J-S12011-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER MICHNYA                        :
                                               :
                       Appellant               :   No. 349 EDA 2019

          Appeal from the Judgment of Sentence Entered May 11, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0005973-2015


BEFORE:      SHOGAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY SHOGAN, J.:                                    Filed May 21, 2020

        Appellant, Christopher Michnya, appeals nunc pro tunc from the

judgment of sentence entered on May 11, 2017, following the revocation of

his probation. After review, we affirm.

        The trial court summarized the relevant facts and procedural history of

this matter as follows:

               On July 21, 2015, Appellant, Christopher Michnya,
        voluntarily and knowingly tendered a negotiated guilty plea to
        Retail Theft [(18 Pa.C.S. § 3929(a)(1))], graded as a third degree
        felony [at trial court docket number CP-51-CR-0005973-2015].
        On that same date, pursuant to the negotiations and following
        submission of a thorough written and oral colloquy and waiver of
        presentence investigation[] reports, the Honorable Anne Marie B.
        Coyle, Judge of the Court of Common Pleas for the First Judicial
        District of Pennsylvania Criminal Division, hereinafter referred to
        as “this [c]ourt,” imposed a sentence of two (2) years of county
        supervised probation.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S12011-20



              As the submitted and reviewed and incorporated GAGNON[1]
       Summaries prepared by the assigned Probation Officer Jameka
       Bing reflected, Appellant had reported as required for the months
       of September, October, and November 2016 following his release
       from Buck’s County incarceration on August 31, 2016. On
       November 4, 2016, a [Forensic Intensive Recovery (“FIR”)]
       evaluation was completed but Appellant never reported back to
       initiate and comply with the FIR recommendation for [intensive
       outpatient (“IOP”)] treatment at [Greater Philadelphia Asian
       Social Service Center (“GPASS”)]. Appellant then absconded from
       the supervision of the probation department, having last reported
       on November 7, 2016. On January 29, 2017, Appellant was
       arrested for new narcotics charges [at trial court docket number
       CP-51-CR-0002638-2017]. He was released before a probation
       warrant could be lodged. On January 31, 2017, an absconder
       warrant was issued. On February 2, 2017, Appellant was arrested
       for [a new charge of] retail theft [at trial court docket number CP-
       51-CR-0003073-2017].

              After a full and fair violation hearing, during which the
       largely uncontested data supplied within the GAGNON summaries
       was introduced into the record following Appellant’s waiver of
       reading, this [c]ourt was satisfied that the probation officer’s
       recommendation of revocation was appropriate given the reported
       violations of the terms and conditions of the Order of Sentence
       which included: non-reporting and two (2) open bills.

             Following revocation of probation, this [c]ourt directed and
       subsequently reviewed the mental health assessment and
       presentence investigative reports before the sentencing hearing.
       On May 11, 2017, Appellant entered a negotiated stipulated trial
       regarding the simple possession drug charge and was sentenced
       to a period of nine (9) months of probation [at trial court docket
       number CP-51-CR-0002638-2017].
____________________________________________


1 Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v.
Moriarty, 180 A.3d 1279, 1282 n.2 (Pa. Super. 2018) (explaining that when
a probationer or parolee is detained pending a revocation hearing, due process
requires a pre-revocation hearing (a Gagnon I hearing) to determine if there
is probable cause to support a violation of probation or parole; if probable
cause exists, a second, more comprehensive hearing (a Gagnon II hearing)
is held before the trial court makes a final revocation decision).

                                           -2-
J-S12011-20


             On that same date, following a full and fair evidentiary
       hearing on the revocation [of probation at trial court docket
       number CP-51-CR-0005973-2015], this [c]ourt concluded that a
       term of state supervised confinement was necessary to not only
       vindicate the authority of the [c]ourt but to deter future criminal
       conduct consistent with factors set forth in 42 Pa.C.S. § 9771.
       Appellant was then sentenced to a minimum term of two (2) years
       to a maximum of seven (7) years of state supervised confinement,
       with credit accorded for custodial time served and rehabilitative
       conditions were imposed.[2]

             Post-Sentence Motions were filed on May 19, 2017[,] solely
       seeking a reduction of sentence and citing the single claim of an
       excessive sentence.[3] The Post-Sentence Motion was denied after
       a hearing on June 2, 2017. An appeal was not filed.

