J-S30038-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
             v.                             :
                                            :
MICHAEL DOUGLAS WILLIAMS,                   :
                                            :
                     Appellant              :          No. 1427 MDA 2016

             Appeal from the Judgment of Sentence July 28, 2016
              in the Court of Common Pleas of Lancaster County,
             Criminal Division, No(s): CP-36-CR-0001414-2014;
                           CP-36-CR-0005637-2013

BEFORE: SHOGAN, RANSOM and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                             FILED JUNE 29, 2017

        Michael Douglas Williams (“Williams”) appeals from the judgment of

sentence imposed following the revocation of his probation. We affirm.

        On August 14, 2014, Williams entered an open guilty plea, at No. CP-

36-CR-0005637-2013 (“No. 5637-2013”), to driving under the influence of

alcohol (“DUI”), his third offense, and driving while operating privilege is

suspended.1       The trial court sentenced Williams to 1 to 2 years in prison,

followed by 3 years’ probation. On February 13, 2015, Williams entered an

open guilty plea, at No. CP-36-CR-0001414-2014 (“No. 1414-2014”), to

simple assault and endangering the welfare of children.2        The trial court

sentenced Williams to time served to 23 months in prison for the simple




1
    See 75 Pa.C.S.A. §§ 3802(a), (c); 1543.
2
    See 18 Pa.C.S.A. §§ 2701, 4304.
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assault charge, followed by 5 years’ probation for the endangering the

welfare of children charge.

        Supervision on Nos. 5637-2013 and 1414-2014 began on September

4, 2015, after Williams served 300 days in prison for his second DUI. The

trial court conducted a parole and probation violation hearing on May 19,

2016, at which Williams was found to be in violation of his parole and

probation, based on a fourth DUI charge.3                The trial court deferred

sentencing     for   the   probation   violation   and   ordered   a   pre-sentence

investigation report (“PSI”).

        The trial court conducted a sentencing hearing on July 28, 2016, at

which Williams entered an open guilty plea to DUI, his fourth offense, as well

as to habitual offenders, drivers required to be licensed, and driving while

operating privilege is suspended.4 As a result of the violation, the trial court

terminated Williams’s parole, revoked his probation, and sentenced him to a

term of 1½ to 3 years in prison at No. 5637-2013. As to No. 1414-2014,

the trial court terminated Williams’s parole, revoked his probation and

sentenced him to a concurrent term of 2½ to 5 years in prison. The trial

court awarded Williams credit for time served from April 7, 2016, until the

sentencing hearing.


3
    Williams also stipulated that he was in violation of his probation and parole.
4
 See 75 Pa.C.S.A. §§ 6503.1, 1501. The sentence imposed following
Williams’s entry of the guilty plea is not at issue in the instant appeal.



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      Williams filed a post-sentence Motion, challenging the discretionary

aspects of his sentence. The trial court denied Williams’s Motion. Williams

filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b)

Concise Statement of matters complained of on appeal.

      On appeal, Williams raises the following issue for our appeal:     “Was

the trial court’s aggregate sentence of two-and-one-half (2½) to five (5)

years of incarceration [following his] probation/parole revocation manifestly

excessive under the circumstances so as to constitute an abuse of the

court’s discretion?” Brief for Appellant at 6.5

      Williams argues that the trial court abused its discretion in imposing a

manifestly excessive aggregate sentence, without consideration of Williams’s

rehabilitative progress and needs. Id. at 15. Williams claims that “[d]uring

this latest period of supervision, his non-compliance appeared to be an

outlier in an otherwise compliant period of supervision.” Id. at 21. Williams

asserts that “[r]ather than recognizing the strides that [] Williams made

during the instant period of supervision, [] the [trial] court chose instead to

sentence him to 2½ to 5 years of incarceration in a state correctional


5
  To the extent that Williams challenges the revocation of his parole, we note
that “an appeal of a parole revocation is not an appeal of the discretionary
aspects of sentence.” Commonwealth v. Kalichak, 943 A.2d 285, 291
(Pa. Super. 2008); see also id. at 292-93 (concluding that appellant’s
challenge to the discretionary aspects of his sentence was not proper
following his parole revocation). Additionally, the trial court imposed a new
sentence based on the revocation of his probation, rather than recommitting
Williams to serve his original sentence after revoking his parole. See N.T.,
7/28/16, at 28.


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facility.”   Id.    Williams further argues that the trial court should have

imposed a county sentence with work release eligibility. Id. at 23.

       Williams challenges the discretionary aspects of his sentence following

the revocation of his probation. “Challenges to the discretionary aspects of

sentencing     do    not   entitle   an   appellant   to   review   as   of   right.”

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

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

       We conduct a four-part analysis to determine: (1) whether the
       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 the 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).

                                          ***

       The determination of what constitutes a substantial question
       must be evaluated on a case-by-case basis.          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.

Moury, 992 A.2d at 170 (quotation marks and some citations omitted).

       In the instant case, Williams filed a timely Notice of Appeal, preserved

his claims in a timely post-sentence Motion, and included in his appellate

brief a separate Rule 2119(f) Statement.              Accordingly, we will review




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Williams’s Rule 2119(f) Statement to determine whether he has raised a

substantial question.

      In his Rule 2119(f) Statement, Williams asserts that the trial court

considered only the seriousness of his probation violation, and failed to

consider his rehabilitative needs. Brief for Appellant at 12. Williams argues

that the trial court failed to set forth, on the record, adequate reasons for

imposing the sentence.    Id. at 13.    Additionally, Williams claims that the

sentence imposed for his probation violation was in excess of his original

sentence. Id.

