J. S27040/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
EFREN DANDRADE,                             :
                                            :
                          Appellant         :     No. 2617 EDA 2014

             Appeal from the Judgment of Sentence August 5, 2014
                In the Court of Common Pleas of Lehigh County
               Criminal Division No(s).: CP-39-CR-0003585-2008

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JULY 21, 2015

        Appellant, Efren Dandrade, appeals from the judgement of sentence

entered in Lehigh County Court of Common Pleas following the trial court’s

revocation of his probation. He challenges the discretionary aspects of his

sentence. We affirm.

        We adopt the recitation of facts and procedural history as set forth by

the trial court.    Trial Ct. Op., 10/13/14, at 1-2.    We add the following.

During Appellant’s July 15, 2014 Gagnon II hearing,1 he stipulated to

violating terms of his probation by failing to comply with verbal or written

*
    Former Justice specially assigned to the Superior Court.
1
 Gagnon v. Scarpelli, 411 U.S. 778 (1973). At a Gagnon II hearing, “the
Commonwealth is required to establish that the defendant [violated] his
parole/probation.” Commonwealth v. Stafford, 29 A.3d 800, 801 n.1 (Pa.
Super. 2011).
J. S27040/15


instructions and failing to remain drug-free. N.T. Gagnon II Hr’g, 7/15/14,

at 2-3. At that hearing, the trial court revoked Appellant’s probation. Order,

7/15/14. It scheduled a sentencing hearing for August 5, 2014. Id. The

trial   court   ordered   a   presentence     investigation   report   (“PSI”)   with

calculations of credit for time served and available maximum sentence. Id.

        The trial court sentenced Appellant to sixteen to thirty-six months’

imprisonment with a Recidivism Risk Reduction Incentive (RRRI) minimum of

twelve months. Order, 8/7/14. On August 15, 2015, Appellant filed a timely

motion to modify his sentence. The trial court denied the motion on August

19, 2014.       This timely appeal followed.2     Appellant filed a timely court-

ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal and

the trial court filed a responsive opinion.

        On appeal, Appellant challenges discretionary aspects of his sentence.

He raises the following issue for our review: “DID THE LOWER COURT ERR

BY IMPOSING A DISPROPORTIONATE SENTENCE BASED UPON THE NATURE

OF THE VIOLATION AND BY FAILING TO PROPERLY CONSIDER THE

REQUISITE       STATUTORY      FACTORS,     THUS     IMPOSING     AN    EXCESSIVE




2
  “An appellant whose revocation of probation sentence has been imposed
after a revocation proceeding has 30 days to appeal [the] sentence from the
day [the] sentence is entered, regardless of whether or not [he or] she files
a post-sentence motion.” Commonwealth v. Parlante, 823 A.2d 927, 929
(Pa. Super. 2003) (citing Pa.R.Crim.P. 708(D)).




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SENTENCE CONTRARY TO THE FUNDAMENTAL NORMS OF THE SENTENCING

PROCESS?” Id. at 4.

      Appellant argues the trial court abused its discretion. He contends the

following.   “[T]he Sentencing Court manifestly abused its discretion by

imposing a sentence of total confinement for relatively non-serious technical

violations . . . .” Id. The trial court failed to properly consider factors in 42

Pa.C.S. § 9721(b) during sentencing. Id. at 14. “[T]here is no indication on

the record that the public needs to be protected from [him]” and his

rehabilitative needs are unmet by his sentence. Id. at 15.

      This Court has stated,

         discretionary aspects of [an appellant’s] sentence are not
         appealable as of right. Rather, an appellant challenging
         the sentencing court’s discretion must invoke this Court’s
         jurisdiction by satisfying a four-part test.

                We conduct a four-part analysis to determine: (1)
             whether appellant has filed a timely notice of appeal,
             see Pa.R.A.P. 902 and 903; (2) whether the issue was
             properly preserved at sentencing or in a motion to
             reconsider and modify sentence, see Pa.R.Crim.P. 720;
             (3) whether appellant’s brief has a fatal defect,
             Pa.R.A.P. 2119(f); and (4) whether there is a
             substantial question that the sentence appealed from is
             not appropriate under the Sentencing Code, 42
             Pa.C.S.A. § 9781(b).


Commonwealth v. Leatherby, ___ A.3d ___, ___, 2015 WL 1788797 at

*7 (Pa. Super. April 21, 2015) (some citations omitted).

      Instantly, Appellant timely filed this appeal, preserved the issue of a

disproportionate or excessive sentence by objecting during sentencing and in


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his post-sentence motion, and included a statement in his brief which

conforms with Pa.R.A.P. 2119(f).3 See Appellant’s Brief at 10. Accordingly,

we   ascertain   whether   Appellant   has   raised   a   substantial   question.

