J-S66005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    JASON EDWARD JACKSON,

                             Appellant               No. 1433 WDA 2016


             Appeal from the Judgment of Sentence August 25, 2016
               in the Court of Common Pleas of Allegheny County
               Criminal Division at Nos.: CP-02-CR-0017785-2013
                            CP-02-CR-0017787-2013


BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED APRIL 18, 2018

        Appellant, Jason Edward Jackson, appeals from the judgment of

sentence entered on August 25, 2016, following the revocation of his

probation.     On appeal, Appellant contends that the trial court relied on

impermissible factors in sentencing him and that the sentence was grossly

disproportionate to his crimes. For the reasons discussed below, we affirm

the judgment of sentence.

        We take the underlying facts and procedural history in this matter from

the trial court’s April 6, 2017 decision and our independent review of the

certified record.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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           [Appellant] was charged with one (1) count of [s]imple
     [a]ssault [each in two separate criminal informations] in relation
     to two (2) incidents wherein he bit his girlfriend . . . on the left
     wrist and right arm (CC 201317787) and punched her in the face,
     leaving a bruise under her eye (CC 201317785). He appeared
     before [the trial c]ourt on May 7, 2014[,] and entered a general
     plea with an agreement for probation. He was sentenced to a
     term of imprisonment of 146 days (time served), plus a term of
     probation of two (2) years, with special conditions including the
     Batterers Intervention Program and no violent contact with the
     victim. No [p]ost-[s]entence [m]otions were filed and no direct
     appeal was taken.

           [Appellant] next appeared before [the trial c]ourt on July
     17, 2014[,] for a review hearing. At that time[,] it was revealed
     that [Appellant] had so far failed to enroll in the required Batterers
     Intervention Program. He was reminded of his requirement to do
     so and his probation was continued.

            [Appellant] next appeared before [the trial c]ourt on July
     30, 2015[,] for a probation violation hearing. Again, it was
     revealed that [Appellant] had still failed to enroll in the required
     Batterers Intervention Program and had failed to pay his assessed
     court costs. It was also noted that [Appellant] had been arrested
     on two (2) additional cases involving the same victim with charges
     including [t]erroristic [t]hreats, [h]arassment, [s]imple [a]ssault,
     [p]ersons [n]ot to [p]ossess and [r]ecklessly [e]ndangering
     [a]nother [p]erson, and on a third case of [s]imple [a]ssalt
     involving a different victim. At the conclusion of that hearing, [the
     trial c]ourt revoked [Appellant’s] probation and imposed a term of
     restrictive intermediate punishment of nine (9) to 18 months, with
     a concurrent term of probation of two (2) years. Again, no [p]ost-
     [s]entence [m]otions were filed and no direct appeal was taken.

           [Appellant] next appeared before [the trial c]ourt on August
     25, 2016[,] for a probation violation hearing. After finding that
     [Appellant] had cut off his ankle bracelet and absconded from
     electronic monitoring, that he had failed to comply with the
     technical conditions of probation including failing to complete the
     Batterers Intervention Program, using drugs and failing to report
     for drug testing, [the trial c]ourt revoked [Appellant’s] probation
     and imposed two consecutive terms of imprisonment of one (1) to
     two (2) years, for an aggregate term of imprisonment of two (2)
     to four (4) years.      A timely [p]ost-[s]entence [m]otion to

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       [r]econsider [s]entence was filed and was denied on September
       7, 2016. This appeal followed.[1]

(Trial Court Opinion, 4/06/17, at 1-2) (footnote omitted).

       On appeal, Appellant raises the following question for our review.

       I.     Did the trial court abuse its discretion in improperly relying
              on four cases that had been dismissed or withdrawn and
              discounting mitigating evidence when it issued a maximum
              sentence of total confinement even though [Appellant] had
              no new convictions?

(Appellant’s Brief, at 5) (unnecessary capitalization omitted).

       In his only issue, Appellant challenges the discretionary aspects of his

sentence.2 In Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013)

(en banc), this Court held that “thus [our] scope of review in an appeal from

a revocation sentencing includes discretionary sentencing challenges.”

Cartrette, supra at 1034. Appellant’s claim is properly before us.

       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



____________________________________________


1 On October 4, 2016, the trial court directed Appellant to file a concise
statement of errors complained on appeal. After being granted two extensions
of time, Appellant filed a timely Rule 1925(b) statement on January 31, 2017.
On April 6, 2017, the trial court issued an opinion. See Pa.R.A.P. 1925.

2  We note that Appellant filed a timely post-sentence motion for
reconsideration of sentence.  (See Post-Sentence Motion, 9/01/16, at
unnumbered page 2); see also McAfee, infra at 275.



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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).          If an

appellant’s Rule 2119(f) statement meets these prerequisites, we determine

whether a substantial question exists. See Commonwealth v. Goggins, 748

A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied, 759 A.2d 920 (Pa.

2000).     “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. (emphases in original).

           [T]he 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. . . .

