J-S44040-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

RANDY LEE RUDSKI

                            Appellant                    No. 411 WDA 2014


           Appeal from the Judgment of Sentence December 7, 2012
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0008640-2011


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                              FILED DECEMBER 16, 2014

        Randy Lee Rudski appeals, nunc pro tunc, from the judgment of

sentence imposed on December 7, 2012, in the Allegheny County Court of

Common Pleas following the revocation of his probation for driving under the

influence of narcotics (“DUI”).1        The trial court imposed a sentence of two

and one-half to five years’ imprisonment. On appeal, Rudski raises a single

challenge to the discretionary aspects of his sentence. For the reasons set

forth below, we affirm.

        The facts and procedural history relevant to this appeal were

summarized in a prior decision of this Court as follows:


____________________________________________


1
    75 Pa.C.S. § 3802(d)(1).
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            On April 11, 2011, Rudski was charged with driving under
     the influence of a controlled substance; the police found him
     sleeping in a running vehicle on the side of the road while
     holding a syringe in his hand and possessing stamp bags of
     heroin. Rudski pled guilty to driving under the influence and the
     drug possession charges were withdrawn pursuant to a
     negotiated settlement.1 As part of his plea agreement, Rudski
     was sentenced to 18 months of intermediate punishment (IP),
     followed by 12 months’ probation and was placed on electronic
     monitoring. Rudski was also accepted into the Drug Court
     Program, which required receiving drug and alcohol evaluations,
     participating in the Criminality Group, complying with all
     treatment recommendations and submitting to random
     urinalysis.

     __________
     1
       Rudski [later] admitted to using drugs during his pre-plea
     confinement.

     __________

           On June 4, 2012, Rudski requested and was granted court
     permission to attend a Narcotics Anonymous Conference at
     Robert Morris University from June 15-17, 2012. Rudski later
     admitted that he attended only 2 hours of the 22½ hour
     conference. As a result, he was taken into custody, released and
     then placed back on electronic monitoring. On October 16,
     2012, Rudski provided a false urinalysis sample.         He was
     detained, and, after a scheduled probation violation hearing, the
     court revoked his probation. On December 7, 2012, the court
     sentenced Rudski to 2½-5 years’ incarceration, with credit for
     time served. On December 14, 2012, Rudski filed a timely
     motion to modify his sentence, claiming that the court
     improperly determined he was ineligible for the Recidivism Risk
     Reduction Incentive (RRRI) program.       Rudski then filed [a]
     timely direct appeal on January 4, 2013.

Commonwealth v. Rudski, 87 A.3d 388 (unpublished memorandum at 1-

2) (Pa. Super. 2013) (some footnotes omitted).

     On appeal, Rudski challenged the        discretionary aspects of his

probation revocation sentence, claiming the sentence was manifestly


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excessive in light of his technical violations. A panel of this Court, however,

found that the issue raised on appeal was not included in Rudski’s post-

sentence motion, and was, therefore, waived.       Accordingly, on September

20, 2013, the panel affirmed the judgment of sentence. See id.

        On October 31, 2013, Rudski filed a pro se PCRA petition.2     Counsel

was appointed, and filed an amended petition on January 6, 2014, claiming

prior counsel was ineffective for failing to preserve a challenge to the

discretionary aspects of Rudski’s probation revocation sentence.            On

February 18, 2014, the trial court granted Rudski’s request for PCRA relief,

and directed him to file an amended post-sentence motion within 10 days.

Rudski complied with the court’s directive, and on March 6, 2014, the trial

court denied Rudski relief. This timely appeal followed.3

        On appeal, Rudski challenges the discretionary aspects of his probation

violation sentence. Specifically, he argues the statutory maximum sentence

imposed by the trial court was excessive considering the following: (1) he

committed only technical violations of his probation; (2) his criminal history

included no violent offenses; and (3) he expressed remorse for his actions.

Further, he contends he had a very limited period to benefit from probation,


____________________________________________


2
    Post Conviction Relief Act, 42 Pa.C.S. §§ 9543-9546.
3
  The trial court did not direct Rudski to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).




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and his addiction problems would be better addressed outside of the prison

system.

       Where, as here, a defendant challenges the discretionary aspects of

his sentence,4 the right to appeal such a claim is not absolute. Rather, “[a]

challenge to the discretionary aspects of a sentence must be considered a

petition for permission to appeal[.]”          Commonwealth v. Hoch, 936 A.2d

515, 518 (Pa. Super. 2007) (citation omitted).

       In order to reach the merits of a discretionary aspects of sentencing

claim, this Court must determine:

       (1) whether appellant has filed a timely notice of appeal; (2)
       whether the issue was properly preserved at sentencing or in a
       motion to reconsider and modify sentence; (3) whether
       appellant's brief has a fatal defect; and (4) whether there is a
       substantial question that the sentence appealed from is not
       appropriate under the Sentencing Code.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)

(footnotes omitted).       In the present case, Rudski properly preserved his

challenge by filing a timely appeal, raising the claim in a post-sentence

motion, and including, in his appellate brief, a statement pursuant to

Pa.R.A.P. 2119(f), setting forth the reasons he relies upon for allowance of

appeal.      We must now determine whether Rudski has presented a
____________________________________________


4
  “[T]his Court’s scope of review in an appeal from a revocation sentencing
includes discretionary sentencing challenges.”        Commonwealth v.
Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc).




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substantial question that his sentence is inappropriate under the Sentencing

Code.

        A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted).

