J-S74013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERIC JONES                                 :
                                               :
                       Appellant               :   No. 103 EDA 2018

            Appeal from the Judgment of Sentence December 1, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0006510-2012


BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY LAZARUS, J.:                          FILED DECEMBER 14, 2018

        Eric Jones appeals from his judgment of sentence, entered in the Court

of Common Pleas of Philadelphia County, following the revocation of his

probation. After careful review, we affirm.

        On October 12, 2012, Jones was convicted, after a bench trial,1 of

possession with intent to deliver2 and possession of a controlled substance.3

He was sentenced to 10-20 months’ imprisonment, with immediate parole to

an inpatient treatment facility to address his opiate addiction, followed by



____________________________________________


1Because the trial judge, the Honorable Carolyn Nichols, is no longer sitting
on the Philadelphia County Court of Common Pleas bench, no Pa.R.A.P.
1925(a) opinion has been prepared for purposes of this appeal.

2   35 P.S. § 780-113(a)(30).

3   35 P.S. § 780-113(a)(16).
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three years of probation. On June 21, 2013, Jones was granted early parole

to a treatment facility. Jones completed two months of inpatient treatment in

June 2014, and began working at a local ironworkers’ union. Jones failed to

report to his probation officer from June to October 2014. In October 2014,

Jones reported to his probation officer for four visits, after which he failed to

report again on February 5, 2015. Jones subsequently reported thirteen days

late, on February 18, 2015, and again on March 18, 2015; he absconded until

May 22, 2015. Jones ultimately informed his probation officer that he had

relapsed with drug use and, in July 2015, Jones was admitted to inpatient

treatment at the Kirkbride Center in University City. Jones was discharged

from Kirkbride on September 22, 2015, for distributing benzodiazepines.

       Between April and October 2015, Jones was arrested, charged, and

found guilty of multiple counts of criminal trespass.    On October 30, 2015,

the court found Jones in violation of his probation, revoked his probation, and

resentenced him to 11½-20 months’ imprisonment, with immediate parole to

an inpatient treatment program, followed by three years of probation.

       At his most recent Gagnon II4 hearing, the Commonwealth presented

evidence that Jones had stopped reporting to the probation department on

____________________________________________


4 Gagnon v Scarpelli, 411 U.S. 778 (1973). A Gagnon II hearing entails a
consideration of whether the facts determined warrant revocation and whether
the probationer has, in fact, acted in violation of one or more conditions of his
probation.




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November 12, 2016,5 and was finally arrested in July 2017 on the instant

violation. Jones’ attorney stated at the hearing that his client had successfully

completed inpatient treatment at the Kirkbride Center in March 2016.

However, when Jones was released from Kirkbride and began outpatient

treatment, he became homeless.6            At that point, he relapsed and stopped

reporting to his probation officer. Jones’ probation officer recommended that

his probation be revoked. N.T. Probation Revocation Hearing, 12/1/17, at 11.

Defense counsel recommended probation and court-ordered drug treatment.

Id. at 13. Ultimately, the court concluded that a state sentence of 1-2 years’

incarceration, with a probationary tail and court-ordered drug treatment, was

appropriate, stating:

       [W]hat I’ve been getting in response to my giving [Jones] a break
       is nothing but more arrests. Minor arrests, albeit. Minor. You
       know, criminal trespass, but over eight, over a period of the time
       that he’s been under my supervision, in addition to disappearing
       for almost a year. You know, I know he’s had his ups and downs,
       but he’s been in three facilities now, Kirkbride, Wedge, and NET.
       So the help has been given. It’s been given.

       And the last time he was here, we still didn’t give him a state
       sentence when he violated last time. We gave him another
       opportunity the last time that he was here on 10/30/15 with six
       criminal trespass, albeit summaries, but six arrests under my
       supervision. But even then, I gave him county, 11 and a half to
       23 months, immediate parole to inpatient treatment. We kept
       trying. So that was two times that we tried, the original sentence,
____________________________________________


5Jones had actually stopped reporting to his probation officer as early as April
2016, however when he voluntarily contacted his probation officer in June
2016, wanted cards for Jones were removed.

