J-S32039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                      v.

STEVEN A. DONTON

                           Appellant                   No. 2509 EDA 2015


              Appeal from the Judgment of Sentence June 29, 2015
     in the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0012644-2002

BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED JUNE 20, 2017

        Appellant, Steven A. Donton, appeals from the judgment of sentence

entered in the Montgomery County Court of Common Pleas following the

revocation of his probation.           Appellant contends the court abused its

discretion when imposing a sentence that was manifestly harsh and

excessive. We affirm.

        We adopt the recitation of the procedural history relevant to this

appeal as stated by the trial court.

           At a Gagnon[1] hearing on March 4, 2015,[2] the [c]ourt
           found that [Appellant] knowingly, intelligently and

*
    Former Justice specially assigned to the Superior Court.
1
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).
2
  In the March 4, 2015 order, the trial court recommended that Appellant be
imprisoned at SCI—Chester. Appellant’s Brief at 6. We note that this order
was not in the record transmitted to this Court. However, the accuracy of
the document is not disputed, therefore we can consider it.            See
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           voluntarily stipulated that he was in violation of the terms
           of his probation.[3]     On June 29, 2015, the [c]ourt
           sentenced Appellant to a two (2) to five (5) year term of
           imprisonment at SCI─ Graterford.[4] On July 15, 2015,
           Appellant filed a timely notice of appeal. By Order dated
           August 18, 2015, and filed on August 19, 2015, the [c]ourt
           directed Appellant to file a Concise Statement of Matters
           Complained of on Appeal (“Concise Statement”) within
           twenty-one (21) days from the date of the docket of the
           Order, pursuant to Pennsylvania Rule of Appellate
           Procedure 1925(b), and to serve a copy of the same upon
           this [c]ourt. The [c]ourt mistakenly mailed the Order to
           Montgomery County Correctional Facility and received a
           “return to sender/unclaimed notice” from the postal
           service on August 25, 2015. That same date, the [c]ourt
           sent another copy of the Order directing Appellant to file a
           Concise Statement via certified mail to SCI─Graterford. A
           representative at SCI─Graterford signed the green return
           receipt on August 27, 2015.

Trial Court Op., 9/25/15, at 1-2 (footnote omitted).5 As of the date of the

filing of the trial court opinion, the court had not received Appellant’s Rule




Commonwealth v. Barnett, 121 A.3d 534, 545 n.3 (Pa. Super. 2015),
appeal denied, 128 A.3d 1204 (Pa. 2015).
3
  See N.T., 6/29/15, at 11. The certified record transmitted on appeal did
not initially include the June 29th notes of testimony from the sentencing
hearing. Upon informal inquiry by this Court, the trial court provided the
transcript. We remind Counsel the appellant bears the burden of “ensur[ing]
that the record certified on appeal is complete in the sense that it contains
all of the materials necessary for the reviewing court to perform its duty.”
Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008) (en banc)
(citations omitted).
4
  See Commonwealth v. Kalichak, 943 A.2d 285, 290 (Pa. Super. 2008)
(holding that the revocation of probation involves the imposition of a new
sentence).
5
    The trial court noted:



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1925(b) statement. The trial court found that Appellant waived the issues

raised on appeal for failing to file a Rule 1925(b) statement. Id. at 2.

         On December 3, 2015, the appeal was dismissed for failure to file a

brief.     On December 10, 2015, this Court vacated the December 3rd

dismissal order and reinstated the appeal. On February 9, 2016, this Court

ordered the trial court to “resolve Appellant’s representation status . . . .”

On April 21, 2016, counsel was appointed and ordered to file an amended

Rule 1925(b) statement.       On May 6, 2016, counsel filed a Rule 1925(b)

statement.6

         Appellant raises the following issue on appeal: “The sentence imposed

was manifestly too harsh and excessive under the unique fact and

circumstances of this case.” Appellant’s Brief at 7. Appellant contends that

“[t]he trial court’s judgment of sentence plainly reflects that the excessive

           Although the record indicates that Appellant filed his notice
           of appeal on August 17, 2015, the Clerk of Courts informed
           the [c]ourt that, due to a clerical error, they had
           Appellant’s notice of appeal in their possession for over a
           month and failed to file it. Therefore, the [c]ourt has
           utilized the date listed on Appellant’s notice of appeal for
           the purposes of this analysis.

Trial Ct. Op. at 1 n.1.
6
  The trial court did not file a Pa.R.A.P. 1925(a) opinion in response to the
amended Rule 1925(b) statement. However, we need not remand for a Rule
1925(a) opinion. See Commonwealth v. Hood, 872 A.2d 175, 178 (Pa.
Super. 2005) (holding trial court failed to file an opinion, but remand was
unnecessary because Superior Court was able to discern the trial court’s
reasoning from a review of the trial transcript).




