J-S60037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF                              :    IN THE SUPERIOR COURT OF
  PENNSYLVANIA                                 :         PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
  JOHN ERIC CARBAUGH                           :
                                               :    No. 401 WDA 2017
                       Appellant

           Appeal from the Judgment of Sentence February 7, 2017
              In the Court of Common Pleas of Venango County
            Criminal Division at No(s): CP-61-CR-0000443-2014


BEFORE:      OLSON, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                           FILED OCTOBER 23, 2017

       Appellant, John Eric Carbaugh, appeals from the judgment of sentence

of 30 to 60 months’ incarceration, entered on February 7, 2017, following the

revocation of his probation for technical reasons. We affirm.

       The trial court sets forth the history of this case as follows:

       Defendant [hereinafter “Appellant”] was arrested and charged
       with Robbery, Theft by Unlawful Taking, Simple Assault,
       Recklessly Endangering Another Person, and Harassment in
       connection with a theft of the victim in 2014. The investigation
       eventually led to the filing of an Amended Information, which
       included Robbery (F2) at Count 1; Criminal Conspiracy to Commit
       Robbery (F2) at Count 2; Theft by Unlawful Taking (M1) at Count
       3; Simple Assault (M2) at Count 4; Recklessly Endangering
       Another Person (M2) at Count 5; and Harassment (S) at County
       6. Appellant entered into a guilty plea in which Count 1, Count 2,
       and Count 6 were nol prossed, while Appellant pleaded guilty to
       Count 3, Count 4, and Count 5.

       Following entry of the guilty plea, on April 28, 2015, Appellant was
       sentenced by the Hon. Oliver J. Lobaugh to an aggregate sentence

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S60037-17


     of 11 months and 27 days to 24 months less a day, followed by
     12 months’ probation. Appellant’s prior record score (“PRS”) at
     the time of sentencing was RFEL. On or about December 9, 2015,
     Appellant was granted parole. On March 14, 2016, a bench
     warrant was issued, as Appellant had absconded. Following
     revocation, Appellant was resentenced on June 27, 2016 to serve
     the remainder of the originally-imposed jail time in the county jail,
     which expired July 30, 2016, followed by the year of probation.

     On October 19, 2016, an Order [to detain Appellant] was issued
     by the [trial] court. Probation was formally revoked November
     11, 2016, for Appellant’s failure to report and changing addresses
     without notification. Appellant was resentenced on February 7,
     2017. [The trial] court imposed a sentence of 30 to 60 months in
     a state institution at resentencing, along with the remainder of
     restitution owed, and with credit totaling 635 days served in
     Venango County Jail over two stints.

     Appellant filed a timely Motion to Reconsider and Modify Sentence
     which was denied by th[e trial] court. Thereafter, Appellant filed
     a timely notice of appeal, and timely filed [a] Concise Statement
     of Matters Complained of on Appeal pursuant to [the trial] court’s
     [Pa.R.A.P] 1925 Order.

Trial Court Opinion, 4/27/17 at 1-2.

     Appellant presents the following questions for our review:

     1. [Is] the lower court’s sentence of total confinement, at the
        statutory maximum for Appellant’s underlying offense following
        revocation of probation . . . manifestly unreasonable and an
        abuse of discretion in light of the fact the Appellant’s probation
        violations were only technical and not for a new criminal
        offense[?]

     2. [Did] the lower court abuse[] its discretion by imposing a
        sentence without giving consideration to all the relevant factors
        and sentence[] Appellant only on the basis of his prior record
        score without taking into consideration the negotiated plea
        agreement and other relevant sentencing factors under 42
        Pa.C.S.A. Section 9721(b), including but not limited to
        rehabilitative needs[?]




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J-S60037-17



Appellant’s brief at 4.

      When reviewing the outcome of a revocation proceeding, this Court is

limited to determining the validity of the proceeding, the legality of the

judgment of sentence imposed, and the discretionary aspects of sentencing.

Commonwealth v. Cartrette, 83 A.3d 1031 (Pa.Super. 2013) (en banc)

(explaining appellate review of revocation sentence includes discretionary

sentencing challenges). Challenges to the discretionary aspects of sentencing

do not entitle an appellant to an appeal as of right. Commonwealth v.

Sierra, 752 A.2d 910, 912 (Pa.Super. 2000).         Both of Appellant’s claims

concern the discretionary aspects of his sentence. See Sierra, 752 A.2d at

912 (holding argument assailing sentence as manifestly excessive given

technical nature of probation violation implicated discretionary aspect of

sentencing); See Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa.

