J-A12017-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    DANIEL BRICE                               :
                                               :
                       Appellant               :      No. 588 WDA 2019

         Appeal from the Judgment of Sentence Entered March 20, 2019
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0002860-2014


BEFORE:      KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.:                                  FILED JUNE 22, 2020

        Appellant, Daniel Brice, appeals from the judgment of sentence entered

in the Allegheny County Court of Common Pleas, following revocation of his

probation. We affirm.

        The relevant facts and procedural history of this case are as follows. On

January 7, 2015, Appellant entered a guilty plea to one count of robbery. The

court sentenced Appellant to one year less one day to two years less two days

of imprisonment, followed by four years’ probation, and granted immediate

parole.     Following technical violations of probation, the court revoked

Appellant’s probation on May 1, 2017, and resentenced Appellant to two years

of state intermediate punishment (“SIP”), followed by one year of probation.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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        On March 20, 2019, the court again revoked Appellant’s probation,

based upon Appellant’s new criminal conviction for escape.           The court

resentenced Appellant for robbery to 7-14 years’ incarceration, with credit for

time served.     On March 29, 2019, Appellant timely filed a post-sentence

motion challenging the discretionary aspects of his sentence, which the court

denied on April 5, 2019. Appellant timely filed a notice of appeal on April 18,

2019.     On April 26, 2019, the court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b);

Appellant complied on May 20, 2019.

        Appellant raises the following issue for our review:

           DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN
           IMPOSING     A   MANIFESTLY     EXCESSIVE    AND
           DISPROPORTIONATE SENTENCE OF 7 TO 14 YEARS IN
           PRISON WHEN IT FAILED TO CONSIDER [APPELLANT’S]
           MITIGATING CIRCUMSTANCES, INCLUDING HIS ADVANCED
           AGE, HEALTH CONCERNS, REMORSEFULNESS, AND HIS
           WILLINGNESS TO UNDERGO CONTINUING TREATMENT FOR
           SERIOUS MENTAL HEALTH ISSUES?

(Appellant’s Brief at 5).

        Appellant argues his revocation sentence of 7-14 years’ incarceration is

excessive. Specifically, Appellant alleges the court did not consider mitigating

factors, such as Appellant’s age, mental and physical health conditions,

remorsefulness, and willingness to continue treatment, when imposing

Appellant’s sentence.       Appellant asserts the court instead focused on

Appellant’s lifelong drug addiction and most recent relapse.          Appellant

concludes this Court should remand for resentencing.

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      As presented, Appellant’s claim challenges the discretionary aspects of

sentencing. See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002)

(stating claim that sentence is manifestly excessive challenges discretionary

aspects of sentencing); Commonwealth v. Cruz-Centeno, 668 A.2d 536

(Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996)

(explaining claim that court did not consider mitigating factors challenges

discretionary aspects of sentencing).

      Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910,

912 (Pa.Super. 2000).           Prior to reaching the merits of a discretionary

sentencing issue:

         [W]e conduct a four part analysis to 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. Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005), appeal

denied, 586 Pa. 723, 890 A.2d 1057 (2005) (internal citations omitted).

      Under Pa.R.A.P. 2119(f), an appellant must invoke the appellate court’s

jurisdiction   by   including    in   his   brief   a   separate   concise   statement

demonstrating a substantial question as to the appropriateness of the

sentence under the Sentencing Code. Commonwealth v. Mouzon, 571 Pa.

419, 812 A.2d 617 (2002); Commonwealth v. Tuladziecki, 513 Pa. 508,


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522 A.2d 17 (1987); Pa.R.A.P. 2119(f). “The requirement that an appellant

separately set forth the reasons relied upon for allowance of appeal ‘furthers

the purpose evident in the Sentencing Code as a whole of limiting any

challenges to the trial court’s evaluation of the multitude of factors impinging

on the sentencing decision to exceptional cases.’”         Commonwealth v.

Williams, 562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in

original).

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. Commonwealth v. Anderson, 830 A.2d

1013 (Pa.Super. 2003). A substantial question exists “only when the appellant

advances a colorable argument that the sentencing judge’s actions were

either: (1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

process.”    Sierra, supra at 912-13.       This Court does not accept bald

assertions of sentencing errors as substantial questions. Commonwealth v.

Malovich, 903 A.2d 1247 (Pa.Super. 2006).           Rather, an appellant must

articulate the bases for his allegations that the sentencing court’s actions

violated the sentencing code. Id.

      Additionally, “[i]n 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.”

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


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sentence should not be disturbed where it is evident the court was aware of

the appropriate sentencing considerations and weighed them in a meaningful

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

      “[U]pon 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.” Commonwealth v. Coolbaugh,

770 A.2d 788, 792 (Pa.Super. 2001). A court can sentence a defendant to

total confinement after revoking probation if the defendant was convicted of

another crime, the defendant’s conduct indicates it is likely that he will commit

another crime if he is not imprisoned, or such a sentence is essential to

vindicate the court’s authority. Commonwealth v. Crump, 995 A.2d 1280

(Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010). As well,

if the sentencing court has the benefit of a pre-sentence investigation (“PSI”)

report, the law presumes the court was aware of the relevant information

regarding the defendant’s character and weighed those considerations along

with any mitigating factors.     Commonwealth v. Tirado, 870 A.2d 362

(Pa.Super. 2005).