Leatherby, 2015 WL 1788797 at *7.

     “A defendant presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013)

(punctuation omitted), appeal denied, 91 A.3d 161 (Pa. 2014).

        The imposition of a sentence of total confinement after the
        revocation        of     probation    for    a     technical
        violation . . . implicates the fundamental norms which
        underlie the sentencing process.            Additionally, a
        substantial question that the sentence was not appropriate
        under the Sentencing Code may occur even where a
        sentence is within the statutory limits.

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

(quotation marks and citations omitted). “[A]rguments that the sentencing

court failed to consider the factors proffered in 42 Pa.C.S. § 9721 . . .

present a substantial question.”   Dodge, 77 A.3d at 1272 n.8.          Appellant

3
  This Court has held that a “Rule 2119(f) statement must specify where the
sentence falls in relation to the sentencing guidelines and what particular
provision of the Code is violated . . . .” Commonwealth v. Goggins, 748
A.2d 721, 727 (Pa. Super. 2000) (en banc). Appellant’s 2119(f) statement
failed to include a statement of where his sentence fell within the sentencing
guidelines. Appellant’s Brief at 10. However, as the Commonwealth did not
argue a defect in his Rule 2119(f) statement, we decline to find waiver on
these technical grounds. See Dodge, 77 A.3d at 1271.




                                       -4-
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sufficiently alleges his sentence is disproportionate to the technical nature of

his probation violations and that the trial court failed to consider the factors

in 42 Pa.C.S. § 9721. We therefore find Appellant has raised a substantial

question. Dodge, 77 A.3d at 1272 n.8; Crump, 995 A.2d at 1282.

      Our standard of review is as follows:

              Sentencing is a matter vested in the sound
              discretion of the sentencing judge, and a sentence
              will not be disturbed on appeal absent a manifest
              abuse of discretion. An abuse of discretion is more
              than just an error in judgment and, on appeal, the
              trial court will not be found to have abused its
              discretion unless the record discloses that the
              judgment exercised was manifestly unreasonable,
              or the result of partiality, prejudice, bias, or ill-will.

            More specifically, 42 Pa.C.S.A. § 9721(b) offers the
            following guidance to the trial court’s sentencing
            determination:

              [T]he    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.

Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa. Super. 2012) (some

citations omitted).

      “Subsequent to revocation of probation, the sentencing court has

available     to   it   all   the   options    permissible   at   the   time   of   initial

sentencing . . . .” Crump, 995 A.2d at 1285.

            Under 42 Pa.C.S. § 9771(c), a court may sentence a
            defendant to total confinement subsequent to revocation of
            probation if any of the following conditions exist: 1. the


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           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
           this court.

Id. at 1282-83 (citing 42 Pa.C.S. § 9771(b)). This court declined to find an

abuse of discretion when “continued drug use, combined with [the

appellant’s] resistance to treatment and supervision, [was] enough to make

a determination that, unless incarcerated, appellant would in all likelihood

commit another crime.”       Commonwealth v. Capellini, 690 A.2d 1220,

1225 (Pa. Super. 1996).

     Further,

           [w]here pre-sentence reports exist, we shall continue to
           presume that the sentencing judge was aware of relevant
           information regarding the defendant's character and
           weighed those considerations along with mitigating
           statutory factors. . . . Having been fully informed by the
           presentence report, the sentencing court’s discretion
           should not be disturbed. This is particularly true . . . in
           those circumstances where it can be demonstrated that
           the judge had any degree of awareness of the sentencing
           considerations, and there we will presume also that the
           weighing process took place in a meaningful fashion.

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).               Therefore, to

determine whether the trial court weighed the factors in 42 Pa.C.S.

§ 9721(b) during sentencing, we must presume the trial court reviewed the

PSI. Id.

     First, we analyze whether the trial court abused its discretion by

imprisoning Appellant following revocation of probation. We find it did not.



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Here, as in Capellini, Appellant failed to pursue the rehabilitative goals of

probation. N.T., 7/15/14, at 3-4; see Capellini, 690 A.2d at 1225-26. The

record as a whole shows the trial court weighed Appellant’s risk of recidivism

as well as whether incarceration was “essential to vindicate the authority” of

the court.   See 42 Pa.C.S. § 9771(b); see Crump, 995 A.2d at 1285. It

concluded that Appellant’s probation violations were “technical violations,

but [his] history . . . under probation and parole . . . leads me to believe the

only thing that [he] may take seriously is to go to state prison for some

time.”   N.T., 8/5/14, at 13.   We therefore decline to find the trial court

abused its discretion by imprisoning Appellant for the remainder of the

maximum sentence available on his original crime.        Crump, 995 A.2d at

1283; Capellini, 690 A.2d at 1225-26.

