J-S28023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DASHARRH BARFIELD

                        Appellant                   No. 1481 MDA 2014


           Appeal from the Judgment of Sentence June 24, 2014
             In the Court of Common Pleas of Luzerne County
            Criminal Division at No(s): CP-40-CR-001489-2013


BEFORE: BOWES, J., ALLEN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                        FILED AUGUST 25, 2015

      Dasharrh Barfield appeals from the judgment of sentence entered in

the Court of Common Pleas of Luzerne County following the revocation of his

intermediate punishment.     After our review, we vacate and remand for

resentencing.

      The trial court summarized the relevant facts and procedural history as

follows:

      On April 14, 2014, [Barfield] was originally sentenced on one
      count of Delivery of Cocaine [35 P.S. § 780-113(a)(3)] to thirty
      (30) months in the [Luzerne County] Intermediate Punishment
      Program (IPP) with the first twelve (12) months to be served on
      house arrest with electronic monitoring.

      On May 12, 2014, less than one month after [Barfield] was
      sentenced, the Luzerne County Department of Probation
      Services, Adult Probation and Parole Division, violated [Barfield]
      for admitting to his probation officer that he “smoked crack
      cocaine” and for leaving his residence without proper approval
      while on electronic monitoring. [Barfield] waived his Gagnon I
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      hearing and proceeded before [the trial court] for a Gagnon II
      hearing on June 5, 2014. At that time, [Barfield] admitted to the
      violations.

      As a result of the violations, a review of the PSI and the
      presentations of counsel, and finding that [Appellant] could not
      even complete one month of house arrest by following the terms
      and conditions of the Luzerne County Department of Probation
      Services, [the trial court] determined that resentencing
      [Barfield] to a period of incarceration was appropriate. [The trial
      court] then resentenced [Appellant] to a minimum of twenty four
      (24) months to a maximum of forty eight (48) months
      incarceration to be served at a state correctional institution while
      giving [Appellant] credit of thirty six (36) days for time already
      served.

      On June 12, 2014, [Appellant] mailed a pro se Motion to Modify
      and Reduce Sentence to the [trial court] which was denied by
      Order of June 24, 2014. On July 22, 2014, [Barfield], through his
      Court appointed counsel, filed a Notice of Appeal. [Both Barfield
      and the trial court have complied with Pa.R.A.P.] 1925.

Trial Court Opinion, 11/4/14, at 2-3 (footnote omitted).

      Barfield presents the following issues for our review:

      1. Whether the sentencing court erred by imposing a sentence
      of total confinement where [Barfield] was a first-time, technical
      violator of the intermediate punishment program?

      2. Whether the sentencing court erred by relying on the
      sentencing guidelines in determining [Barfield’s] new sentence
      following his revocation from the county intermediate
      punishment program?

Appellant’s Brief at 1.

      Barfield first argues that the trial court erred when it revoked his

intermediate punishment and imposed a sentence of total confinement

based on his technical violations. Appellant’s Brief, at 5-7. We find no error.




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     “Revocation . . . is a matter committed to the sound discretion of the

trial court and that court’s decision will not be disturbed on appeal in the

absence of an error of law or an abuse of discretion.” Commonwealth v.

Perreault, 930 A.2d 553, 558 (Pa. Super. 2007) (citations and internal

quotations omitted).   “It is essential that the court maintain the ability to

incarcerate persons for whom intermediate punishment is no longer a viable

means of rehabilitation.”   Commonwealth v. Serrano, 727 A.2d 1168,

1170 (Pa. Super. 1999).

     Section 9773(b) of the Judicial Code, 42 Pa.C.S.A. § 9773(b), which

governs modification or revocation of county intermediate punishment

sentences, provides:

     Revocation.-- The court may revoke a sentence of county
     intermediate punishment upon proof of a violation of specific
     conditions of the sentence. Upon revocation and subject to
     section 9763(d), the sentencing alternatives available to the
     court shall be the same as the alternatives available at the time
     of initial sentencing. Upon a revocation of county intermediate
     punishment for any reason specified by law, the attorney for the
     Commonwealth may file notice, at any time prior to
     resentencing, of the Commonwealth's intention to proceed under
     an applicable provision of law requiring a mandatory minimum
     sentence. Consideration shall be given to the time served in the
     county intermediate punishment program.

42 Pa.C.S.A § 9773(6).      Thus, “[a]n intermediate punishment sentence

imposed pursuant to 42 Pa.C.S. § 9773 . . . may be revoked where the

specific conditions of the sentence have been violated.” Commonwealth v.

