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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA

                 v.


    DONALD SMITH

                         Appellant               :   No. 1712 EDA 2018

             Appeal from the Judgment of Sentence May 24, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0011271-2011

BEFORE:     SHOGAN, J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY NICHOLS, J.:                               FILED AUGUST 02, 2019

        Appellant Donald Smith appeals from the judgment of sentence imposed

following    the      revocation of his probation.       Appellant challenges   the

discretionary aspects of his sentence. We affirm.

        The trial court opinion set forth the relevant facts and procedural history

of this case as follows:

        On February 21, 2017,        [Appellant] tendered a negotiated guilty
        plea to the single count of      a violation of the Uniform Firearms
        Act-Possession of Firearm by a Prohibited Person, 18 Pa.C.S. §
        6105 [(VUFA),] in exchange for a withdrawal of more serious
        charges and a reduced sentence of [time served] to twenty-three
        (23) months of county confinement followed by [three] years of
        reporting probation with imposition of specified rehabilitative
        conditions. Consistent with negotiations, Appellant was granted
        immediate parole and awarded credit for time served.

        At the time of the original imposition of sentence, Appellant had
        possessed a prior criminal record score of five (5) and the offense
        gravity score for [VUFA] was a ten (10). Thus, the negotiated
        sentence was well below      the recommended guideline sentence
                                     .   .   .
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        range of sixty (60) months to seventy-two (72) months with                                                           a
        plus or minus deviation of twelve (12) months        .       .           .       .




        [The trial c]ourt accepted the negotiated guilty plea following                                                      a
        full and fair colloquy.



        Appellant was directed to follow the conditions of parole and
        probation to the letter, which included compliance with
        recommended drug and alcohol treatment and passing the
        random drug and alcohol screening, obtaining verifiable
        employment, random home visits and completion of reporting. No
        appeal was taken.

        On or about February 16, 2018, Appellant was arrested and
        charged with [new drug offenses]. On or about March 12, 2018,
        [the trial c]ourt was notified by the assigned probation and parole
        officer that Appellant had also repeatedly violated the terms of
        probation supervision prior to the triggering arrest. Thus, per [the
        trial c]ourt's instructions, a detainer was lodged by the Adult
        Probation and Parole Department and Gagnon[']           notifications.       .       .


        and reports were duly prepared and sent.

        As the  Gagnon          II
                             summary reflected,  .   prior to [the] triggering
                                                     .   .


        arrest, Appellant had repeatedly violated the terms of [probation]
        and parole  .   .by refusing to report to his probation officer [and]
                            .


        testing positive for illegal use of benzodiazepines, opiates, and
        marijuana derivatives on at least six occasions          .Following a
                                                                         .           .       .


        full and fair violation hearing held on [March 27, 2018], during
        which all violations were conceded, Appellant was duly found to
        be in violation of the [terms of] parole and probation           Thus,                   .   .   .   .


        both the probation and parole periods were deemed revoked.

        Following revocation, mental health evaluations and pre -sentence
        investigation [(PSI)] reports were ordered and thoroughly
        reviewed. [The trial court conducted Appellant's resentencing
        hearing on May 24, 2018.] After hearing argument and testimony
        and after citing cogent reasons for the sentence imposed, [the
        trial c]ourt entered an order of sentence of three (3) years   to                                        .   .   .


        six (6) years of state supervised confinement followed by two (2)


1   Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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        years of state supervised probation with rehabilitative conditions,
        including fines and costs.
Trial Ct. Op., 12/17/18, at 2-3 (some capitalization omitted).

        Appellant timely filed   a   post -sentence motion, claiming that the trial

court imposed "a manifestly excessive sentence for mere technical violations

all of which stemmed from [Appellant's] drug addiction." Post -Sentence Mot.,

5/24/18. The trial court denied Appellant's post -sentence motion without             a

hearing on May 30, 2018.

