J-S11004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                     v.

KEVIN FOSTER,

                           Appellant                     No. 1811 WDA 2015


            Appeal from the Judgment of Sentence October 19, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0005406-2011


BEFORE: OLSON and RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                                 FILED MARCH 31, 2017

       Appellant, Kevin Foster, appeals from the judgment of sentence

entered on October 19, 2015. We affirm.

       On June 9, 2011, the Commonwealth charged Appellant with one

count each of possession of child pornography, criminal conspiracy, and

criminal use of a communication facility.        Commonwealth’s Information,

6/9/11, at 1.     On January 3, 2012, Appellant entered a negotiated guilty

plea   to   one   count    of   “obscene   and   other    sexual   materials   and

performances.”        18    Pa.C.S.A.   § 5903(a)(1).       In     exchange,   the

Commonwealth agreed to:         withdraw the criminal conspiracy and criminal

use of a communication facility charges; reduce the possession of child

pornography charge to the “obscene and other sexual materials and

performances” charge; and, recommend a sentence of two to six months in


*Former Justice specially assigned to the Superior Court.
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jail, with a concurrent term of five years of probation. N.T. Guilty Plea and

Sentencing Hearing, 1/3/12, at 2-3. As the trial court explained:

          Since the onset of Appellant’s supervision in Sex Offender
          Court, he has refused to comply with the conditions set
          forth. In July 2012, Appellant failed to report to probation
          as directed.    After Appellant’s failure to report, the
          probation officer conducted a field visit and observed
          several empty liquor bottles and empty beer cans in
          Appellant’s apartment. A week prior to the field visit,
          Appellant missed his sex offender treatment appointment. .
          ..

          Appellant was [then] charged with several thefts[,] which
          were reduced to summar[y offenses,] for which Appellant
          served three [90-day] sentences of incarceration. On May
          6, 2013, Appellant appeared before th[e trial] court for a
          Gagnon II1 hearing. Th[e trial] court found that Appellant
          violated the terms of his probation by pleading to the
          summar[y offenses]. Th[e trial] court imposed a [30-day]
          sanction and gave [Appellant] credit for time served. . . .

          On November 4, 2013, Appellant appeared before th[e trial]
          court and was only partially compliant because he was not
          attending sex offender treatment as required. On October
          19, 2015, once again Appellant was found to have violated
          probation, this time as a result of his convictions [for] one
          count of possession of child pornography at CC 201415348;
          three counts each of burglary and receiving stolen property
          at CC 201410722; one count each of burglary and receiving
          stolen property at CC 201410711[; and,] one count of
          criminal conspiracy at CC 201410712.

Trial Court Opinion, 6/24/16, at 5-6 (internal citations and some internal

capitalization omitted).



____________________________________________


1
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).



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      During Appellant’s October 19, 2015 probation violation hearing,

Appellant waived a pre-sentence report and orally informed the trial court of

the mitigating circumstances in his favor. See N.T. Probation Violation and

Sentencing Hearing, 10/19/15, at 2. As Appellant’s attorney argued:

        [Your Honor, y]ou’re aware of [Appellant] . . . as you were
        his Juvenile Court judge as well. . . .

        You’re aware of his mental health issues, mood disorder,
        bipolar. You’re[] also – I believe you’re aware that he had a
        [Justice Related Services (“JRS”)] plan in place, had it been
        your decision or Judge Cashman’s decision not to sentence
        him, but to allow him to remain in the community with the
        JRS plan.

        He reported to me that he is taking a different medication
        up at the SCI Camp Hill. He is taking Prozac instead of
        Zyprexa; and he is doing well on it. It’s helping him.

Id. at 12.

      Appellant then informed the trial court:

        I’m in communication with my family now. I got that
        relationship patched up. They’re supporting me. I’ve . . .
        always had mental health problems.          I’ve never taken
        medicine.    I been told I’m on a good regimen, doing
        everything I’m told to do, and it’s helping. I think I got my
        mind in the right place; and I’ve talked to a few people that
        have done Boot Camp. They said it would help.

Id. at 14.

      After being informed of these circumstances, the trial court revoked

Appellant’s probation and re-sentenced Appellant to serve a term of 24 to 48

months in prison for the underlying “obscene and other sexual materials and

performances” conviction. Id. at 15. Further, the trial court ordered that



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Appellant   serve    the   sentence        consecutively   to     his   sentence    at   CC

201415348, which he was serving for possession of child pornography. Id.

      On October 29, 2015, Appellant filed a timely motion to modify his

sentence.    See Pa.R.Crim.P. 708(E) (“[a] motion to modify a sentence

imposed after a revocation [of probation] 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”).          Within Appellant’s motion to modify, Appellant

claimed that the trial court “failed to consider the relevant sentencing

criteria, including the protection of the public, the gravity of the underlying

offenses    and    violations,     and    the   character,       personal    history,    and

rehabilitative needs of [Appellant], as required by 42 Pa.C.S.A. § 9721(b).”

