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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    CHRISTOPHER LEE YOST,                      :
                                               :
                       Appellant               :       No. 598 MDA 2018

             Appeal from the Judgment of Sentence March 9, 2018
                  in the Court of Common Pleas of Lancaster
          County Criminal Division at No(s): CP-36-CR-0000791-1996

BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED OCTOBER 31, 2018

        Christopher Lee Yost (“Yost”) appeals from the judgment of sentence

imposed following the revocation of his probation. We affirm.

        Between June and December 1995, when Yost was 42 years old, he

performed various sexual acts with the seven-year-old victim. In 1996, Yost

entered an open guilty plea to involuntary deviate sexual intercourse, indecent

assault, corruption of minors, and indecent exposure.1          The trial court

sentenced Yost to an aggregate sentence of 6-20 years in prison, followed by

15 years of probation. After serving his maximum prison sentence, Yost was

released from prison in June 2016, and began serving his probation.           On




____________________________________________


1   18 Pa.C.S.A. §§ 3123, 3126(a)(7), 6301(a), and 3127(a).
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December      14,   2017,    Yost’s    probation   was   revoked   after   Yost   was

unsuccessfully discharged from a sexual offender treatment program.2

       The trial court deferred sentencing, and ordered a Presentence

Investigation Report (“PSI”). On March 9, 2018, the trial court sentenced Yost

to 7½-15 years in prison. Yost filed a Post-Sentence Motion on March 20,

2018,3 which the trial court denied on March 26, 2018. On April 9, 2018, Yost

filed a timely Notice of Appeal4 and a court-ordered Pa.R.A.P. 1925(b) Concise

Statement.

       On appeal, Yost raises the following issue:

       Was the trial court’s aggregate sentence of [7½-15 years in
       prison] for a technical violation of probation so manifestly
       excessive as to constitute too severe a punishment, unreasonable
       under the circumstances of this case, inconsistent with the
       rehabilitative needs of [Yost], and therefore, an abuse of
       discretion?

Brief for Appellant at 4.

____________________________________________


2 Prior to having his probation revoked, Yost had been evicted from the senior
living center at which he had been residing.

3  The Sentencing Order was not served until March 16, 2018.             See
Pa.R.Crim.P. 114(C)(2)(c) (noting that the docket shall include “the date of
service of the order[.]”). Thus, we will consider Yost’s Post-Sentence Motion
to be timely filed.

4We acknowledge that the filing of a post-sentence motion following the entry
of a probation revocation sentence does not toll the time to file a notice of
appeal. See Pa.R.Crim.P. 708(E) (stating that “[a] motion to modify a
sentence imposed after a revocation shall be filed within 10 days of the date
of imposition. The filing of a motion to modify sentence will not toll the 30-
day appeal period.”). Here, even if we consider the sentence to be imposed
on March 9, 2018, Yost filed a timely Notice of Appeal, as 30 days after March
9, 2018, was Sunday, April 8, 2019. See 1 Pa.C.S.A. § 1908.

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     Yost challenges the discretionary aspects of his sentence.

     “[T]here is no absolute right to appeal when challenging the
     discretionary aspect of a sentence.” Commonwealth v. Ahmad,
     961 A.2d 884, 886 (Pa. Super. 2008). An appellant must first
     satisfy a four-part test to invoke this Court’s jurisdiction. We
     examine

            (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).

Commonwealth v. Schrader, 141 A.3d 558, 563 (Pa. Super. 2016) (citation

omitted).

     The determination of what constitutes a substantial question must
     be evaluated on a case-by-case basis. A substantial question
     exists 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. Hyland, 875 A.2d 1175, 1183 (Pa. Super. 2005) (citation

and quotation omitted).

     Here, Yost filed a timely Notice of Appeal, preserved the challenge to his

sentence in his Post-Sentence Motion, and his brief contains the requisite

Pa.R.A.P. 2119(f) Statement. Moreover, Yost’s claim, i.e., that his sentence

of total confinement in response to a technical violation of probation is

manifestly excessive, raises a substantial question. See Commonwealth v.



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Sierra, 752 A.2d 910, 913 (Pa. Super. 2000) (stating that a substantial

question is presented when a technical probation violation results in a

revocation sentence of total confinement).       Thus, we will address Yost’s

sentencing claims.

