J-S39021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                             Appellee

                       v.

JOSHUA B. DAVIS

                             Appellant                  No. 2351 EDA 2014


             Appeal from the Judgment of Sentence July 15, 2014
               In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0003226-2010


BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                 FILED October 6, 2015

       Joshua B. Davis appeals from the judgment of sentence entered July

15, 2014, in the Lehigh County Court of Common Pleas, upon the third

revocation of his parole and probation, and made final by the denial of post-

sentence motions on July 29, 2014. Davis originally pled nolo contendere on

October 14, 2010, to the crimes of agricultural vandalism and recklessly

endangering another person (“REAP”),1 and was sentenced to an aggregate

term of three to 12 months of county incarceration, followed by a five-year

period of probation.        Following the revocation, the court sentenced him to

serve the balance of his original term for the parole violation, followed by

____________________________________________


1
    18 Pa.C.S. §§ 3309(a) and 2705, respectively.
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two to four years of state incarceration for the probation violation. The sole

issue on appeal is a challenge to the discretionary aspects of sentencing.

After a thorough review of the submissions by the parties, the certified

record, and relevant law, we affirm the judgment of sentence.

       The trial court set forth the factual and procedural history as follows:

       [Davis] entered a nolo contendere plea to Agricultural Vandalism
       and [REAP] on October 14, 2010. He was sentenced to three to
       [12] months less one day in Lehigh County Prison, followed by
       five years of consecutive probation. He paroled on October 18,
       2010. [Davis] completed the parole portion of his sentence. On
       May 9, 2012, [Davis] appeared before the undersigned for a
       Gagnon II[2] hearing on a violation of his probation.         He
       conceded the allegations and was resentenced to not less than
       three nor more than [23] months in Lehigh County Prison
       followed by three years of probation. On June 11, 2012, [Davis]
       paroled to the Eagleville Hospital.

             An arrest warrant was issued for [Davis] on August 8,
       2013 citing a technical violation. On September 10, 2013,
       [Davis] was found to be in violation following a Gagnon II
       hearing. His parole was revoked and he was remanded to
       Lehigh County Prison to serve the balance, followed by another
       three-year probation sentence.

               On May 5, 2014, [Davis] was paroled to the Lehigh County
       Center for Recovery. [Davis] testified that he attended group
       sessions at the facility. However, he was discharged from the
       facility due to noncompliance with the facility’s procedures. He
       caused disruptions in group sessions and in the facility
       community. [Davis] testified during his Gagnon II hearing that
       he remained calm during all interactions with staff and left group
       sessions on his own rather than being removed from them as a
       result of a disruption.

____________________________________________


2
   Gagnon v. Scarpelli, 411 U.S. 788 (1973) (discussing revocation
hearings).



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              [Davis] was recommitted on May 14, 2014 on a parole
       violation based on failure to comply with conditions imposed in
       his sentence.

             On June 11, 2014, the Court conducted a Gagnon II
       hearing at the close of which it determined that the
       Commonwealth sustained its burden of proving [Davis] violated
       the conditions of his parole.      Counsel requested that a
       Presentence Investigation Report be prepared prior to sentencing
       to assist the Court in understanding [Davis’] mental health
       challenges.

              [Davis] appeared in court for resentencing on July 15,
       2014. At that time, [Davis’] parole was revoked and he was
       remanded to a State Correctional Institution to serve the
       balance.     His probation was also revoked and he was
       resentenced to one to two years in a State Correctional
       Institution.

Trial Court Opinion, 9/5/2014, at 1-2.3 Davis filed a motion for modification

of sentence on July 25, 2014. The trial court denied the motion four days

later. This appeal followed.4

       In his sole issue on appeal, Davis contends the trial court “abused its

discretion by imposing manifestly unreasonable and improper sentences for

a violation of probations without properly considering the requisite statutory
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3
   To clarify, the court sentenced him to serve the balance of his original
term (12 months) for the parole violation on the agricultural vandalism
offense. See N.T., 7/15/2014, at 22. The court imposed two consecutive
terms of one to two years of state incarceration for the probation violation
on both the agricultural vandalism and REAP counts. Id. at 22-23. The
probation revocation sentence is the maximum sentence. Id. at 10.
4
    On August 18, 2014, the trial court ordered Davis to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Davis filed a concise statement on August 27, 2014. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on September 8, 2014.



