J-S54008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

ERIC GRANT SIMPKINS

                            Appellant                   No. 311 MDA 2014


           Appeal from the Judgment of Sentence January 17, 2014
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0001985-2010


BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.                             FILED AUGUST 28, 2014

       Eric Grant Simpkins appeals from the judgment of sentence imposed in

the Court of Common Pleas of Lancaster County after he was resentenced

subsequent to a finding that he had violated the terms of his intermediate



       Simpkins was serving a five-year IP sentence after he plead guilty

before the Honorable James P. Cullen to two counts of driving under the
                                   1
                                       when he was again charged with multiple

counts of DUI and related offenses stemming from two separate incidents.

Simpkins subsequently pled guilty to the new charges and was sentenced to


____________________________________________


1
  75 Pa.C.S.A. § 3802(a)(1) (general impairment) and (c) (highest rate of
alcohol).
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      On November 27, 2013, Judge Cullen held a revocation hearing and

determined that Simpkins had violated the terms of his IP due to the new

charges as well as a positive test for marijuana.             A pre-sentence



resentenced Simpkins

modification of sentence was denied and this timely appeal followed, in

which Simpkins challenges the discretionary aspects of his sentence.

      Where the discretionary aspects of a sentence are challenged, an

appellant is not guaranteed an appeal as of right. Rather, two requirements

must be met before we will review such a claim on its merits:

      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.            Second, the
      appellant must show that there is a substantial question that the
      sentence imposed is not appropriate under the Sentencing Code.
      The determination of whether a particular issue raises a
      substantial question is to be evaluated on a case-by-case basis.
      In order to establish a substantial question, the appellant must
      show actions by the trial court inconsistent with the Sentencing
      Code or contrary to the fundamental norms underlying the
      sentencing process.

Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006)

(citation omitted).

      Here, Simpkins has included in his brief a statement of reasons

pursuant to Pa.R.A.P. 2119(f), in which he asserts that the trial court abused

its discretion in resentencing by violating the provisions of 42 Pa.C.S.A. §

9771 and failing to take into consideration the non-violent nature of



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treatment for alcoholism and PTSD. Brief of Appellant, at 10.

          Section 9771(c) provides that a court may only impose a sentence of

total confinement upon revocation if it finds that:

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

          (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.

42 Pa.C.S.A. § 9771(c).

          Here, Simpkins baldly alleges a violation of section 9771, but does not,

in either his Rule 2119 statement or the body of his brief, specify how the

court violated the requirements of the section. However, Simpkins concedes

that he pled guilty to additional DUI charges while serving his IP sentence.

This conviction satisfies section 9771(c)(1) and, accordingly, this claim is

patently meritless.

          Simpkins also argues that the court failed to consider the non-violent

nature of his offenses and his need for dual-

Court has held on numerous occasions that a claim of inadequate

consideration of mitigating factors does not raise a substantial question for

                  Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super.

2013). Thus, the non-

relief.    However


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need for mental health treatment and substance abuse rehabilitation does

raise a substantial question. Commonwealth v. Riggs, 63 A.3d 780, 786

(Pa. Super. 2012) (failure to consider relevant sentencing criteria, including

protection of public, gravity of underlying offense and rehabilitative needs of

appellant as required under 42 Pa.C.S.A § 9721(b), raises substantial

question). Accordingly, we may review the merits of this claim.

      We begin by noting that Judge Cullen was in possession of, and

reviewed, a PSI report. Where a sentencing judge had the benefit of a PSI

report, it is presumed that he was aware of the relevant information

                                                                   rations along

with mitigating statutory factors. Commonwealth v. Devers, 546 A.2d 12

(Pa. 1988).

      Moreover,   the   sentencing   transcript   reveals   that   Judge   Cullen

thoroughly explained, on the record, all the factors he considered in arriving



alcohol dependence and PTSD diagnosis as follows:


      were ten years old. . . . You began using alcohol when you were
      13. Apparently your aunt and uncle drank at home. . . . [Y]ou
      were allowed to drink as well as long as you stayed home. You
      were drinking daily at the time of your incarceration at Lancaster

      had brief exposure to cocaine. You were in a drug and alcohol
      program in 2000 and at the Lancaster Freedom Center in 2010
      which you completed. . . . I also reviewed the psychiatric
      evaluation which was done in December 2013. That diagnoses
      you with major depressive disorder, post-traumatic stress
      disorder and chronic alcohol dependence. There are treatment

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                                                      ems from which
      you suffer and your mental health condition; however, that does
      not justify your putting other members of the community at risk.
      This is a repeated course of conduct over an extended period of
      time. You have had ample opportunity to get the help you need
      and for whatever reason, you have not done it.

N.T. Resentencing, 1/17/14, at 12-16.



in crafting his sentence, he also specifically referenced the treatment options

available in the State Correctional System and strongly urged Simpkins to

take advantage of the available programming. Id. at 16-18.



not consider his rehabilitative needs in fashioning his sentence is without

merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2014




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