J-S69024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    SHAWN TEDROW                               :
                                               :   No. 569 WDA 2017
                       Appellant

                   Appeal from the Order February 27, 2017
      In the Court of Common Pleas of Beaver County Criminal Division at
                        No(s): CP-04-CR-0000649-2010


BEFORE:      BOWES, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                            FILED DECEMBER 08, 2017

       Appellant, Shawn Tedrow, appeals from the judgment of sentence of

eight months to five years of incarceration, entered on February 27, 2017,

following the revocation of his probation for technical violations.1 We affirm.

       We derive the following facts from the revocation court’s opinion.

       Appellant entered a plea of [n]olo [c]ontendre to Count 1 (18
       Pa.C.S.A. § 3126(a)(7) – Indecent Assault) on January 13, 2011.
       Prior to sentencing, the [c]ourt held a hearing to determine
       whether [Appellant] was a sexually violent predator as defined by
       42 Pa.C.S.A. § 9792.

       On May 23, 2011, Appellant was sentenced to a period of 24
       months of probation with conditions that he (a) report daily in
       person to Beaver County Adult Probation; (b) have no contact with
____________________________________________


1 Appellant purported to appeal the March 10, 2017 Order denying his motion
for post-trial relief. However, “[i]n a criminal action, appeal properly lies from
the judgment of sentence made final by the denial of post-sentence motions.”
Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001).
Therefore, we have corrected the caption accordingly.


*    Former Justice specially assigned to the Superior Court.
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     the victim or victim’s family members; (c) have no contact with
     minor children unless supervised by an adult; and (d) complete a
     mental health evaluation and all recommended treatment.

     In an Order of June 20, 2011 issued by [ ] Judge Tesla, the [c]ourt
     denied Appellant’s motion to reconsider the [c]ourt’s previous
     finding that [Appellant] was a sexually violent predator as defined
     by 42 Pa.C.S.A. § 9792.

     On June 3, 2013, the Commonwealth filed a Petition for
     Administrative Hearing on Violation alleging Appellant had failed
     to complete sexual offender treatment, drug and alcohol
     treatment and failed to pay court monies owed. On August 6,
     2013, [ ] Judge John P. Dohanich issued an Order revoking and
     reinstating probation under the condition that Appellant complete
     sex offender evaluation and any recommended treatment.

     On August 11, 2015, the Commonwealth again filed a Petition for
     Administrative Hearing on Violation alleging Appellant failed to
     comply with the sex offender treatment condition of his probation.
     Appellant again had his probation revoked and reinstated by Order
     of November 24, 2015, with the condition that he complete sex
     offender treatment as directed.

     On February 6, 2017, the Commonwealth, for the third time, filed
     a Petition for Administrative Hearing on Violation alleging
     Appellant again failed to comply with the condition that he
     complete sex offender training as well as the condition that he
     abstain from drug use.

     Following a hearing before [ ] Judge Knafele on February 27,
     2017, this [c]ourt found Appellant to be in violation of his
     probation once again for failure to comply with the conditions of
     his probation, specifically: failure to complete sex offender
     treatment as directed and failure to abstain from drug use.

     At the February 27th hearing, Appellant’s Probation Officer
     Christina Sturgeon [“P.O. Sturgeon”], testified that Appellant had
     admitted to using marijuana before his incarceration, and that
     Appellant had been discharged unsuccessfully from sex offender
     treatment for missing four consecutive appointments.          P.O.
     Sturgeon also testified that Appellant could receive alternative
     treatment once he was released from the Beaver County Jail but
     that he could not receive any treatment while in the Beaver
     County Jail [alternatively] he would receive the treatment he has
     avoided if he were incarcerated at the state prison. On direct

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      examination by the Commonwealth, P.O. Sturgeon stated that the
      Appellant had not been incarcerated at all previously and also
      expressed concerns about sending the Appellant to a state
      correctional facility because “. . . If I sent him to a state
      penitentiary . . . he may not come out better than when he went
      in.”

      Judge Knafele, exercising his discretion in desiring to ensure
      Appellant received the treatment he had failed for years to
      complete, determined to revoke Appellant’s probation and
      sentence him to eight [ ] months to five [ ] years in a state penal
      or correctional institution by Order of February 27, 2017.

      Following this ruling, Appellant sought reconsideration of the
      sentence by Motion which was denied by Judge Knafele on March
      10, 2017, and Appellant then sought review of Judge Knafele’s
      sentence by the Superior Court.

Revocation Court Opinion, 7/18/17, at 1-3 (unpaginated) (citations omitted).

      Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The court issued a responsive opinion.

      Appellant presents the following question for our review:

      1. Whether a Judge can abuse his discretion in sentencing a
         Defendant when testimony as to treatment and punishment of
         Defendant are contrary to the sentence pronounced by the
         Judge.

Appellant’s Brief at 5.

      This Court’s standard of review regarding an appeal from a sentence

imposed following the revocation of probation is as follows:

      [o]ur 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.




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Commonwealth v. Perreault, 930 A.2d 553, 557 (Pa. Super. 2007) (internal

citation omitted).