      We now must determine whether the trial court failed to properly

consider the sentencing objectives enumerated in 42 Pa.C.S. § 9721(b). We

find it did not. During Appellant’s probation revocation proceeding, the trial

court considered Appellant’s positive drug screens and failure to appear for

ordered drug treatment.      N.T., 7/15/14, at 3-4.      The trial court later

reviewed Appellant’s PSI on the record. N.T., 8/5/14, at 10. In addition,

the trial court adopted the PSI’s sentencing recommendations.       See id. at

12. Because the trial court considered the PSI on the record, and keeping in

mind it adopted the sentencing recommendations therein, we must not

disturb the trial court’s decision. See Devers, 546 A.2d at 18.



                                     -7-
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      In its responsive opinion, the trial court concluded,

         [i]n this case, the sentence Appellant received is
         appropriate and was fully warranted under the
         circumstances.     This was Appellant’s fourth violation.
         Every time he has been released from incarceration, he
         has violated the terms of his sentence. He demonstrated
         an unwillingness to comply with the terms of his
         incarceration and parole.       Appellant also has a very
         lengthy [criminal] record . . . which strongly indicates that
         he is likely to commit another crime . . . . The Court also
         considered Appellant’s rehabilitative needs, and based on
         his performance while on parole and probation,
         confinement is more appropriate as a rehabilitative setting.

Trial Ct. Op. at 5. Based on a review of the record as a whole, we find the

trial court did not abuse its discretion. No relief is due.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/21/2015




                                      -8-
                                                                               Circulated 06/24/2015 10:23 AM




    IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
                          CRIMINAL DIVISION


COMMONWEALTH OF PENNSYLVANIA

                           vs.                                No.     3585 I 2008
                                                                      2617 EDA 2014
EFRAIN DANDRADE,
               Appellant

October 6, 2014

                                                                          Douglas G. Reichley, J.
                                            1925(a) Opinion

          Efrain Dandrade, Appellant, appeals from a judgment of sentence following a Gagnon II

hearing during which he conceded that he violated his probation for failing to remain drug free

and failing to follow written and verbal instructions. Appellant was resentenced to serve sixteen

to thirty months in state prison. Appellant contends this sentence is excessive and challenges the

discretionary aspects of the Court's sentence. For the reasons set forth herein, the sentence was

proper and lawful and Appellant's judgment of sentence should be affirmed.

                                     Factual and Procedural History

         On November 6, 2008, Appellant entered into negotiated guilty pleas on Fleeing or

Attempting to Elude a Police Officer, 1 graded as a Felony of the Third Degree, Theft by

Unlawful Taking,2 graded as a Misdemeanor of the First Degree, Receiving Stolen Property.'

graded as a Misdemeanor of the First Degree, Conspiracy to Theft by Unlawful Taking," graded

as a Misdemeanor of the First Degree, Recklessly Endangering Another Person.' graded ag a
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  75   Pa.C.S.A.   § 3733(a).                                                       o-n

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2 18   Pa.C.S.A.   § 392l(a).                                                        ~g      ~
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3 18
4 18
s 18
       Pa.C.S.A.
       Pa.C.S.A.
       Pa.C.S.A,
                   § 3925(a).
                   §§ 903(a)(l), 3921(a).
                   § 2705.
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                                                                                                       ••

                                                                                                            1
                                                                                 Circulated 06/24/2015 10:23 AM




    Misdemeanor of the Second Degree, and Driving While Operating Privilege is Suspended or

    Revoked,6 a summary offense.

          On December 8, 2008, the Honorable William H. Platt sentenced Appellant to twelve

months less one day to twenty-four months less one day in Lehigh County Prison, followed by

one year on probation and a fine.

          On August 2, 2009, Appellant was paroled. However, his parole was revoked following a

violation hearing on August 13, 2010. Judge Platt remanded Appellant to serve the balance of his

sentence, followed by one year on probation.

          On August 16, 2011, following a Gagnon II hearing, the Honorable Lawrence J. Brenner

found Appellant had again violated his parole and probation. Judge Brenner remanded Appellant

to serve the balance and he reimposed the one-year probationary period. Appellant was paroled

on October 15, 2011.

          Appellant appeared before the undersigned on January 24, 2012 for a third Gagnon II

hearing. At that point, the Court revoked the parole portion of the sentence and remanded

Appellant to serve the balance. The Court also revoked the probationary period and resentenced

Appellant to twelve months less one day to twenty-four months less one day in Lehigh County

Prison with a consecutive one year probationary period. The new sentence aggregated with the

balance to send Appellant to state prison.

