J-A22045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JARED ANDREW HARSH,

                            Appellant                 No. 423 MDA 2015


            Appeal from the Judgment of Sentence January 27, 2015
               in the Court of Common Pleas of Lancaster County
              Criminal Division at Nos.: CP-36-CR-0003881-2005;
                            CP-36-CR-0004695-2014


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED AUGUST 28, 2015

        Appellant, Jared Andrew Harsh, appeals from the judgment of

sentence imposed after a probation violation hearing, and an open guilty

plea to driving under the influence (DUI) of a controlled substance and

disregard of a traffic lane.1 We affirm.

        The trial court summarized the procedural history of this case as

follows:

               . . . On May 15, 2012, [Appellant] appeared before [the
        trial] court for admission into the Lancaster County Court of
        Common Pleas Adult Drug Court Program on a probation
        violation hearing on information nos. 3881-2005 and 5806-2004
        for failure to complete inpatient drug and alcohol treatment.[a]
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. §§ 3802(d)(2) and 3309(1), respectively.
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     At that time, [Appellant] stipulated to his probation violation as a
     condition of participation in the Drug Court Program. He was
     sentenced to a new five-year period of probation at no. 3881-
     2005, and to a new two-year period of probation at no. 5806-
     2004. After a thorough oral and written colloquy, [Appellant]
     elected to participate in, and was required to successfully
     complete, the Drug Court Program. [He] graduated from the
     Drug Court Program on September 17, 2013, although he
     continued on probation in order to complete the Aftercare
     requirements [].
           [a]
              [Appellant] was on supervision for convictions for
           delivery of cocaine, . . . at information no. 3881-
           2005, and for unauthorized use of a motor vehicle, .
           . . [DUI], . . . fleeing or attempting to elude, . . .
           possession of drug paraphernalia, . . . and driving
           while operating privileges suspended or revoked . . .
           at information no. 5806-2004.

            During his Drug Court Aftercare probation appointment on
     October 17, 2013, [Appellant] reported that he had used Ativan,
     cocaine and heroin (violations of #18 of the Drug Court
     participant contract). While [he] had a prescription for the
     Ativan, he did not have the permission of his probation officer to
     take it.

           On November 25, 2013, [Appellant] was arrested and
     charged with possession of drug paraphernalia . . . at
     information no. 4965-2014. [He] was subsequently involuntarily
     committed to the hospital in November, and voluntarily admitted
     to a drug detoxification program in December of 2013.

            On February 1, 2014, [Appellant] failed to report for
     weekend drug testing (a violation of #19 of the Drug Court
     participant contract). On March 6, 2014, he failed to report for a
     probation appointment (a violation of #4 of the Drug Court
     participant contract).

           [Appellant] reported for his probation appointment on
     March 14, 2014, and admitted to cocaine and heroin use on
     March 11, 2014 (a violation of #18 of the Drug Court participant
     contract). He further lied about going to a family member’s
     cabin when he was excused from weekend drug testing on March
     1, 2014 (a violation of #15 of the Drug Court participant

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     contract), and that he was prescribed benzodiazepine and was
     taking it without permission from his probation officer (a
     violation of #18 of the Drug Court participant contract).

            [Appellant] voluntarily committed to drug detoxification on
     April 1, 2014, and was released on April 7, 2014. He failed to
     report for weekend drug testing on April 27, 2014 (a violation of
     #19 of the Drug Court participant contract).[b] On May 15,
     2014, [he] failed to report for a probation appointment (a
     violation of #4 of the Drug Court participant contract).
          [b]
             [Appellant’s] criminal record reveals that he was
          arrested on April 27, 2014, in Philadelphia and
          charged with criminal trespass[.]

           On May 12, 2014, [Appellant] committed the following new
     criminal offenses in Chester County: [] DUI: controlled
     substance ([five] counts), . . . intentional possession of a
     controlled substance by person not registered, . . . and
     possession of drug paraphernalia . . . . These offenses were
     docketed to Chester County information no. 2862-2014.        A
     capias was filed on May 21, 2014, on information no. 3881-2005
     for [Appellant’s] arrest.

           Meanwhile, on May 17, 2014, [Appellant] entered another
     drug detoxification program. The organization brought him for a
     Drug Court review hearing on June 3, 2014. At the time, the
     capias was modified to walk-in status pending the scheduling of
     a probation violation hearing.

            On June 20, 2014, [Appellant] reported to his probation
     officer that he was released from treatment and living at a
     recovery house. [He] missed weekend drug testing on August
     10, 2014 (a violation of #19 of the Drug Court participant
     contract).

