J-S48011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES MITCHELL JR.                         :
                                               :
                       Appellant               :   No. 534 EDA 2019

        Appeal from the Judgment of Sentence Entered January 18, 2019
     In the Court of Common Pleas of Northampton County Criminal Division
                       at No(s): CP-48-CR-0002752-2015


BEFORE:      BOWES, J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BOWES, J.:                           FILED SEPTEMBER 19, 2019

        James Mitchell, Jr. appeals from the judgment of sentence of twenty-

four to forty-eight months of incarceration, imposed at a resentencing hearing

following revocation of his probation due to technical violations. After careful

review, we affirm.

        On October 29, 2015, Appellant entered a negotiated guilty plea to

possession with intent to deliver heroin. On November 20, 2015, Appellant

was sentenced to a period of eleven months and twenty-nine days to twenty-

three months and twenty-eight days of incarceration, followed by two years

of probation. Appellant was also ordered to pay $2,068.70 in court costs and

fines. No post-sentence motion or direct appeal was filed.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      On March 21, 2017, the Commonwealth filed a petition for review of

parole.   Following a hearing, Appellant was made eligible for parole to an

inpatient treatment facility, ordered to undergo a psychological evaluation,

and directed to apply for the Northampton County Drug Court. Appellant was

admitted into the drug court program on June 1, 2017.

      Six months later, Appellant was removed from the program for

noncompliance. As a result, the Commonwealth filed a petition for review of

parole and probation. After a hearing, the sentencing court found Appellant

to be a parole violator, and directed Appellant to serve the balance of his

sentence, followed by a consecutive twenty-four month period of probation.

      On August 30, 2018, Appellant pled guilty in another case to possession

of drug paraphernalia and was sentenced to twelve months of probation

consecutive to the sentence already imposed at this case. As a result of the

new conviction and Appellant’s related failure to remain drug free, submit to

urine screens, and obtain a drug and alcohol evaluation, the Commonwealth

filed a petition for review of probation. See N.T. Probation Violation Hearing,

1/18/19, at 3.

      At a hearing before the sentencing court on January 18, 2019,

Appellant’s probation officer testified that Appellant owed more than the

original balance of costs, had failed to maintain a verifiable address, and had

not shown up for an office visit since August 30, 2018. Based upon Appellant’s

history of violations, the exhaustion of county funding and treatment options,

and his drug use, the probation officer recommended that Appellant’s

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probation be revoked and that he be sentenced to serve thirty-six to seventy-

two months of incarceration. Id. at 4-5. Appellant admitted to violating the

terms of his probation and to having a drug addiction. Id. at 6-8. He also

explained that he had recently been diagnosed and commenced treatment for

bipolar disorder, schizophrenia, and anxiety conditions.      Id.   Appellant’s

counsel asked for a continuance so that she could assist him in applying to

the mental health court program. Id. at 9. This request was denied.

      The sentencing court considered Appellant’s testimony about his mental

health diagnoses, the argument of counsel on his behalf, and the probation

office recommendation before finding Appellant to be a probation violator and

revoking his probation. Id. at 12. The court resentenced Appellant to twenty-

four to forty-eight months of incarceration and found him to be eligible for the

Recidivism Risk Reduction Incentive program. Id.

      No post-sentence motion was filed. Appellant filed a timely notice of

appeal and the court ordered him to file a Pa.R.A.P. 1925(b) concise statement

of errors complained of on appeal. The resentencing court filed a Pa.R.A.P.

1925(a) statement.

      Appellant raises the following issues for our review:

      1. Did the [t]rial [c]ourt err when it imposed a sentence upon
      [Appellant] which violated 42 Pa.C.S. § 9771(c) insofar as the
      sentence of total confinement for technical violations was imposed
      where there was no conviction for another crime, no likelihood
      that [Appellant] would commit another crime, and the long period
      of incarceration was not necessary to vindicate the authority of
      the court?



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      2. Did the[t]rial [c]ourt err when it imposed a sentence that was
      manifestly excessive or inconsistent with the Pennsylvania
      Sentence Code insofar as the [c]ourt failed to consider mitigating
      evidence that [Appellant] presented?

