J-S14005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                 :                  PENNSYLVANIA
                                 :
         v.                      :
                                 :
                                 :
    QUANTAY SIMONE WILLIAMS      :
                                 :
              Appellant          :             No. 1707 EDA 2017
                                 :

              Appeal from the Judgment of Sentence April 21, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010030-2008


BEFORE:      OTT, J., McLAUGHLIN, J., and RANSOM, J.

MEMORANDUM BY OTT, J.:                                 FILED JUNE 05, 2018

        Quantay Simone Williams appeals from the judgment of sentence

imposed on April 21, 2017, in the Court of Common Pleas of Philadelphia

County, following a violation of parole/probation (VOP) hearing.      In this

appeal, Williams challenges the discretionary aspects of her revocation

sentence of one to three-and-one-half years’ imprisonment. Based upon the

following, we affirm.

        The trial court has summarized the procedural history of this case as

follows:

        On July 10, 2009, [Williams] pleaded guilty to risking a
        catastrophe, 18 Pa.C.S. Section 3302(b) and reckless
        endangerment, 18 Pa.C.S. Section 2705. She was sentenced to
        11-1/2 to 23 months of imprisonment with immediate parole on

____________________________________________


   Retired Senior Judge assigned to the Superior Court.
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     the charge of risking a catastrophe and four years of probation for
     reckless endangerment. The sentences were to run concurrently.

     On February 22, 2011, May 16, 2014, and September 10, 2014,
     this court found [Williams] in violation of probation. On each date,
     probation was revoked and a new sentence was imposed.

     On December 14, 2014, this court found [Williams] in violation of
     probation and parole. [Williams] was sentenced to [one to] two
     years of imprisonment to be followed by three years of probation
     for risking a catastrophe. She was paroled on November 30,
     2015.

     On April 17, 2017, this [c]ourt found [Williams] in violation of
     parole[/probation]. She was sentenced to one to three-and-one-
     half years of imprisonment. This court determined that her
     sentence for reckless endangerment had been completed.

VOP Court Opinion, 8/30/2017, at 1-2.

     “[T]his Court’s scope of review in an appeal from a revocation

sentencing includes discretionary sentencing challenges.” Commonwealth

v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc). Furthermore,

     “[t]here is no absolute right to appeal when challenging the
     discretionary aspect of a sentence.” Commonwealth v. Crump,
     2010 PA Super 101, 995 A.2d 1280, 1282 (Pa.Super. 2010); 42
     Pa.C.S. § 9781(b). Rather, an "[a]ppeal is permitted only after
     this Court determines that there is a substantial question that the
     sentence was not appropriate under the sentencing code."
     Crump, supra at 1282. In determining whether a substantial
     question exists, this Court does not examine the merits of the
     sentencing claim. Commonwealth v. Tuladziecki, 513 Pa. 508,
     522 A.2d 17 (Pa. 1987).

     In addition, “issues challenging the discretionary aspects of a
     sentence must be raised in a post-sentence motion or by
     presenting the claim to the trial court during the sentencing
     proceedings. Absent such efforts, an objection to a discretionary
     aspect of a sentence is waived.” Commonwealth v. Kittrell,
     2011 PA Super 60, 19 A.3d 532, 538 (Pa. Super. 2011).
     Furthermore, a defendant is required to preserve the issue in a


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      court-ordered Pa.R.A.P. 1925(b) concise statement and a
      Pa.R.A.P. 2119(f) statement. Commonwealth v. Naranjo, 2012
      PA Super 183, 53 A.3d 66, 72 (Pa. Super. 2012).

Cartrette, at 1042.

      Here, Williams properly preserved her challenge to the discretionary

aspects of the sentence by filing a timely appeal, raising the claim in a post

sentence motion for reconsideration, and including in her appellate brief a

statement pursuant to Pa.R.A.P. 2119(f), setting forth the reasons she relies

upon for allowance of appeal. Therefore, we consider whether Williams has

presented a substantial question that her sentence is inappropriate under the

Sentencing Code.

      A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009) (citation omitted).       In her Section 2119(f)

statement,    Williams   challenges    “the   sheer    disproportionality   and

excessiveness of the lower court’s sentence for a technical violation of

probation.” Appellant’s Brief at 11. This claim raises a substantial question.

See Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (“A claim

that a sentence is manifestly excessive such that it constitutes too severe a

punishment raises a substantial question.”) Furthermore, Williams contests

the trial court’s imposition of a sentence of total confinement. This claim also


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presents a substantial question.     See Commonwealth v. Colon, 102 A.3d

1033, 1043 (Pa. Super. 2014) (“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.”). Therefore, we will

review Williams’ sentencing claim.

     The following principles guide a court's review of a VOP sentence:

     [A] trial court has broad discretion in sentencing a defendant, and
     concomitantly, the appellate courts utilize a deferential standard
     of appellate review in determining whether the trial court abused
     its discretion in fashioning an appropriate sentence. The reason
     for this broad discretion and deferential standard of appellate
     review is that the sentencing court is in the best position to
     measure various factors and determine the proper penalty for a
     particular offense based upon an evaluation of the individual
     circumstances before it. Simply stated, the sentencing court
     sentences flesh-and-blood defendants and the nuances of
     sentencing decisions are difficult to gauge from the cold transcript
     used upon appellate review. Moreover, the sentencing court
     enjoys an institutional advantage to appellate review, bringing to
     its decisions an expertise, experience, and judgment that should
     not be lightly disturbed.