        Appellant timely filed   a   notice of appeal and court ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. On December

17, 2018, the trial court issued        a   responsive opinion, concluding that the

sentence imposed following the revocation of probation constituted                    a

reasonable exercise of judicial discretion.

        Appellant now raises one question for this Court's review:

        Was [Appellant's] aggregate sentence of 3-6 years plus 2 years of
        reporting probation an abuse of discretion since it imposed a
        manifestly excessive sentence for mere technical violations all of
        which stemmed from [Appellant's] drug addiction?
Appellant's Brief at 3.

        On appeal, Appellant contends       that the trial court mischaracterized him

as a "danger to the       community" at the resentencing hearing.          Id. at    9.

Appellant insists that his "technical violations of probation all stemmed from

a   well -documented drug addiction."       Id.   As such, Appellant argues   that the
trial court "essentially criminalized this addiction as opposed to fashioning         a

sentencing designed to treat [Appellant's] substance abuse issues."                 Id.

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Appellant concludes that the trial court abused its discretion by imposing                a

manifestly excessive sentence for technical probation violations. Id.

        "[C]hallenges to the discretionary aspects of sentencing do not entitle

an appellant to review as of    right." Commonwealth v. Derry, 150 A.3d 987,
991 (Pa. Super. 2016) (citation omitted). Rather, before reaching the merits

of such claims, we must determine:

        (1) whether the appeal is timely; (2) whether [the a]ppellant
        preserved his issues; (3) whether [the a]ppellant'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 inappropriate under the [S]entencing [C]ode.
Commonwealth v. Corley,             31 A.3d 293, 296 (Pa. Super. 2011) (citation

omitted).

        Here, Appellant timely filed    a   notice of appeal, preserved his claim in

the post -sentence motion, and included         a   concise statement of reasons relied

upon for allowance of appeal in his brief. See id. Additionally, the claim that

the trial court imposed   a   manifestly excessive sentence based upon technical

probation violations raises     a   substantial question. See Commonwealth v.

Malovich, 903 A.2d 1247, 1253          (Pa. Super. 2006) (explaining          that "a claim
that   a   particular probation revocation sentence           is   excessive in light of its

underlying technical violations" presents           a   substantial question). Therefore,

we will review Appellant's claim.

        Our well -settled standard of review is as follows:

        Sentencing is a matter vested in the sound discretion of the
        sentencing judge, and a sentence will not be disturbed on appeal

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        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
        judgments for reasons of partiality, prejudice, bias or ill will, or
        arrived at a manifestly unreasonable decision.
Commonwealth v. Raven, 97 A.3d 1244, 1253              (Pa. Super. 2014) (citation

omitted).

        Our scope of review following the revocation of probation is not limited

solely to determining the validity of the probation revocation proceedings and

the authority of the trial court to consider the same sentencing alternatives

that it had at the time of the initial sentencing.            Commonwealth v.
Cartrette,       83 A.3d 1030, 1033-34 (Pa. Super. 2013) (en banc). Rather, "this

Court's scope of review in an appeal from       a   revocation sentencing includes

discretionary sentencing challenges." Id. at 1034.

        The statute governing the modification or revocation of probation

provides:

        §   9771. Modification or revocation of order of probation



        (c) Limitation on sentence of total confinement.-The court
        shall not impose a sentence of total confinement upon revocation
        unless it finds that:

            (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.

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42 Pa.C.S.    §   9771(c).

        Further, this Court has held that the trial court must consider the

sentencing factors contained in 42 Pa.C.S.         §   9721(b). See Cartrette, 83 A.3d

at 1040-41; Derry, 150 A.3d at 995. Specifically, the trial court must follow

the principles "that the sentence imposed should call for confinement that             is

consistent with the protection of the public, the gravity of the offense as it

relates to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant." See Derry, 150 A.3d at 993 (emphasis

omitted and quoting Cartrette, 83 A.3d at 1040-41); see also 42 Pa.C.S.                 §

9721(b).

        "Technical violations can        support revocation and          a    sentence of

incarceration when such violations are flagrant and indicate an inability to

reform." Commonwealth v. Carver, 923 A.2d 495, 498 (Pa. Super. 2007).

