J-S54013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JASON M. GALLIK                            :
                                               :
                      Appellant                :   No. 1942 WDA 2016

           Appeal from the Judgment of Sentence November 17, 2016
               In the Court of Common Pleas of McKean County
             Criminal Division at No(s): CP-42-CR-0000199-2013


BEFORE:      OTT, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                              FILED SEPTEMBER 25, 2017

        Jason M. Gallik appeals from the judgment of sentence imposed on

November 17, 2016, following the revocation of probation. On January 22,

2014, a jury found Gallik guilty of burglary, criminal trespass, theft by

unlawful taking, and receiving stolen property.1           On February 27, 2014,

Gallik was sentenced to eight to 23½ months’ imprisonment with credit for

time served of 15 days, and a concurrent term of 36 months’ probation.

Thereafter, on November 17, 2016, following a violation of parole/probation

(VOP) hearing, Gallik was sentenced to 16 months’ to 3 years’ imprisonment

with credit for time served of 306 days.           In this appeal, Gallik challenges


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
     18 Pa.C.S. §§ 3502(a)(4), 3503(a)(1)(ii), 3921(a), 3925(a), respectively.
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the discretionary aspects of his revocation sentence. Because the claim has

been waived and, in any event, is meritless, we affirm.

     The trial court has summarized the background of this case:

     A jury trial was held on January 22, 2014. The facts at trial
     demonstrated that during the late evening hours of February 26,
     2013, and/or the early morning hours of February 27, 2013,
     [Jason M. Gallik (“Gallik”)] entered the “Aud Restaurant” in
     Bradford, McKean County, Pennsylvania and took $399.00 from
     the cash drawer and $585.00 from a tip jar that was being
     collected by the business owners for a family vacation. [Gallik]
     had been at the Aud to assist a relative who was hired to
     perform repair work there and, therefore, knew where the key
     was hidden to gain entry. [Gallik] was convicted of: Count 1,
     Burglary, § 3502(1), (F-2); Count 2, Criminal Trespass, §
     3503(a)(1)[(ii)], (F-2); Count 3, Theft by Unlawful Taking or
     Disposition, § 3921(a), (M-1); and, Count 5, Receiving Stolen
     Property, § 3925(a), (M-1). [Gallik] had a prior record score of 0
     at the time of sentence. However, he did have one prior criminal
     case that resulted in the following convictions: McKean County
     case #342 CR 2008, conviction of Violation of the Drug Act (M);
     Public Drink (S); and, Underage Drinking, (S). The guideline
     range for the Counts that [Gallik] was convicted of were as
     follows: Count 1, Burglary, Restrictive Sanctions to nine (9)
     months; Count 2, Criminal Trespass, Restrictive Sanctions to
     three (3) months; Count 3, Theft by Unlawful Taking, Restrictive
     Sanctions to one (1) month; and, Count 4, Theft by Receiving
     Stolen Property, Restrictive Sanctions to one (1) month.

     [Gallik] was sentenced on February 27, 2014, to undergo a
     period of incarceration in the McKean County Jail for a period not
     less than eight (8) months nor more than twenty-three and one
     half (23½) months with credit for time served of fifteen (15)
     days followed by thirty-six (36) months of concurrent probation.
     [Gallik] was also ordered to: 1) maintain contact with his
     probation officer and report in person or in writing as instructed;
     2) comply with all Federal, State, County and Municipal Laws; 3)
     refrain from utilizing any non–prescribed controlled substances
     and provide samples for testing; 4) obtain a drug and alcohol
     evaluation and follow through with any recommended treatment;
     and, 5) obtain a mental health evaluation and follow through


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     with any recommended treatment. [Gallik] resided in
     Cattaraugus County, New York, which borders McKean County,
     Pennsylvania, and his request to have the supervision portion of
     his sentence transferred to Cattaraugus County was granted
     shortly after his release [from] incarceration.

     The following facts were demonstrated at the hearing held on
     November 17, 2016, to address the Petition for Revocation: After
     his supervision was transferred to Cattaraugus County [Gallik]
     absconded. Specifically, he failed to report for scheduled
     appointments on July 25, 2015; August 15, 2016; and, August
     24, 2016. During this time period he utilized [m]arijuana and
     cocaine and, therefore, would have been aware that, if he
     reported for an appointment with Cattaraugus Probation, he
     would have been asked to provide a urine sample for testing and
     his use of these substances would have been detected. Despite
     approximately 2 years and 8 months having passed since the
     time of sentence [Gallik] still had not obtained his ordered
     mental health evaluation. He also had not obtained his ordered
     drug and alcohol evaluation. He failed to show up for the
     following appointments for his evaluation: September 15, 2015;
     October 12, 2015; November 6, 2015; and, November 13, 2015.
     At the time of the hearing [Gallik] did not dispute that he
     violated the conditions of his sentence. He expressed remorse
     and a new commitment to following through with the terms and
     conditions of the sentence that was imposed 2 years and 8
     months earlier. However, he then went on to make comments
     that attempted to pass blame on to others for his failure to
     follow through. Specifically, he made comments that his
     probation officers had not maintained contact with him and/or
     failed to explain the requirements and obligations of his
     sentence.

