J. S07038/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                     v.                :
                                       :
ERIC ELROD,                            :         No. 2634 EDA 2016
                                       :
                          Appellant    :


           Appeal from the Judgment of Sentence, July 22, 2016,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0011460-2011


BEFORE: BENDER, P.J.E., PANELLA, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED APRIL 18, 2018

      Eric Elrod appeals the judgment of sentence entered by the Court of

Common Pleas of Philadelphia County following revocation of probation as a

result of his conviction for robbery, conspiracy to commit robbery,

possession of a firearm with an altered manufacturer number, prohibited

possession of a firearm, and for violation of his probation.1   After careful

review, we affirm.

      The pertinent facts and procedural history, as recounted by the trial

court, are as follows:

                  On March 30, 2015, [appellant] entered into a
            negotiated guilty plea and was immediately
            sentenced, in accord with the plea agreement[.]
            [Appellant] was sentenced to a period of

1  18 Pa.C.S.A. §§ 3701(a)(I)(ii), 903(c), 6110.2(a), and 6105(a)1),
respectively.
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            confinement in a county correctional facility of 11½
            to 23 months followed by 10 years[’] probation on
            the Possession of a Firearm with altered serial
            number charge. On the remaining charges he was
            sentenced to concurrent periods of probation of
            10 years on the Conspiracy charge, 8 years on the
            Possession of a Firearm Prohibited and 10 years on
            the Robbery charge.        Thus, [appellant] was
            sentenced to an aggregate sentence of confinement
            of 11½ to 23 months followed by 10 years[’]
            probation.

                  At his VOP [“Violation of Probation”] hearing
            held on May 11, 2016, [appellant] stipulated to his
            being in direct violation of his probation, requesting
            that a Pre-Sentence Investigation (PSI) report be
            ordered in advance of sentencing. On July 22, 2016,
            [appellant] was sentenced to a period of confinement
            in a state correctional facility of 5 to 10 years on the
            Conspiracy charge.       On each of the remaining
            charges, [appellant] was also sentenced to
            concurrent periods of probation of 10 years, to be
            served consecutively to his period of confinement,
            for an aggregate sentence of confinement of 5 to
            10 years followed by 10 years[’] probation.           On
            July 27, 2016, the Defender Association of
            Philadelphia (“Defender”) filed a “Petition to Vacate
            and Reconsider Sentence” on behalf of [appellant],
            which the Court denied without a hearing on
            August 30, 2016.

                  On August 17, 2016, [appellant] timely filed
            the instant pro se appeal to the Superior Court of
            Pennsylvania, attaching his “Statement of Facts on
            Appeal.”[2] On September 7, 2016, this Court filed
            and served on [appellant] an Order, pursuant to
            Rule 1925(b) of the Pennsylvania Rules of Appellate

2 We note that appellant’s pro se notice of appeal was prematurely filed, as
appellant filed that notice prior to the trial court’s disposition of appellant’s
counseled petition to vacate and reconsider sentence. Because the trial
court denied appellant’s petition to vacate and reconsider sentence and
because appellant is represented by counsel on appeal, we will excuse the
procedural irregularity and address appellant’s appeal on the merits.


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              Procedure, directing [appellant] to file and serve a
              Statement of Errors Complained of on Appeal, within
              21 days of the Court’s Order. On September 28,
              2016, both Mr. Damian M. Sammons, Esq., and the
              Defender simultaneously filed statements of error on
              behalf of [appellant].   On March 23, 2017, the
              Defender filed a “Supplemental Statement of Errors
              Complained of on Appeal,” on behalf of [appellant].
              On April 13, 2017, the Court, after a hearing,
              ordered that Mr. Sammons be removed as counsel
              and that the Defender continue it[s] representation.
              Mark Cichowicz, Esq., representing the Defender[3]
              advised the Court that they wished to proceed on
              their supplemental statement of errors.

Trial court opinion, 5/1/17 at 2-3. The trial court filed its opinion pursuant

to Pa.R.A.P. 1925(a).