Where probation         is   ineffective as   a   rehabilitative tool,    a   sentence of

incarceration may be appropriate. See Malovich, 903 A.2d at 1254 (holding

that the trial court did not abuse its discretion         in imposing   total confinement

due to technical violations and concluding that the "[a]ppellant was not

responding to the court's authority; incarceration was necessary."); see also

Commonwealth v. McAfee, 849 A.2d 270, 277                    (Pa. Super. 2004) (stating

that the trial court correctly determined that total confinement was necessary

to vindicate the court's authority because the appellant "had demonstrated              a

complete lack of willingness to comply with the multiple court orders entered

in   this case").

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        Additionally, where   a   PSI report exists, we shall    "presume that the

sentencing judge was aware of the relevant information regarding the

defendant's character and weighed those considerations along with mitigating

statutory factors." Commonwealth v. Walls, 926 A.2d 957, 967 n.7 (Pa.
2007) (citation omitted).

        Instantly, at the resentencing hearing, the trial court detailed

Appellant's technical probation violations.        See N.T. Resentencing Hr'g,

5/24/18, at 6-7. The trial court also evaluated the information           in the PSI

report, including Appellant's mental health and employment histories. Id. at

10-11. The trial court scrutinized Appellant's prior convictions and arrests in

Pennsylvania and New Jersey, noting prior firearms offenses.        Id. at 9-10,       22.

The trial court concluded that Appellant posed    a   "high risk" of reoffending, and

a   term of imprisonment at   a   state prison was necessary.   Id. 22-24.
        In its Rule 1925(a) opinion, the trial court provided further context for

its decision:

        When asked by the [PSI] investigator as to his longest period of
        abstinence for the use of drugs[,] Appellant reportedly laughed
        and replied that [he has] never been abstinent.            Appellant
        historically rebuffed all directed drug treatment efforts by his   .   .   .


        probation officer.

        [The trial court also] considered the facts and circumstances
        surrounding the underling firearms offense at issue. Appellant's
        likelihood of recidivism and [the] danger [he poses] to the
        community were identified as salient sentencing factors.




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        [T]he argument for the imposition of another period of probation
        lacked prudence. Appellant had flagrantly disregarded [the trial
        c]ourt's authority and ignored the rehabilitative conditions and
        purposes of probation that were imposed when [the trial c]ourt
        entered the original merciful sentence. At [the] time of [the]
        original sentence, [the trial c]ourt provided fair warning to
        Appellant that any violation would not be tolerated. Thus, there
        was a proven need to vindicate the authority of [the trial c]ourt
        that had been repeatedly and blatantly ignored.
Trial Ct. Op. at 8-9 (record citations omitted).

        Because probation had proven ineffective, the trial court acted within its

discretion in finding that a sentence of confinement was necessary to vindicate

the authority of the court.         See Malovich, 903 A.2d at 1254; see also

Carver, 923 A.2d at 498. The trial court also had the benefit of the         PSI report,

and we can presume it was aware of the relevant sentencing factors.                 See

Walls, 926 A.2d at 967 n.7. Moreover, the trial court's statement of reasons

in   support of the sentence demonstrates that it considered the factors set

forth in 42 Pa.C.S.     §   9721(b). See Derry, 150 A.3d at 994 (reiterating that

after the revocation of probation, Section 9721(b) requires the court to follow

the general principle that the sentence imposed should call for confinement

that   is   consistent with the protection of the public, the gravity of the offense

as it relates to the impact on the life of the    victim and on the community, and

the defendant's rehabilitative needs).         On this record, we conclude      that the
trial court did not abuse its discretion, and Appellant    is   not entitled to relief on

his challenge to the discretionary aspects of sentencing. See          Raven, 97 A.3d
at 1253.

        Judgment of sentence affirmed.

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Judgment Entered.




  seph D. Seletyn,
Prothonotary



Date: 8/2/19




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