Appellant’s Motion to Modify, 10/29/15, at 3. Specifically, Appellant claimed

that the trial court “failed to consider” the following circumstances:                    1)

Appellant “is a young man (25 years old), and, therefore, he can still very

much become a law-abiding, productive member of society;” 2) Appellant

“accepted responsibility for his actions, and entered pleas of guilty in his new

cases;” 3) Appellant “was deemed eligible for Boot Camp” at the cases; 4)

Appellant “has a long and difficult history of mental illness, including being

alternatively     diagnosed      with    [bipolar]   disorder,    mood      disorder,    and

depression[; b]ut since his arrival at SCI Camp Hill, [Appellant] has been

taking Prozac, which has tremendously helped to stabilize his mental health

condition;” 5) Appellant “has a forensic plan . . . which will offer him

supportive services upon his release to the community;” and, 6) Appellant

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has “improved his relationships with his family members, which he indicated

are now positive and supportive.”     Id. at 3-4.   Further, Appellant claimed

that the trial court erred in ordering that he serve his current sentence

consecutive to that which was imposed for his possession of child

pornography conviction.     With respect to this claim, Appellant contended

that the trial court “failed to consider [Appellant’s] rehabilitative needs and

other required mitigating factors in fashioning his sentence, and [Appellant]

was deemed eligible for Boot Camp at both” docket numbers. Id. at 4.

      The trial court denied Appellant’s motion to modify and, on November

18, 2015, Appellant filed a timely notice of appeal.      Appellant raises two

claims on appeal:

        1) Is the revocation sentence of [two to four] years of
        incarceration for a probation violation manifestly excessive
        and an abuse of the trial court’s discretion in that the trial
        court failed to consider all required sentencing factors set
        forth in the Sentencing Code, specifically 42 Pa.C.S.A.
        § 9721(b), including the young age of [Appellant], his
        difficult history with mental illness, his forensic plan with
        justice related services, and his improved support from his
        family?

        2) Is the revocation sentence manifestly excessive,
        unreasonable, and an abuse of discretion where the trial
        court ordered the sentence to be served consecutively to
        [Appellant’s] sentence at CC 201415438, because the
        combined sentence of 45 to 90 months of incarceration,
        followed by five years of probation, fails to account for
        various mitigating factors under 42 Pa.C.S.A. § 9721(b) and
        the fact that [Appellant] had initially been designated to be
        Boot Camp eligible?

Appellant’s Brief at 5 (some internal capitalization omitted).



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     Both of Appellant’s claims challenge the discretionary aspects of his

sentence.    See Commonwealth v. Lee, 876 A.2d 408 (Pa. Super. 2005)

(claim that the trial court erred in imposing an excessive sentence is a

challenge to the discretionary aspects of a sentence); Commonwealth v.

Gonzalez-Dejusus, 994 A.2d 595 (Pa. Super. 2010) (claim that the trial

court erred in imposing consecutive sentences is a challenge to the

discretionary aspects of a sentence).

     We note that, in an appeal following the revocation of probation, our

scope of review includes discretionary aspects of sentencing claims.

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en

banc).      With respect to our standard of review, we have held that

“sentencing is a matter vested in the sound discretion of the sentencing

judge, whose judgment will not be disturbed absent an abuse of discretion.”

Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001).

Moreover, pursuant to statute, Appellant does not have an automatic right to

appeal the discretionary aspects of his sentence.         See 42 Pa.C.S.A.

§ 9781(b).    Instead, Appellant must petition this Court for permission to

appeal the discretionary aspects of his sentence. Id.

     As this Court has explained:

         [t]o reach the merits of a discretionary sentencing issue, we
         conduct a four-part analysis to determine: (1) whether
         appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
         903; (2) whether the issue was properly preserved at
         sentencing or in a motion to reconsider and modify
         sentence, Pa.R.Crim.P. 720; (3) whether appellant’s brief


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        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.
        § 9781(b).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007); see also

Cartrette, 83 A.3d at 1042 (“issues challenging the discretionary aspects of

a sentence [following the revocation of probation] must be raised in a post-

sentence motion or by presenting the claim to the trial court during the

sentencing proceedings. Absent such efforts, an objection to a discretionary

aspect of a sentence is waived”); Commonwealth v. Kalichak, 943 A.2d

285, 289 (Pa. Super. 2008) (“when a court revokes probation and imposes a

new sentence, a criminal defendant needs to preserve challenges to the

discretionary aspects of that new sentence either by objecting during the

revocation sentencing or by filing a [motion to modify] sentence”).