      Taken together, Williams’s claims raise a substantial question.       See

Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa. Super. 2003)

(concluding that claims that trial court, after revoking probation, imposed a

sentence that was grossly disproportionate to the crimes, failed to consider

appellant’s background and the nature of the offenses, and failed to provide

adequate reasons for the sentence on the record raised a substantial

question). Thus, we will consider the merits of Williams’s claims.

      Our standard of review is well-settled:

            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.




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Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014) (citation

omitted).

           The reason for this broad discretion and deferential
     standard of appellate review is that the sentencing court is in the
     best position to measure various factors and determine the
     proper penalty for a particular offense based upon an evaluation
     of the individual circumstances before it. Simply stated, the
     sentencing court sentences flesh-and-blood defendants and the
     nuances of sentencing decisions are difficult to gauge from the
     cold transcript used upon appellate review.        Moreover, the
     sentencing court enjoys an institutional advantage to appellate
     review, bringing to its decisions an expertise, experience, and
     judgment that should not be lightly disturbed.

             The sentencing court’s institutional advantage is, perhaps,
     more pronounced in fashioning a sentence following the
     revocation of probation, which is qualitatively different than an
     initial sentencing proceeding. At initial sentencing, all of the rules
     and procedures designed to inform the court and to cabin its
     discretionary sentencing authority properly are involved and play
     a crucial role. However, it is a different matter when a defendant
     appears before the court for sentencing proceedings following a
     violation of the mercy bestowed upon him in the form of a
     probationary sentence. For example, in such a case, contrary to
     when an initial sentence is imposed, the Sentencing Guidelines do
     not apply, and the revocation court is not cabined by Section
     9721(b)’s requirement that “the 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.” 42 Pa.C.S.A. § 9721.

Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (some citations

and quotation marks omitted).

     Upon revocation of probation, a sentencing court may choose from any

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

including incarceration. 42 Pa.C.S.A. § 9771(b). However, the imposition of



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total confinement upon revocation requires a finding that either “(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.” Id. § 9771(c).

      Moreover, “[i]n every case in which the court … resentences an

offender following revocation of probation, … the court shall make as 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.”       Id. § 9721(b); see

also Pa.R.Crim.P. 708(D)(2) (providing that “[t]he judge shall state on the

record the reasons for the sentence imposed.”).            However, following

revocation of probation, a sentencing court need not undertake a lengthy

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

statutes in question. See Pasture, 107 A.3d at 28 (stating that “since the

defendant has previously appeared before the sentencing court, the stated

reasons for a revocation sentence need not be as elaborate as that which is

required at initial sentencing.”).

      Here, the trial court sentenced Williams to an aggregate term of 2½ to

5 years in prison following the revocation of his probation. Although longer

than his initial sentence, Williams’s concurrent, post-revocation sentences

are within the statutory bounds, and are based on a new criminal charge.

See id. (explaining that “a trial court does not necessarily abuse its



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discretion in imposing a seemingly harsher post-revocation sentence where

the defendant received a lenient sentence and then failed to adhere to the

conditions imposed on him.”).

      Moreover, our review of the record reveals that the trial court

considered testimony regarding Williams’s rehabilitative history, progress,

and needs. At the probation violation hearing, Williams’s counsel informed

the court that Williams has a full-time job and has been making consistent

payments toward his fines.      See N.T., 5/19/16, at 3.       Robert Dungan

(“Dungan”), Williams’s probation officer, testified that Williams reported to

all of his appointments. See id. at 2-3. However, Dungan also testified that

Williams never informed Dungan of his fourth DUI charge, despite attending

six appointments after the date of the offense.         See id.       During the

sentencing hearing, the trial court detailed its considerations, stating the

following:

      The things that stick out a mile are the lack of true accountability
      … that you have taken over the years for your conduct. And you
      say that you were so compliant, and yet you had a no-alcohol
      provision and you were partying. You were drinking. So that’s
      not very compliant.

      You have five or six driving under suspensions over the years, so
      you seem to have an attitude that the sentences and rules that
      apply to the rest of us don’t apply to you.

      You have four DUIs in four years. You have no true sense of the
      magnitude of your problem and there is a pattern of minimizing
      the [e]ffect.

N.T., 7/28/16, at 20-21. The trial court also stated the following:



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      There is willful disregard of the conditions of supervision. There
      is willful violation of the law, and you pose one of the greatest
      dangers to the community of all because you are in such
      complete denial that your issues are the kind of issues that
      should be addressed by a [c]ourt or should be considered by
      other people [be]cause you really don’t want to make a
      particularly deep-seated change in what you do.

Id. at 23-24.

      We additionally observe that the trial court had the benefit of a PSI.

See id. at 6 (wherein the trial court indicated that a PSI had been prepared

following the probation violation hearing); see also id. at 27 (wherein the

trial court admitted the PSI into the record at the sentencing hearing).

“Where 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.      A pre-sentence report constitutes the record

and speaks for itself.”     Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.

1988); see also id. (stating that “[h]aving been fully informed by the pre-

sentence report, the sentencing court’s discretion should not be disturbed.”).

      Based upon the foregoing, we conclude that the record confirms that

the trial court was provided with sufficient information to make a fully

informed     sentencing     decision   following   the    revocation   of    Williams’s

probation.      Additionally, we conclude that Williams’s aggregate prison

sentence of 2½ to 5 years is not manifestly excessive. Discerning no abuse




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of discretion by the trial court, we will not disrupt Williams’s sentence on

appeal.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/29/2017




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