Philipp, 709 A.2d 920, 921 (Pa. Super. 1998).



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      Here, the record establishes that Barfield admitted to violating Rule

Number 8 of the conditions of his intermediate punishment sentence,

prohibiting him from smoking crack cocaine, and Rule Number 1 of his

electronic monitoring program by leaving his residence without proper

approval. N.T. Gagnon II Hearing, 6/5/14, at 2; Intermediate Punishment

Violation Report, 5/12/14.     Given that as conditions of his intermediate

punishment sentence, Barfield was required to refrain from illegal drug use

and not abscond from electronic monitoring without proper approval, and

that Barfield admitted to these violations, we find no error in the trial court’s

decision to revoke his intermediate punishment sentence.

      Barfield also challenges the trial court’s decision to resentence him to

total confinement. He asserts that in imposing its sentence, the trial court

improperly relied on the sentencing guidelines.       Appellant’s Brief at 7-8.

These claims constitute a challenge to the discretionary aspects of his

sentence.

      Where an appellant challenges the discretionary aspects of a sentence,

there is no automatic right to appeal; rather, such an appeal is considered a

petition for allowance of appeal.     Commonwealth v. W.H.M., 932 A.2d

155, 163 (Pa. Super. 2007).

      Before we reach the merits of this [issue], we must engage in a
      four part analysis to determine: (1) whether the appeal is
      timely; (2) whether Appellant preserved his issue; (3) whether
      Appellant’s brief includes a concise statement of the reasons
      relied upon for allowance of appeal with respect to the
      discretionary aspects of sentence; and (4) whether the concise
      statement raises a substantial question that the sentence is

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       appropriate under the sentencing code. The third and fourth of
       these requirements arise because Appellant’s attack on his
       sentence is not an appeal as of right. Rather, he must petition
       this Court, in his concise statement of reasons, to grant
       consideration of his appeal on the grounds that there is a
       substantial question. Finally, if the appeal satisfies each of these
       four requirements, we will then proceed to decide the
       substantive merits of the case.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations

omitted).

       Although the record does not contain a written post-sentence motion,

Barfield preserved his discretionary claims in an oral post-sentence motion

at the June 5, 2015 hearing. N.T. Gagnon II Hearing, 6/5/14, at 7-8.1         In

addition, Barfield has filed a timely notice of appeal and included in his brief

a concise statement pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief at

4-5. Moreover, Barfield’s claims that the trial court erred in sentencing him

to total confinement based on technical violations, and improperly relied on

the sentencing guidelines when resentencing him, raise substantial questions

for our review. See Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa.

Super. 2014) (holding that claim that trial court’s sentence to total

confinement based solely on technical violation raises substantial question

for our review); Commonwealth v. Philipp, 709 A.2d 920, 921 (Pa. Super.


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1
  Although the record does not contain a written post-sentence motion, the
trial court in its Pa.R.A.P. 1925(a) opinion indicates that a post-sentence
motion was filed on June 12, 2014, and the record contains an order dated
June 24, 2014 denying that motion.



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1998) (explaining that “the sentencing guidelines do not apply to sentences

imposed as a result of intermediate punishment revocation”).

      The imposition of sentence following the revocation of [a
      sentence of conditional release] 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.

Commonwealth v. Simmons, 56 A.3d 1280, 1283–84 (Pa. Super. 2012).

Section 9773 of the Judicial Code, 42 Pa.C.S.A. § 9773, governing

resentencing following revocation of intermediate punishment sentences, is

analogous to the procedure for resentencing following revocation of

probation, in that the sentencing court possesses the same sentencing

alternatives that it had at the time of the initial sentencing.   Philipp, 709

A.2d at 921; 42 Pa.C.S.A. § 9773 (the sentencing alternatives available to

the court shall be the same as the alternatives available at the time of initial

sentencing). See also Pa.R.Crim.P. 708; Commonwealth v. Cartrette, 83

A.3d 1030, 1043 (Pa. Super. 2013) (analyzing revocation of intermediate

punishment proceedings under the same scope and standard of review

applicable   to   probation   revocation    proceedings);    Philipp,   supra;

Commonwealth v. Harriott, 919 A.2d 234 (Pa. Super. 2007).

      In addition, section 9721(b), which sets forth the general standards

that a court is to apply in sentencing a defendant, provides:




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      In every case in which the court . . . resentences an offender
      following revocation of probation, county intermediate
      punishment or State intermediate punishment or resentences
      following remand, 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.

