J-S92022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

GUY WILLIAM SIMPSON

                            Appellant                   No. 626 WDA 2016


             Appeal from the Judgment of Sentence March 30, 2016
                In the Court of Common Pleas of Mercer County
              Criminal Division at No(s): CP-43-CR-0001446-2010


BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.:                                 FILED MAY 16, 2017

        Guy William Simpson appeals from the March 30, 2016 judgment of

sentence entered in the Mercer County Court of Common Pleas following his

violation of probation. We affirm.

        The trial court set forth the following factual and procedural history:

           Simpson entered into a negotiated guilty plea on June 8,
           2011 where he pl[e]d guilty to Theft by Unlawful Taking,
           18 Pa.C.S. § 3921(a).1 The conviction arose out of an
           incident where Simpson broke into three vehicles at Time
           Warner Cable in Hermitage, and stole several items valued
           at approximately $3,000. He was sentenced to three
           years’ supervised probation consecutive to his existing
           parole, and was ordered to pay $1[,]200 in restitution on
           July 14, 2011. On October 15, 2016, while incarcerated,
           Simpson was arrested for assaulting another inmate at The


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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            Mercer County Jail. At Simpson’s Gagnon[1] II hearing on
            February 11, 2016, he admitted to a probation violation
            due to the new conviction, and the Court revoked his
            probation. On March 30, 2016, the Court resentenced
            Simpson to pay the same $1,200 in restitution and
            undergo imprisonment for two to four years in a state
            correctional facility.
               1
                 Simpson was also charged with Burglary (18
               Pa.C.S. § 3502), Criminal Trespass (18 Pa.C.S. §
               3503), and Theft from a Motor Vehicle (18 Pa.C.S. §
               3934), however these charges were disposed of as
               part of the Guilty Plea/Nol[le] Pros agreement.

Opinion Pursuant to Pa.R.A.P. 1925(a), 6/16/16, at 1-2. On April 7, 2016,

Simpson filed a motion to modify sentence, which the trial court denied that

same day. On April 28, 2016, Simpson filed a timely notice of appeal.

       Simpson raises the following issues on appeal:

            I. The trial court erred when it issued a manifestly
            excessive and clearly unreasonable resentence to Simpson
            by resentencing him to 2-4 years in the state penitentiary.

            II. The trial court erred when it failed to consider other
            rehabilitative alternatives for Simpson, specifically the
            state motivational boot camp program.

Simpson’s Br. at 5.

       Simpson     challenges     the   discretionary   aspects   of   his   sentence.

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super. 2011).         Before we address a discretionary challenge, we

must determine:
____________________________________________


       1
           Gagnon v. Scarpelli, 411 U.S. 778 (1973).



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           (1) whether the appeal is timely; (2) whether Appellant
           preserved his issue; (3) whether Appellant’s brief includes
           a concise statement of the reasons relied upon for
           allowance of appeal with respect to the discretionary
           aspects of sentence; and (4) whether the concise
           statement raises a substantial question that the sentence
           is appropriate under the sentencing code.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).

     Simpson filed a post-sentence motion and a timely notice of appeal

and included in his brief a concise statement of reasons relied upon for

allowance of appeal pursuant to Pennsylvania Rule of Appellate Procedure

2119(f).    We must therefore determine whether he raises a substantial

question for our review.

     We evaluate whether a particular issue raises a substantial question on

a case-by-case basis.      Commonwealth v. Dunphy, 20 A.3d 1215, 1220

(Pa.Super. 2011). A substantial question exists where a defendant raises 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) (quoting

Commonwealth v. Naranjo, 53 A.2d 66, 72 (Pa. 2002)).

     In his statement of reasons relied upon for allowance of appeal,

Simpson maintains that he raises a substantial question because the

sentence is excessive and was unnecessary to vindicate the authority of the

court. Simpson’s Br. at 11. Simpson’s bald excessiveness claim, by itself,



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does not raise a substantial question. Commonwealth v. Fisher, 47 A.3d

155, 159 (Pa.Super. 2012). Further, the trial court imposed a sentence of

confinement for a probation violation because Simpson committed a new

criminal offense, not to vindicate the court’s authority.2 See Order, 2/11/16

(noting Simpson admitted to a probation violation “in that he has a new

conviction” and finding that, because of the probation violation, Simpson’s

probation was revoked). Accordingly, because the court did not impose the

sentence to vindicate the court’s authority, Simpson’s claim does not raise a

substantial question. Cf. Commonwealth v. Crump, 995 A.2d 1280, 1282

(Pa.Super. 2010) (“The imposition of a sentence of total confinement after

the revocation of probation for a technical violation, and not a new

criminal offense, implicates the ‘fundamental norms which underlie the

sentencing process’”) (quoting Commonwealth v. Sierra, 752 A.2d 910,

913 (Pa.Super. 2000)) (emphasis added).

