J-S80011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

NIKOLAJS VILLAFANE,

                         Appellant                  No. 1642 EDA 2018


       Appeal from the Judgment of Sentence Entered April 27, 2018
              In the Court of Common Pleas of Bucks County
                        Criminal Division at No(s):
                         CP-09-CR-0001070-2013
                         CP-09-CR-0001099-2013


BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED MARCH 12, 2019

     Appellant, Nikolajs Villafane, appeals from the judgment of sentence

entered on April 27, 2018, imposed after the sentencing court found that he

violated the conditions of his parole in the case docketed at CP-09-CR-

0001070-2013 (hereinafter “Docket No. 1070-2013”) and the conditions of

his probation in the case docketed at CP-09-CR-0001099-2013 (hereinafter

“Docket No. 1099-2013”). We affirm.

     The sentencing court summarized the procedural history and factual

background of this case as follows:
     In Docket No. 1070-2013, [Appellant] was convicted of
     [a]ggravated [a]ssault, 18 Pa.C.S. § 2702(a)(3), for attempting
     to cause, or intentionally or knowingly causing[,] bodily injury to
     Quakertown Borough Police Officer Kris Baccari[, and t]heft by
     [u]nlawful [t]aking, 18 Pa.C.S. § 3921(a), and related charges for
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     unlawfully taking an automobile owned by Laura Arnaudo. He was
     sentenced by the Honorable Albert J. Cepparulo to eleven and
     one-half to twenty[-]three month[s’ incarceration] for the assault
     and a consecutive term of three years[’] probation for the auto
     theft. In addition to other terms and conditions, [Appellant] was
     ordered to pay restitution in the amount of $1,294.50 to
     Quakertown Borough.

     In Docket No. 1099-2013, [Appellant] was convicted of
     [b]urglary, 18 Pa.C.S. § 3502(a)(4), and related charges in
     connection with the burglary of a Popeye’s Restaurant. He was
     placed on probation for five years to run concurrent to Docket No.
     1070-2013. In addition to other terms and conditions, [Appellant]
     was ordered to pay restitution in the amount of $6,529.00 to
     Popeye’s restaurant.

     On October 25, 2017, [Appellant] was convicted in Montgomery
     County of [b]urglary (overnight accommodation, person present),
     a felony of the first degree, [p]ossession of a [c]ontrolled
     [s]ubstance[,] and related charges.       On January 2, 2018,
     [Appellant] was sentenced to a term of incarceration of two and
     one-half to five years with a consecutive term of five years[’]
     probation. At the time of the violation hearing, [Appellant] had
     only ten months left to serve on that sentence.

     On April 24, 2018, violation hearings were held. At that time,
     [Appellant] conceded that he was in violation of his parole as a
     result of his Montgomery County convictions, his failure to report
     police contact[,] and his failure to pay restitution. This was the
     third violation in Docket No. 1070-2013 and the second violation
     in Docket No. 1099-2013.

     In Docket No. 1070-2013 ([a]ggravated [a]ssault, [a]uto
     [t]heft)[, Appellant] was found in violation of his parole, his parole
     was revoked[,] and he was recommitted to serve the balance of
     his original sentence, ten months and nineteen days. He was
     further ordered to pay restitution in the amount of $1,294.50 to
     Quakertown Borough.

     In Docket No. 1099-2013 … ([b]urglary)[, Appellant] was found
     in violation of his probation and was resentenced to a term of
     incarceration of three and one-half to seven years with a
     consecutive term of probation of three years. [Appellant] was
     ordered to pay restitution in the amount of $6,124.00 to Popeye’s
     Restaurant. The sentence was imposed to run consecutive to the
     sentence imposed in Montgomery County.

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Sentencing Court Opinion (SCO), 7/12/2018, at 1-2 (internal citations

omitted).

       Following sentencing on April 27, 2018, Appellant filed a timely motion

to modify and reconsider his sentence, which the sentencing court denied.