42 Pa.C.S.A. ° 9721(b).    “[T]he sentencing court must follow the general

principle that the sentence imposed should call for confinement that is

consistent with the protection of the public, the gravity of the offense as it

relates to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant.”   Cartrette, 83 A.3d at 1040-1041.

“Failure to comply with these provisions shall be grounds for vacating the

sentence or resentence and resentencing the defendant.”          Id. (internal

quotations omitted). Moreover, in such revocation proceedings, “the court

shall consider the record of the initial sentencing proceeding as well as the

conduct of the defendant while serving a sentence of county intermediate

punishment.” 42 Pa.C.S.A. § 9773(c).

      Here, at the Gagnon II hearing, prior to sentencing Barfield, the trial

court heard from the Commonwealth, as well as from Barfield and his

counsel.   Counsel explained that Barfield took responsibility for his drug

addiction, and that he had suffered a relapse and desired drug and alcohol

treatment in order to rehabilitate himself.   Id. at 4.   The trial court then

explained its decision to resentence Barfield to a term of imprisonment of 2

to 4 years as follows:




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     [B]ased on my review of the PSI, its clear that [Barfield] has a
     substantial pior criminal history, much of which included drug-
     related offenses similar to the offense at issue here.

     It appears [Barfield] was given numerous opportunities through
     these contacts with the justice system and hasn’t reformed his
     ways. [The trial court] again gave him another opportunity by
     allowing him to serve the sentence in the IPP Program, from
     which he’s now being revoked; therefore, I feel that a period of
     incarceration in a state correctional institution would be the next
     logical step so as not to diminish the serious nature of the
     offense. And also [Barfield] could benefit from the programs
     offered in the state system.

N.T. Gagnon II Hearing, 6/5/14, at 4-5.

     At the sentencing hearing, the prosecutor stated that prior to

imposition of intermediate punishment, Barfield was “looking at a standard

range of 21 to 27 months with a prior record score of five.” N.T. Revocation

Hearing, 10/31/14, at 3.       The prosecutor went on to state that given

Barfield’s violation, “I’m asking to revoke and resentence within the

applicable standard range.” Id.

     In imposing sentence, the court stated:

     This Court again gave him another opportunity by allowing him
     to serve the sentence in the IPP Program, from which he’s now
     being revoked; therefore, I feel that a period of incarceration in
     a state correctional institution would be the next logical step so
     as not to diminish the serious nature of the offense. And also
     [Barfield] could benefit from the programs offered in the state
     system. The standard range of the guidelines for Count 1,
     delivery, being 21 to 27 months, the Court will sentence the
     Defendant to a minimum of 24 months to a maximum of 48
     months to be served in a state correctional institution.

Id. at 5-6 (emphasis added).




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        Thereafter, defense counsel asked the court to reconsider and

requested a county sentence of 12 months less one day.              The court, in

response to defense counsel’s request, stated, “[t]hat would require the

[trial court] to deviate totally from the sentencing guidelines and go even

below the mitigated range of the guidelines, which I’m not inclined to do[.]”

Id. at 7. Defense counsel then pointed out that the guidelines do not apply

in this type of proceeding, at which point the court responded, “I think they

do. When you’re revoked from the IPP Program, the court can resentence

and in resentencing, I am utilizing the guidelines.”        Id. at 7-8 (emphasis

added).

        The case of Philipp, supra, is dispositive. In Philipp, this Court held

that the sentencing guidelines do not apply to sentences imposed as a result

of intermediate punishment revocation.           Philipp, 907 A.2d at 921.   See

204 Pa.Code § 303.1(b)2 (“The sentencing guidelines do not apply to

sentences imposed as a result of the following: accelerated rehabilitative

disposition; disposition in lieu of trial; direct or indirect contempt of court;

violations of protection from abuse orders; revocation of probation,

intermediate punishment or parole.”) (emphasis added).

        From our reading of the record, we conclude that the sentencing court

believed that the sentencing guidelines applied, and that the court utilized


____________________________________________


2
    Effective: September 26, 2014.



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the guidelines in imposing sentence. Accordingly, we vacate the judgment

of sentence and remand for resentencing in accordance with this decision.

     Vacated and remanded. Jurisdiction relinquished.

     BOWES, J., Joins the majority.

     ALLEN, J., Files a concurring memorandum in which Judge Bowes

     joins.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2015




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