        The trial court explained its reasoning for the sentence:

                     The original charges leading to [appellant’s]
              plea arose out of his planning and participating in the
              gun point robbery of a pizza shop. As a result of his
              plea agreement, he was placed on immediate parole
              subject to eight years[’] probation.       The record
              reveals that [appellant] was arrested in Dauphin
              County on June 22, 2015, less than ninety days after
              his plea, and charged with numerous PWID
              [(“Possession with Intent to Deliver”)] related
              charges. He entered into a negotiated plea to these
              charges on April 19, 2016, resulting in a direct
              violation of his probation.

                    Prior to imposing sentence, the Court reviewed
              [appellant’s] criminal history, his PSI, heard
              argument of counsel and considered [appellant’s]
              allocution.   The PSI report specifically stated[:]
              “Given [appellant’s] lengthy criminal history, the
              nature of his offenses, and apparent inability to stay
              arrest free, he does not appear to be a good
              candidate for community supervision at the present

3   Mark Cichowicz, Esq., works for Defender.


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            time.” In considering [appellant’s] criminal history,
            the Court noted for the record: “If I do not send him
            to prison for a considerable amount of time, what
            message does that send to the community? That --
            I mean, he’s a one-man crime wave. He just has no
            boundaries, whether it’s children, whether it’s
            women.      If I don’t send him to prison for a
            considerable amount of time, I have to be concerned
            about what that says to the community. . . Also, I
            think the community deserves some respite from
            your client, some period of time when he’s not going
            to be preying upon them in various ways . . . when
            we were here in March of last year, he was given a
            second chance. You know, despite your prior record,
            despite the seriousness of these charges, a little bit
            of county time and then just, please, try to stay out
            of trouble, and he couldn’t do it.”        ([Notes of
            testimony], 7/22/16 [at] 23, [2]4[.])

                  Immediately prior to imposing sentence the
            Court noted for the record, “I can’t reinstate your
            probation, I mean, I just can’t do it because of your
            criminal history and a direct violation. I mean, you
            pled guilty to that Dauphin County case. Whatever
            your reason was, you pled guilty, so . . . But I do
            think you’re well spoken, you’re intelligent, and I’m
            not going to put you away for as long as I originally
            intended. But you are going to state prison.” ([Id.
            at] 31[.])

Trial court opinion, 5/1/17 at 6-7.

      Appellant raises the following issue for this court’s review:

            Did not the court err by imposing an unduly harsh,
            manifestly excessive and unreasonable punishment,
            in contravention of the general standards set forth
            by 42 Pa.C.S.A. § 9721, when it sentenced
            [appellant] to a term of total incarceration in a state
            institution for an aggregate term of 5 to 10 years,
            with a consecutive 10-year term of probation, after
            failing to adequately examine and consider
            [appellant’s]     background,       character      and



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            rehabilitative needs, and the circumstances of his
            violation?

Appellant’s brief at 3.

      Our standard of review is well settled:

            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.

Commonwealth v. Swope, 123 A.3d 333, 340 (Pa.Super. 2015), quoting

Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa.Super. 2014), appeal

denied, 109 A.3d 678 (Pa. 2015).            See also Commonwealth v.

Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc) (this court’s scope of

review in an appeal from a revocation sentencing includes discretionary

sentencing challenges).

            Upon      revoking    probation,     “the   sentencing
            alternatives available to the court shall be the same
            as were available at the time of initial sentencing,
            due consideration being given to the time spent
            serving the order of probation.”        42 Pa.C.S.[A.]
            § 9771(b). Thus, upon revoking probation, the trial
            court is limited only by the maximum sentence that
            it could have imposed originally at the time of the
            probationary sentence, although once probation has
            been revoked, the court shall not impose a sentence
            of total confinement unless it finds that:

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



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            (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).

Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014). We also note

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

result of probation revocations. Id. at 27 (citations omitted).

