J-S69039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

AARON A. POTTS,

                            Appellant                No. 2017 MDA 2015


              Appeal from the Judgment of Sentence July 17, 2015
                in the Court of Common Pleas of Dauphin County
               Criminal Division at No.: CP-22-CR-0004251-2013


BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 14, 2016

        Appellant, Aaron A. Potts, appeals from the judgment of sentence

imposed following revocation of his parole and probation. We affirm.

        The trial court aptly summarized the procedural history of this case as

follows:
           On March 10, 2014, Appellant . . . pled guilty [pursuant to a
        negotiated plea agreement] to one count of corruption of minors,
        a first degree misdemeanor.1      The charges were filed in
        connection with inappropriate behavior of a sexual nature with a
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.[A.] [§] 6301(a)(1)(i). [Appellant] had been charged with three
additional crimes: Unlawful Contact With Minor—Sexual Offense (18
Pa.C.S.[A.] §[]6318(a)(1)), Indecent Assault of Person Less Than 16 Years
of Age (18 Pa.C.S.[A.] §[]3126(a)(8)) and Corruption of Minors—Def. Age
18 or Above (18 Pa.C.S.[A.] §[ 6301(a)(ii)).] The second corruption of
minors charge was dismissed at the preliminary hearing and the remaining
charges were withdrawn at the guilty plea/sentencing hearing.
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       minor child. On that same day, [the] court sentenced him to a
       split sentence, as follows:

              1. Phase One—six (6) to twenty-three (23) months [of]
              incarceration in Dauphin County Prison;

              2. Phase Two—thirty-six            (36)   months   of   probation
              consecutive to Phase One.

       Appellant was made eligible for work release[2] and subject to
       several conditions including: no contact with the victim and her
       family; no contact with minor females under the age of eighteen
       (18); no employment or volunteer work with female children; a
       curfew while on probation; and, a sexual offender evaluation
       [and treatment].     Appellant was ordered to report to the
       Dauphin County Work Release Center on April 10, 2014 by 10:00
       a.m.

             Appellant failed to report on April 10, 2014, so a warrant
       was issued for his arrest.       Law enforcement executed the
       warrant when he was discovered and committed him to the Work
       Release Center. On April 1, 2015, Appellant was paroled and
       commenced his term of probationary supervision. On June 9,
       2015, Dauphin County Adult Probation submitted a request for a
       revocation hearing alleging that Appellant had violated several
       parole rules. Following a revocation hearing on July 17, 2015,
       Appellant’s parole and probation were revoked. Based upon the
       revocation, [the] court sentenced him to a nine (9) month term
       of incarceration which represented the remaining back time on
       Phase One of his original sentence. Phase Two was also revoked
       and he was sentenced to an eighteen (18) to thirty-six (36)
       month term of incarceration consecutive to Phase One. Fourteen
       months of time credit were applied. Appellant was also ordered
       to participate in sex offender treatment and all of the no contact
       and curfew conditions of his original sentence were reimposed.

            A post-sentence motion was filed on July 23, 2015,
       contending that Appellant’s sentence upon revocation was
       excessive and unreasonable as he was sentenced to the
____________________________________________


2
 Work release rules precluded Appellant from possessing a cell phone. (See
N.T. Revocation Hearing, 7/17/15, at 8).



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     maximum punishment allowable for a first degree misdemeanor.
     Upon    consideration  of Appellant’s     motion   and   the
     Commonwealth’s response, [the] court denied relief by order
     dated August 10, 2015.

           On August 19, 2015, Appellant filed a notice of appeal to
     the Pennsylvania Superior Court. The appeal was subsequently
     quashed sua sponte by the Superior Court as the notice of
     appeal had been untimely filed.

            Following remand of the record to the trial court, Appellant
     filed a Post-Conviction Relief Act Petition [See 42 Pa.C.S.A. §§
     9541-9546,] requesting reinstatement of his appeal rights nunc
     pro tunc. The Commonwealth did not oppose his petition and
     upon review, [the] court granted his relief, reinstating his
     appellate rights. Appellant was also told that he had thirty (30)
     days in which to file a notice of appeal should he choose to do
     so. Appellant timely filed a notice of appeal on November 17,
     2015.