Thereafter, Appellant filed timely notices of appeal in both cases on May 25,

2018, and he subsequently complied with the sentencing court’s order to file

a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The

sentencing court then issued a Rule 1925(a) opinion.

       Presently, Appellant raises a single issue for our review:
       Did the sentencing court abuse its discretion by imposing a
       manifestly excessive and unjust aggregate sentence as the
       sentence deviated above the aggravated range of the sentencing
       guidelines, was run consecutive to another sentence Appellant
       was currently serving, and did not consider the rehabilitative
       needs of the Appellant, his prior record score as calculated by the
       Sentencing Guidelines or the other sentences he was serving at
       the time the above sentence was imposed?

Appellant’s Brief at 4.1

       Appellant challenges the discretionary aspects of his sentence.       This

Court has explained:
       Challenges to the discretionary aspects of sentencing do not
       entitle a petitioner to review as of right. Before this Court can
____________________________________________


1 Appellant focuses his argument on his sentence imposed in Docket No. 1099-
2013. However, to the extent Appellant attempts to contest the sentence
imposed following his parole violation in Docket No. 1070-2013 on this same
basis, the sentencing court aptly explained that, “if a defendant is found in
violation of his parole, a new sentence is not imposed. A court’s only recourse
is to recommit [Appellant] to serve the remainder of the original sentence.
The discretionary aspects of sentence are therefore not [at] issue.” SCO at 3
(citations omitted).

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      address such a discretionary challenge, an appellant must comply
      with the following requirements:

         An appellant challenging the discretionary aspects of his
         sentence must invoke this Court’s jurisdiction by satisfying
         a four-part test: (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.

Commonwealth v. Swope, 123 A.3d 333, 337 (internal case citation

omitted).

      Here, the trial court determined that Appellant did not preserve the issue

he raises on appeal in his motion to modify and reconsider his sentence.

Therein, he requested reconsideration for the following reasons:
      a. [Appellant] wishes to exercise the right to allocution and speak
      before Your Honor.

      b. [Appellant] would like to present witnesses who were not
      present at his previous sentencing.

      c. [Appellant] seeks to reduce the length of incarceration.

      d. [Appellant] seeks to request concurrent sentences.

      e. [Appellant] believes and therefore avers that the sentence was
      beyond what was appropriate and necessary for rehabilitation and
      community safety.

Appellant’s Motion to Modify and Reconsider Sentence, 5/4/2018, at ¶ 4. The

trial court discerned that Appellant did not specifically claim — at the time of

sentencing or in his post-sentence motion — that his sentence was manifestly

excessive and unjust because “the sentence deviated above the aggravated

range of the sentencing guidelines, was run consecutive to another sentence

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Appellant was currently serving, and did not consider the rehabilitative needs

of the Appellant, his prior record score as calculated by the Sentencing

Guidelines or the other sentences he was serving at the time the above

sentence was imposed.” See TCO at 4; Appellant’s Brief at 4. We agree, and

deem waived Appellant’s challenge to the discretionary aspects of his

sentence.

      Nevertheless, even if not waived, we would determine that no relief is

due on the merits. We observe:
      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.

Swope, 123 A.3d at 340 (citation omitted).

      Here, the trial court reasoned:
      [Appellant’s] assertion that the sentence imposed is manifestly
      excessive and unjust because “the sentence deviated above the
      aggravated range of the Sentencing Guidelines” and did not take
      into consideration “his prior record score as calculated by the
      Sentencing Guidelines” cannot support his request for relief. “[I]t
      is well settled that the sentencing guidelines do not apply to
      sentences imposed as a result of probation or parole
      revocations.[”] Commonwealth v. Coolbaugh, 770 A.2d 788[,
      792] (Pa. Super. 2001) (citations and quotation marks omitted).