Commonwealth v. Edwards, 71 A.3d 323, 327 (Pa. Super. 2013), appeal

denied, 81 A.3d 75 (Pa. 2013) (citations omitted).

      Here, Appellant contends that the trial court abused its discretion by

relying on four withdrawn cases to justify the imposition of sentence. (See




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Appellant’s Brief, at 23-28).    Appellant bases his claim on the following

discussions, which occurred prior to and after the imposition of sentence.

      THE COURT: Well, I’m thinking I’ve already given you five chances
      because this is our sixth hearing.

            I reviewed your [p]re-[s]entence [r]eport, which I have
      considered in this case. You have pled guilty before me on two
      separate simple assaults; of course with the same victim. You
      allegedly threatened to kill [the victim] and her unborn baby. You
      assaulted her when she was pregnant. You were lodged at the
      Allegheny County Jail. You were — you absconded from electronic
      monitoring. You were arrested for new charges, which were
      later dismissed. There was a review. You were in violation at
      the time of the review. You failed to report. You failed to attend
      Batterers Intervention and absconded from intermediate
      punishment.

             You also failed to report for regular drug testing and failed
      to make any payment toward court costs in this case. You were
      cited for failure to comply with special conditions, again, Batterers
      Intervention program. You violated the no victim contact order
      by choking and biting [the victim] and taking her cell phone.

            She did fail to appear for those charges.

             At the domestic violence curt [sic] case, you were ordered
      to pass all drug tests, but, oh, no, the next day you tested
      positive. You failed to notify your probation officer of a change of
      address. Your whereabouts were unknown.

            You failed to be of good behavior and were arrested four
      times since I placed you on probation; three of these arrests
      involve the same victim.

           You are also in violation of a probation in front of Judge
      Mariani. You, as I said, failed to abstain from the use of drugs,
      and your excuse for doing all of these things wrong is that you
      smoke marijuana.

           Your history involves being adjudicated delinquent two
      separate times, pleading guilty to a gun and a simple [assault]
      charge as an adult, pleading guilty to a criminal conspiracy as an

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     adult, having one, two, three — four assault charges [that] were
     dismissed at the preliminary hearing.              You have no
     employment history whatsoever.

           As a result, this [c]ourt concludes that you never did well on
     supervision. I see no indication that you wished to rehabilitate
     yourself. The [c]ounty can no longer supervise you and I feel that
     you are a danger due to the combination of guns, drugs and
     violence.

(N.T. Sentencing Hearing, 8/25/16, at 3-6) (emphases added).         The court

then revoked Appellant’s probation and imposed the at-issue sentences.

Immediately thereafter, the court had the following exchange with a man in

the courtroom named Reverend Martin:

     THE COURT: Yes, sir? Are you his father?

     REVEREND MARTIN: No, ma’am. Not at all. My name is Reverend
     Martin. I run a program —

     THE COURT: I’m sorry, Reverend, step forward a little bit. I can’t
     hear you.

     REVEREND MARTIN: I run a program called                   Strength
     Incorporated. We put guys like this into treatment.

           We started in drug court with Judge Nauhaus years ago. So
     drug court is about guys just like him that keeps coming in front
     of you repeating, repeating, repeating, and one of the things —
     he’s never seen me before. His mother is back there.

           One of the things that I know is you can’t lock up a disease.
     You know, get him some kind of treatment because it’s the same
     thing over and over and over.

           I never talked to this kid before, but I don’t want to see him
     go down this road without him understanding that he has a
     disease. It’s addiction.




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      THE COURT: Yes. But, you know, I can’t lock him up because of
      his disease. I can lock him up because he continues to beat
      women.

      REVEREND MARTIN: Correct.

      THE COURT: Because he continues to carry a firearm.       He is a
      danger to everybody.

      REVEREND MARTIN: I agree with you 150 percent, but —

      THE COURT: I respect you and I heard Judge Nauhaus talk of you.
      I hope that we can get actively involved, and maybe the next kid
      that comes down the road, we'll divert him to you.

      REVEREND MARTIN: Okay. Thank you very much.

      THE COURT: Thank you for speaking up.

      REVEREND MARTIN: Yes, ma'am.

Id. at 6-8.

      Prior to reviewing the merits of this claim, we must determine if it is

properly before us. We note, “[i]ssues challenging the discretionary aspects

of sentence 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.”

McAfee, supra at 275 (citations and internal quotations marks omitted). In

addition, Pennsylvania Rule of Criminal Procedure 708 provides that a motion

to modify sentence must be filed within ten days of the imposition of sentence

following the revocation of probation.    See Pa.R.Crim.P. 708(E).     As the

comment to Rule 708 explains:




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            Issues properly preserved at the sentencing proceeding
      need not, but may, be raised again in a motion to modify sentence
      in order to preserve them for appeal. In deciding whether to move
      to modify sentence, counsel must carefully consider whether the
      record created at the sentencing proceeding is adequate for
      appellate review of the issues, or the issues may be waived.

