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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                         :
DEMETRIUS RICHARDSON,                    :         No. 1414 WDA 2014
                                         :
                        Appellant        :


           Appeal from the Judgment of Sentence, July 29, 2014,
             in the Court of Common Pleas of Allegheny County
              Criminal Division at No. CP-02-CR-0015188-2009


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED: September 16, 2016

      Demetrius Richardson appeals the judgment of sentence entered by

the Court of Common Pleas of Allegheny County as a result of his conviction

for indecent assault of a person less than 13 years of age, 18 Pa.C.S.A.

§ 3126(a)(7), corruption of minors, 18 Pa.C.S.A. § 6301(a)(1), and for

violation of his probation.

      The facts, as recounted by the trial court, are as follows:

                  [Appellant] was charged with Rape of a Child,
            Involuntary Deviate Sexual Intercourse with a Child,
            Aggravated Indecent Assault of a Child, Unlawful
            Contact with a Minor, Indecent Assault of a Person




* Retired Senior Judge assigned to the Superior Court.
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           Under 13 and Corruption of Minors.[1]             On
           September 7, 2010, [appellant] appeared before this
           Court and, pursuant to a plea agreement with the
           Commonwealth, pled guilty to the Indecent Assault
           and Corruption of Minors charges and the remaining
           charges were withdrawn. Per the agreement, he was
           immediately sentenced to time served plus a
           three (3) year term of probation. No Post-Sentence
           Motions were filed and no direct appeal was taken.

                 On February 26, 2013, [appellant] appeared
           before this Court for a probation violation hearing for
           the technical violations of failing to register as a sex
           offender and for positive drug tests. This Court
           revoked [appellant’s] probation and imposed an
           additional term of probation of five (5) years. No
           Post-Sentence Motions were filed and no direct
           appeal was taken.

                 On June 26, 2013, [appellant] filed a pro se
           Post Conviction Relief Act Petition. Scott Coffey,
           Esquire, was appointed to represent [appellant], but
           he submitted a Turner “no-merit” letter and
           requested permission to withdraw.             This Court
           granted counsel’s Motion and, after giving the
           appropriate notice, dismissed the Petition without a
           hearing on October 3, 2013. [Appellant] filed a
           direct appeal, but it was eventually dismissed on
           June 11, 2014 for his failure to file a brief.

                 [Appellant] next appeared before this Court on
           July 29, 2014 for a probation violation hearing.
           Upon finding that [appellant] was in technical
           non-compliance and also that he had a new
           conviction, this Court revoked [appellant’s] probation
           and imposed a term of imprisonment of three (3) to
           six (6) years. His subsequent Motion to Reconsider



1
  18 Pa.C.S.A. § 3121(c) (two counts), 18 Pa.C.S.A. § 3123(c) (one count)
and 18 Pa.C.S.A. § 3123(b) (three counts), 18 Pa.C.S.A. § 3125(b) (two
counts), 18 Pa.C.S.A. § 6318(a)(1) (two counts), 18 Pa.C.S.A. § 3126(a)(7),
and 18 Pa.C.S.A. § 6301(a)(1), respectively.


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            Sentence[2] was timely filed and was denied on
            August 5, 2014. This appeal followed.

Trial court opinion, 4/28/15 at 1-2 (footnote omitted).

      The trial court explained its reasoning for the sentence:

                  At the time of the plea, this Court noted that
            the maximum sentence for Indecent Assault was
            seven (7) years and the maximum sentence for
            Corruption of Minors was five (5) years.         (Plea
            Hearing Transcript, p. 3-4).        At the revocation
            hearing, this Court imposed a term of imprisonment
            of three (3) to six (6) years, which sentence was well
            below the maximum sentence available.

                   Additionally, prior to imposing sentence, this
            Court placed its reasons for doing so on the record.
            It stated:

                  THE COURT: Okay, [appellant], we’ve
                  been together for four years, and I have
                  done everything but stand on my head to
                  try to give you the ability to rehabilitate
                  yourself and make something of your
                  life. I’m just going to hit some of the
                  highlights. There is a presentence report
                  that was prepared.

                  First of all, your original crime, you
                  sexually assaulted a thirteen-year-old
                  child at least three times. You violated a
                  position of trust. As I remember, this
                  was a neighbor perhaps, or a relative.
                  The entire time that you’ve been
                  supervised by me, you’ve been positive
                  off and on for drugs. You have enough
                  money to go out and buy drugs but just
                  not quite enough money to pay the
                  awarded court costs or anything. You

2
  In the motion, appellant asserted that his sentence was excessive because
he did not commit a new offense involving crimes against persons and his
technical violations did not warrant a state sentence.


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                  failed to report. In fact, one time they
                  came to the door and you said you were
                  not who you are. They found you to be
                  someone else.        You used a false
                  identification. You do not live at the
                  address that you gave us.        You are
                  arrested for failure to register.    We
                  referred you to the Day Reporting
                  Center.     You failed to appear.   Your
                  failure to register per Megan’s Law was
                  nolle prossed, and what did you do? Let
                  me guess. You failed to register again
                  and you’ve been convicted of that second
                  crime. In February of 2013 I did give
                  you about your fifth chance and gave
                  you a new probation, but again you’re in
                  technical noncompliance, you are a
                  convicted violator, and you have a
                  number of other minor arrests.

            (Probation Violation Hearing Transcript, July 29,
            2014, p. 8-9).

                   As demonstrated by the record, this Court
            clearly placed ample reasons for its sentence on the
            record. The sentence imposed was well beneath the
            maximum sentence available at the time of the initial
            sentencing and therefore, was legal. The sentence
            imposed was not in violation of the Sentencing
            Guidelines, either due to its length or the reasons
            contained in the record for its imposition.     The
            sentence was legal and did not constitute an abuse
            of discretion. Therefore, this claim must fail.

Trial court opinion, 4/28/15 at 3-4.

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

            In revoking [appellant’s] probation and resentencing
            him to a sentence of total confinement of
            3-6 years[’] state incarceration, whether the trial
            court abused its sentencing discretion when the
            requirements of 42 Pa.C.S.A. § 9721 (Sentencing
            Generally) were not met?


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Appellant’s brief at 5.

      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.
            § 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).

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 Rule 2119(f) statement in his brief, in which he

avers that even though he expressed his sincere remorse for violating

probation and failing to comply with registration requirements, took

significant steps to rehabilitate himself, and demonstrated that he could

become a productive, law-abiding member of society, the trial court was not

swayed by his testimony and his plea for mercy as well as the fact that he

cared for his mother after she suffered two heart attacks. (Appellant’s brief

at 16-17.) Appellant does not deny that he was convicted of another crime.

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

report. “[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 appellant’s

efforts to obtain education, his efforts to care for his mother after her heart

attacks, and his expression of remorse in court. The only possible violation

of the Sentencing Code mentioned by appellant is the court’s failure to

consider appellant’s character and personal history. It is presumed that the

trial court did so.     Further, allegations that a sentencing court failed to

consider   certain    factors   does   not   constitute   a   substantial   question.

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


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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.3

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/16/2016




3
  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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