      The only remaining claim is whether the sentence imposed is a
      “manifestly excessive and unjust aggregate sentence” based on
      this [c]ourt’s alleged failure to consider the rehabilitative needs of
      [Appellant] or the other sentences he was serving at the time
      [the] sentence was imposed. As to this issue, the law is well
      settled. “A sentencing court need not undertake a lengthy
      discourse for its reasons for imposing a sentence or specifically


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     reference the statute in question, but the record as a whole must
     reflect the sentencing court’s consideration of the facts of the
     crimes and character of the offender.” Commonwealth v.
     Schutzues, 54 A.3d 86, 99 (Pa. Super. 2012) (quotation and
     citation omitted). In the instant case, prior to imposing sentence,
     this [c]ourt reviewed the facts and circumstances involved in each
     of [Appellant’s] convictions, including his Montgomery County
     conviction.

     With regard to Docket No. 1070-2013, [Appellant] testified that
     he had stolen a car and was on his way to buy drugs when he
     encountered police. [Appellant] stated that he was stopped in an
     alley when he observed a police car approaching. He stated that
     he backed out at a high rate of speed, hit the police car[,] and
     injured the police officer. He admitted that he had intended to
     “smash” the police car. He further admitted that he had intended
     to take the stolen car to a “chop shop” in Philadelphia. This [c]ourt
     was advised that the probable cause affidavit in support of the
     criminal complaint indicated that [Appellant] backed out at a high
     rate of speed and then drove toward the officer, sideswiped the
     patrol car, and sped through two stop signs.

     With regard to Docket No. 1099-2013, [Appellant] stated that he
     burglarized the Popeye’s after his girlfriend was fired from the
     restaurant and told him when the restaurant’s safe would be
     vulnerable. He stated that this incident stemmed from his drug
     addiction.

     With regard to his Montgomery County convictions, [Appellant]
     testified that he burglarized the home of a female senior citizen
     who had given him money a few hours before to “help him out.”
     He stated that the burglary occurred after he left his maintenance
     program and started “using again.” He described his condition at
     the time as “angry.” He stated that he was high, “but not where
     [he] wanted to be.” He further expounded that “[h]e would have
     stabbed my own mother in the back” to get what he needed. With
     regard to the burglary itself, [Appellant] testified that he “feigned”
     a break-in of the elderly woman’s home. When he was asked to
     explain what “feigning” a break-in meant, [Appellant] explained
     that “[he] played the hero” by smashing a rock through rear
     French doors of the residence, entering the victim’s bedroom,
     waking her up[,] and telling her that “he had chased the man off.”
     He testified that he then said to the victim that “[he] was
     wondering if [he] could have another $20.” [Appellant] admitted


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     that he entered the home at midnight and that he was “high” at
     the time he did so.

     Based on those facts and circumstances, this [c]ourt concluded
     that [Appellant’s] rehabilitative needs required imposition of a
     lengthy sentence. Specifically, this court noted that [Appellant]
     demonstrated a complete lack of understanding of the severity of
     his conduct and the harm he caused his victims. This [c]ourt also
     noted that [Appellant] had multiple opportunities to address his
     anger and drug addiction issues but chose not to avail himself of
     those opportunities. Finally, the [c]ourt noted that [Appellant’s]
     conduct established that he could not or would not control his
     criminal behavior. [Appellant’s] assertion that this [c]ourt did not
     consider the rehabilitative needs of [Appellant] or the other
     sentences he was serving at the time sentence was imposed is
     therefore clearly unfounded.

     The fact that this [c]ourt imposed the sentence consecutive to the
     Montgomery County sentence does not alter the conclusion that
     the sentence imposed is not excessive or unduly harsh. Clearly,
     a court has the authority to impose probation violation sentences
     consecutive to the sentences imposed on crimes committed while
     a defendant is on probation. … Swope, 123 A.3d [at] 341….
     [Appellant] “is not entitled to a volume discount for his crimes.”
     Id.

SCO at 4-7 (internal citations and some original brackets omitted).

     We would observe no abuse of discretion by the sentencing court, and

therefore would conclude that Appellant’s issue is meritless. Accordingly, we

affirm Appellant’s judgment of sentence.

     Judgment of sentence affirmed.

     Judge Nichols joins this memorandum.

     Judge Bowes concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/12/19




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