Super. 2015) (recognizing a claim that the trial court failed to consider a

defendant's rehabilitative needs, at the expense of other 42 Pa.C.S. § 9721(b)

factors, implicates the discretionary aspects of sentencing).

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

            [W]e 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


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           is not appropriate under the Sentencing Code, 42
           Pa.C.S.A. § 9781(b).

     Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006)
     (internal citations omitted). . . .

     The determination of what constitutes a substantial question must
     be evaluated on a case-by-case basis. Commonwealth v. Paul,
     925 A.2d 825, 828 (Pa.Super. 2007). A substantial question
     exists “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.”
     Sierra, supra at 912–13.

     As to what constitutes a substantial question, this Court does not
     accept bald assertions of sentencing errors. Commonwealth v.
     Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant
     must articulate the reasons the sentencing court's actions violated
     the sentencing code. Id.

     ***
     An allegation that the sentencing court failed to consider certain
     mitigating factors generally does not necessarily raise a
     substantial question. Commonwealth v. McNabb, 819 A.2d 54,
     57 (Pa.Super. 2003). Accord Commonwealth v. Wellor, 731
     A.2d 152, 155 (Pa.Super. 1999) (reiterating allegation that
     sentencing court “failed to consider” or “did not adequately
     consider” certain factors generally does not raise substantial
     question). Compare Commonwealth v. Felmlee, 828 A.2d
     1105, 1107 (Pa.Super. 2003) (en banc) (stating substantial
     question is raised, however, where appellant alleges sentencing
     court imposed sentence in aggravated range without adequately
     considering mitigating circumstances).

     “When imposing a sentence, a court is required to consider the
     particular circumstances of the offense and the character of the
     defendant.”     Commonwealth v. Griffin, 804 A.2d 1, 10
     (Pa.Super. 2002) . . . . “In particular, the court should refer to
     the defendant's prior criminal record, his age, personal
     characteristics and his potential for rehabilitation.” Id. Where
     the sentencing court had the benefit of a presentence
     investigation report (“PSI”), we can assume the sentencing court
     “was aware of relevant information regarding the defendant's

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J-S60037-17


      character and weighed those considerations along with mitigating
      statutory factors.” Commonwealth v. Devers, 519 Pa. 88, 101-
      02, 546 A.2d 12, 18 (1988). See also Commonwealth v.
      Tirado, 870 A.2d 362, 368 (Pa.Super. 2005) (stating if sentencing
      court has benefit of PSI, law expects court was aware of relevant
      information regarding defendant's character and weighed those
      considerations along with any mitigating factors).

Commonwealth v. Moury, 992 A.2d 162, 170-171 (Pa.Super. 2010).

      Instantly, Appellant filed a timely notice of appeal and provided this

court with a Pa.R.A.P. 2119(f) statement in his brief. In that statement, he

asserts that each of his claims presents a substantial question for our review.

Appellant's brief at 7-8. Appellant also raised his claims in a post-sentence

motion.   See Motion to Reconsider and Modify Sentence, 2/17/17 at 1-2.

Furthermore, we discern no defects with Appellant’s Pa.R.A.P. 2119(f)

statement. Accordingly, we turn to whether Appellant has raised a substantial

question in the issues he raises in his Rule 2119(f) statement.

      In Appellant’s statement, he claims that his sentence of total

confinement, at the statutory maximum for his underlying offense, was

manifestly excessive where his parole was revoked for a technical violation.

This Court has found “a substantial question is presented when a sentence of

total confinement, in excess of the original sentence is imposed as a result of

a technical violation of parole or probation. Sierra, 752 A.2d at 913. We find,

therefore, that Appellant presents a substantial question for our review.

      Our standard of review of a revocation sentence is as follows:
      [T]he 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.
      Once probation has been revoked, a sentence of total confinement


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J-S60037-17


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

Commonwealth v. Hoover, 909 A.2d 321, 322–23 (Pa.Super. 2006)

(internal citations omitted).1

        In Sierra, this Court upheld the exercise of discretion behind the

imposition of a statutory maximum sentence following the revocation of

probation. Sierra had pled guilty to first degree aggravated assault pursuant

to a negotiated plea agreement and was sentenced to a term of 8 to 23

months’ imprisonment in county prison, plus 3 years’ consecutive probation.

Four months into her release on parole, she was arrested for simple assault.

Her parole was revoked and she was sentenced to the unexpired part of her

original 23-month sentence, but was made eligible for parole in 3 months.


____________________________________________


1   42 Pa.C.S.A. § 9771(c) provides:

        The court shall not impose a sentence of total confinement upon
        revocation [of probation] 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.A. § 9771(c).