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sentence received was the result of the trial judge’s partiality, prejudice,

bias, and ill-will towards drug addiction.” Id. at 16. Appellant argues

         that the legislature could not have envisioned a defendant
         suffering with a drug addiction illness receiving a sentence
         of total confinement for a positive urine where (1) he has
         no new convictions, (2) is not likely to commit another
         crime and (3) such a sentence would not vindicate the
         authority of the court.        First, [A]ppellant has not
         committed another crime. Second, mere drug usage is not
         an indication that a defendant will commit another crime,
         otherwise we should incarcerate every defendant with a
         positive urine. Third, [A]ppellant’s unfocused employment
         record does not implicate the authority of the court.

Id. at 21. In support, Appellant relies on Commonwealth v. Cottle, 426

A.2d 598 (Pa. 1981).    Id. at 25.   Notably, Appellant does not specifically

challenge the length of the sentence imposed, but focuses on the decision of

the trial court to impose a sentence of total imprisonment. See id. at 16.

      This Court has stated that

         discretionary aspects of [an appellant’s] sentence [ ] are
         not appealable as of right.            Rather, an appellant
         challenging the sentencing court’s discretion must invoke
         this Court’s jurisdiction by satisfying a four-part test.

               We 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 motion
            to reconsider and modify sentence, see Pa.R.Crim.P.
            720; (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).




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Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some

citations omitted).

      Instantly, Appellant timely filed this appeal, preserved the issue of an

excessive sentence at sentencing, and included a statement in his brief

which conforms with Pa.R.A.P. 2119(f).             See Appellant’s Brief at 16-18.

Although Appellant did not file a post-sentence motion, he raised the claim

during the sentencing proceedings.        See N.T. at 11-12.       Accordingly, we

ascertain whether Appellant has raised a substantial question.                 See

Leatherby, 116 A.3d at 83.

      “An argument that the trial court imposed an excessive sentence to

technical      probation    violations    raises      a    substantial   question.”

Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa. Super. 2012) (citation

omitted).     “Additionally, a substantial question that the sentence was not

appropriate under the Sentencing Code may occur even where a sentence is

within the statutory limits.”    Commonwealth v. Crump, 995 A.2d 1280,

1282 (Pa. Super. 2010) (citation omitted). We therefore find Appellant has

raised a substantial question. Schutzues, 54 A.3d at 98; Crump, 995 A.2d

at 1282.

      We consider the relevant standard of review:

            [A] trial court has broad discretion in sentencing a
            defendant, and concomitantly, the appellate courts utilize a
            deferential standard of appellate review in determining
            whether the trial court abused its discretion . . . .

                                    *     *    *


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       At initial sentencing, all of the rules and procedures [for a
       court’s] discretionary sentencing authority [apply].
       However, it is a different matter when a defendant
       reappears before the court for sentencing proceedings
       following a violation of the mercy bestowed upon him in
       the form of a probationary sentence. For example, . . .
       contrary to when an initial sentence is imposed, the
       Sentencing Guidelines do not apply, and the revocation
       court is not cabined by Section 9721(b)’s requirement 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.” 42 Pa.C.S. § 9721.

           Upon revoking probation, “the sentencing alternatives
       available to the court shall be the same as were available
       at the time of initial sentencing, due consideration being
       given to the time spent serving the order of probation.”
       42 Pa.C.S. § 9771(b). Thus, upon revoking probation, the
       trial court is limited only by the maximum sentence that it
       could have imposed originally at the time of the
       probationary sentence, although once probation has been
       revoked, the court shall not impose a sentence of total
       confinement 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.

       42 Pa.C.S. § 9771(c).




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Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014) (some

citations omitted).7

      In Commonwealth v. Ortega, 995 A.2d 879 (Pa. Super. 2010), this

Court opined:


7
  At the March 8, 2011, Gagnon II hearing for a prior violation of his
probation, Appellant entered an open guilty plea to a new offense. He
testified, inter alia, as follows:

         [Defense Counsel]: Do you understand that you were on
         probation here in Montgomery County for a felony of the
         third degree, criminal conspiracy to retail theft?

         [Appellant]: Yes.

         Q: You received a five-year probation. Do you understand
         that?

         A: Yes, sir.

         Q: As a felony of the third degree, you could receive a
         maximum of up to seven years[’] incarceration, do you
         understand that?

         A: Yes, sir.

         Q: The other sentence was a misdemeanor theft and you
         served time─you received a time served to 23 month with
         a one-year consecutive probation, correct?

         A: Yes, sir.

         Q: Now, at a sentencing hearing, His Honor could run
         those sentences consecutively, do you understand that?

         A: Yes, sir.

N.T., 3/8/11, at 12-13.




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        [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:

              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.

        Commonwealth v. Infante, [ ] 888 A.2d 783, 791 ([Pa.]
        2005). Moreover, the Commonwealth need only make this
        showing by a preponderance of the evidence.

Id. at 886 (some citations and footnote omitted).

     “A trial court does not necessarily abuse its discretion in imposing a

seemingly harsh post-revocation sentence where the defendant originally

received a lenient sentence and then failed to adhere the conditions imposed

on him.” Schutzues, 54 A.3d at 99 (citation omitted).