          In compliance with [the] court’s order, on November 24,
     2015, Appellant timely filed a concise statement of matters
     complained of on appeal pursuant to Pa.R.A.P. 1925(b)[.] . . .

(Trial Court Opinion, 2/03/16, at 1-3) (footnote and some capitalization

omitted).   The trial court filed its opinion on February 3, 2016.         See

Pa.R.A.P. 1925(a).

     On appeal, Appellant raises one issue for our review:

     Was not the imposition of a probation violation sentence of [one
     and one-half] to [three] years[’] incarceration, consecutive to a
     [nine]-month imposition of back-time for violating parole, clearly
     unreasonable, so manifestly excessive as to constitute an abuse
     of discretion, and inconsistent with the protection of the public,
     the gravity of the offenses, and [Appellant’s] rehabilitative needs
     where the revocation conduct involved technical violations of
     parole/probation that occurred soon after [Appellant’s] release
     on parole and where the court based its revocation sentence in
     part on conduct that occurred during [Appellant’s] incarceration
     prior to his being paroled?



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(Appellant’s Brief, at 4) (some capitalization omitted).

      Appellant argues the trial court abused its discretion in imposing an

unreasonable and excessive sentence of total confinement, given that the

revocation was based only on technical violations, and not a new offense.

(See id. at 12-13, 18).     Appellant maintains that, in imposing a term of

incarceration, the court failed to consider factors that bear upon sentencing,

including his need for rehabilitation and treatment. (See id. at 12, 19).

      As an initial matter, we observe that Appellant’s issue challenges the

discretionary aspects of his sentence.

      . . . [A] challenge to the discretionary aspects of a sentence is
      not appealable as of right. Rather, Appellant must petition for
      allowance of appeal pursuant to 42 Pa.C.S.A. § 9781.

                   Before we reach the merits of this [issue], we
            must engage in a four part analysis to determine:
            (1) whether the appeal is timely; (2) whether
            Appellant preserved his issue; (3) whether
            Appellant’s brief includes a concise statement of the
            reasons relied upon for allowance of appeal with
            respect to the discretionary aspects of sentence; and
            (4) whether the concise statement raises a
            substantial question that the sentence is appropriate
            under the sentencing code. The third and fourth of
            these requirements arise because Appellant’s attack
            on his sentence is not an appeal as of right. Rather,
            he must petition this Court, in his concise statement
            of reasons, to grant consideration of his appeal on
            the grounds that there is a substantial question.
            Finally, if the appeal satisfies each of these four
            requirements, we will then proceed to decide the
            substantive merits of the case.

Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014),

appeal denied, 109 A.3d 678 (Pa. 2015) (case citations omitted).

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      Instantly, Appellant preserved his claim by filing a post-sentence

motion, filed a timely notice of appeal, and included in his brief a concise

statement pursuant to Pa.R.A.P. 2119(f).       Furthermore, Appellant’s claim

that the trial court inappropriately sentenced him to a term of total

confinement based on technical violations raises a substantial question for

our review.    See Colon, supra at 1043.       Accordingly, we will review his

claim on its merits.

              Our standard of review is well-settled. We have explained:

                    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.

                    In determining whether a sentence is
              manifestly excessive, the appellate court must give
              great weight to the sentencing court’s discretion, as
              he or she is in the best position to measure factors
              such as the nature of the crime, the defendant’s
              character, and the defendant’s display of remorse,
              defiance, or indifference.

            Upon revoking probation, a sentencing court may choose
      from any of the sentencing options that existed at the time of
      the original sentencing, including incarceration. 42 Pa.C.S.A. §
      9771(b). [U]pon 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.
      However, 42 Pa.C.S.A. § 9771(c) provides that once probation
      has been revoked, a sentence of total confinement may only be
      imposed if any of the following conditions exist:


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            (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).

            In addition, in all cases where the court resentences an
      offender following revocation of probation . . . the court shall
      make as a part of the record, and disclose in open court at the
      time of sentencing, a statement of the reason or reasons for the
      sentence imposed [and] [f]ailure to comply with these provisions
      shall be grounds for vacating the sentence or resentence and
      resentencing the defendant. 42 Pa.C.S. § 9721(b). A trial court
      need not undertake a lengthy discourse for its reasons for
      imposing a sentence or specifically reference the statute in
      question, but the record as a whole must reflect the sentencing
      court’s consideration of the facts of the crime and character of
      the offender.