             On May 8, 2018, Appellant filed a pro se PCRA Petition
       seeking the reinstatement of his direct appeal rights. Peter Levin,
       Esquire was appointed by the Court to represent Appellant. Mr.
       Levin filed an amended petition and with the agreement of the
       Commonwealth, Appellant’s direct appeal rights were reinstated.
       On January 30, 2019, Appellant, by and through counsel, filed a
       timely Notice of Appeal [nunc pro tunc] to the Superior Court of
       Pennsylvania. A Statement of Errors Complained of on Appeal
       pursuant to Pa. R.A.P. Rule 1925 (b) was ordered on May 14,
       2019. On June 6, 2019, a Statement of Errors Complained of on
       Appeal was filed.

Trial Court Opinion, 7/3/19, at 1-4 (original footnotes omitted).


____________________________________________


2 As mentioned in the recitation of the facts of this case, Appellant committed
new crimes. Trial Court Opinion, 7/3/19, at 2. Appellant’s new crimes were
direct violations of his probation in the instant case. See Commonwealth v.
Foster, 214 A.3d 1240, 1247 (Pa. 2019) (stating that a probationer violates
his probation where he violates a specific condition of his probation or commits
a new crime).

3 The record reveals that Appellant was sentenced on May 11, 2017. Appellant
filed a post-sentence motion for reconsideration of sentence, but due to a
clerical error, the motion was not docketed until June 1, 2017. Nevertheless,
the trial court held a hearing and announced that it deemed Appellant’s post-
sentence motion timely filed. N.T., 6/2/17, at 3.

                                           -3-
J-S12011-20


      On appeal, Appellant asserts that the trial court abused its discretion by

imposing a manifestly excessive and unreasonable sentence following the

revocation of his probation.   Appellant’s Brief at 8.    Specifically, Appellant

avers that a sentence of two to seven years of incarceration was too severe,

and the trial court failed to consider mitigating factors such as Appellant’s

background, character, and rehabilitative needs. Id. at 14.

      Appellant’s assertion is a challenge to the discretionary aspects of his

sentence. See Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa.

Super. 1995) (a claim that the trial court imposed a manifestly excessive

sentence and failed to consider mitigating factors is a challenge to the

discretionary aspects of the sentence). We note that “[t]he right to appellate

review of the discretionary aspects of a sentence is not absolute.”

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014). Rather,

where an appellant challenges the discretionary aspects of a sentence, the

appeal   should   be   considered   a   petition   for   allowance   of   appeal.

Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).

      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

            An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a four-
      part test:

                  [W]e conduct a four-part analysis to determine:
            (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

                                     -4-
J-S12011-20


             motion to reconsider and modify sentence, see
             Pa.R.Crim.P. [708]; (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.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006)). The determination of whether there is a substantial question is made

on a case-by-case basis, and this Court will grant the appeal 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.    Commonwealth v. Sierra, 752 A.2d 910, 912-913 (Pa. Super.

2000).

      Herein, the first three requirements of the four-part test are met:

Appellant brought a timely appeal, raised the challenge in a post-sentence

motion, and included in his appellate brief the necessary separate concise

statement of the reasons relied upon for allowance of appeal pursuant to

Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raised a

substantial question requiring us to review the discretionary aspects of the

sentence imposed.

      As set forth above, Appellant asserts that the trial court imposed a

manifestly excessive sentence and failed to consider mitigating factors when

it fashioned Appellant’s sentence. Appellant’s Brief at 14. We conclude that

Appellant    presents   a   substantial   question   for   our   review.   See

                                      -5-
J-S12011-20


Commonwealth v. DiClaudio, 210 A.3d 1070, 1075 (Pa. Super. 2019)

(stating that a claim that a sentence is excessive, in conjunction with an

assertion that the trial court failed to consider mitigating factors, presents a

substantial question).