           On September 3, 2014, [Appellant] was arrested for a DUI
     in Lancaster County. This charge was docketed at no. 4695-
     2014.[c] On September 5, 2014, he was placed in Lancaster
     County Prison for a warrant.
          [c]
             [Appellant] admitted to consuming three bags of
          heroin just prior to entering his vehicle. As a result


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           of his impairment, he crashed his vehicle into a curb
           and off the roadway.

            [Appellant] was brought to a Drug Court review hearing on
     September 9, 2014, at which time he was unsuccessfully
     discharged from the Aftercare portion of the Drug Court
     Program.      He was further advised that his probation at
     information no. 3881-2005 was going to be violated due to the
     new criminal charges in Chester and Lancaster Counties, and for
     failing to successfully complete the Aftercare portion of the Drug
     Court Program. Accordingly, [Appellant’s] walk-in status was
     revoked and a bench warrant on information no. 3881-2005 was
     reissued.

           On November 20, 2014, [Appellant] entered a guilty plea
     in Chester County to the charge of DUI (2nd offense), and
     received a sentence of [three] to [twenty-three] months’
     incarceration. He received a consecutive sentence of one year
     probation on the charge of intentional possession of controlled
     substance by person not registered. The remaining five charges
     were withdrawn, pursuant to the plea agreement.

           After serving his sentence in Chester County, [Appellant]
     appeared for a probation violation hearing before [the trial] court
     on information no. 3881-2005 on January 27, 2015. At that
     time, [he] was found in violation of his probation. Probation was
     revoked and he was resentenced to a four-year period of
     probation.    This sentence was made concurrent with the
     sentence imposed at no. 4695-2014, and the sentence imposed
     in Chester County.

           At the same time, [Appellant] tendered an open guilty plea
     on information no. 4695-2014. [The trial] court accepted the
     plea and [Appellant] immediately stood for sentencing after
     waiving his right to a presentence investigation report. He
     received a sentence of [eight] to [twenty-three] months’
     incarceration for the DUI (2nd offense), with credit for time
     served from September 10, 2014, followed by a three-year
     period of probation, and a fine of $1,500.00. The standard
     conditions for second offense DUI convictions involving
     controlled substances were also imposed. It was further noted
     on the sentencing conditions order that the three-year probation
     period could be reduced to two years if [Appellant] had no


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       violations. The statutory fine of $25.00 was imposed for the
       summary offense of roadways laned for traffic.

             On February 6, 2015, [Appellant] filed a timely motion to
       modify sentence in which he claims the sentence for the DUI at
       information no. 4695-2014 constituted a manifest abuse of
       discretion and was clearly unreasonable considering the
       circumstances presented at sentencing.       [He] seeks a DUI
       sentence of [six] to [twenty-three] months’ incarceration without
       a period of consecutive probation. On information no. 3881-
       2005, [Appellant] wants the court to reduce the sentence from
       four years of probation to two years.


(Trial Court Opinion, 2/19/15, at 1-6) (some capitalization and footnotes

omitted; record citations and internal quotation marks omitted).

       The court denied Appellant’s post-sentence motion on February 19,

2015. Appellant timely appealed.2

       Appellant raises the following question on appeal:

       Was the imposition of an aggregate sentence of 8 to 23 months
       incarceration    followed   by   3    years’  probation    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?

(Appellant’s Brief, at 6).3

____________________________________________


2
  Pursuant to the trial court’s order, Appellant filed a timely Rule 1925(b)
statement on March 23, 2015. The court entered its Rule 1925(a) opinion
on March 24, 2015 relying on its February 19, 2015 opinion. See Pa.R.A.P.
1925.
3
  We note that Appellant preserved his discretionary aspects of sentence
claim by timely filing a post-sentence motion to modify the sentence. (See
Motion to Modify Sentence, 2/06/15, at unnumbered pages 2-3); see also
McAfee, infra at 275.



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      The right to appeal the discretionary aspects of a sentence is not

absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

2004), appeal denied, 860 A.2d 122 (Pa. 2004).           When an appellant

challenges the discretionary aspects of the sentence imposed, he must

present “a substantial question as to the appropriateness of the sentence.”

Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)

(citations omitted).   An appellant must, pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f), articulate “a colorable argument that the

sentence violates a particular provision of the Sentencing Code or is contrary

to   the   fundamental    norms     underlying   the   sentencing   scheme.”

Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)

(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted).

“The purpose of the [Rule 2119(f)] statement is to allow the Superior Court

to determine whether a substantial question is raised.” Commonwealth v.