Id. at 1043–44 (case citations and quotation marks omitted).

      Here, at the revocation hearing, the trial court heard from Dauphin

County Probation Officer Doug Lauver, who described Appellant’s extensive

history with the department.     (See N.T. Revocation Hearing, at 2-6).      Mr.

Lauver testified regarding Appellant’s initial failure to report to work release,

and informed the court of Appellant’s multiple employment terminations

once he did report, due to verbal altercations with his employers. (See id.

at 3-4).   Mr. Lauver also reported Appellant’s failure to pay fines; his

possession of a cell phone in the work release center containing numerous

pornographic photographs; his refusal to provide the probation department


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with his correct address; his failure to participate in court-ordered evaluation

and treatment; and his belligerent behavior towards probation officers and

work release staff. (See id. at 2-6). The court also heard from Appellant,

who provided copious excuses for his actions before eventually taking

responsibility for his failure to provide his correct address and to pay fines,

and for his aggressive behavior, which he claimed was provoked by others.

(See id. at 9-12).

      In   its   Rule   1925(a)   opinion,   the   court   emphasized   that   the

Commonwealth gave Appellant a generous plea deal, which included the

withdrawal of two charges, and it explained its reasons for the sentence of

total confinement as follows:

             . . . [T]he record is replete with support for the finding that
      the sentence imposed was proper. Appellant’s possession of
      pornographic materials on his cellphone combined with his
      resistance to treatment and supervision and his failure to
      undergo a sexual offender evaluation amounts to a likelihood
      that, unless incarcerated, he would commit another crime.
      Additionally, the record also shows that Appellant has flouted the
      court’s authority since his original sentencing in March of 2014.
      Finally, Appellant made an excuse for every alleged violation
      until pressed by the court, at which time he admitted culpability
      for failing to pay fines, his overt behavior to work release staff
      and his [probation officer], and for being deceptive with respect
      to providing an address.            This court submits that the
      incarceration sentence handed down is essential to vindicate our
      authority.

            . . . [T]his court submits that in light of Appellant’s
      continuing pattern of defiant and aggressive behavior along with
      his resistance to treatment and failure to take any blame for his
      circumstance, discretion was properly exercised in the re-
      sentencing    of    Appellant   following   the   revocation   of
      parole/probation.

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(Trial Ct. Op., at 9-10; see id. at 8) (citation and some capitalization

omitted).

       Upon review, we discern no abuse of discretion in the trial court’s

determination that Appellant’s sentence of imprisonment was essential to

vindicate the authority of the court, and that his pattern of noncompliant

conduct, including his failure to participate in sexual offender evaluation and

treatment, indicated a likelihood that he will commit another crime if he is

not imprisoned.       See 42 Pa.C.S.A. § 9771(c)(2), (3); Colon, supra at

1043–44.3 Accordingly, we affirm the judgment of sentence.

____________________________________________


3
  We note that as part of his issue on appeal, Appellant asserts the court
improperly based its revocation sentence in part on his conduct before he
was paroled, and erroneously conflated his pre-parole and post-parole
conduct. (See Appellant’s Brief, at 11, 21-22). To the extent Appellant
seeks to raise this claim as a distinct issue, we agree with the
Commonwealth that it is waived for his failure to include it in his Rule
1925(b) statement, and we note that the trial court did not address this
issue. (See Commonwealth’s Brief, at 8, 15-17; Trial Ct. Op. at 6-10); see
also Commonwealth v. Treiber, 121 A.3d 435, 475 (Pa. 2015) (“These
issues are waived because appellant did not state them with sufficient
specificity in his Concise Statement of Matters Complained of on Appeal.”)
(citing Pa.R.A.P. 1925(b)(4)(vii)). Moreover, “[u]nder Pennsylvania law, an
order of probation can be changed or revoked if, at any time before the
defendant has completed the maximum period of probation, or before he has
begun service of his probation the defendant commits offenses or otherwise
demonstrates he is unworthy of probation.” Commonwealth v. Mitchell,
955 A.2d 433, 435 n.2 (Pa. Super. 2008), appeal denied, 964 A.2d 894 (Pa.
2009) (citations and internal quotation marks omitted). Thus, Appellant’s
argument would merit no relief.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2016




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