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factors.” Davis’ Brief at 11. Specifically, he states, “the Sentencing Court

manifestly abused its discretion by imposing sentences of total confinement,

the maximums allowed under the law, for a technical violation which

occurred less than ten days after his release on parole, which sentences are

unreasonable, excessive and disproportional to the violation alleged. Id. at

13.   Davis does not argue the court ignored or misapplied 42 Pa.C.S.

§ 9771; rather, he states the sentence imposed exceeded “what is necessary

to achieve [the court’s ] goal [of vindication], even in light of the case

history.” Id. at 14. In support of this contention, he points the following:

(1) he has a long documented history of mental health and substance abuse

problems; (2) he was enrolled at the Lehigh Valley Center for Recovery for

less than ten days before he was discharged from the program for simply

not being in compliance; and (3) he did not physically harm anyone, use

drugs, or bring contraband into the facility. Id. Davis states the “nature of

this violation does not warrant an additional aggregate sentence of two to

four years in state prison, on top of the parole balance he already owed

(approximately   one   year).”    Id.     Lastly,   Davis   asserts   the   court

“characterize[d his] history of violations as a challenge or disregard for the

authority of the Court,” and failed to properly consider the factors set forth

in 42 Pa.C.S. § 9721(b) (“the protection of the public, the gravity of the




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offense as it relates to the impact on the life of the victim and on the

community, and the rehabilitative needs of the defendant”). Id. at 15.5

       The standard of review for a claim challenging a discretionary aspect

of sentencing is well-established:

             Sentencing is a matter vested in the sound discretion of
       the judge, and will not be disturbed on appeal absent a manifest
       abuse of discretion. An abuse of discretion is not shown merely
       by an error in judgment. Rather, the appellant must establish,
       by reference to the record, that the sentencing court ignored or
       misapplied the law, exercised its judgment for reasons of
       partiality, prejudice, bias or ill will, or arrived at a manifestly
       unreasonable decision.

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted), appeal denied, 980 A.2d 607 (Pa. 2009).

       “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.

Super. 2007) (citations and quotation marks omitted). To reach the merits

of a discretionary issue, this Court must determine:

       (1) whether appellant has filed a timely notice of appeal; (2)
       whether the issue was properly preserved at sentencing or in a
       motion to reconsider and modify sentence; (3) whether
       appellant’s brief has a fatal defect; and (4) whether there is a
       substantial question that the sentence appealed from is not
       appropriate under the Sentencing Code.


____________________________________________


5
  It bears mentioning that Davis does not challenge the revocation of parole
portion of his sentence.



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Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)

(footnotes omitted).

       Here, Davis filed a notice of appeal, preserved the issue in a post-

sentence motion, and included the requisite statement pursuant to Pa.R.A.P.

2119(f) in his appellate brief.         Therefore, we may proceed to determine

whether Davis has presented a substantial question that the sentence

appealed     from     is   not    appropriate    under   the   Sentencing   Code.

Commonwealth v. Edwards, 71 A.3d 323, 330 (Pa. Super. 2013), appeal

denied, 81 A.3d 75 (Pa. 2013).6

       To the extent Davis argues his sentence was manifestly unreasonable

or excessive in light of his assertion that the court did not consider certain

statutory factors, such a claim does raise a substantial question.           See

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6
  With respect to whether an issue presents a substantial question, we are
guided by the following:

       The determination of what constitutes a substantial question
       must be evaluated on a case-by-case basis.                See
       Commonwealth v. Paul, 2007 PA Super 134, 925 A.2d 825
       (Pa. Super. 2007). “A substantial question exits only when the
       appellant advances a colorable argument that the sentencing
       judge’s actions were either: (1) inconsistent with a specific
       provision of the Sentencing Code; or (2) contrary to the
       fundamental norms which underlie the sentencing process.”
       Commonwealth v. Griffin, 2013 PA Super 70, 65 A.3d 932,
       2013 WL 1313089, *2 (Pa. Super. filed 4/2/13) (quotation and
       quotation marks omitted).

