J-A31043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KELVIN M. JACKSON, JR.,

                            Appellant                  No. 610 MDA 2015


             Appeal from the Judgment of Sentence March 6, 2015
              in the Court of Common Pleas of Lancaster County
              Criminal Division at Nos.: CP-36-CR-0000828-2014
                           CP-36-CR-0002604-2013


BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED JANUARY 21, 2016

        Appellant, Kelvin M. Jackson, Jr., appeals from the judgment of

sentence imposed on March 6, 2015 after revocation of his probation and

parole. Appellant argues that an aggregate sentence of two and one-half to

five years’ incarceration was manifestly excessive and an abuse of the

court’s discretion. We affirm.

        The trial court aptly summarized the history of this case as follows:

              On Docket 2604-2013, [Appellant] was charged with two
        counts of aggravated assault and one count of possession of a
        firearm by a minor.[1] On December 17, 2013, [Appellant] pled

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    See 18 Pa.C.S.A. §§ 2702(a)(4), 6110.1(a) respectively
J-A31043-15


        guilty to two counts of recklessly endangering another person[2]
        and the possession of a firearm by a minor charge. [Appellant]
        received a sentence of time served to [twenty-three] months[’
        incarceration] on each of the reckless endangerment counts, to
        be run concurrent, and to a consecutive term of three years of
        probation for the possession of a firearm by a minor. On Docket
        0828-2014, [Appellant] was charged with DUI general
        impairment, intentional possession of a controlled substance by
        a person not registered, false identification to law enforcement
        officer, minor prohibited from operating with any alcohol in
        system, purchase of an alcoholic beverage by a minor, driving
        while operating privilege is suspended or revoked, and driving on
        roadways laned for traffic.[3] On June 18, 2014, [Appellant]
        pled guilty to all charges on [D]ocket 0828-2014. [Appellant]
        received a sentence of [seventy-two] hours to [six] month[s’
        incarceration] on the DUI count, one year probation each on the
        intentional possession and false identification charges, to be
        concurrent with incarceration, and [a] fine and costs on the
        summary charges.

               [Appellant] failed to report to his regularly scheduled
        probation appointments. A capias was issued on July 30, 2014.
        An amendment was issued on August 7, 2014 to include a
        violation based on [Appellant’s] new criminal charges. . . . On
        September 25, 2014, an amendment was issued to include a
        new set of criminal charges, including fleeing or attempting to
        elude police, receiving stolen property, recklessly endangering
        another person, reckless driving, traffic control signal, and
        driving on a suspended license. . . . On December 12, 2014,
        [Appellant] proceeded to the probation violation hearing before
        this court. [Appellant] stipulated that he violated his parole and
        the court found [him] in violation of his probation. Accordingly,
        the court revoked his parole. As there was a possibility of a
        state prison sentence, the court directed the adult probation and
        parole office to prepare a pre-sentence investigation [report
        (PSI)]. . . .
____________________________________________


2
    See 18 Pa.C.S.A. § 2705.
3
 See 75 Pa.C.S.A. § 3802(a)(1), 35 P.S. § 780-113(a)(16), 18 Pa.C.S.A. §
4914(a), 75 Pa.C.S.A. § 3718(a), 18 Pa.C.S.A. § 6308(a), 75 Pa.C.S.A. §§
1543(a), 3309(1) respectively.



                                           -2-
J-A31043-15



(Trial Court Opinion, 5/08/2015, at 1-3) (footnotes and unnecessary

capitalization omitted).

       On March 6, 2015, with the benefit of the PSI, the court sentenced

Appellant to an aggregate sentence of not less than two and one-half nor

more than five years’ incarceration. (See N.T. Sentencing, 3/06/15, at 15-

16). The court denied Appellant’s timely post-sentence motion on April 1,

2015. This timely appeal followed.4

       Appellant raises one question for our review:

       I. Was an aggregate sentence of two and one-half to five
       years[’] incarceration for violations of probation and parole
       manifestly excessive and an abuse of the court’s discretion?

(Appellant’s Brief, at 4).

       Appellant’s issue challenges the discretionary aspects of his sentence.

This Court has concluded that a challenge to a discretionary sentencing

matter after revocation proceedings is within the scope of its review.

       Such a challenge to the discretionary aspects of a sentence is
       not appealable as of right. Rather, Appellant must petition for
       allowance of appeal pursuant to 42 Pa.C.S.A. § 9781.
       Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super.
       2004).