                                      ****

     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. § 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. § 9771(c).

                                     ****

      [A] trial court does not necessarily abuse its discretion in imposing
      a seemingly harsher post-revocation sentence where the
      defendant received a lenient sentence and then failed to adhere
      to the conditions imposed on him. In point of fact, where the
      revocation sentence was adequately considered and sufficiently
      explained on the record by the revocation judge, in light of the
      judge's experience with the defendant and awareness of the
      circumstances of the probation violation, under the appropriate
      deferential standard of review, the sentence, if within the
      statutory bounds, is peculiarly within the judge's discretion.

Commonwealth v. Pasture, 107 A.3d 21, 27-29 (Pa. 2014) (case citations

omitted). See also Commonwealth v. Derry, supra, 150 A.3d 987, 994-

995 (holding a VOP sentencing court must consider 42 Pa.C.S. § 9721(b)

factors, and must also consider factors set forth in 42 Pa.C.S. § 9771(c)).

      Preliminarily, we agree with the Commonwealth that Williams has

waived any claim that the trial court abused its discretion in imposing a term

of total confinement because her counsel suggested to the court that a one to

three-and-one-half    year    sentence      would   be   appropriate.         See

Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa. Super. 2006)

(finding that where counsel suggested county incarceration might be proper

and appellant himself claimed a jail term of 12 to 24 months would be more



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appropriate than 18 to 36 months, such comments “would appear to waive

appellant’s argument’s regarding total confinement”). At the opening of the

Violation of Probation Hearing, held on April 21, 2017, counsel for Williams

stated, unequivocally:

      So, Your Honor, what I would be asking for because she, I have
      had Ms. Williams for years as Your Honor knows. I would ask it
      just be one to three years, no probationary tail, because she is
      just not a candidate for probation. She is not committing any
      offenses, but she is not compliant in any way, shape, or form with
      probation. And I can’t argue that. So I would just ask for one to
      three if Your Honor. [sic]

N.T. VOP Hearing, 4/21/2017, at 3-4. Unlike Malovich, where counsel merely

suggested incarceration would be proper, here, counsel asked the court to

impose a sentence of incarceration. Therefore, all issues currently raised by

Williams challenging the fact that a term of incarceration was imposed,

including the failure to obtain a pre-sentence report, are waived.

      Although Williams has claimed her sentence was disproportionate and

excessive to her technical violations, her argument specifically addresses the

imposition of any term of total incarceration, as discussed above, and not a

specific claim that the term of incarceration was excessive. Nonetheless, as

such a claim might be construed as being fairly encompassed in a claim of

excessive sentencing, we will briefly comment thereon.

      The VOP court, which was also the trial court and the court that heard

all previous VOP allegations, imposed a sentence of one to three-and-one-half

years’ incarceration.    The minimum term of one year is identical to the


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sentence requested by Williams’ counsel.     See N.T. VOP Hearing, supra.

Initially, we note the three-and-one-half year maximum term of incarceration

is six months longer that the term requested by Williams’ counsel. Id. There

is no apparent reason to determine the extra 180 days imposed on the

requested three years maximum sentence represents an abuse of discretion

that resulted in a manifestly excessive sentence. Moreover, the VOP judge

noted sufficient reasons for imposing the sentence.

     In fashioning the sentence, this court considered that [Williams]
     has not been convicted of a new crime since her initial guilty plea
     and sentencing in 2009. This court considered defense counsel’s
     recommended sentence of one to three years of imprisonment.
     [Williams] was found in violation of probation five times since her
     guilty plea. The docket entries show that she was given the
     opportunity for mental health and drug treatment to address her
     rehabilitative needs. Nevertheless, she has repeatedly failed to
     fulfill the terms of her probation. [Williams] has shown contempt
     of court by failing to appear for her hearings. The supervision,
     counseling and treatment services made available to her have not
     succeeded. Incarceration in required to protect [Williams] from
     her own irresponsible behavior. Incarceration “is essential to
     vindicate the authority of this court.” 42 Pa.C.S. Section 9771 (c).

VOP Court Opinion, 8/30/2017, at 5-6 (citation to record omitted).

     It has been often repeated that:

     [A] court may sentence a defendant to total confinement
     subsequent to revocation of probation 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




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

Commonwealth v. Crump, 995 A.2d 1280, 1282-83 (Pa. Super. 2010)

(emphasis added).

       The VOP court had the authority to impose a sentence of total

incarceration; defense counsel requested a sentence of total incarceration

based upon Williams’ inability to conform the terms of her probation; the VOP

court, having been involved with Williams from the inception of the underlying

matter, was all too aware of Williams’ multiple failings regarding compliance

with the terms of her probation; the VOP court imposed a sentence that was

only six months longer than the sentence requested by defense counsel; and,

the VOP court imposed a sentence designed to both aid Williams in her

rehabilitation and to vindicate the authority of the court.

       We find no abuse of discretion, and, therefore, Williams is not entitled

to relief.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/18




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