6Jones was arrested multiple times for criminal trespass in April 2016 and
was separately convicted of those offenses in May and June 2016.

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       where the Commonwealth was at two to four, and then at the
       violation I gave him county, and now here we are again and I’m
       reward[ed] with absconding. He’s disappearing, flat out, period.

       So that shows me that after all of this energy since 2012, and look
       at this, this is what I’m getting this is what I get, and we’re right
       back here again. Mr. Jones has demonstrated that he is not a
       candidate for probation. He’s, certainly, not a candidate for house
       arrest, because we would surely be back here with equipment. If
       he can’t even follow without the monitor, I can imagine what
       would happen with the monitor. So that’s not going to happen.

       So, the defendant is in technical violation of his probation for the
       absconding and the arrests. And the criminal trespass matters
       are summaries, and summaries are not considered direct
       violations. So although they’re arrests, he pled guilty, but, you
       know, they’re not considered direct violations, so we understand
       that. So certainly, the defendant is in technical violation of his
       probation from absconding from October of 2016 through July of
       2017.

       So this time I’m going to do something a little different. We tried
       county sentences twice, and it didn’t work. So this time I’m going
       to sentence to a state sentence of one to two years of state
       incarceration, plus three years of reporting probation. Now, if that
       doesn’t work, then we’re going to go deeper into the state system,
       because I’ve tried and we’re just not getting anywhere. You’ve
       been to three treatment facilities, two county sentences and
       getting nowhere.

N.T. Probation Revocation Hearing, 12/1/17, at 17-20.

       On December 11, 2017, Jones filed a timely petition to vacate and to

reconsider his sentence.7 On December 26, 2017, he filed a timely notice of


____________________________________________


7 The record does not indicate that the trial judge disposed of the post-
sentence motion, presumably because she left the bench in 2017 following
her election to the Pennsylvania Superior Court. However, pursuant to
Pa.R.Crim.P. 720:




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appeal and Rule 1925(b) concise statement of errors complained of on appeal.

Jones presents one issue for our review:         “Does not a sentence of 1 to 2

years[’] total confinement, imposed by the revocation court for a technical

violation of probation, represent an abuse of discretion and violate the

Sentencing Code in that it did not consider [Jones’] rehabilitative needs and

was not essential to vindicate the authority of the court?” Appellant’s Brief,

at 3.

        Jones contends that the court imposed a disproportionate revocation

sentence where his sole technical violation was for non-reporting and where

total confinement does not support his rehabilitative needs as a recovering

drug addict. His claim implicates the discretionary aspects of his sentence.

        The right to appellate review of the discretionary aspects of a sentence

is not absolute, and must be considered a petition for permission to appeal.

See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super.


____________________________________________


        The judge shall not vacate sentence pending decision on the post-
        sentence motion, but shall decide the motion as provided in this
        paragraph.

        (a)   Except as provided in paragraph (B)(3)(b), the judge shall
              decide   the   post-sentence   motion,    including   any
              supplemental motion, within 120 days of the filing of the
              motion. If the judge fails to decide the motion within
              120 days, or to grant an extension as provided in
              paragraph (B)(3)(b), the motion shall be deemed
              denied by operation of law.

Pa.R.Crim.P. 720(B)(3)(a) (emphasis added).


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2014). An appellant must satisfy the following four-part test to invoke this

Court’s jurisdiction when challenging the discretionary aspects of a sentence:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of
      his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
      raises a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted).

      Instantly, Jones preserved this issue by raising it in his timely petition

to vacate and reconsider sentence and by filing a timely notice of appeal.

