J-A14041-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,           : IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                Appellee                :
                                        :
                   v.                   :
                                        :
WILLIAM TORRES-PAGAN, SR.,              :
                                        :
                Appellant               : No. 1227 MDA 2014


      Appeal from the Judgment of Sentence Entered June 20, 2014,
           in the Court of Common Pleas of Lancaster County,
          Criminal Division, at No(s): CP-36-CR-0000550-2012,
                         CP-36-CR-0004839-2001

BEFORE:      BENDER, P.J.E., JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                     FILED JULY 01, 2015

     William Torres-Pagan, Sr. (Appellant) appeals from the judgment of

sentence imposed following the revocation of his probation.   Upon review,

we affirm.

     The violation court summarized this case as follows.

           On December 20, 2001, [Appellant] pled guilty to one
     count of delivery of marijuana … at docket 4389-2001. On
     January 25, 2002, he was sentenced to eight to 23 months’
     incarceration, followed by three years’ consecutive probation.
     The consecutive probation began on November 20, 2003. On
     March 24, 2005, [Appellant] was found in violation of his
     probation, having been charged with retail theft, and was
     sentenced to a new period of three-years’ probation. [Appellant]
     was again found in violation of his probation on January 26,
     2006, this time for using illegal controlled substances (heroin
     and cocaine); his probation was revoked and he was re-
     sentenced to time-served to 23 months’ incarceration, followed
     by one-year consecutive probation, which began October 16,
     2007.


*Retired Senior Judge assigned to the Superior Court.
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            Again, as a result of illegal drug use (heroin), [Appellant]
      was found in violation on June 6, 2008; probation was revoked
      and a new sentence of time-served to 23 month[s], followed by
      one-year consecutive probation was imposed. [Appellant] was
      paroled on June 6, 2008, tested positive for cocaine on July 15,
      2008, and on September 5, 2008 was found in violation.
      [Appellant’s] parole was revoked and he was sentenced to the
      unexpired balance of his parole sentence with parole after ten
      months (the one-year consecutive probation remained).
      Following parole on November 9, 2008, [Appellant] was again
      found to be in violation for drug use (heroin) and on January 15,
      2010, was sentenced to the unexpired balance of his parole
      sentence with parole after nine months (the one-year
      consecutive probation still remained).

            On or about November 17, 2011, [Appellant] was charged
      with one count of retail theft (CP-36-CR-0550-2012). As a
      result, he was found in violation of his probation on docket 4839-
      2001, and on March 23, 2012 was sentenced to ten to 23
      months’ incarceration, followed by two years’ consecutive
      probation.

            On May 1, 2012, [Appellant] pled guilty to the retail theft
      charge on docket 0550-2012 and was sentenced to 3-23 months’
      incarceration, followed by one year consecutive probation, the
      parole portion to be concurrent with the sentence on 4839-2012.
      [Appellant] was paroled on both dockets on August 3, 2012. The
      two-year consecutive probation on docket number 4839-2001
      began on October 22, 2013 and the one-year consecutive
      probation on docket number 0550-2012 began on March 27,
      2014.

            During his most recent period of probation on dockets
      4839-2001 and 0550-2012, [Appellant] again violated the
      conditions of his supervision by using heroin, and also for
      missing scheduled appointments with his probation officer.

Violation Court Opinion, 10/28/2014, at 1-3 (footnotes and unnecessary

capitalization omitted).




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        At his June 20, 2014, violation hearing, Appellant was sentenced to an

aggregate term of two and a half to five years’ incarceration.          Appellant

timely filed a motion to modify sentence followed by a timely-filed notice of

appeal.1    Both Appellant and the violation court complied with Pa.R.A.P.

1925.

        On appeal, Appellant sets forth one issue for our review: “Was an

aggregate sentence of two and a half to five years’ incarceration manifestly

excessive and clearly unreasonable under the circumstances of this case?”

Appellant’s Brief at 4.

        It is within this Court’s scope of review to consider challenges to the

discretionary aspects of an appellant’s sentence in an appeal following a

revocation of probation. Commonwealth v. Ferguson, 893 A.2d 735, 737

(Pa. Super. 2006); see also Commonwealth v. Ahmad, 961 A.2d 884,

886 (Pa. Super. 2008) (“A challenge to an alleged excessive sentence is a

challenge to the discretionary aspects of a sentence.”).

        An appellant challenging the discretionary aspects of his sentence

must invoke this Court’s jurisdiction by satisfying a four-part test:

        We conduct a four-part analysis to determine: (1) whether
        appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
        and 903; (2) whether the issue was properly preserved at

1
  Pursuant to Pa.R.Crim.P. 708(E), Appellant’s timely filing of his motion to
modify sentence did not toll the 30-day appeal period. Thus, this appeal
was properly filed prior to the violation court acting on the motion to modify
sentence.