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J-S60037-17



      While on parole for the second time, Sierra failed to report for scheduled

appointments to her parole and probation officer, technical violations to which

Sierra stipulated at her revocation hearing. At sentencing, the court reviewed

her PSI and sentenced Sierra to a statutory maximum sentence of 5 to 20

years on her original offense to be served in state prison.

      In affirming judgment of sentence, this Court gave great weight to the

sentencing court’s familiarity with Sierra’s history of violent crime and the

futility of probation and parole efforts to rehabilitate her.   Such a history

distinguished Sierra’s case from existing decisional law invalidating revocation

sentences of total confinement for technical violations where defendants had

displayed redemptive behavior bringing them outside the ambit of Section

9771(c). Id. at 914-15 (comparing Commonwealth v. Cottle, 426 A.2d 598

(Pa. 1981) (holding total confinement improper for technical violation where

defendant’s probation had achieved rehabilitative purposes)).

      In the case sub judice, we agree with the court’s determination that

Appellant’s circumstances align with those driving the decision in Sierra.

There was no dispute at the sentencing hearing that Appellant has been

incarcerated for a majority of his life and has had trouble being supervised

and following rules governing his conduct.      N.T. at 17-18.     Against this

backdrop, the court explained that it was concerned Appellant, who, despite

having received the benefit of concurrently-run, mitigated range sentences for

violent crimes pursuant to a plea agreement, exhibited a scofflaw attitude

when he absconded during parole/probation on two separate occasions. For

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J-S60037-17



the first violation, the court revoked Appellant’s parole and sentenced him to

serve out the one-month remainder of his parole in county jail, with a one-

year term of probation to follow. Upon Appellant’s release on July 30, 2016,

he again quickly spurned the authority of the court by absconding within the

first month of his probation.2

____________________________________________


2 At sentencing, the court clarified its reasons for imposing a sentence of
total confinement as follows:

       The sentence, I have to be honest with you, when I looked at it –
       and it was mitigated range because even at the time of the original
       sentencing you were RFEL which put your guideline ranges in the
       standard range of 12 to 18 months on this court. You were
       paroled and virtually [sic] immediately absconded. You then were
       arrested again and basically the same sentence was re-imposed
       just finish out that parole and another one-year probation and
       then upon parole you immediately absconded.

       ***

       All right. The problem is you were given a huge break the first
       time, you were given a huge break the second time and both times
       you absconded immediately upon being released when the
       guidelines the very first time said you should be going to state. I
       don’t see [there’s] any other question, but this is a third bite at
       the apple.

       ***

       Court is imposing total confinement because the defendant has
       significantly and repeatedly violated conditions of supervision.
       This is the second revocation of the defendant’s supervision both
       times for absconding supervision. Conduct of the defendant
       indicates that the defendant will commit another crime if not
       imprisoned.     The sentence of imprisonment is essential to
       vindicate the court.

N.T. 2/7/17 at 18-19, 20-21, 23.

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J-S60037-17



      The rehabilitative purposes of parole and probation were not, therefore,

manifest in such a record of recent defiance. When viewed in conjunction with

Appellant’s long record of incarceration and the violent nature of his

underlying crimes, the court’s conclusion that continued attempts at

rehabilitation within the context of probation would prove ineffective was well-

founded. To the extent, therefore, the court deemed imposition of a statutory

sentence of two and one-half to five years’ incarceration, with 635 days’ credit

for time served, as necessary to vindicate its authority and prevent future

crime, we discern no abuse in its exercise of sentencing discretion.

      In Appellant’s second claim, he raises the closely-related argument that

the sentencing court “did not adequately consider all of the relevant

sentencing factors, chiefly his rehabilitative needs.”          Appellant’s brief

(Pa.R.A.P. 2119(f) statement) at 8. This claim raises a substantial question

for our review. See Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super.

2012) (holding the argument that “the trial court failed to consider relevant

sentencing criteria, including the protection of the public, the gravity of the

underlying offense[,] and the rehabilitative needs of” the appellant, raises a

substantial question).

      The record discussed above, however, belies Appellant’s claim.          As

noted, our Supreme Court has ruled that “[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.” Commonwealth v.

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J-S60037-17



Devers, 546 A.2d 12, 18 (Pa. 1988). Here, the court acknowledged that it

had the benefit of Appellant’s pre-sentence report. N.T. 2/7/17 at 15-16, 18,

20. Furthermore, as observed, the court's assessment of Appellant during the

sentencing hearing demonstrated that it fully considered all relevant factors

prior to imposing sentence. Accordingly, Appellant’s argument affords him no

relief.

          Judgment of sentence is AFFIRMED.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/2017




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