      As our Supreme Court has held, the determination of whether a

substantial question exists must be done prior to – and be divorced from –

the determination of the potential merits of an issue. Commonwealth v.

Tuladziecki, 522 A.2d 17, 19 (Pa. 1987). If it were otherwise, a challenger

would “in effect obtain[] an appeal as of right from the discretionary aspects

of a sentence” – a result that would violate statutory law. Id.

      First, Appellant claims that the trial court “failed to consider [his]

personal history, character[,] and rehabilitative needs.”    See Appellant’s

Brief at 13.

      Generally, for an appellant to raise a substantial question that his

sentence is inappropriate under the Sentencing Code, an appellant must

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“advance a colorable argument that the trial judge’s actions were:            (1)

inconsistent with a specific provision of the Sentencing Code; or (2) contrary

to   the   fundamental    norms   which   underlie   the   sentencing   process.”

Commonwealth v. McKiel, 629 A.2d 1012, 1013 (Pa. Super. 1993);

Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en

banc), appeal denied, 759 A.2d 920 (Pa. 2000).

      Since Appellant was sentenced following the revocation of probation,

the sentencing guidelines do not apply to Appellant’s sentence. 204 Pa.Code

§ 303.1(b); Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super.

2006). Nevertheless, in sentencing Appellant, the trial court was required to

“consider the general principles and standards of the Sentencing Code.”

Commonwealth v. Russell, 460 A.2d 316, 322 (Pa. Super. 1983). Section

9721 expresses these general principles in the following manner:

           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.A. § 9721(b).

      As this Court has held, a claim that the sentencing 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

defendant, does raise a substantial question under the Sentencing Code.

Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2013) (a claim


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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 defendant, raised a substantial question);

Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa. Super. 2013) (en

banc) (“we find that Appellant’s claim that the sentencing court disregarded

rehabilitation and the nature and circumstances of the offense in handing

down its [consecutive, standard range] sentence presents a substantial

question for our review”). Therefore, we may reach the merits of Appellant’s

claim that, at sentencing, the trial court “failed to consider the personal

history, character[,] and rehabilitative needs” of Appellant.

       In the argument section of Appellant’s brief, Appellant merely argues

that   the   trial   court   “failed   to   consider”   certain,   specific   mitigating

circumstances. According to Appellant, these mitigating circumstances are:

“the young age of [Appellant], his difficult history with mental illness, his

forensic plan with justice related services, and his improved support from his

family.” See Appellant’s Brief at 16-23.

       Appellant’s claim on appeal fails because, during the probation

violation and sentencing hearing, Appellant specifically informed the trial

court of every single mitigating circumstance he currently claims the trial

court “failed to consider.”       See N.T. Probation Violation and Sentencing

Hearing, 10/19/15, at 12-14.           Therefore, the trial court was undoubtedly

aware of the mitigating factors Appellant currently cites to this Court; and,


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since the trial court was aware of the mitigating factors, we must “assume

the sentencing court . . . weighed those considerations along with [any

other] mitigating statutory factors” when the trial court fashioned Appellant’s

sentence. Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011)

(internal quotations and citations omitted). Appellant’s claim on appeal thus

fails.

         Second, Appellant claims that the trial court erred when it imposed a

consecutive, as opposed to a concurrent, sentence.           This issue does not

present a substantial question under the Sentencing Code. As this Court has

held:

           the imposition of consecutive rather than concurrent
           sentences lies within the sound discretion of the sentencing
           court. Long standing precedent of this Court recognizes
           that 42 Pa.C.S.A. § 9721 affords the sentencing court
           discretion to impose its sentence concurrently or
           consecutively to other sentences being imposed at the same
           time or to sentences already imposed. A challenge to the
           imposition of consecutive rather than concurrent sentences
           does not present a substantial question regarding the
           discretionary aspects of sentence. We see no reason why a
           defendant should be afforded a volume discount for his
           crimes by having all sentences run concurrently.

           However, we have recognized that a sentence can be so
           manifestly excessive in extreme circumstances that it may
           create a substantial question. When determining whether a
           substantial question has been raised, we have focused upon
           whether the decision to sentence consecutively raises the
           aggregate sentence to, what appears upon its face to be, an
           excessive level in light of the criminal conduct in this case.

Commonwealth v. Zirkle, 107 A.3d 127, 133-134 (Pa. Super. 2014)

(internal quotations, citations, and corrections omitted).

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     In this case, Appellant received a sentence of 24 to 48 months in

prison, to be served consecutively to his sentence of 21 to 42 months’

imprisonment at CC 201415438.        This aggregate sentence of 45 to 90

months’ imprisonment does not “appear[ on] its face to be[] an excessive

level in light of the criminal conduct in this case.” Id. Therefore, we may

not reach the merits of Appellant’s second claim on appeal.

     Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/31/2017




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