      Instantly, Appellant raised his sentencing issue in a timely post-

sentence motion, timely notice of appeal, and in his Rule 2119(f) statement.

Nevertheless, Appellant’s bald allegation of excessiveness and claim that the

sentencing court failed to consider mitigating factors, such as Appellant’s

advanced age, health concerns, remorsefulness, and willingness to undergo


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treatment, do not pose substantial questions. See Mouzon, supra; Cruz-

Centeno, supra (explaining allegation that sentencing court failed to consider

or did not adequately consider certain factors does not raise substantial

question). Thus, Appellant has not satisfied the required 4-part test for review

of his sentencing claim. See Hyland, supra.

      Moreover, the court had the benefit of a PSI report. Therefore, we can

presume the court was aware of the relevant information regarding mitigating

circumstances. See Tirado, supra. The court also explained its rationale as

follows:

           [I]t should be noted that [Appellant] was no stranger to this
           court. [Appellant] was already serving a probation sentence
           for this court…for Criminal Trespass and Retail Theft when
           he committed a Felony 1-Robbery…. At the plea and
           sentencing hearing held on January 7, 2015, [Appellant]
           faced a recommended guideline range of 72-84 months in
           the standard range for his robbery conviction.

           Notwithstanding [Appellant’s] high guideline range, this
           court showed [Appellant] a great deal of leniency when it
           substantially departed below the guidelines and imposed a
           county sentence of one (1) year less a day to two (2) years
           less two (2) days in the Allegheny County Jail (“ACJ”).
           [Appellant] received a consecutive four (4) year period of
           probation, and he was awarded 350 days of credit for time
           served. He was paroled to a JRS Service Plan that mandated
           participation in the CORE Program. …

           At that time, the court agreed that several mitigating factors
           warranted a county sentence that was focused on
           rehabilitation so that [Appellant] could have an opportunity
           to meaningfully address his substance abuse and mental
           health issues.      The court believed [Appellant’s] high
           guidelines were based on stale, decades-old convictions,
           and the court expressly told [Appellant] that “help is what
           you need more [of] at this time.” Additionally, the court

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       considered the fact that no one was harmed during the
       commission of the robbery, and the court was genuinely
       moved by [Appellant’s] show of remorse and his eagerness
       to obtain treatment. The court further understood that
       [Appellant] was in his sixties, had serious health problems,
       and that he had a history of employment which included
       serving as a deacon in his church. These combined factors
       all weighed in favor of a less serious sentence that gave
       [Appellant] a chance to undergo treatment and see progress
       in his recovery.

                                *    *    *

       [Following technical violations of probation, the court
       revoked Appellant’s probation and resentenced Appellant to
       two years of SIP, followed by one year of probation.] At the
       May 1, 2017 SIP sentencing, the court gave [Appellant]
       another chance at rehabilitation and was optimistic that he
       would successfully complete the program.         [Appellant]
       expressed his gratitude towards the court and the leniency
       that it had shown him….

       Approximately 1½ years later, [Appellant] was revoked out
       of the SIP program due to a new Escape charge….
       [Appellant] had completed the prison portion of the SIP
       sentence and had been released to Renewal. Instead of
       complying with the facility’s treatment program, he failed to
       return for several days and went on a cocaine binge.
       [Appellant] pled guilty to the Escape charge on December
       19, 2018.

       On March 20, 2019, a hearing was held to address the
       sentencing for the Escape charge as well as the probation
       violation….     At that hearing, Counsel for [Appellant]
       attempted to cite [Appellant’s] age, health issues, and need
       for treatment as mitigating factors. However, given the
       court’s long history with [Appellant], the court no longer saw
       these factors as mitigating[, stating] “That’s why I would
       have thought he wouldn’t be back in front of me on
       anything, right?” The court heard [Appellant’s] allocution,
       but then went on to express its disappointment and concern
       with [Appellant’s] behavior….

       Against this backdrop, it is clear that [Appellant] was

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         provided with an extraordinary opportunity to be
         rehabilitated. The fact that he failed himself, as well as this
         court, does not mean that his sentence was imposed without
         consideration of the relevant statutory factors. To the
         contrary, all this court has done since it met [Appellant] was
         consider the mitigating factors…and attempt to assist him
         with his mental health issues and drug addiction. However,
         [Appellant’s] failure to comply with the terms of his
         sentence, despite repeated warnings and multiple
         opportunities to do so, warranted a serious period of total
         confinement.

         For all of the reasons just stated, [Appellant] cannot meet
         his burden of showing that his revocation sentence was an
         abuse of discretion. Given this court’s familiarity with
         [Appellant], his history, background, and characteristics,
         this court was in the best position to view [Appellant] and
         gauge his ability (or lack thereof) to become a productive,
         law-abiding member of society.

         Moreover, the sentences did not exceed the statutory
         maximum sentence, they were not manifestly unreasonable
         under the circumstances, and they were essential to
         vindicate the authority of the court. Accordingly, this court
         respectfully requests that its sentence be upheld.

(Trial Court Opinion, filed August 8, 2019, at 5-13) (internal citations

omitted). The record makes clear the court adequately considered Appellant’s

mitigating circumstances, as well as his repeated failures to take advantage

of the court’s leniency, when crafting Appellant’s sentence.       Thus, even if

Appellant had raised a substantial question warranting review, Appellant

would not be entitled to relief on his challenge to the discretionary aspects of

sentencing. Accordingly, we affirm.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2020




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