            An appellant wishing to appeal the discretionary
            aspects of a probation-revocation sentence has no
            absolute right to do so but, rather, must petition this
            Court for permission to do so. [Commonwealth v.
            Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)];
            42 Pa.C.S.A. § 9781(b). Specifically, the appellant
            must present, as part of the appellate brief, a
            concise statement of the reasons relied upon for
            allowance of appeal. Malovich, 903 A.2d at 1250;
            Pa.R.A.P. 2119(f). In that statement, the appellant
            must persuade us there exists a substantial question
            that the sentence is inappropriate under the
            sentencing code.     Malovich, 903 A.2d at 1250;
            Pa.R.A.P. 2119(f).

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.Super. 2008).

            In general, an appellant may demonstrate the
            existence of a substantial question by advancing a
            colorable argument that the sentencing court’s
            actions were inconsistent with a specific provision of
            the sentencing code or violated a fundamental norm
            of the sentencing process. Malovich, 903 A.2d at
            1252. While this general guideline holds true, we
            conduct a case-specific analysis of each appeal to
            decide whether the particular issues presented
            actually form a substantial question. Id. Thus, we
            do not include or exclude any entire class of issues
            as being or not being substantial. Id. Instead, we



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             evaluate each claim based on the particulars of its
             own case. Id.

Id. at 289-290.

      Appellant included a statement of reasons for allowance of appeal from

discretionary aspects of sentence.      Appellant avers that the trial court

violated the express provisions of the Sentencing Code and imposed a

manifestly   excessive   and    unreasonable    sentence    contrary    to   the

fundamental norms that underlie the sentencing process. Commonwealth

v. Mouzon, 812 A.2d 617, 627 (Pa. 2002).         Specifically, appellant alleges

that the trial court failed to adequately consider the steps he has made

toward his rehabilitation and that he was actually innocent of the offense

that constituted his direct violation of probation but he pled guilty as part of

a plea agreement that would keep him out of jail. (Appellant’s brief at 12.)

Appellant does not deny that he was convicted of the crimes in Dauphin

County.

      The trial court stated that it received a pre-sentence investigation

report.   (Trial court opinion, 5/1/17 at 6.)     “[W]here the trial court is

informed by a pre-sentence report, it is presumed that the court is aware of

all appropriate sentencing factors and considerations[.]”     Commonwealth

v. Ventura, 975 A.2d 1128, 1135 (Pa.Super. 2009). As a result, the trial

court was aware of any steps appellant had undertaken toward his

rehabilitation. The only possible violation of the Sentencing Code mentioned

by appellant is the court’s failure to consider appellant’s character and


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background.     It is presumed that the trial court did so.     In fact, the trial

court stated that it imposed a lesser sentence than it originally considered

because appellant was “well-spoken and intelligent.”        (Notes of testimony,

7/22/16 at 31.)      Further, allegations that a sentencing court failed to

consider   certain   factors   do   not   constitute   a   substantial   question.

Commonwealth v. Petaccio, 764 A.2d 582, 587 (Pa.Super. 2000),

overruled on other grounds by Commonwealth v. Mouzon, 812 A.2d

617 (Pa. 2002). Additionally, while appellant claims that he was innocent of

the crime that violated his probation, he pled guilty to it. Therefore, he has

been convicted of a crime and is eligible for total confinement. 42 Pa.C.S.A.

§ 9771(c)(1).

      This court concludes that appellant failed to establish a substantial

question that the trial court’s decision violated the Sentencing Code or a

fundamental norm of the sentencing process. As a result, this court need

not consider the merits of appellant’s argument.4

      Judgment of sentence affirmed.




4 Where the appellant claims the trial court failed to consider certain factors
and impose an individualized sentence, it can raise a substantial question.
See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.Super. 2015).
On the other hand, “this court has held on numerous occasions that a claim
of inadequate consideration of mitigating factors does not raise a substantial
question for our review.” Commonwealth v. Matroni, 923 A.2d 444, 455
(Pa.Super. 2007).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 4/18/18




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