      Appellant contends that his sentence is manifestly unreasonable and the

trial court should have sentenced him according to the probation officer’s

recommendation. See Appellant’s Brief at 9. When reviewing a challenge to

the discretionary aspects of sentencing, we adhere to the following standard:

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

Commonwealth v. Raybuck, 915 A.2d 125, 128 (Pa. Super. 2006)

      Appellant’s challenge to the discretionary aspects of his sentence does

not entitle him to review as of right. Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa. Super. 2011). Prior to addressing a discretionary challenge, this

Court engages in a four-part analysis: 1) whether the appeal is timely; 2)

whether Appellant preserved his issue; 3) whether Appellant’s brief contains

a concise statement of the reasons relied upon for allowance of appeal

pursuant to Pa.R.A.P. 2119(f); and 4) whether that statement raises a

substantial question that the sentence is inappropriate under the sentencing

code. See Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013);

see also Pa.R.A.P. 2119(f).




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      Initially, we note that Appellant timely filed a notice of appeal and

preserved his claim in a post-sentence motion. However, Appellant failed to

include a concise prefatory statement of reasons relied upon for allowance of

appeal. Such a statement is required under Pa.R.A.P. 2119(f) in cases where

discretionary aspects of sentences are challenged.       In Pa.R.A.P.(f), it is

provided:

      (f) Discretionary Aspects of Sentence. An appellant who
      challenges the discretionary aspects of a sentence in a criminal
      matter shall set forth in his brief a concise statement of the
      reasons relied upon for allowance of appeal with respect to the
      discretionary aspects of a sentence.       The statement shall
      immediately precede the argument on the merits with respect to
      the discretionary aspects of sentence.

See Pa.R.A.P.(f).

      The Commonwealth, having elected not to file a brief in this matter, has

raised no objection to Appellant’s failure to provide a Rule 2119(f) statement.

Thus, we will overlook this error. See Commonwealth v. Raybuck, 915

A.2d at 127 n.3.    Next, we examine whether Appellant’s claim presents a

substantial question.

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. A substantial question
      exists “only when the appellant advances a colorable argument
      that the sentencing judge’s actions were either: (1) inconsistent
      with specific provisions of the Sentencing Code; or (2) contrary to
      the fundamental norms which underlie the sentencing process.

      As to what constitutes a substantial question, this Court does not
      accept bald assertions of sentencing errors. An appellant must
      articulate the reasons the sentencing court’s actions violated the
      [S]entencing [C]ode.


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

      Appellant failed to file a Rule 2119(f) statement. Nevertheless, we infer

from Appellant’s brief that he challenges his sentence as “manifestly

unreasonable” because he was sentenced to a term of state incarceration, as

opposed to the county sentence recommended by his probation officer. See

Appellant’s Brief at 9.     Appellant fails to explain how his sentence is

inconsistent with the Sentencing Code or contrary to the fundamental norms

underlying the sentencing process.             Moury, 922 A.2d at 170; see

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (“[I]n order

to establish a substantial question, the appellant must show actions by the

sentencing court inconsistent with the Sentencing Code or contrary to the

fundamental norms underlying the sentencing process.”).          Thus, Appellant

fails to raise a substantial question.

      Even if we were to determine that Appellant’s claim did raise a

substantial question, we find no merit to the underlying allegation.        The

revocation court need not accept the recommendation of a probation officer.

Commonwealth v. Moore, 583 A.2d 1, 2 (Pa. Super. 1990) (“We emphasize

that a trial court must not delegate its sentencing decision to any person or

group.”). Rather, imposition of sentence following revocation of probation is

vested in the sound discretion of the revocation court. Commonwealth v.

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

Sierra, 752 A.2d 910, 913 (Pa. Super. 2000)). Furthermore, the court clearly

stated its reasons for imposing a term of state incarceration:

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       In making its determination, the [c]ourt cited as its rationale for
       imposing a sentence of total confinement – specifically, total
       confinement in a state prison – Appellant’s repeated failures to
       comply with the terms of his probation. At Appellant’s revocation
       hearing, acting in compliance with 18 Pa.C.S.A. § 1301 et seq.,
       Judge Knafele stated on the record, “I’m going to impose a state
       sentence of eight months to five years. He’s going to be on parole
       because I believe he’ll never comply unless somebody’s holding a
       hammer over his head, and it’s going to be there for four years.”
       In short, the [c]ourt found such a sentence essential to vindicate
       the authority of the [c]ourt following years of Appellant’s apparent
       disregard for this [c]ourt and its authority. Furthermore, the
       [c]ourt specifically sought a state sentence so that Appellant
       would have the opportunity to fulfill his obligation to obtain and
       complete sex-offender treatment, which is seen as necessary for
       the safety of the community as this [c]ourt fears that without the
       appropriate treatment Appellant will likely offend again.

Revocation Court Opinion, 7/18/17, at 6-7 (unpaginated) (footnote and

citation omitted).

       Accordingly, we conclude that even if a substantial question had been

raised, the court did not abuse its discretion in sentencing Appellant.2

       Application for extension to file brief denied. Judgement of sentence

affirmed. Jurisdiction relinquished.




____________________________________________


2  The Commonwealth did not timely file a brief in this matter.              The
Commonwealth’s brief was due September 28, 2017. On October 10, 2017,
the Commonwealth filed an application for extension of time to file brief. As
this application for relief was filed after its brief was due, the application is
denied.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2017




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