J-S16006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

ALBERT LEE DIXON

                         Appellant                   No. 1513 MDA 2014


          Appeal from the Judgment of Sentence August 12, 2014
            In the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0001538-2011
                                       CP-36-CR-0004119-2012


BEFORE: PANELLA, J., OLSON, J., and OTT, J.

MEMORANDUM BY PANELLA, J.                               FILED MAY 08, 2015

      Appellant, Albert Lee Dixon, appeals from the judgment of sentence

imposed after the trial court revoked his participation in intermediate

punishment and sentence of probation. The only issue on appeal is whether

the sentence imposed was excessive, considering Dixon’s rehabilitative

needs. After careful review, we affirm.

      In late 2012, Dixon entered two separate guilty pleas arising from

distinct criminal charges. Of relevance to this appeal, he first pled guilty to

two counts of accidents involving death or injury, and was sentenced to an

aggregate term of 5 years under county intermediate punishment.          In the

relevant part of the second plea, Dixon pled guilty to one count of retail theft

and received a sentence of 2 years’ probation.
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      On April 24, 2014, Dixon was charged with missing a probation

appointment, testing positive for drug use, and admitting to drug use. At

the subsequent violation hearing, the trial court found Dixon in violation of

the terms of the county intermediate punishment program as well as his

probation, and revoked both.       After the preparation of a pre-sentence

investigation, the trial court sentenced Dixon to an aggregate term of

incarceration of three and one half to seven years.        After the trial court

denied Dixon’s post-sentence motion, this timely appeal followed.

      On appeal, Dixon argues that the trial court failed to consider the

necessary   sentencing   factors   and   that   his   sentence   was   excessive

considering his need for drug and alcohol rehabilitation.        Dixon concedes

that this raises a challenge to the discretionary aspects of his sentence. See

Appellant’s Brief, at 11.   Our review of revocation proceedings includes

review of the discretionary aspects of the sentence imposed.                See

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

banc).

      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). When challenging the discretionary aspects

of the sentence imposed, an appellant must present a substantial question

as to the inappropriateness of the sentence.          See Commonwealth v.


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Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be

met before we will review this challenge on its merits.” McAfee, 849 A.2d

at 274 (citation omitted). “First, an appellant must set forth in his brief a

concise statement of the reasons relied upon for allowance of appeal with

respect to the discretionary aspects of a sentence.” Id. (citation omitted).

      “Second, the appellant must show that there is a substantial question

that the sentence imposed is not appropriate under the Sentencing Code.”

Id. (citation omitted).   That is, “the sentence violates either a specific

provision of the sentencing scheme set forth in the Sentencing Code or a

particular fundamental norm underlying the sentencing process.”       Tirado,

870 A.2d at 365 (citation omitted). We examine an appellant’s Rule 2119(f)

statement to determine whether a substantial question exists. See id. “Our

inquiry must focus on the reasons for which the appeal is sought, in contrast

to the facts underlying the appeal, which are necessary only to decide the

appeal on the merits.” Id. (citation omitted).

      In the present case, Dixon’s appellate brief contains the requisite Rule

2119(f) concise statement, and, as such, is in technical compliance with the

requirements to challenge the discretionary aspects of a sentence.      Dixon

argues in his Rule 2119(f) statement that the sentence imposed by the trial

court was excessive, and that the trial court failed to consider his need for

drug and alcohol rehabilitation, as required by 42 Pa.C.S.A. § 9721(b). This




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raises a substantial question for our review.        See Commonwealth v.

Riggs, 63 A.3d 780, 786 (Pa. Super. 2012).

      Here, the trial court had the benefit of a pre-sentence investigation

report (“PSI”), and we must presume that the trial court was aware of the

information   contained   therein   and   appropriately   weighed    it.     See

Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa. Super. 2002). In fact, the

trial court indicated its familiarity with the contents of the PSI during

sentencing proceedings. See N.T., Sentencing, 8/12/14 at 6.

      Dixon argues that the trial court indicated that it would impose a state

prison sentence prior to hearing or considering his evidence and arguments

at the sentencing proceedings. While this is technically true, Dixon does not

identify any evidence that he presented at sentencing that was not

contained in the PSI. Given that we are required to presume the trial court’s

familiarity with the contents of the PSI, and further, that the trial court in

this case explicitly indicated its familiarity with the PSI, we conclude that the

trial court considered Dixon’s rehabilitative needs in imposing sentence. In

addition, the trial court explicitly addressed Dixon’s rehabilitative needs just

prior to imposing sentence:

      You’ve had plenty of opportunities [to rehabilitate yourself
      through programs.] [Defense Counsel] is standing there this
      morning telling me this most recent stretch, the reason you
      didn’t do it is because you didn’t have the money. I don’t know
      whether I believe that or not.

      But you know what? You’ve had so many opportunities, over the
      last 20 years, for the light bulb to go off; for somebody sitting in

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      my position to really believe the kinds of things that you’re
      saying here today, but there comes a point where that just
      doesn’t fly. And I don’t know where that point is with you, other
      than it was sometime a long, long time ago. It’s not today, Mr.
      Dixon.

      Somebody who has been in court 32 times before today, such as
      you have, someone who, if I go back over your rap sheet, back
      to the early 1990s, there’s almost not a single year since then
      where there’s not a court appearance, a criminal court
      appearance for you, not hardly a single year where you don’t
      show up in front of somebody like me.

      The point was a long time ago for you, Mr. Dixon. You’ve lost –
      you’ve squandered the opportunities to get second chances.
      You’re way beyond that now.

Id., at 8.    This passage indicates that the trial court considered the

probability that Dixon could be successfully rehabilitated and determined

that such probability was very low. We cannot conclude that this reasoning

and determination constituted an abuse of the trial court’s discretion.

Dixon’s sole issue on appeal therefore merits no relief.

      Judgment of sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/2015




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