J-S68014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMES KEYS,

                            Appellant                 No. 1761 WDA 2015


            Appeal from the Judgment of Sentence October 7, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0008520-2013


BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED NOVEMBER 30, 2016

       Appellant James Keys appeals from the judgment of sentence entered

in the Court of Common Pleas of Allegheny County, following revocation of

his probation. The judgment of sentence entered on October 7, 2015, was

rendered final by the denial of Appellant’s post-sentence motion on

October 20, 2015. We affirm.

       The trial court recounted the relevant history as follows:

             In this case, [Appellant] originally pled guilty to one count
       of robbery on December 11, 2013. On March 31, 2014, he was
       sentenced to a term of imprisonment of not less than nine
       months nor more than 18 months followed by three years’
       probation. On October 7, 2015, [Appellant] appeared before this
       [c]ourt to address allegations that he violated the terms of his
       probation due to a conviction on July 7, 2015 for terroristic
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      threats and criminal mischief. The conviction stemmed from
      [Appellant’s] actions on December 23, 2014 when he threatened
      to kill his ex-paramour and flattened tires of her automobile.
      [Appellant] attempted to physically assault his ex-paramour but
      was stopped from doing so by his 12 year-old son. He was
      sentenced to a term of imprisonment of not less than three
      months nor more than six months. On that date, this [c]ourt
      revoked [Appellant’s] probation and imposed a term of
      incarceration of not less than 18 months nor more than 48
      months followed by three years’ probation. This appeal followed.

Trial Court Opinion, 1/19/16, at 1–2.

      Appellant raises the following issue on appeal: “Was the sentence of

eighteen to [forty-eight] months of incarceration, manifestly excessive and

an abuse of discretion, where the court did not consider the availability of

community-based resources to address Mr. Keys’ serious rehabilitative

needs?” Appellant’s Brief at 7 (full capitalization omitted).

      As presented, Appellant challenges the discretionary aspects of his

sentence. See Commonwealth v. Rhoades, 8 A.3d 912, 915 (Pa. Super.

2010) (an appellant’s claim that his sentence is excessive implicates the

sentence’s discretionary aspects).      This Court has held that our scope of

review in an appeal “from a revocation sentencing includes discretionary

sentencing challenges.” Commonwealth v. Cartrette, 83 A.3d 1030, 1034

(Pa. Super. 2013). Nonetheless, Appellant’s challenge to the discretionary

aspect of his sentence does not entitle him to review as of right.

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011) (citation

omitted).   Rather, before this Court can address such a discretionary

challenge, an appellant must satisfy a four-part test:

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      (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.
Id.

      Appellant herein filed a timely notice of appeal and preserved his issue

in a post-sentence motion to reconsider his sentence.            Additionally,

Appellant’s brief includes a concise statement of reasons relied upon for

allowance of appeal with respect to the discretionary aspects of his sentence

pursuant to Pa.R.A.P. 2119(f).    Appellant’s Brief at 12.   Thus, we turn to

whether Appellant presents a substantial question that the sentence

appealed from is not appropriate under the Sentencing Code.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”     Commonwealth v. Prisk, 13 A.3d

526, 533 (Pa. Super. 2011).      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.     Commonwealth v. Swope, 123 A.3d 333, 338 (Pa.

Super. 2015) (quoting Prisk, 13 A.3d at 533).

      We conclude that Appellant’s assertion that the trial court failed to

consider his rehabilitative needs resulting in an excessive sentence raises a

substantial question.    See Commonwealth v. Baker, 72 A.3d 652, 662

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(Pa. Super. 2013) (finding, inter alia, assertion that trial court failed to

account for an appellant’s rehabilitative needs was substantial question

suitable for review). Accordingly, we grant Appellant’s petition for allowance

of appeal and address the merits of his claim.

      Appellant’s allegation that the sentencing court did not consider that

his rehabilitative needs would be best served by community-based resources

is contradicted by the transcript of the probation revocation proceeding. At

the hearing, a representative from Allegheny County Adult Probation, Ashley

Lynn, related that Appellant had been previously paroled to Justice Related

Services “Pyramid’s 3/4 house.”    N.T., 10/7/15, at 17.    She recalled that

when Appellant discovered that his stay at the Pyramid house could extend

beyond thirty days, “he was very agitated, very disrespectful with staff.” Id.

Ms. Lynn further informed the court: “There were allegations from the

program that [Appellant] had been cheating his medications, snorting his

medications, not following program rules.    [Appellant] threatened to leave

the program. When [Appellant] was confronted about these, he advised that

Probation would never find him.” Id.

      After considering the testimony and entertaining argument of counsel,

the sentencing court stated:   “I did read the presentence report and I did

read that [Appellant] threatened to leave [the Pryamid 3/4 house]. . . .

And, indeed, after the [c]ourt addressed him, [Appellant] left and got on the

phone and said he didn’t care what the [c]ourt said. . . .        [Appellant]


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indicated he won’t follow the rules.” N.T., 10/7/15, at 20. After the court

announced that it was imposing a term of incarceration, it addressed

Appellant: “I will not agree with a sentence that allows you to walk out the

door and you can do whatever you want.” Id. at 23–24.

      The sentencing court further explained its reasons in its opinion filed

pursuant to Pa.R.A.P. 1925(a) why community-based resources would not

address Appellant’s rehabilitative needs:

             The record in this case supports the sentence imposed by
      this [c]ourt. This [c]ourt considered the presentence report. The
      presentence report and the probation officer at the revocation
      hearing set forth a history of [Appellant’s] non-compliance with
      various jail programs and [Justice Related Services] plans during
      his original incarceration on this case. [Appellant] was recorded
      on a jail telephone boasting that he would not follow this [c]ourt’s
      orders. This [c]ourt is particularly concerned that [Appellant] has
      disregarded this [c]ourt’s admonition that he not have contact
      with his ex-paramour. This [c]ourt had made such a provision a
      condition of the probation imposed in the underlying terroristic
      threats offense that caused his probation to be violated. Nothing
      less than a sentence of total confinement is appropriate in this
      case because [Appellant] is an actual, physical threat to his ex-
      paramour. Considering [Appellant’s] brazen willingness to defy
      court orders, this [c]ourt was not willing to risk the safety of
      [Appellant’s] ex-paramour by imposing a non-custodial sentence
      that provided for mental health treatment.            This [c]ourt
      recognized that [Appellant] may have mental health issues and
      may [require] treatment but due to his conscious, repeated
      decisions to avoid taking medication, this [c]ourt believed that
      rehabilitation and treatment should occur while [Appellant] was
      incarcerated and under the security of a prison. In sum, this
      [c]ourt imposed the sentence it did because of [Appellant’s]
      refusal to follow court directives and the risk of danger he posed
      to his ex-paramour.

Trial Court Opinion, 1/19/16, at 4–5.




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      Thus, it is evident that the sentencing court considered Appellant’s

prior efforts at rehabilitation supervised by community-based resources to

be unsatisfactory.    The court also noted Appellant’s statement that he

intended to defy the orders of the court. For these reasons, the sentencing

court determined that Appellant’s rehabilitative needs would be better

addressed while serving a term of incarceration.   We discern no abuse of

discretion in the sentencing court’s decision.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2016




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