Pa.R.Crim.P. 708 cmt (citation omitted). Thus, an objection to a discretionary

aspect of a sentence is waived if not raised in a post-sentence motion or during

the sentencing proceedings. See Commonwealth v. Parker, 847 A.2d 745,

752 (Pa. Super. 2004) (holding challenge to discretionary aspect of sentence

was waived because appellant did not object at sentencing hearing or file post-

sentence motion).

      Here, Appellant did not raise any objections to the sentence at

sentencing. (See N.T. Sentencing, at 6-8). While Appellant did file a post-

sentence motion for reconsideration, he did not allege the trial court relied on

impermissible factors in imposing sentence but only challenged the alleged

excessiveness of the sentence because of the trial court’s failure to consider

his rehabilitative needs. (See Motion to Reconsider Sentence, 9/01/16, at

unnumbered page 2). It is settled that an appellant waives any discretionary

aspects of sentence issue not raised in a post-sentence motion; also, an

appellant cannot raise an issue for the first time on appeal.              See

Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003), appeal

denied, 831 A.2d 599 (Pa. 2003) (finding claim sentencing court did not put

sufficient reasons to justify sentence on record waived where issue was not




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raised in post-sentence motion); see also Pa.R.A.P. 302(a); Pa.R.Crim.P.

708(E). Thus, Appellant has waived this claim.

      Moreover, although a claim that a trial court relied on improper factors

in imposing sentence raises a substantial question, see Commonwealth v.

Downing, 990 A.2d 788, 792 (Pa. Super. 2010), the claim here lacks merit.

It is settled law that a sentencing court can “consider a defendant’s prior

arrests which did not result in conviction, as long as the court recognizes the

defendant has not been convicted of the charges.” Commonwealth v. Fries,

523 A.2d 1134, 1136 (Pa. Super. 1987), appeal denied, 531 A.2d 427 (Pa.

1987) (citation omitted); see also Commonwealth v. P.L.S., 894 A.2d 120,

129-33 (Pa. Super. 2006), appeal denied, 906 A.2d 542 (Pa. 2006) (affirming

sentence where court considered uncharged allegations of sexual abuse).

      Here, the sentencing court specifically acknowledged that it was aware

that the criminal conduct it discussed did not result in convictions. (See N.T.

Sentencing, at 4-5).   The sentencing court’s later comment that Appellant

posed a danger because of “guns, drugs and violence” and its exchange with

Reverend Martin in no way vitiated its earlier remarks or in any way indicated

that the court improperly believed that Appellant had been convicted of the

offenses in question. (Id. at 6). The record supported this statement. (See

id. at 4-6). Moreover, this Court does not believe that it is proper to consider

the off-the-cuff remarks made after sentencing, particularly when those

remarks simply repeated the court’s earlier comments. (See id. at 7-8). In


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addition, the court never contradicted its earlier observations that the

subsequent charges against Appellant did not result in conviction. (See id.).

      Further, even if we were to find that the sentencing court considered an

improper factor, we would still affirm because, even absent consideration of

that factor, the sentence is reasonable. See Commonwealth v. Smith, 673

A.2d 893, 896-97 (Pa. 1996) (upholding sentence despite trial court’s

consideration of improper factor where factor did not implicate “exercise of a

fundamental constitutional right[,]” and sentence was otherwise reasonable.).

Here, the sentencing court had the benefit of a Pre-Sentence Investigation

Report, and it detailed Appellant’s dismal record on probation.    (See N.T.

Sentencing, at 3-6). Specifically, it noted that this was the sixth hearing in

this case, and pointed to Appellant’s failed and missed drug tests; his

absconding to avoid a drug test, failure to attend the Batterers Intervention

Program, lack of any payments on court costs, violating the no-contact order,

and other technical violations. (See id.). Thus, the sentence was reasonable

and “essential to vindicate the authority of court.” Edwards, supra at 327

(citations omitted).

      Appellant also contends that the sentence was unreasonable because

the court failed to consider mitigating circumstances. (See Appellant’s Brief,

at 29-32). We disagree.

      We note that a bald claim of an excessive sentence does not generally

raise a substantial question. See Commonwealth v. Dodge, 77 A.3d 1263,


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1269 (Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014). However,

this Court has held that a claim of excessiveness in conjunction with a claim

that the sentencing court did not consider mitigating factors presents a

substantial question. See Commonwealth v. Zeigler, 112 A.3d 656, 662

(Pa. Super. 2015). As discussed above, the record reflects that Appellant’s

sentence was both reasonable and necessary to vindicate the trial court’s

authority in light of Appellant’s repeated violations of probation.      See

Edwards, supra at 327. Thus, Appellant’s claim lacks merit.

     Accordingly, we find that Appellant’s claims are either waived or lack

merit.

     Judgment of sentence affirmed.

     Judge Dubow joins the Memorandum.

     President Judge Emeritus Bender files a Dissenting Memorandum.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/18/2018




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