                   Before we reach the merits of this [issue], we
              must engage in a four part analysis to determine:
              (1) whether the appeal is timely; (2) whether
____________________________________________


4
   Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on May 4, 2015. See Pa.R.A.P.
1925(b). The court filed its opinion on May 8, 2015. See Pa.R.A.P.
1925(a).



                                           -3-
J-A31043-15


           Appellant preserved his issue; (3) whether
           Appellant’s brief includes a concise statement of the
           reasons relied upon for allowance of appeal with
           respect to the discretionary aspects of sentence; and
           (4) whether the concise statement raises a
           substantial question that the sentence is appropriate
           under the sentencing code. The third and fourth of
           these requirements arise because . . . [Appellant]
           must petition this Court, in his concise statement of
           reasons, to grant consideration of his appeal on the
           grounds that there is a substantial question. Finally,
           if the appeal satisfies each of these four
           requirements, we will then proceed to decide the
           substantive merits of the case.

     Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super.
     2013)[, appeal denied, 77 A.3d 1258 (Pa. 2013)] (citations
     omitted); see also Commonwealth v. Kalichak, 943 A.2d
     285, 289 (Pa. Super. 2008) (“[W]hen a court revokes probation
     and imposes a new sentence, a criminal defendant needs to
     preserve challenges to the discretionary aspects of that new
     sentence either by objecting during the revocation sentencing or
     by filing a post-sentence motion.”) [(citation omitted)].

Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014),

appeal denied, 109 A.3d 678 (Pa. 2015).

     Here, Appellant has properly preserved his issue by filing a post-

sentence motion for reconsideration of sentence, which the trial court

denied, and a timely appeal.     Appellant’s brief contains a Rule 2119(f)

concise statement of reasons.    (See Appellant’s Brief, at 9-10).      In it,

Appellant argues that the sentence “was manifestly excessive and an abuse

of the court’s discretion . . . [and] that the court failed to consider his

rehabilitative potential, as required by 42 Pa.C.S.[A.] § 9721, and focused

exclusively on the gravity of the parole violations and their impact on the

community.”   (Id. at 9).   This claim raises a substantial question.    See

                                   -4-
J-A31043-15



Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015) (holding

that claim sentence was unduly excessive together with claim court failed to

consider rehabilitative needs and mitigating factors in fashioning sentence,

presents substantial question).     Accordingly, we will review Appellant’s

question.

      Our standard of review of an appeal from a sentence imposed

following the revocation of probation is well-settled:      “Revocation of a

probation sentence is a matter committed to the sound discretion of the trial

court and that court’s decision will not be disturbed on appeal in the absence

of an error of law or an abuse of discretion.” Colon, supra at 1041 (citation

omitted). Additionally,

      Upon revoking probation, a sentencing court may choose from
      any of the sentencing options that existed at the time of the
      original sentencing, including incarceration.     42 Pa.C.S.A. §
      9771(b). “[U]pon 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.”
      Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super.
      2013) (internal quotation marks and citations omitted).
      However, 42 Pa.C.S.A. § 9771(c) provides that once probation
      has been revoked, a sentence of total confinement may only 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 the court.

      42 Pa.C.S.A. § 9771(c).


                                     -5-
J-A31043-15


Id. at 1044.

      Here, the record reveals that Appellant stipulated that he violated his

probation.     (See N.T. Probation Violation Hearing, 12/12/14, at 2-3).             In

addition, at the sentencing hearing, the court considered Appellant’s age,

maturity, his education and work history, his prior criminal record, his prior

parole violations, the PSI, the penalties authorized by the legislature, the

character     and   statements     of   Appellant,    and      Appellant’s   need    for

psychotherapy and drug and alcohol counseling.                 (See N.T. Sentencing

Hearing,     3/06/15,    at   13-15).     Ultimately,    the     court   decided    that

“[i]ncarceration is warranted because a lesser sentence would depreciate the

seriousness of his behavior, the seriousness of his prior record, and the fact

that he continues to commit significant criminal violations.”             (Id. at 15).

Furthermore, we note that the sentence imposed was below the maximum

sentence that the court could have imposed at Appellant’s initial sentencing.

See Colon, supra at 1044.

      Upon review, we discern no error of law or abuse of discretion. See

Colon, supra at 1041.          The record amply supports that the trial court

considered the appropriate factors in determining that revocation and a

sentence of incarceration was warranted.             Accordingly, Appellant’s issue

does not merit relief.




                                        -6-
J-A31043-15



     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/21/2016




                                 -7-