      3. Did the [t]rial [c]ourt err when it denied [Appellant’s] oral
      motion for continuance to allow defense counsel time to
      investigate [Appellant’s] new mental health diagnosis and to allow
      defense counsel to inquire into possible sentencing alternatives in
      light of same; and further, where defense counsel did not have
      sufficient time to properly investigate [Appellant’s] objections to
      the alleged technical violations and prepare a defense to same,
      and/or to present evidence in support of the objections raised on
      behalf of [Appellant]?

      Appellant’s first two issues challenge the discretionary aspects of the

trial court’s sentence. We do not review such issues as a matter of right. “An

appellant must satisfy a four-part test to invoke this Court’s jurisdiction when

challenging the discretionary aspects of a sentence.”     Commonwealth v.

Buterbaugh, 91 A.3d 1247, 1265 (Pa.Super. 2014). Specifically, Appellant

must show that he (1) preserved the issue either by raising it at the time of

sentencing or in a post-sentence motion; (2) filed a timely notice of appeal;

(3) set forth a concise statement of reasons relied upon for the allowance of

his appeal in his appellate brief pursuant to Pa.R.A.P. 2119(f); and (4) that he

raised a substantial question for our review. Commonwealth v. Baker, 72

A.3d 652, 662 (Pa.Super. 2013).

      Our review of the record reveals that although Appellant raised all of the

arguments he now seeks for us to review in support of his discretionary

aspects of sentencing claims in his Rule 1925(b) statement, he failed to do so

at the sentencing hearing or in a post-sentence motion. As Appellant failed

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to preserve any of his arguments in support of his discretionary aspects of

sentencing claims, they are not subject to our review. Commonwealth v.

Rush, 959 A.2d 945, 949 (Pa.Super. 2008) (“[f]or any claim that was required

to be preserved, this Court cannot review a legal theory in support of that

claim unless that particular legal theory was presented to the trial court[.]”).

Accordingly, Appellant’s first two claims are waived.

      In his third claim, Appellant alleges that the sentencing court erred when

it failed to postpone his sentencing hearing. We will reverse a trial court’s

denial of a motion for continuance only upon a showing of an abuse of

discretion. Commonwealth v. McAleer, 748 A.2d 670, 673 (Pa. 2000). An

abuse of discretion is not merely an error of judgment, but rather is a

manifestly unreasonable judgement, a result of prejudice, bias or ill-will, or a

misapplication of the law. Id. Further, an appellate court will not find an

abuse of discretion if the denial of the continuance did not prejudice the

appellant.   Commonwealth v. Petterson, 49 A.3d 903, 914 (Pa.Super.

2012) (citing Commonwealth v. McKelvie, 370 A.2d 1155 (Pa. 1977)).

      Counsel sought a continuance to enable Appellant to apply for the

mental health court, and also to permit counsel to investigate Appellant’s

recent mental health diagnoses further.      The Commonwealth objected to

Appellant’s request, pointing out that continuances for further investigation

on these grounds would be futile for several reasons. The Commonwealth

noted that Appellant had already been removed from one of the county’s


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diversionary programs, the county had run out of resources it could deploy in

order to help Appellant, and this probation revocation hearing was Appellant’s

third. The sentencing court agreed, denying Appellant’s request because he

had already been discharged from the drug court program, had a long history

of noncompliance with probation, and the court did not think that the mental

health court program could adequately address Appellant’s needs.         N.T.

Probation Violation Hearing, 1/18/19, at 10. The court expressed its concern

that Appellant “needs comprehensive treatment right here, right now. I don’t

think he needs application.” Id. at 12.

      Upon review of the court’s reasoning for denying the continuance, we

find no abuse of discretion. The sentencing court listened to the arguments

put forth by counsel, Appellant’s own testimony, and demonstrated that it was

familiar with Appellant and well-versed in Appellant’s needs.        Notably,

Appellant has not asserted how the court’s denial of his request for a

continuance prejudiced him. Thus, we conclude that the sentencing court’s

denial of Appellant’s continuance request was not manifestly unreasonable,

and therefore, not an abuse of its considerable discretion.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/19




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