        Here, Rudski first contends the statutory maximum sentence imposed

upon revocation of his probation was excessive in light of his purely technical

violations.    Moreover, he argues the trial court failed to consider his

rehabilitative needs in imposing the sentence. Both of these claims raise a

substantial question for our review.      See Commonwealth v. Schutzues,

54 A.3d 86, 98 (Pa. Super. 2012) (substantial question found where

appellant argued “the trial court imposed an excessive sentence to technical

probation     violations”),   appeal   denied,   67   A.3d   796   (Pa.   2013);

Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010)

(substantial question found where appellant claimed trial court failed to

consider his “rehabilitative needs and the protection of society” in fashioning

sentence).

        “In general, the imposition of sentence 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.”

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

omitted).   Upon the revocation of a defendant’s probationary sentence, a

trial court may impose any sentencing option that was available under the

Sentencing Code at the time of the original sentencing, regardless of any

negotiated plea agreement.      42 Pa.C.S. § 9771(b); Commonwealth v.

Wallace, 870 A.2d 838, 843 (Pa. 2005). Section 9771(c), however, limits

the trial court’s authority to impose a sentence of total confinement upon

revocation unless one of three circumstances are present:

      (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).

      Here, Rudski argues the trial court “did not consider all relevant

factors of [his] situation, such as [his] rehabilitation needs, the fact that he

does not have any crimes of violence on his record and has shown remorse

for his actions.”   Rudski’s Brief at 22.    Rather, he contends, the court

focused on the seriousness of the crime and Rudski’s probation violations, all

of which were technical in nature.    Id.   Moreover, Rudski asserts the trial

court ignored the fact that he had “limited time to fully benefit from

probation and the Drug Court Program.” Rudski’s Brief at 25. Indeed, he

explains that the day he was sentenced, May 2, 2012, he failed a drug test

because he had used drugs before entering his plea, and was placed back in


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jail until May 23, 2012. Id. Less than a month later, on June 18, 2012, he

was once again incarcerated for lying about attending a NA conference.

Although he was released on August 9, 2012, he returned to prison again on

October 16, 2012, “for providing a false urinalysis sample.”     Id.   He has

remained incarcerated since that time. Accordingly, Rudski argues:

      The amount of time he was available to receive drug treatment
      through Drug Court (approximately four months) is inadequate
      to reach the conclusion that his probation was ineffective.
      [Rudski] has a serious drug use problem which requires much
      longer than four months to rectify. Although it is clear that
      [Rudski] did not initially follow the order of his probation, both
      he and the community would be best served if he received
      another chance to receive treatment and to comply with the
      Drug Court Program.

Id. at 25-26. He also asserts that his rehabilitation needs “would have been

best addressed outside of prison[,]” noting that he admitting to using drugs

while he was incarcerated at the Allegheny County Jail. Id. at 24 (record

citation omitted).

      The trial court, however, viewed the facts leading to Rudski’s probation

revocation much differently, emphasizing the numerous chances Rudski was

afforded before his probation was ultimately revoked, and concluded that a

sentence of total confinement was necessary and appropriate.        The court

opined:

             Here [Rudski] has been provided an opportunity to
      participate in the Drug Court program. [Rudski] tested positive
      after he was released from incarceration and admitted he used
      drugs during confinement. [Rudski] disappeared less than two
      weeks after he was placed on electronic monitoring. He was
      given another chance on electronic monitoring but about two


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       months later he proved a false sample for the urinalysis.
       [Rudski] was provided many chances to remain on probation in
       the Drug Court program, but he failed to take advantage of
       them. The record indicates that this Court properly considered
       the facts of the crime and the character of the offender before
       imposing a new sentence. [Rudski’s] behavior and continued
       use of drugs indicated that it is likely that he would commit
       another drug offense if he was not imprisoned.

              Furthermore, a sentence of confinement was necessary to
       vindicate the authority of the court. [Rudski] continued using
       drugs, lied, and failed to comply with the terms of [the] drug
       court program.        Incarceration is proper where technical
       violations are flagrant and indicative of an inability to reform.

Trial Court Opinion, 3/27/2014, at 3-4 (case citations omitted).

       Furthermore, the trial court noted that, while the probation revocation

sentence of two and one-half to five years’ imprisonment was the statutory

maximum sentence for Rudski’s conviction of DUI,5 Rudski had entered two

additional guilty pleas at the time of his DUI plea, and received no prison or

probationary terms for those crimes. Indeed, on May 2, 2012, in addition to

the charges in the present case, Rudski entered guilty pleas to two counts of

theft, one a first-degree misdemeanor at Docket # 2011-13988 and the

other, a second-degree misdemeanor at Docket # 2011-13986. See N.T.,

5/2/2012, at 4-8. For both charges, he was only directed to pay restitution.

Id. at 14.     However, had he been sentenced consecutively for all three

cases, he could have been imprisoned for up to 12 years. Therefore, as the

____________________________________________


5
  Rudski’s conviction was graded as a first-degree misdemeanor. Therefore,
the statutory maximum sentence was five years’ imprisonment. See 18
Pa.C.S. § 1104(1).



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trial court explains in its opinion, the two and one-half to five year sentence

“was not manifestly excessive, unreasonable or an abuse of discretion.”

Trial Court Opinion, 3/27/2014, at 4.

      Accordingly, considering all the attendant circumstances, we detect no

abuse of discretion on the part of the trial court in imposing a sentence of

two and one-half to five years’ imprisonment for Rudski’s repeated violations

of the terms of his probation.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2014




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