J-S78011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TROY HOGAN,

                            Appellant                 No. 1886 WDA 2015


       Appeal from the Judgment of Sentence Entered November 4, 2015
               In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0007977-2009


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 02, 2016

        Appellant, Troy Hogan, appeals from the judgment of sentence of 30

to 120 months’ incarceration, imposed after the court revoked his prior

sentence of probation for the offense of possession with intent to deliver

(PWID). Appellant argues that the court failed to consider his rehabilitative

needs in fashioning his sentence. After careful review, we affirm.

        The trial court briefly summarized the procedural history of Appellant’s

case, as follows:
               [Appellant] originally pled guilty to one count of [PWID]
        cocaine on April 26, 2010 and he was sentenced to a term of
        imprisonment of not less than 18 months nor more than 36
        months followed by three years’ probation. The sentence was
        imposed pursuant to a negotiated plea agreement which also
        included [Appellant’s] pleading guilty in another case in this
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     [c]ourt         (CC         200907633)           to        [PWID]
     Methylenedioxymethamphetamine (Ecstasy) for a concurrent
     period of incarceration of [9] to 18 months[,] and yet another
     case (CC 200918240) for a concurrent period of incarceration of
     [15] to [30] months for a felony charge of Escape. At the time
     of that sentencing (April 26, 2010), [Appellant] had already been
     convicted of possessing cocaine with intent to deliver it in this
     [c]ourt (CC 200400569) and had been sentenced to serve a
     state sentence of [15] to [30] months’ incarceration. In addition
     to the prior felony conviction for [PWID] cocaine …, [Appellant]
     had been convicted of possessing heroin (CC 200709173) and
     possessing heroin and cocaine (CC 200907919).

           On May 28, 2014, [Appellant] appeared before this [c]ourt
     to address allegations that he violated the terms of his
     probation. This [c]ourt revoked the original term of probation
     and imposed a new 3-year term of probation.

            On November 4, 2015, [Appellant] appeared again before
     this [c]ourt to address allegations that he violated probation for
     a second time.        The probation violation was based on
     [Appellant’s] plea of guilty in the Court of Common Pleas of Blair
     County to [PWID] heroin on September 26, 2014. He received a
     sentence of not less than 2 nor more than 5 years[’]
     incarceration relative to that conviction. This [c]ourt revoked
     the term of probation in this case and imposed the sentence set
     forth above to be served consecutively to the Blair County
     sentence.

Trial Court Opinion (TCO), 1/19/16, at 1-2.

     Appellant filed a timely motion for reconsideration of his sentence,

which the court denied.   He then filed a timely notice of appeal, and also

timely complied with the court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Herein, he presents one issue

for our review:
     I. Was the sentence of 30-120 months of incarceration
     manifestly excessive and an abuse of discretion where the court
     did not consider the sufficiency of sanctions already imposed and
     the availability of community-based resources to address
     [Appellant’s] serious rehabilitative needs?

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Appellant’s Brief at 4 (unnecessary capitalization and emphasis omitted).

      We begin by noting that:
             An appellant wishing to appeal the discretionary aspects of
      a probation-revocation sentence has no absolute right to do so
      but, rather, must petition this Court for permission to do so.
      Specifically, the appellant must present, as part of the appellate
      brief, a concise statement of the reasons relied upon for
      allowance of appeal. In that statement, the appellant must
      persuade us there exists a substantial question that the sentence
      is inappropriate under the sentencing code.

            In general, an appellant may demonstrate the existence of
      a substantial question by advancing a colorable argument that
      the sentencing court's actions were inconsistent with a specific
      provision of the sentencing code or violated a fundamental norm
      of the sentencing process. While this general guideline holds
      true, we conduct a case-specific analysis of each appeal to
      decide whether the particular issues presented actually form a
      substantial question. Thus, we do not include or exclude any
      entire class of issues as being or not being substantial. Instead,
      we evaluate each claim based on the particulars of its own case.