Jones has also included a separate Pa.R.A.P. 2119(f) concise statement in his

brief. Next, we must assess whether Jones has raised a substantial question

to invoke our review. We conclude he has. See Commonwealth v. Colon,

102 A.3d 1033 (Pa. Super. 2014) (defendant’s claim that trial court sentenced

him to term of total confinement based solely on technical violation raises

substantial question for our review); Commonwealth v. Crump, 995 A.2d

1280, 1282 (Pa. Super. 2010) (“The imposition of a sentence of total

confinement after the revocation of probation for a technical violation, and not

a new criminal offense, implicates the ‘fundamental norms which underlie the

sentencing process.’”) (citation omitted).

      The “[r]evocation 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.”



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Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007). The

scope of review in an appeal following a sentence imposed after probation

revocation is limited to the validity of the revocation proceedings and the

legality of the sentence imposed following revocation. Commonwealth v.

Infante, 888 A.2d 738 (Pa. 2005).8 Moreover,

       [w]hen assessing whether to revoke probation, the trial court
       must balance the interests of society in preventing future criminal
       conduct by the defendant against the possibility of rehabilitating
       the defendant outside of prison. In order to uphold a revocation
       of probation, the Commonwealth must show by a preponderance
       of the evidence that a defendant violated his probation.

Commonwealth v. Simmons, 56 A.3d 1280, 1283-84 (Pa. Super. 2012)

(citation omitted).

       “[T]he reason for revocation of probation need not necessarily be the

commission of or conviction for subsequent criminal conduct.            Rather, this

Court has repeatedly acknowledged the very broad standard that sentencing

courts must use in determining whether probation has been violated[.]”

Commonwealth v. Ortega, 995 A.2d 879, 886 (Pa. Super. 2010) (citations

and internal quotations omitted).              “A probation violation is established

whenever it is shown that the conduct of the probationer indicates the

probation has proven to have been an ineffective vehicle to accomplish

rehabilitation and not sufficient to deter against future antisocial conduct.”

Id.
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8 Since Jones was sentenced following the revocation of probation, the
Sentencing Guidelines do not apply to his sentence. See 204 Pa. Code §
303.1(b).

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      Once probation has been revoked, a sentence of total confinement may

only 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.A. § 9771(c).

      Despite what Jones argues on appeal, the record demonstrates that the

trial court was fully aware of, and considered, his rehabilitative needs,

including his drug addiction, and county-versus-state sentencing options. This

case is a perfect example of one in which “probation has proven to have been

an ineffective vehicle to accomplish rehabilitation and [is] not sufficient to

deter against future antisocial conduct.” Ortega, supra. Simply put, the trial

court had run out of options and believed that the state system was the only

viable recourse for Jones.   While Jones sadly has a deep-rooted addiction

problem, albeit as a result of taking painkillers following a back surgery in

2000, he has been unable to rehabilitate himself on probation despite the

many chances given to him by the court over the past six years.              N.T.

Probation Revocation Hearing, 12/1/17, at 17-18 (“You have a rape conviction

in 1985, sexual assault in 2006.     He’s been arrested 16 times with eight

convictions. . . . Multicounty violator, Montgomery County, Chester County,

with assaults, thefts, indecent assaults, possession of an instrument of crime



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charges, all over the place, and that’s why the Commonwealth was where it

was back in 2012. . . . I gave him a county sentence of 10 to 20 months,

plus probation, and gave him the opportunity to get into FIR and clean up

himself.”).   Accordingly, we conclude that the court’s probation revocation

sentence is not an abuse of discretion where the court “balance[d] the

interests of society in preventing future criminal conduct by [Jones] against

the possibility of rehabilitating [him] outside of prison.” Simmons, 56 A.3d

at 1284; see Colon, supra (where attempted rehabilitation for substance

abuse problems repeatedly failed, state-time probation revocation sentence

not abuse of discretion where record, as whole, reflects sentencing court’s

consideration of facts of crime and character of offender).

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/18




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