Edwards, 71 A.3d at 330 (citation omitted).




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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.”). See also Commonwealth v.

Mouzon, 812 A.2d 617, 627 (Pa. 2002) (stating that a substantial question

is raised when a defendant “sufficiently articulates the manner in which the

sentence violates either a specific provision of the sentencing scheme set

forth in the Sentencing Code or a particular fundamental norm underlying

the sentencing process”).7

        “In general, 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. Hoover, 909 A.2d 321, 322 (Pa. Super. 2006).                      “[A]

sentence should not be disturbed where it is evident that the sentencing

court    was     aware     of   sentencing     considerations   and     weighed   the

considerations in a meaningful fashion.” Commonwealth v. Fish, 752 A.2d

921, 923 (Pa. Super. 2000), appeal denied, 771 A.2d 1279 (Pa. 2001).

“[T]he scope of review in an appeal following a sentence imposed after

probation revocation is limited to the validity of the revocation proceedings

and     the    legality   of    the   sentence   imposed    following    revocation.”
____________________________________________


7
   See also Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa.
Super. 2006) (stating “a claim that a particular probation revocation
sentence is excessive in light of its underlying technical violations can
present a question that we should review.”).



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Commonwealth v. Infante, 888 A.2d 783, 790 (Pa. 2005) (citation

omitted).

     Upon the revocation of a defendant’s probation, a trial court may

impose any sentencing option that was available under the Sentencing Code

at the time of the original sentencing, regardless of any negotiated plea

agreement. 42 Pa.C.S. § 9771(b); Commonwealth v. Wallace, 870 A.2d

838, 843 (Pa. 2005).    Moreover, “[t]he trial court is limited only by the

maximum sentence that it could have imposed originally at the time of the

probationary sentence.” Fish, 752 A.2d at 923. Section 9771(c), however,

limits the trial court’s authority to impose a sentence of total confinement

upon revocation unless one of three circumstances are present:

     (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. § 9771(c).   Furthermore, it is well-established that “[t]echnical

violations can support revocation and a sentence of incarceration when such

violations are flagrant and indicate an inability to reform.” Commonwealth

v. Carver, 923 A.2d 495, 498 (Pa. Super. 2007).

     “In addition, 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


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the reason or reasons for the sentence imposed [and] [f]ailure to comply

with these provisions shall be grounds for vacating the sentence or

resentence     and    resentencing      the    defendant.”   Commonwealth    v.

Cartrette, 83 A.3d 1030, 1040-1041 (Pa. Super. 2013) (internal quotations

omitted); 42 Pa.C.S. § 9721(b). “A trial court need not undertake a lengthy

discourse for its reasons for imposing a sentence or specifically reference the

statute in question, but the record as a whole must reflect the sentencing

court’s consideration of the facts of the crime and character of the offender.”

Commonwealth v. Crump, 995 A.2d 1280, 1282-1283 (Pa. Super. 2010),

appeal denied, 13 A.3d 475 (Pa. 2010).

       Although Davis contends the sentence imposed by the trial court

following revocation was excessive, it bears remarking that he does not

assert the sentence imposed by the court was beyond the statutory

maximum.       Nor does the record support such an assertion.      Rather, the

record reveals the following: Davis has a prior criminal history, in which he

was previously incarcerated.             See Presentence Investigation Report,

9/26/2014.8 This was his third probation violation in the underlying matter.

See N.T., 6-11/2014, at 33-34.

       At the June 11, 2014, Gagnon hearing, the Commonwealth presented

the following evidence to demonstrate Davis violated conditions of his
____________________________________________


8
   See also N.T., 7/15/2014, at 3 (trial court indicating it had received a
copy of the presentence investigation report).



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probation:    Elizabeth Duncan, the supervisor of the Adult Probation

Department, testified “[t]he nature of the violation is that [Davis] was

required to participate in any inpatient or outpatient mental health or dual

diagnosis treatment. He was paroled to Lehigh County Center for Recovery

on May 5th, 2014, and was unsuccessfully discharged from that program on

May 14th, 2014.” Id. at 5-6.