      The trial court is vested with sound discretion in imposing a sentence

following a probation revocation.     Id. at 913.    The sentence will not be

disturbed on appeal, absent an abuse of that discretion. Id. On review, we

determine the validity of the 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.    42 Pa.C.S.A. § 9771(b); Commonwealth v.

Raphael, 879 A.2d 1264, 1266 (Pa. Super. 2005). When imposing a sentence

of total confinement after a probation revocation, the sentencing court must

consider the factors set forth in sections 9771(c) and 9721(b) of the

Sentencing Code. Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa.

Super. 2006); see also 42 Pa.C.S.A. § 9721(b) (providing that when

determining an appropriate sentence, the court must consider the protection

of the public, the gravity of the offense in relation to the impact on the victim

and the community, and the rehabilitative needs of the offender).

      Section 9771(c) provides as follows:

      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




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      (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). Following a revocation of probation, a trial court need

not undertake a lengthy discourse for its reasons for imposing a sentence of

total confinement, but the record as a whole must reflect the court’s

consideration of the facts of the crime and character of the offender.

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010).

      Yost argues that the trial court imposed a manifestly excessive sentence

where this was his first probation violation and the violation itself was merely

technical. Brief for Appellant at 10, 12. Yost claims that the trial court failed

to adequately consider his needs for rehabilitation, advanced age (64 years

old), and failing health. Id. at 12-13; see also id. at 13 (contending that the

sentence could turn into a life sentence). Yost also asserts that the sentencing

court did not meet the requirements of 42 Pa.C.S.A. § 9771(c) when it

imposed a sentence of total confinement after his probation revocation. Id.

at 13-14.

      Here, the record reflects that the trial court expressly considered the

PSI, Yost’s age, education, work history, military service, criminal history,

including the gravity of the original offenses, and Yost’s rehabilitative needs.

See N.T., 3/9/18, at 13, 15-19. Our review discloses that the trial court also

considered the nature of Yost’s probation violation. Id. at 14-15. The trial


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court relied upon Yost’s therapist’s testimony that Yost had threatened her,

stated that he was wrongfully convicted, and admitted to placing himself in a

high-risk situation by having deviant sexual thoughts for minors and going to

the mall. Id. at 15; see also id. at 14-15 (wherein the trial court considered

the treatment program discharge summary that stated Yost was exhibiting

risk factors related to recidivism and demonstrating sexual interest in pre-

pubescent minors).     The trial court referenced Yost’s probation officer’s

testimony that Yost had an extremely difficult time adjusting to community

supervision, id. at 19, and had been evicted from the senior living center for

“belligerent and threatening behavior[.]”     Id. at 18; see also id. at 19

(wherein the probation officer stated that he believed a state prison term was

appropriate in light of the circumstances). The trial court additionally pointed

out Yost’s “consistently evasive, belligerent and verbally abusive” behavior in

the treatment program, including his deceptive behavior on the sexual history

polygraph exam, and his refusal to take future polygraph tests. Id. at 19.

      Finally, the trial court considered Yost’s statement regarding the

likelihood that he would harm another child. See id. at 9 (wherein Yost stated

that “every so often, you know what I mean, I might have a wrong thought

and stuff like that, but it’s nothing like it was years ago.”). The trial court

noted the dearth of evidence that Yost had made any attempt to change his

lifestyle, and determined that Yost had exhibited a “total disregard” for his




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probation and the court. Id. at 17, 20. The trial court concluded that for

Yost, probation was “an ineffective rehabilitation tool.” Id. at 20.

      Based upon this record, the trial court imposed the prison sentence due

to Yost’s unwillingness to complete sex offender counseling, the danger Yost

presents to the community, and the ineffectiveness of probation as a

rehabilitative tool for Yost. Accordingly, the trial court properly exercised its

discretion in imposing the prison sentence. See Commonwealth v. Carver,

923 A.2d 495, 498 (Pa. Super. 2007) (stating that technical probation

violations, where indicative of an inability to reform, can support revocation

and a prison term); Sierra, 752 A.2d at 915 (affirming a sentence of total

confinement where the sentencing court “concluded that probation and parole

were ineffective in rehabilitating [the appellant] and that [the appellant] had

been feigning certain mental problems as a means to manipulate the criminal

justice system.”); see also Commonwealth v. King, 182 A.3d 449, 459 (Pa.

Super. 2018) (stating that “[w]hen a sentencing court is fully informed by the

presentence report, its discretion should not be disturbed.”       (citation and

quotation marks omitted)).




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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2018




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