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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
KENNETH NYBERG,                           :           No. 317 WDA 2014
                                          :
                          Appellant       :


         Appeal from the Judgment of Sentence, February 4, 2014,
               in the Court of Common Pleas of Erie County
            Criminal Division at Nos. CP-25-CR-0002301-2001,
           CP-25-CR-0002357-2001, CP-25-CR-0002507-2001,
           CP-25-CR-0002508-2001, CP-25-CR-0002509-2001,
           CP-25-CR-0002510-2001, CP-25-CR-0002511-2001,
           CP-25-CR-0002512-2001, CP-25-CR-0002513-2001,
           CP-25-CR-0002514-2001, CP-25-CR-0002515-2001,
           CP-25-CR-0002516-2001, CP-25-CR-0002517-2001,
           CP-25-CR-0002518-2001, CP-25-CR-0002519-2001,
           CP-25-CR-0002520-2001, CP-25-CR-0002521-2001,
           CP-25-CR-0002522-2001, CP-25-CR-0002523-2001,
           CP-25-CR-0002524-2001, CP-25-CR-0002525-2001,
           CP-25-CR-0002526-2001, CP-25-CR-0002527-2001,
           CP-25-CR-0002528-2001, CP-25-CR-0002529-2001,
           CP-25-CR-0002616-2001, CP-25-CR-0002815-2001,
           CP-25-CR-0002816-2001, CP-25-CR-0002817-2001,
           CP-25-CR-0002867-2001, CP-25-CR-0003118-2001,
                         CP-25-CR-0003297-2001,


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND WECHT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED APRIL 15, 2015

     Kenneth Nyberg appeals from the judgment of sentence of February 4,

2014, following revocation of his probation. We affirm.

     On November 30, 2001, appellant pled guilty to numerous counts of

insurance   fraud   and    bad   checks   and   was   placed   on   intermediate
J. S20008/15


punishment. Appellant was accepted into the Erie County Treatment Court

program for rehabilitation from a cocaine addiction.        After approximately

three    months,    appellant   was    discharged    from    the   program     for

non-compliance.       On March 15, 2002, appellant was revoked from

intermediate punishment and sentenced to an aggregate of 6 to 12 years’

incarceration, followed by probation.     This court affirmed the judgment of

sentence on January 28, 2003. Commonwealth v. Nyberg, No. 696 WDA

2002, unpublished memorandum (Pa.Super. filed January 28, 2003).              We

found that the trial court put adequate reasons on the record to support its

sentence, including appellant’s lack of rehabilitative potential, his lack of

amenability to treatment or supervision, and his perpetual dishonesty and

abuse of the system. Id. at 9.

        While on state and county community supervision, appellant continued

to abuse cocaine and failed to pay restitution to his victims.       (Trial court

opinion, 4/22/14 at 2.)     Appellant’s probation was revoked, and he was

re-sentenced to 11½ to 23 months, followed by a long probationary tail.

Appellant’s motion for reconsideration was denied, and this timely appeal

followed.    Appellant complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.,

and the trial court has filed a Rule 1925(a) opinion.

        On appeal, appellant presents a challenge to the discretionary aspects

of his sentence, arguing that the sentence is manifestly excessive and that

the trial court failed to consider various mitigating factors in favor of a lesser



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sentence, including his age, employment history, and education. According

to appellant, he had obtained employment with DirectTV in order to pay

restitution, and he was enrolled full-time at Gannon University. (Appellant’s

brief at 20.) Appellant argues that the sentence of 30½ years’ probation is

essentially a lifetime supervision sentence. (Id.) Appellant also claims that

this is his first revocation, and he has not incurred any new criminal charges.

(Id.)1

            Our standard of review is well-settled.       We have
            explained:

                  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. Simmons, 56 A.3d 1280, 1283-
            84 (Pa.Super.2012).

                  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.

1
  Appellant has included the requisite Pa.R.A.P. 2119(f) statement in his
brief.


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            Commonwealth v. Mouzon, 828 A.2d 1126, 1128
            (Pa.Super.2003).

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

denied,        A.3d       (Pa. Feb. 11, 2015).

            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.    42 Pa.C.S.A. § 9771(b).
            “[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.”        Commonwealth v.
            Infante, 63 A.3d 358, 365 (Pa.Super.2013)
            (internal quotation marks and citations omitted).
            However, 42 Pa.C.S.A. § 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.

            42 Pa.C.S.A. § 9771(c).

Id. at 1044.

      Instantly, we agree with the trial court that appellant fails to present a

substantial question for our review. An argument that the sentencing court

failed to adequately consider mitigating factors in favor of a lesser sentence

does not present a substantial question appropriate for our review.


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Commonwealth v. Hanson, 856 A.2d 1254, 1257-1258 (Pa.Super. 2004),

citing Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa.Super. 2003).

See also Commonwealth v. Williams, 562 A.2d 1385 (Pa.Super. 1989)

(en banc) (an allegation that the sentencing court did not adequately

consider various factors is, in effect, a request that this court substitute its

judgment for that of the lower court in fashioning a defendant’s sentence).

      Furthermore, the trial court thoroughly explained its reasons for the

sentence on the record, including appellant’s lack of amenability to

treatment and the fact he had paid only $40 towards restitution. (Notes of

testimony, 2/4/14 at 9.)       Colon, supra, quoting Commonwealth v.

Cartrette, 83 A.3d 1030, 1040-1041 (Pa.Super. 2013) (en banc) (“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”).

      In addition, appellant’s alleged mitigating factors are not supported by

the record.    The record indicates that appellant has not been enrolled at

Gannon since 2010. (Notes of testimony, 2/3/14 at 6, 10-11.) In addition,

appellant was no longer working at DirectTV as of August 2013. (Id. at 29.)

The trial court found that appellant intentionally misrepresented his

educational and employment record. Regarding appellant’s claim that this is

his first revocation, as described above, his intermediate punishment was



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revoked in March 2002. We also note that appellant was charged in April

2014 with access device fraud, theft by unlawful taking, and theft by

receiving stolen property. The new charges relate to an incident on or about

December 17, 2013, wherein appellant fraudulently transferred money from

the victim’s credit card account to his Paypal account. (See supplemental

Rule 1925(a) opinion, 5/6/14, Exhibit A.)

      As the trial court has filed a thorough, comprehensive, 17-page

opinion, with appropriate citation to the record and to relevant case law,

explaining why appellant does not raise a substantial question for our

review; or, in the alternative, why the trial court did not abuse its discretion

in fashioning appellant’s sentence upon revocation of his probation, we will

affirm on the basis of that opinion.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/15/2015




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