      Our standard of review is as follows:

      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.
      An abuse of discretion is more than an error in judgment—a
      sentencing court has not abused its discretion unless the record
      discloses that the judgment exercised was manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-will.
      Commonwealth v. Simmons, 56 A.3d 1280, 1283-84 (Pa.
      Super. 2012).

Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014). When

evaluating the outcome of a revocation proceeding, this Court is limited to

reviewing the validity of the proceeding, the legality of the judgment of

sentence    imposed,     and   the    discretionary   aspects     of   sentencing.

Commonwealth v. Cartrette, 83 A.3d 1030, 1033-1035 (Pa. Super. 2013).

“[T]he revocation of a probation sentence is a matter committed to the sound

discretion of the trial 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. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006).

Additionally, when sentencing a defendant 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



                                       -6-
J-S12011-20


v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000); 42 Pa.C.S. § 9771(b). Once

probation has been revoked, a sentence of total confinement may be imposed

if any of the following conditions exist: “(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)(1-3); Fish, 752 A.2d at 923.

      Furthermore, because our Sentencing Guidelines do not apply to

sentences imposed following the revocation of probation, we are guided by

the provisions of 42 Pa.C.S. § 9721, which state the general standards that a

court is to apply in sentencing a defendant. Commonwealth v. Ferguson,

893 A.2d 735, 739 (Pa. Super. 2006).

            When imposing a sentence, the sentencing court must
      consider the factors set out in 42 Pa.C.S. § 9721(b), that is, the
      protection of the public, gravity of offense in relation to impact on
      victim and community, and rehabilitative needs of defendant, and
      it must impose an individualized sentence. The sentence should
      be based on the minimum confinement consistent with the gravity
      of the offense, the need for public protection, and the defendant’s
      needs for rehabilitation.

Id. Moreover, this Court has explained that when the “sentencing court had

the benefit of a presentence investigation report (‘PSI’), we can assume the

sentencing court ‘was aware of relevant information regarding [the]

defendant’s character and weighed those considerations along with mitigating

statutory factors.’” Moury, 992 A.2d at 171.




                                      -7-
J-S12011-20


      As noted, Appellant alleges that the trial court imposed an excessive

sentence without considering Appellant’s rehabilitative needs and mitigating

factors such as his family history, drug addiction, and previous attempts at

drug rehabilitation. Appellant’s Brief at 14, 18-19. After review, we conclude

that the record belies Appellant’s assertion.

      At the sentencing hearing, the trial court discussed Appellant’s family

and personal history in great detail.   N.T., 5/11/17, at 16. The trial court

stated its awareness that Appellant’s father had died. Id. The court noted

that Appellant’s brother died from a heroin overdose and that Appellant’s

mother, who died of lung cancer, also had issues with drugs.       Id.     After

Appellant’s mother died, Appellant lived with his uncle and then in a group

home. Id. Appellant ran away from the home and lived with his grandmother,

who then died a few weeks later. Id. at 16-17. The trial court noted that

Appellant is dependent on alcohol and drugs, dropped out of high school, does

not have a GED, refuses treatment, and cannot maintain employment. Id. at

17.   The trial court concluded that without incarceration and treatment,

Appellant would reoffend and likely die because Appellant is not amenable to

probation. Id. at 16-19. The trial court then stated:

      THE COURT: … As an adult, sir, you’ve been arrested 11 times,
      8 convictions, 1 commitment[], 8 violations of probation or parole
      thus far, 6 revocations of your sentence. It’s highly recommended
      that there be a strict follow-up of treatment. This matter came
      before this [c]ourt as a result of a negotiated guilty plea for a
      probation period of two years with conditions set forth that were
      not followed.


                                     -8-
J-S12011-20


              The retail theft, it was an F3, right?[4]

       [ASSISTANT DISTRICT ATTORNEY] HALL: Yes, Your Honor.

