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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                  v.                    :
                                        :
PATRICK EUGENE STOKES,                  :          No. 550 WDA 2017
                                        :
                       Appellant        :


          Appeal from the Judgment of Sentence, March 7, 2017,
            in the Court of Common Pleas of Crawford County
            Criminal Division at No. CP-20-CR-0001224-2015


BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED OCTOBER 25, 2017

      Patrick Eugene Stokes appeals from the March 7, 2017 aggregate

judgment of sentence of 21 to 60 months’ imprisonment imposed following

the revocation of his county intermediate punishment (“CIP”) sentence.

After careful review, we affirm the judgment of sentence.

      The relevant facts and procedural history of this case are as follows.

On June 19, 2016, appellant pled guilty to endangering the welfare of

children, fleeing or attempting to elude a police officer, and the summary

offense of operating a vehicle without the required financial responsibility.1

These convictions arose out of an incident that occurred on December 11,

2015, when appellant fled from police with his three-year-old child in the


1  18 Pa.C.S.A. §      4304(a)(1), 75 Pa.C.S.A. §§ 3733(a) and 1786,
respectively.
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backseat after police attempted to stop him for driving without a valid

inspection sticker.   On August 26, 2016, appellant was sentenced to

60 months’ CIP, with the first three months to be served in the Crawford

County Correctional Facility, to be followed by three months’ house arrest

and the remaining balance on probation.        Appellant was granted work-

release privileges during his incarceration.     On September 27, 2016,

appellant was removed from the work-release program after he tested

positive for Suboxone.2 On March 7, 2017, the trial court held a Gagnon II3

hearing, during which appellant admitted to ingesting a pill given to him by

another inmate. (Notes of testimony, 3/7/17 at 12-14.)

     Following the hearing, the trial court determined that appellant had

violated the terms of his CIP sentence.    That same day, the trial court

vacated appellant’s August 26, 2016 CIP sentence and resentenced him to


2Suboxone, which is commonly known as buprenorphine, is classified as a
Schedule III controlled substance. See 35 P.S. § 780-104(3)(i)(11).

3 In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Supreme Court
determined a two-step procedure was required before parole or probation
may be revoked:

           [A] parolee [or probationer] is entitled to two
           hearings, one a preliminary hearing [Gagnon I] at
           the time of his arrest and detention to determine
           whether there is probable cause to believe that he
           has committed a violation of his parole [or
           probation], and the other a somewhat more
           comprehensive hearing [Gagnon II] prior to the
           making of a final revocation decision.

Id. at 781-782.

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an aggregate term of 21 to 60 months’ imprisonment. Appellant did not file

a post-sentence motion to modify his sentence.            On March 30, 2017,

appellant filed a timely notice of appeal. On April 20, 2017, the trial court

ordered appellant to file a concise statement of errors complained of on

appeal in accordance with Pa.R.A.P. 1925(b).          Appellant filed his timely

Rule 1925(b) statement on May 10, 2017. Thereafter, on June 1, 2017, the

trial court filed its Rule 1925(a) opinion.

        Appellant raises the following issue for our review:

              Did the Trial Court error [sic] and abuse its
              discretion because [appellant] did not receive notice
              of the terms and conditions of the [CIP] sentence
              prior to being violated [sic] on that sentence when
              [appellant] took a single unproscribed [sic]
              [S]uboxone pill?

Appellant’s brief at 3.    Appellant maintains that the trial court’s purported

failure to notify him of the terms and conditions of his CIP sentence violated

his due process rights under the Fifth and Fourteenth Amendments. (Id. at

3-4.)

        Generally, the revocation of an intermediate punishment sentence is a

matter committed to the sound discretion of the trial court, and that court’s

decision will not be disturbed on appeal in the absence of an error of law or

an abuse of discretion. See Commonwealth v. Schmidt, 165 A.3d 1002,

1007-1008 (Pa.Super. 2017).

              Our Court has held that the revocation of a county
              intermediate punishment sentence is equivalent to
              the revocation of probation:


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                   An intermediate punishment sentence
                   imposed pursuant to 42 Pa.C.S.[A.]
                   § 9763, Sentence of Intermediate
                   Punishment, may be revoked where the
                   specific conditions of the sentence have
                   been violated.       Upon revocation, the
                   sentencing alternatives available to the
                   court shall be the same as the
                   alternatives available at the time of initial
                   sentencing.      42 Pa.C.S.[A.] § 9773,
                   Modification        or   revocation        of
                   intermediate punishment sentence,
                   (b)     Revocation.        This    rule    of
                   resentencing is analogous to that set
                   forth     for     resentencing     following
                   revocation of probation. Upon revocation
                   of     probation    a   sentencing      court
                   possesses       the    same      sentencing
                   alternatives that it had at the time of
                   initial sentencing. Moreover, revocation
                   of probation occurs, as does revocation
                   of an intermediate punishment sentence,
                   where it has been found the defendant
                   has violated the terms of his sentence.

Commonwealth v. Melius, 100 A.3d 682, 685-686 (Pa.Super. 2014)

(internal quotation marks and some citations omitted; emphasis in original).

      Upon review, we discern no abuse of discretion on the part of the trial

court in revoking appellant’s CIP sentence after he violated the terms and

conditions of that sentence by unlawfully possessing and ingesting a

schedule   III   controlled   substance   while   he   was   participating   in   a

court-ordered work release program. Appellant’s contention that he was not

properly notified of the terms and conditions of his CIP sentence is belied by

the record.      The August 26, 2016 sentencing order expressly notified



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appellant of the terms of his CIP sentence. Specifically, the sentencing order

states as follows:

            Terms of Supervision:

                  While   on    Probation,    Parole  or   under
            supervision through an Intermediate Punishment
            Sentence, you will comply with all of the general
            rules and regulations set forth in Cra.R.Crim.P. 708,
            as well as any additional rules imposed by the Adult
            Probation Department.

Trial court sentencing order, 8/26/16 at 2; certified record at # 10.4

      As recognized by the trial court,

            Local   Rule   708(A),    titled  “Probation/Parole/
            Intermediate   Punishment      General  Rules   and
            Regulations,” provides in relevant part that “[t]he
            defendant shall obey the law and be of good
            behavior generally,” and in particular, “to comply
            with all . . . criminal laws” and to “abstain
            completely from the use and possession of
            controlled substances.”

Trial court opinion, 6/1/17 at 2 (citation omitted; emphasis added).

      Undoubtedly, appellant’s possession and use of Suboxone expressly

violated Rule 708(A), and constituted criminal offenses under both 35 P.S.

§§780-113(a)(16) and (31).      It is well established that a trial court may

revoke a defendant’s intermediate punishment or probation based upon his

or her commission of a new crime.         See Commonwealth v. Nava, 966

A.2d 630 (Pa.Super. 2009) (explaining that the commission of new crime


4 We note that the trial court’s August 26, 2016 order does not contain
pagination; for the ease of our discussion, we have assigned each page a
corresponding number.

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violates an implied condition of probation).       Based on the foregoing,

appellant’s challenge to the trial court’s revocation of his CIP sentence must

fail.

        Accordingly, we affirm appellant’s March 7, 2017 judgment of

sentence.

        Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/25/2017




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