             It is important to note that this Court is not persuaded by
      bald assertions or the invocation of special words in a concise
      statement of reasons. To the contrary, a concise statement must
      articulate the way in which the court's conduct violated the
      sentencing code or process.

Commonwealth v. Kalichak, 943 A.2d 285, 289-90 (Pa. Super. 2008)

(citations omitted).

      Appellant has provided us with a concise statement of the reasons

relied upon for allowance of appeal in accordance with Pa.R.A.P. 2119(f). In

that statement, Appellant asserts that the trial court violated 42 Pa.C.S. §

9721(b) by imposing a sentence without considering his rehabilitative needs.

See Appellant’s Brief at 9-11. We conclude that Appellant has presented a

substantial question for our review.    See Commonwealth v. Riggs, 63

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A.3d 780, 786 (Pa. Super. 2012) (finding the appellant presented a

substantial question by arguing “that the trial court failed to consider

relevant sentencing criteria, including the protection of the public, the

gravity of the underlying offense and the rehabilitative needs of [the]

[a]ppellant, as 42 Pa.C.S.A. § 9721(b) requires….”). Therefore, we now will

assess the merits of Appellant’s sentencing claim.

      When we do so, our standard of review is clear: Sentencing is
      vested in the sound discretion of the court and will not be
      disturbed absent an abuse of that discretion. Moreover, an abuse
      of discretion is not merely an error in judgment. Instead, it
      involves bias, partiality, prejudice, ill-will, or manifest
      unreasonableness.

Kalichak, 943 A.2d at 290 (citations omitted).

      Here, Appellant argues that the trial court abused its discretion in

fashioning his sentence by failing to consider his rehabilitative needs, and

also by not taking into account the fact that Appellant “had already served a

substantial period of incarceration in a state correctional institution and had

been engaged in rehabilitative programming at the prison.” Appellant’s Brief

at 13. Essentially, Appellant stresses that “periods of incarceration [have]

had little impact on controlling [his] continued use of controlled substances”

and, thus, his “rehabilitative needs would best be met by continued out-

patient treatment available in the community setting.” Id.

      Appellant’s argument fails to convince us that the trial court abused its

sentencing discretion.   In its Rule 1925(a) opinion, the trial court explains

the considerations and rationale underlying Appellant’s sentence, as follows:



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             This [c]ourt considered the contents of the presentence
      report. [Appellant] is forty-one years old. He has been involved
      in drug-dealing activity for well over ten years. This [c]ourt
      noted that [Appellant] was provided with ample opportunities to
      conform his conduct to the dictates of the law but he continues
      to choose not to do so. [Appellant] has had multiple prior drug-
      dealing convictions that resulted in state prison sentences being
      imposed. Although [Appellant] claims that drug use was the
      cause of his problems and this [c]ourt believes that some sort of
      rehabilitation may be beneficial, this [c]ourt was and is
      convinced that [Appellant’s] conscious, repeated decisions to
      distribute drugs on the street require a substantial period of
      incarceration. This [c]ourt believes that any rehabilitation and
      treatment should occur while [Appellant] is incarcerated. In
      sum, this [c]ourt imposed the sentence it did because of
      [Appellant’s] persistence in participating in drug trafficking
      despite having already served substantial prison sentences and
      probationary terms for the same conduct. The need to protect
      society from [Appellant’s] drug dealing and his need for
      regimented treatment in a state prison facility warranted the
      sentence imposed in this case.

TCO at 4-5.

      Clearly, the trial court and Appellant both agree that his prior

incarceration has had little impact on his rehabilitation. However, contrary

to Appellant’s argument in favor of out-patient treatment, the court found

that the interest in protecting the public must now outweigh Appellant’s

rehabilitative needs. In light of Appellant’s unrelenting criminal conduct, we

ascertain no abuse of discretion in the trial court’s decision.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2016




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