J-S04018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
TERRANCE KEITH MILLER, JR.,                      :
                                                 :
                          Appellant              :   No. 1183 MDA 2017

            Appeal from the Judgment of Sentence June 28, 2017
              In the Court of Common Pleas of Dauphin County
             Criminal Division at No.: CP-22-CR-0003505-2012

BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                                      FILED JUNE 15, 2018

       Appellant, Terrance Keith Miller, Jr., appeals from the Judgment of

Sentence entered following the revocation of his probation.                  Appellant

challenges the discretionary aspects of his sentence, arguing that, in

imposing a term of three to six years’ imprisonment, the violation of

probation (“VOP”) court imposed an excessive and unreasonable sentence.

After careful review, we affirm.

       The facts, as gleaned from the VOP court’s Pa.R.A.P. 1925(a) Opinion

and the certified record, are as follows.            On August 29, 2013, Appellant

entered a guilty plea at docket No. CP-22-CR-0003505-2012 to one count

each of Persons Not to Possess Firearms, Receiving Stolen Property,

Carrying a Firearm Without a License, Possession of a Controlled Substance

with   Intent        to   Deliver   (“PWID”),   Possession   of   Drug   Paraphernalia,
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Possession of a Small Amount of Marijuana, and Unlawful Activities.1        The

trial court imposed an aggregate sentence of 5 years’ probation.2

       While serving his probationary sentence, police arrested Appellant

three times in three months, including a December 2016 arrest for

“possessing three pounds of marijuana in his car while driving under

suspension.” VOP Court Opinion, filed 10/18/17, at 1.

       On June 28, 2017, the trial court, sitting as the VOP court, conducted

a VOP hearing. Probation Officer Naomi Morrow testified that Appellant had

been arrested three times in three months, and that he had been convicted

of PWID five times since 2007, with three of those convictions in the last five

years. N.T. VOP, 6/28/17, at 2. Appellant did not contest the violations and

instead requested that the VOP court impose probation again. Id. at 4-6.

       After consideration of the foregoing, the VOP court found that

Appellant had violated his probation.            On June 28, 2017, the VOP court




____________________________________________


118 Pa.C.S. § 6105; 18 Pa.C.S. § 3925; 18 Pa.C.S. § 6106; 35 P.S. § 780-
113(a)(30), 35 P.S. § 780-113(a)(32); 35 P.S. § 780-113(a)(31), and 75
Pa.C.S. § 4107, respectively.

2 The trial court imposed the probationary sentence for the Persons Not to
Possess Firearms conviction, and no further penalty for the remaining
convictions.    The trial court also ordered that Appellant serve his
probationary sentence consecutive to a term of 10½ to 21 months’
incarceration at docket No. CP-22-CR-0000388-2013, which had been
consolidated for that same day.



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resentenced Appellant to an aggregate term of three to six years’

incarceration.3

        On July 17, 2017, Appellant filed a Motion to Reconsider his VOP

sentence nunc pro tunc, citing a breakdown in representation for the

untimeliness and asserting that his VOP sentence was excessive and

unreasonable. On July 18, 2017, the VOP court granted Appellant’s nunc pro

tunc request and denied his Motion to Reconsider.

        Appellant filed a timely Notice of Appeal. Both Appellant and the VOP

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

        Appellant presents one issue for our review:

        I. Whether the [VOP] court erred when it denied Appellant’s
        Motion to modify the sentence where the sentence was excessive
        and unreasonable?

Appellant’s Brief at 5.

        Appellant avers that the VOP court’s sentence was excessive and

unreasonable. Appellant’s Brief at 12-14. Initially, we note that Appellant’s

claim    implicates     the    discretionary     aspects   of   sentencing.   See

Commonwealth v. Hornaman, 920 A.2d 1282, 1283-84 (Pa. Super. 2007)

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3The VOP court ordered time credit for two months and twenty-seven days,
and time-served for a consolidated case at docket No. CP-22-CR-0002949-
2012. Accordingly, that docket closed and is not part of the instant appeal.

On July 10, 2017, the VOP court entered an Order directing Appellant’s June
28, 2017 sentence to run consecutively to other sentences at docket Nos.
CP-22-CR-0000514-2017 and CP-22-CR-0000233-2017.



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(concluding that a claim that trial court imposed an excessive and

unreasonable sentence implicated a discretionary aspect of sentence).