          On November 15, 2012, Appellant paroled from state prison. He completed the parole

portion of his sentence.

          In May of 2014, a fourth violation petition was filed against Appellant. He appeared for a

Gagnon II hearing on July 15, 2014. He conceded the allegations of the petition, acknowledging

that he failed to remain drng free and failed to follow written and verbal instructions. The

6   75 Pa.C.S.A. § 1543(a).

                                                                                                    2
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specific factual allegations to which he conceded were failing to abide by a curfew and failing to

have a drug and alcohol evaluation when instructed. Following his concession, Appellant

requested a Presentence Investigation Report (PSI) be prepared.

        Appellant was interviewed and a PSI was prepared by Adult Probation. On August 5,

2014, Appellant appeared before the undersigned where he was resentenced to sixteen to thirty-

six months in state prison, with a RRRI minimum of twelve months.

        On August 15, 2014, Appellant filed a counseled Motion to Modify Sentence, which the

Court denied August 19, 2014.

        On September 4, 2014, Appellant filed a Notice of Appeal challenging his sentence. He

was directed to serve a Concise Statement of Matters Complained of on Appeal on the Court,

and said Concise Statement was filed on September 25, 2014.

        This Opinion follows.

                                              Discussion

        Appellant argues the Court abused his discretion by imposing a harsh and excessive

sentence. He claims his sentence was manifestly unjust and excessive and contrary to the

fundamental norms of the sentencing process. He also maintains it is disproportionate to what is

necessary to achieve consistency with the sentencing standards of the Sentencing Code.

       As a general rule, trial courts are afforded broad discretion in sentencing. Commonwealth

v. Miller, 835 A.2d 377, 380 (Pa. Super. 2003); Commonwealth v. Mouzon, 812 A.2d 617, 621

(Pa. 2002). A sentence will not be disturbed absent an abuse of that discretion. Mouzon, 812

A.2d at 621 ( citing Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001 )). 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."



                                                                                                     3
                                                                                 Circulated 06/24/2015 10:23 AM




Commonwealth v. Smith, 673 A.2d 893 (Pa. 1996) (quoting Commonwealth v. Lane, 424 A.2d

 1325, 1328 (Pa. 1981   ».
        The Supreme Court of Pennsylvania explained that"[ d]eference is accorded to the trial

court's pronouncement because of the perception that the trial court is in the best position to

determine the proper penalty for a particular offense based upon an evaluation of the individual

circumstances before it." Commonwealth v. Ward, 568 A.2d 1242, 1243 (Pa. 1990). Thus, a

sentence will not be disturbed unless it was manifestly excessive or outside the statutory limits.

Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa. Super. 1997). Sentencing judges are guided by

the general principles of protecting the public, weighing the gravity of the offense in relation to

its impact on the community and the life of the victim, and the defendant's rehabilitative needs.

42 Pa.C.S. §972l(b).

        "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." Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001) (quoting

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000)). The range of sentences

available to courts in resentencing following a revocation of probation are all of the sentencing

alternatives available at the time of the original sentencing. 42 Pa.C.S. § 9771(b).

       "Upon sentencing following a 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." Coolbaugh, 770 A.2d at 792 (citations omitted). Once probation is revoked, a

sentence of total confinement may 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,


                                                                                                      4
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                (3) such a sentence is essential to vindicate the authority of court

42 Pa.C.S. § 9771(c).

        In this case, the sentence Appellant received is appropriate and was fully warranted under

the circumstances. This was Appellant's fourth violation. Every time he has been released from

incarceration, he has violated the terms of his sentence. He demonstrated an unwillingness to

comply with the terms of his incarceration and parole. Appellant also has a very lengthy record

stretching back to 1986 which strongly indicates that he is likely to commit another crime. A

period of probation following this revocation would have been inappropriate, and a lesser

sentence served in Lehigh County Prison would depreciate the seriousness of the offense. The

Court also considered Appellant's rehabilitative needs, and based on his performance while on

parole and probation, confinement is more appropriate as a rehabilitative setting.

                                            Conclusion

       For the reasons set forth herein, Appellant's sentence was appropriate following the

fourth violation on his case. His behavior while on supervision outside an institutional setting

demonstrates a consistent pattern of noncompliance with the supervisory requirements imposed

upon him. Confinement is warranted under all of the circumstances and the duration of the

sentence is proper. Accordingly, the Court respectfully recommends that Appellant's judgment

of sentence be affirmed.

                                                      By the Court:




                                                                                                     5