       THE COURT: The arrest for possession occurred after your
       release from Bucks County incarceration. You initially did report
       and then absconded. Recommendation of the probation officers is
       revocation, so I reviewed the presentence investigation and
       reviewed your criminal history, sir, which -- most of which stems
       from retail thefts and drug charges. I reviewed the mental health
       assessment and note your dual diagnosis nature of bipolar as well
       as a history of poly[-]substance abuse.

             Okay. All right, sir. The sentence of the Court, sir -- and you
       may remain seated -- is that you serve a minimum of two years
       of state time incarceration to a maximum seven years of state
       time incarceration, sir. You are to be paroled only to an inpatient
       program deemed acceptable by the Parole Office. The follow-up
       from the inpatient program, you are to be placed in a drug-free
       environment, whether it be a halfway house or I don’t know. It
       depends on what they determine. You’re going to have random
       drug and alcohol testing, random room visits, random vehicle
       checks for drugs and/or weapons.

             While you are in custody, sir, you are to avail yourself of
       any vocational training deemed possible. You are to comply with
       any recommended drug and alcohol treatment. You are to be
       assigned and evaluated under a dual diagnosis type of evaluation.
       I’m recommending SCI Chester to deal with your drug and alcohol
       as well as mental health difficulties. Your supervision will be strict.
       You are to do your level best to obtain and maintain legitimate
       employment when you are released, sir.

             Understand, sir, the first hot urine on release, that will be
       deemed by this Court --and I’m letting the parole [board] know,
       since they’re going to be making the decisions from this time
       forward -- that it is considered a violation due [to] your difficulty
       streak. I recognize, sir, that this is not what you expected today
       judging from your expression. However, a step-down type of
____________________________________________


4 The statutory maximum penalty for a third-degree felony is seven years of
imprisonment. 18 Pa.C.S. § 1103(3).


                                           -9-
J-S12011-20


       program that I’m recommending be followed -- in fact, I’m
       directing be followed, is to keep you alive. I can only do so much.
       You can’t keep coming back. You’re stealing, you’re using drugs
       to -- you’re your own worst enemy. I hope this works, but given
       the fact that all else has failed, I don’t have much left. That’s
       reasonable in my mind.

Id. at 19-21.5

       After review, we conclude that the trial court considered all of the

relevant factors from 42 Pa.C.S. §§ 9721 and 9771, thoroughly addressed

Appellant’s personal circumstances, and fashioned an individualized sentence

that was aimed at vindicating the authority of the court, deterring future

criminal conduct, and aiding in Appellant’s rehabilitation. Ferguson, 893 A.2d

at 739. Moreover, the trial court was aided by a presentence investigation

report; therefore, we can assume the sentencing court was aware of relevant

information regarding Appellant’s character and weighed those considerations

along with mitigating statutory factors. Moury, 992 A.2d at 171.

       For the reasons set forth above, and pursuant to our deferential

standard of review, we cannot conclude that the trial court failed to consider

relevant sentencing factors or abused its discretion in imposing a term of two

to seven years of incarceration in a State Correctional Institution, with

rehabilitative conditions. See Commonwealth v. Sierra, 752 A.2d 910, 915



____________________________________________


5 The trial court also stated that it had no objection to Appellant’s participation
in Motivational Boot Camp under 61 Pa.C.S. § 3903; Appellant also was
eligible for Recidivism Risk Reduction Incentive after serving eighteen months
pursuant to 61 Pa.C.S. §§ 4501-4512. N.T., 5/11/17, at 21-22.

                                          - 10 -
J-S12011-20


(Pa. Super. 2000) (finding no abuse of discretion in the trial court revoking

the appellant’s probation and imposing the statutory maximum sentence of

five to twenty years imprisonment based upon technical violations, where the

record revealed the trial court’s “in-depth knowledge of this individual, that

parole and probation were ineffective in rehabilitating [the appellant], and that

further incarceration of this degree was appropriate”). Accordingly, we affirm

Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/20




                                     - 11 -