      Challenges to the discretionary aspects of sentence are not appealable

as of right.   Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super.

2015). Rather, an appellant challenging the sentencing court’s exercise of

its discretion must invoke this Court’s jurisdiction by satisfying a four-part

test: “(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.[] §

9781(b).” Id. (citation omitted).

      Appellant met the first three requirements of the above test. We thus

consider whether Appellant has presented a substantial question in his

Pa.R.A.P. 2119(f) Statement.    An appellant raises a “substantial question”

when he “sets forth a plausible argument that the sentence violates a

provision of the [S]entencing [C]ode or is contrary to the fundamental

norms of the sentencing process.”    Commonwealth v. Crump, 995 A.2d

1280, 1282 (Pa. Super. 2010) (citation omitted).

      In his Pa.R.A.P. 2119(f) Statement, Appellant summarily claims that

the VOP court imposed a manifestly excessive VOP sentence of three to six


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years’ incarceration. Appellant’s Brief at 10-11. Appellant argues that the

VOP court’s sentence “constitutes too severe a punishment in light of the

rehabilitative needs of the Appellant and what is necessary for the protection

of the public.”    Id.   “A claim that a sentence is manifestly excessive such

that it constitutes too severe a punishment raises a substantial question.”

Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011). See also

Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006)

(concluding that a claim that a sentence is manifestly excessive presents a

“substantial question” for review).            Thus, we will review the merits of

Appellant’s claim.4

       In an appeal from a probation revocation order, “[o]ur standard of

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.”

Commonwealth v. Hoover, 909 A.2d 321, 322-23 (Pa. Super. 2006)

(citing 42 Pa.C.S. § 9771(b)).          “Revocation of a probation sentence is a

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4 Appellant’s subsequent argument that the VOP court failed to consider
various mitigating factors does not present a substantial question
appropriate for our review. See Commonwealth v. Hanson, 856 A.2d
1254, 1257-58 (Pa. Super. 2004); Commonwealth v. Griffin, 804 A.2d 1,
9 (Pa. Super. 2002) (citing Commonwealth v. Williams, 562 A.2d 1385,
1388 (Pa. Super. 1989) (en banc) (concluding that an allegation that the
sentencing court did not adequately consider various factors is, in effect, a
request that this court substitute its judgment for that of the lower court in
fashioning a defendant’s sentence)).



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matter committed to the sound discretion of the [VOP] 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.” Commonwealth v. Colon, 102 A.3d 1033, 1041

(Pa. Super. 2014) (citation and quotation omitted).

      “A probation violation is established whenever it is shown that the

conduct of the probationer indicates the probation has proven to have been

an ineffective vehicle to accomplish rehabilitation and not sufficient to deter

against future antisocial conduct.”     Id. (citation and quotation omitted).

When imposing a sentence of incarceration after revocation of probation, the

sentencing court “is limited only by the maximum sentence that it could

have imposed originally at the time [it imposed] the probationary sentence.”

Id. at 1044 (citation omitted).

      Although 42 Pa.C.S. § 9721(b) requires the court to make a statement

of the reasons for the sentence imposed following revocation, the reasons

“need not be as elaborate as that which is required at the initial sentencing.”

Commonwealth v. Pasture, 107 A.3d 21, 28 (Pa. Super. 2014).

      Our review of the VOP sentencing transcript and the VOP court’s

Pa.R.A.P. 1925(a) Opinion indicates that, contrary to Appellant’s averment,

the VOP court highlighted the following factors when fashioning Appellant’s

revocation sentence: (1) the revocation sentence of three to six years’

incarceration fell within the statutory limits; (2) Appellant’s probation officer

recommended state incarceration; (3) Appellant had repeated convictions


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and recent arrests, including his possession of three pounds of marijuana in

his car in December 2016; (4) Appellant failed to take advantage of the

opportunity the court had granted him to prove himself in 2013; and (5)

Appellant acknowledged that he made “mistakes.” N.T. VOP, 6/28/17, at 2-

6; VOP Court Opinion at 1, 3.

      The record is devoid of any indication that the VOP court exercised

judgment that was “manifestly unreasonable, or the result of partiality,

prejudice, bias[,] or ill-will.”   Colon, supra at 1043.   We, thus, conclude

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

sentence of confinement for violating the conditions of his probation.

      Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/15/2018




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