Fisher, 47 A.3d 155, 159 (Pa. Super. 2012), appeal denied, 62 A.3d 378

(Pa. 2013) (citation omitted).    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). “Additionally, we cannot look beyond the statement of questions

presented and the prefatory 2119(f) statement to determine whether a

substantial question exists.”    Commonwealth v. Provenzano, 50 A.3d

148, 154 (Pa. Super. 2012) (citation omitted)




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        Here, Appellant has included a Rule 2119(f) statement.                   (See

Appellant’s Brief, at 12-14). He concedes that the sentence was within the

sentencing     guidelines   but   argues,   “[g]iven   [Appellant’s]   history    and

background and the mitigating circumstances of the offense itself, the

application of the guidelines would be clearly unreasonable.”          (Id. at 13).

Therefore, he has raised a substantial question. See Anderson, supra at

1017.

        Specifically, he argues that:

        The court discounted these mitigating factors: (1) [Appellant]
        exhibited remorse and took responsibility; (2) [Appellant] did
        not actually injure any other persons; (3) during his after-care
        supervision after completing the Drug Court Program,
        [Appellant] was in the company of active drug users at a
        recovery house; and (4) [Appellant] was not taking his anti-
        depressant prescription medication in September of 2014.

(Appellant’s Brief, at 17-18). We disagree.

        Our standard of review is well-settled:

              Sentencing is a matter vested in the sound discretion of
        the sentencing judge, and a sentence will not be disturbed on
        appeal absent a manifest abuse of discretion. To constitute an
        abuse of discretion, the sentence imposed must either exceed
        the statutory limits or be manifestly excessive. In this context,
        an abuse of discretion is not shown merely by an error in
        judgment. Rather, the appellant must establish, by reference to
        the record, that the sentencing court ignored or misapplied the
        law, exercised its judgment for reasons of partiality, prejudice,
        bias or ill will, or arrived at a manifestly unreasonable decision.

              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



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     character, and the defendant’s display of remorse, defiance, or
     indifference. . . .

Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003)

(citations and quotation marks omitted).

     As aptly explained by the trial court:

            Here, a sentence of [eight] to [twenty-three] months’
     incarceration followed by [three] years of consecutive probation
     for a second DUI was not excessive and was well within the
     standard sentencing guidelines. [The trial c]ourt is intimately
     familiar with [Appellant’s] addiction, his failure to rehabilitate,
     his failure to adhere to laws requiring him not to drive, and his
     failure to adhere to laws requiring him not to drive impaired.
     [The trial c]ourt evaluated, among other things, [Appellant’s]
     DUI history dating from 2003, the circumstances of [Appellant’s]
     most recent DUI convictions in Chester and Lancaster Counties,
     his character, his proclivity towards drug abuse, the danger he
     represents to the community and himself, and the amount of
     heroin he consumed just prior to getting into his car and driving
     on September 3, 2014. As a result of his impairment, he
     crashed his vehicle into a curb and off the roadway. He could
     have very easily injured or killed another driver or a pedestrian.
     The imposition of a standard range sentence was not clearly
     unreasonable or too severe a punishment under the
     circumstances of this case.

           It is clear that in fashioning this sentence the [c]ourt did
     consider the individual circumstances concerning [Appellant] and
     the crimes he committed. Furthermore, the [c]ourt took into
     consideration defense counsel’s comments on behalf of his client.
     Counsel reiterated that [Appellant] has struggled with a drug
     addiction throughout most of his adult life. He stressed that
     [Appellant’s] prior criminal history is related to his drug
     addiction. To the extent that [Appellant] argues that the trial
     court did not adequately consider these mitigating factors . . .
     such a claim is not supported by the record.

           In addition . . . [Appellant] has a [twelve]-year history of
     committing crimes in [Lancaster] County and in Chester,
     Dauphin and Philadelphia Counties. Clearly, he failed to adjust
     to his probationary periods and it was necessary to consider a


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        sentence of confinement that takes into account the protection
        of the public.

              . . . [The trial c]ourt [] considered the fact that [Appellant]
        was in the Drug Court Program and provided with an opportunity
        to get clean and sober and live a law-abiding, productive life.
        [Appellant] continued to make extremely poor decisions and
        chose to reject the opportunities provided to him in Drug Court.
        He made the conscious decision to hold on to his addictive
        behaviors and to commit crimes.

(Trial Ct. Op., at 8-10) (footnote and citations omitted).              Upon our

independent review of the record, we agree and conclude there is no

arguable merit to Appellant’s claim.        Therefore, we discern no abuse of

discretion in the trial court’s imposition of sentence. See Mouzon, supra at

1128.

        Judgment of sentence affirmed.

        Judge Bowes joins the Memorandum.

        Judge Jenkins concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2015




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