       Even if Simpson’s claims raised a substantial question, we would

conclude that they lacked merit. “Sentencing is a matter vested within the

discretion of the trial court and will not be disturbed absent a manifest abuse

of discretion.” Crump, 995 A.2d at 1282. “An abuse of discretion requires
____________________________________________


       2
        The Sentencing Code provides that a trial court “shall not impose a
sentence of total confinement upon revocation unless it finds that: (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).



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the trial court to have acted with manifest unreasonableness, or partiality,

prejudice, bias, or ill-will, or such lack of support so as to be clearly

erroneous.” Id.

      The Sentencing Code requires a trial court to impose a sentence 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.”        42 Pa.C.S. § 9721(b); see

Commonwealth v. Walls, 926 A.2d 957, 962 (Pa. 2007). Further, “[u]pon

revoking probation, a sentencing court may choose from any of the

sentencing options that existed at the time of the original sentencing,

including incarceration.” Commonwealth v. Colon, 102 A.3d 1033, 1044

(Pa.Super. 2014); 42 Pa.C.S.A. § 9771(b). “[T]he trial court is limited only

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

of the probationary sentence.”    Id. (quoting Commonwealth v. Infante,

63 A.3d 358, 365 (Pa.Super. 2013)). In addition,

         [I]n 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 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


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            consideration of the facts of the crime and character of the
            offender.” Crump, 995 A.2d at 1282–1283.

Id. (alterations in original).

       Here, the trial court stated at the time of sentencing:

            Your childhood was difficult. You have some mental health
            diagnoses.    You were using alcohol and marijuana when
            out in the past.

            I note three juvenile arrests, two adjudications; seventeen
            adult arrests, fifteen convictions. You’ve been paroled and
            placed on probation and there have been violations.

            You also have thirty-four Motor Vehicle Code arrests or
            violations, twenty-seven resulted in . . . convictions. You
            do have a variety of theft offenses in your past. You have
            a prior record for Simple Assault. There was also – you
            had a [protection from abuse order] against you at one
            time. You were in state prison.

            Your inmate adjustment summary from the jail was poor.
            You had one major misconduct, four minor, and three 24-
            hour tickets.

            You pl[e]d guilty in this case in June of 2011 before Judge
            Fornelli. He sentenced you to probation in July of 2011.
            You had a parole violation in 2014, but you weren’t
            revoked. You had a parole violation in 2015, not revoked.
            You had a parole violation[3] in which you were revoked
            and brings us here today.

                                           ...

            [A]gain, I note that your            last   offense   was   while
            incarcerated in the county jail.

            You don’t have much of a work history.[4]
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       3
           Simpson was before the trial court for a probation violation.
       4
       Simpson and the trial court discussed Simpson’s work history, which
included working at: Family Christian Store for three years; Foot Locker for
(Footnote Continued Next Page)


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                                            ...

          There’s certainly a strain of violence throughout your
          history.

          I do need to consider the impact of the crime on the
          victim. Although this was back in 2007, certainly when
          someone is a victim of theft [that] affects them, affects
          their business.

                                            ...

          I have to consider the impact of the offense on the
          community. Again, people need to be secure in their own
          belongings, their place of work, and you destroy that when
          you commit a crime such as you did.

          I have to consider whether I need to protect the
          community. Given your long history, . . . I believe you will
          be – violate the law again and I believe that your – any
          treatment or rehabilitation can best be served in state
          penitentiary.

N.T., 3/30/16, at 15-19.

      The trial court did not abuse its discretion, and the sentence of 2 to 4

years’ incarceration is not excessive. The trial court considered the facts of

the crime and Simpson’s character, and considered 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 Simpsons’ rehabilitative needs. See 42



                       _______________________
(Footnote Continued)

one year, before he was fired; Labor Ready for three months; Destination XL
for approximately four months, after which he lost his job because he was
arrested; and Dillon’s for approximately nine months, after which he was
fired due to a non-violent altercation. Simpson also informed the court that
for three months he was a stay-at-home father.




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Pa.C.S. § 9721(b). Further, the trial court stated its reasons for imposing

the sentence on the record.5

       Judge of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/2017




____________________________________________


       5
         Simpson’s second issue maintains that the trial court erred by not
sentencing Simpson to boot camp, which he had requested in his motion to
modify sentence. Simpson, however, waived this issue because he did not
raise this issue in his Rule 2119(f) statement.



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