      Dr. Muhamad Rifai, the medical director at the Lehigh County Center

for Recovery, testified patients receive a list of rules and regulations in terms

of compliance with the facility, including non-disruptive, non-threatening

behavior, when they are admitted the center.          Id. at 9.   With respect to

Davis, Dr. Rifai stated:

            During [Davis’] stay, he became disruptive in group. He
      became threatening to staff as well as other patients and
      verbalized to myself threatening remarks to some of his family
      members as well as to other staff and became very intimidating
      toward patients and the staff. And it became a danger to keep
      him in our facility because we’re an outpatient treatment facility.
      We’re an unlocked unit -- and considered further treatment for
      him through the involvement with the correctional system.

Id. at 10. Specifically, Dr. Rifai testified Davis “made several remarks about

being able to harm other individuals very easily. He made gestures as well

as drawings that were very, very concerning in terms of drawing cut-off

heads that we considered very threatening from our perspective as mental

health treatment experts.”    Id. at 10.      Additionally, Dr. Rifai stated Davis

said that “he had martial arts skills and it was easy for him to chop off

somebody’s head, and he made that remark about his own father, but he

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said his father was not here. He was in Saudia [sic] Arabia. So that would

not be a practical threat.” Id. at 13.

      Davis also testified at the hearing. He stated he was diagnosed with

“[b]ipolar with psychotic tendencies, borderline schizophrenia, intermittent

personality disorder, explosive anger disorder, post traumatic stress.” Id. at

22. Davis did not agree with Dr. Rifai’s assessment that he was disruptive in

the group setting or that he made threats to the staff. Id. at 23.

      At the July 15, 2015 hearing, the court explained its rationale for

Davis’ sentence: “I think, for better or worse though, Davis’ mental health

condition has reached a level which is really beyond the capacity for us to

assist at the county level.”    N.T., 7/15/2015, at 22.      The court further

opined:

            In this case, [Davis] was sentenced to serve the remaining
      balance of his parole and also to a period of one to two years in
      a State Correctional Institution. As the Court explained at the
      time of sentencing, this was based on several factors. [Davis]’s
      mental health challenges have led to a series of difficulties in the
      mental health community supervisory setting. He was disruptive
      in group sessions and has anger issues that need to be
      addressed. The psychological evaluation indicated that he was
      malingering. Additionally, the Court had the opportunity to
      observe [Davis] in court on several occasions and noted on the
      record that [Davis’] challenges are better suited for care and
      treatment in the State system than through the county
      resources available. [Davis’] mental health challenges render
      him likely to reoffend, and it is appropriate to place him in a
      correctional setting capable of addressing these challenges so as
      to reduce the likelihood that he will reoffend.

           [Davis] has a long history of noncompliance with
      supervision. The majority of his supervision periods have been
      revoked. The Court received testimony indicating that [Davis] is

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     a difficult individual to supervise and rehabilitate as a result. A
     sentence of confinement rather than probation was appropriate
     to provide the proper medication and psychotherapeutic settings
     to address [Davis’] mental health challenges, to ensure his own
     safety, to protect the community, and to preclude him from
     reoffending during the period of incarceration. The sentence was
     lawful and proper and should be affirmed.

Trial Court Opinion, 9/5/2014, at 5-6.

     In light of the evidence, we view the violations leading to Davis’

probation revocation much differently than he suggests, noting his actions

was not a mere technical violation. Accordingly, we conclude Davis’ conduct

while at the treatment center demonstrates a concern with respect to his

mental health issues as well as a lack of intent to reform, and that a

sentence of state imprisonment is essential to vindicate the authority of the

trial court. See Commonwealth v. Cappellini, 690 A.2d 1220, 1225-1226

(Pa. Super. 1997) (although trial court did not make specific finding that

sentence of total confinement upon revocation of probation was necessary

pursuant to Section 9771(c)(2) and (3), the record was sufficient to support

such a finding). Therefore, because the trial court properly considered the

applicable factors in formulating its sentence, and the sentence did not

exceed the statutory maximum, we find the trial court did not abuse its

discretion in revoking Davis’ probation and imposing a term of state

imprisonment.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2015




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