant’s failure to

comply with the basic conditions of his probation was a flagrant violation and

indicated an inability to reform.

      Appellant cites Commonwealth v. Cappellini, 690 A.2d 1220

(Pa.Super. 1997), and Commonwealth v. Riley, 384 A.2d 1333 (Pa.Super.

1978).    In Cappellini, we found the record supported revocation of

probation where the appellant had ceased drug treatment, refused to submit

to drug testing, and failed to meet with his probation officer after specifically

being instructed to do so. Id., 690 A.2d at 1225. Herein, appellant points

out this court observed that even when a probation violation is present,

revocation is not automatic and the focus must remain on whether probation

can still be an effective tool for rehabilitation.

      In Riley, this court reversed, finding the sentencing court relied on

inadmissible hearsay when it determined that the appellant’s probation



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should be revoked.    Id., 384 A.2d at 1337.     Herein, appellant directs our

attention to this court’s statement that appellant’s technical violation, in the

form of a brief period of unemployment, “would not be sufficient to convince

a court that probation has not been an effective vehicle to accomplish

rehabilitation and a sufficient deterrent against future anti-social contact.”

Id.

      We do not find these two cases particularly helpful.          Cappellini

presented a totally different set of facts compared to the instant case. The

defendant, an attorney, was a first time offender, was drug dependent, had

medical problems, had dropped out of drug treatment but continued to

attend Alcoholics Anonymous meetings, and had lied about his use of drugs

to his probation officer.   Id., 690 A.2d at 1228.      Here, appellant was a

repeat offender who failed to take the first steps required of him upon his

release from prison, i.e., meeting with his probation officer and completing a

drug and alcohol evaluation. It would be reaching to say probation was an

effective tool for appellant’s rehabilitation when he failed to take the first

steps on the road to rehabilitation.

      In Riley, the defendant was charged with one technical violation of

probation, failure to maintain employment.         The defendant’s probation

officer testified that the defendant worked for one hour and then quit. Id.,

384 A.2d at 1336. The defendant testified he did quit his job after working

nearly two hours at telephone solicitation making only one dollar, but found



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another job immediately. Id. As previously indicated, we reversed, finding

the sentencing court relied on the inadmissible hearsay testimony of the

probation officer   in determining that probation should be         revoked.1

Instantly, appellant admitted he failed to meet with his probation officer and

he failed to obtain a drug and alcohol evaluation.     (Gagnon II hearing,

4/15/14 at 4-5.) Unlike the defendant in Riley, appellant had not yet done

what was required of him when he was arrested.

     In light of appellant’s failure to make his first appointment with his

probation officer and schedule a drug and alcohol evaluation, we find the

trial court had a sufficient basis to determine that a sentence of total

confinement was required to vindicate the authority of the court.        See

42 Pa.C.S.A. § 9771(c)(3).    We find no evidence in the record that the

judgment exercised was manifestly unreasonable, or the result of partiality,

prejudice, bias, or ill-will. Commonwealth v. Perry, 32 A.3d 232, 236 (Pa.

2011) (sentence can be overturned only if it results from manifest

unreasonableness, partiality, ill-will, or such lack of support so as to be

clearly erroneous).    Accordingly, we conclude no abuse of discretion

occurred and appellant was properly sentenced.

     Judgment of sentence affirmed.


1
  The Riley decision explained the hearsay as follows: “Firsthand [the
probation officer] only knew that appellant had secured the position with the
company, and that he was not working there when she dropped by to
investigate. The rest of her information was based upon a conversation she
had with appellant’s erstwhile employer.” Id. at 1336 n.4.


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Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary

Date: 2/2/2015




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