     In Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super. 2000), this

Court opined:

           Although the offenses that triggered the parole and
        probation revocation—Sierra’s failure to keep parole
        appointments—were not assaultive or independently
        criminal, technical violations are sufficient to trigger the
        revocation of probation. See, e.g., Commonwealth v.
        Edwards, 450 A.2d 15 (Pa. Super. 1982) (probation
        revoked for failure to report to probation officer and attend
        community mental health facility for outpatient treatment).

Id. at 912.

     Moreover, it is well-established that



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         [w]hile a convicted individual has no constitutional or other
         inherent right to serve his imprisonment in any particular
         institution or type of institution, a court should consider
         the differences between the state and county prison
         environment in choosing to sentence an individual to a
         state rather than a county facility.

Commonwealth v. Stalnaker, 545 A.2d 886, 889 (Pa. Super. 1988)

(citation omitted).

      In the instant case, at sentencing, the court stated:

            When we were last together, your attorney had told me
         about your methamphetamine problems, and while you
         accepted responsibility and admitted to your probation
         violation, I wanted to get some background on you and
         had a Mental Health and Drug Evaluation conducted. I
         have had the opportunity to review your Evaluation and
         have given a copy to both the Commonwealth, your
         Probation Officer and your Attorney who have each had the
         opportunity to review it . . . .

N.T., 6/29/15, at 4. The court opined:

         . . . on page three [of the Evaluation] it says, you report
         that you don’t have any goals for your life. “It’s sad. I try
         to think of goals, but my mind changes and wanders all
         the time. One day I want to be an artist, one day I want
         to do something else, I’m good at a lot of things, but I lose
         interest.”

            Now, sir, when I read that, coupled with the mental
         health eval[uation] that was done, and your significant
         history with methamphetamine, it makes sense why you
         can’t focus on any goals. But you have a choice right now,
         you either take the goal that I am going to give you, of
         focusing on getting yourself clean. You are incarcerated
         now.     I should hope you will not have access to
         methamphetamine or anything else. . . . We are going to
         give you the opportunity to rehabilitate yourself and get off
         drugs. But at the end of the day it’s your choice.

            I am going to give you a sentence that enables you to


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         do that. That sentence, rehabilitation will not be possible
         in a meaningful way in the County prison.[8] You need
         intense, mental health and drug rehabilitation.

                                  *     *      *

            When you got your G.E.D. in prison, you were the
         valedictorian of your class when you got your G.E.D. That
         means you are intelligent enough to make positive
         changes in your life. . . . You need to take this as your
         goal for the time you’re in State Prison, and get clean.

            And then after that, I’ve already spoken with your
         Probation Officer when we conferenced, he is willing to
         help you get on the right track. And I believe the right
         track is, you don’t go back to the same community where
         you lived before. You don’t go back to the same people
         where you hung out with [sic] and did your drugs. You go
         someplace else.

            So if you don’t have a home plan, I have the
         commitment─when it’s time for release─I have the
         commitment from the Probation Department that they will
         help you find a place to be, whether it’s a halfway house,
         whether it’s a contract house, outside of your current
         community if you think you need that, to be able to
         become clean and stay clean.

            It is my goal, sir, for you to come back after you get out
         of prison, and just tell me how great you’re doing, and not
         come back for me to sentence you again.

                                  *     *      *

         . . . I am going to sentence you, for this your fourth
         violation[9]─and this is for not only your hot urine, but your

8
 Counsel for Appellant stated that Appellant was not “asking for a release.”
N.T. at 11. He is requesting “that the court impose a County sentence . . . .”
Id.
9
  Appellant was originally sentenced on November 13, 2002.          See Order,
3/4/15.



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         failure to comply with the Probation Department, for your
         failure to avail yourself of the rehabilitation option with
         Probation, and for your utter disrespect for the system─for
         a period of two to five years in a State Correctional
         Institution.

                                  *     *      *

             You have had an unfortunate childhood. You have had
         a lot of things that went badly for you. But you’re an adult
         now. And it gets to be your choice where you want your
         life to go. You have a long life ahead of you, if you choose
         to try to make it better from this point forward. And you
         have people that are willing and interested to help you, if
         you want to have it happen. If you don’t, you might spend
         the rest of your life where you are because you’ll keep
         having this problem.

Id. at 14-18.

       Instantly, we consider whether the trial court abused its discretion by

imposing a sentence of total confinement following the revocation of

Appellant’s probation.     See Pasture, 107 A.3d at 27-28.          Technical

violations can trigger the revocation of probation. See Sierra, 752 A.2d at

912.    Instantly, the court considered the difference between state and

county prison.    See Stalnaker, 545 A.2d at 889.       The court found that

probation did not satisfy his rehabilitative needs. See Ortega, 995 A.2d at

886.    The court reasoned the sentence was necessary to vindicate the

authority of the court. See Pasture, 107 A.3d at 28. Accordingly, we find

no merit to Appellant’s contention that it was an abuse of discretion to

revoke Appellant’s probation and impose a sentence of total confinement.

See Schutzues, 54 A.3d at 99.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/20/2017




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