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     sentencing or in a motion to reconsider and modify sentence,
     see Pa.R.Crim.P. 720; (3) whether appellant’s brief 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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citation

omitted).

     The record reflects that Appellant timely filed a notice of appeal and

that he preserved this issue by including it in his motion to modify his

sentence.   Moreover, Appellant has included in his brief a statement

pursuant to Pa.R.A.P. 2119(f).    We now consider whether Appellant has

presented a substantial question for our review.

     The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.     Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). “A substantial question exists only when the

appellant advances a colorable argument that the sentencing judge’s actions

were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the

sentencing process.” Griffin, 65 A.3d at 935 (citation and quotation marks

omitted). “The imposition of a sentence of total confinement after the

revocation of probation for a technical violation, and not a new criminal

offense, implicates the ‘fundamental norms which underlie the sentencing

process.’” Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super.




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2010) (quoting Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super.

2000)).

      Because Appellant received a sentence of total confinement for

technical violations of his probation, Appellant’s issue raises a substantial

question. See Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super.

2014) (concluding that the appellant’s “claim that the trial court sentenced

him to a term of total confinement based solely on a technical violation

raises a substantial question for our review”).

      We analyze Appellant’s claim mindful of the following.

            The 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. An abuse
            of discretion is more than an error in judgment—a
            sentencing court has not abused its discretion unless
            the record discloses that the judgment exercised was
            manifestly unreasonable, or the result of partiality,
            prejudice, bias or ill-will.

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

           Upon revoking probation, a sentencing court may choose
      from any of the sentencing options that existed at the time of
      the original sentencing, including incarceration.            [U]pon
      revocation [of probation] ... the trial court is limited only by the
      maximum sentence that it could have imposed originally at the
      time of the probationary sentence.         However, 42 Pa.C.S.[]



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      § 9771(c) provides that once probation has been revoked, a
      sentence of total confinement may only be imposed if any of the
      following conditions exist:

            (1) the defendant has been convicted of another
            crime; or

            (2) the conduct of the defendant indicates that it is
            likely that he will commit another crime if he is not
            imprisoned; or

            (3) such a sentence is essential to vindicate the
            authority of the court.

            In addition, in all cases where the court resentences an
      offender following revocation of probation ... the court shall
      make as a part of the record, and disclose in open court at the
      time of sentencing, a statement of the reason or reasons for the
      sentence imposed [and] [f]ailure to comply with these provisions
      shall be grounds for vacating the sentence or resentence and
      resentencing the defendant. A trial court need not undertake a
      lengthy discourse for its reasons for imposing a sentence or
      specifically reference the statute in question, but the record as a
      whole must reflect the sentencing court’s consideration of the
      facts of the crime and character of the offender.

Colon, 102 A.3d at 1043-44 (citations and quotation marks omitted).

Finally, we note that “[t]echnical violations can support revocation and a

sentence of incarceration when such violations are flagrant and indicate an

inability to reform.”   Commonwealth v. Carver, 923 A.2d 495, 498 (Pa.

Super. 2007).

      Appellant argues that the violation court “failed to consider several

factors relative to the gravity of the offenses and rehabilitative needs of

[Appellant].” Appellant’s Brief at 12. Specifically, Appellant argues that the




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violation court abused its discretion by failing to consider that the offenses

were nonviolent, that the impact on the public was minimal, and that he is in

need of drug treatment. Id. at 12-13.

      The violation court aptly summarized its reasoning for sentencing

Appellant to a period of total confinement.

            I am sorry to say that I think the County’s resources here
      have been used up, [Appellant]. You are only 35. The only way
      that the justice system can give you any help as opposed to
      mere punishment is to put you in a position where compliance
      with drug and alcohol treatment isn’t voluntary and doesn’t rely
      on you to make it to appointments. It has to be a long-term
      setting in a state correctional system. I think that is your best
      and only shot at this.

N.T., 6/20/2014, at 6.

      Additionally, the violation court considered Appellant’s “violation

history, the persistence and severity of his addiction, and [his] cycle of

committing crimes to support his addiction” in concluding that a sentence of

total confinement was appropriate under these circumstances.            Violation

Court Opinion, 10/28/2014, at 6.

      Upon review, we discern no abuse of discretion.2               The record

demonstrates that the violation court considered the appropriate sentencing

criteria   and   reasonably   concluded   that   probation   was   ineffective   in

2
  In so doing, we stress that “[a]n abuse of discretion may not be found
merely because an appellate court might have reached a different
conclusion” than that reached by the trial court. Commonwealth v. Perry,
32 A.3d 232, 236 (Pa. 2011).



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rehabilitating Appellant and would not be in society’s best interest.

Therefore, Appellant is not entitled to relief on this basis.

      Because Appellant has failed to demonstrate that he is entitled to

relief, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/1/2015




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