     After the parties stated their positions the court revoked [Gallik]
     and re–sentenced him to a State Correctional Institution for a
     period of not less than 16 months nor more than 3 years with
     credit for time served of 306 days. At the revocation hearing the
     court set forth the [] reasons for the sentence that was
     imposed[.]

Trial Court Opinion, 3/8/2017, at 1–3 (unnumbered).




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       The sole issue raised by Gallik in this appeal is a challenge to the

discretionary aspects of sentencing. Gallik raises the following issue:

       Whether the sentencing court abused its discretion in imposing a
       sentence of total confinement in a State Correctional Institution of not
       less than sixteen (16) months nor more than three (3) years, for a
       first violation of a probationary sentence imposed on February 27,
       2014, for technical violations, where the defendant was not convicted
       of another crime, where the conduct of the defendant did not indicate
       that he was likely to commit another crime if not imprisoned, and
       where such a sentence was not essential to vindicate the authority of
       the court, where such a sentence was contrary to the provisions of 42
       Pa.C.S. § 9771(c) (re: “Modification or revocation of order of
       probation”/ “Limitation on sentence of total confinement.”)?

Gallik’s Brief at 3.2

       “[T]his Court’s 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)   (en   banc).

Furthermore,

       “[t]here is no absolute right to appeal when challenging the
       discretionary aspect of a sentence.” Commonwealth v. Crump,
       2010 PA Super 101, 995 A.2d 1280, 1282 (Pa. Super. 2010); 42
       Pa.C.S. § 9781(b). Rather, an “[a]ppeal is permitted only after
       this Court determines that there is a substantial question that
       the sentence was not appropriate under the sentencing
       code.” Crump, supra at 1282. In determining whether a
       substantial question exists, this Court does not examine the
       merits    of   the  sentencing    claim. Commonwealth v.
       Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

       In addition, “issues challenging the discretionary aspects of a
       sentence must be raised in a post-sentence motion or by
____________________________________________


2
  Gallick timely complied with the trial court’s order to file a Pa.R.A.P.
1925(b) concise statement.



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        presenting the claim to the trial court during the sentencing
        proceedings. Absent such efforts, an objection to a discretionary
        aspect of a sentence is waived.” Commonwealth v. Kittrell,
        2011 PA Super 60, 19 A.3d 532, 538 (Pa. Super. 2011).
        Furthermore, a defendant is required to preserve the issue in a
        court-ordered Pa.R.A.P. 1925(b) concise statement and a
        Pa.R.A.P. 2119(f) statement. Commonwealth v. Naranjo,
        2012 PA Super 183, 53 A.3d 66, 72 (Pa. Super. 2013).

Cartrette, at 1042.

        Here, Gallik has included in his brief a Pa.R.A.P. 2119(f) statement

(“Statement of Reason to Allow Appeal to Challenge Discretionary Aspects of

Sentence”), in which he incorporates his “Summary of Argument,” wherein

he claims:

        The trial court failed to adequately consider the general
        sentencing factors under 42 Pa.C.S. § 9721(b)[3] (“Sentencing
        generally”; “General Standards”) including; confinement that is
        consistent with the protection of the public and the rehabilitative
        needs of the defendant.        Moreover, a sentence of total
        confinement should not have been imposed in light of 42 Pa.C.S.
        § 9771(c)[4] (“Limitation on sentence of total confinement”)


____________________________________________


3
   Section 9721(b) states, in relevant part: “[T]he court shall follow the
general principle 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. § 9721(b).
4
    Section 9771(c) states:

        The 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
(Footnote Continued Next Page)


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      where [Gallik] had not been convicted of another crime, where
      the conduct of [Gallik] did not indicate he was likely to commit
      another crime if not imprisoned, and where such sentence was
      not essential to vindicate the authority of the court.

Gallik’s Brief at 7. Gallik’s Rule 2119(f) statement further asserts the trial

court, in concluding that Gallik would commit another offense if not

imprisoned, failed to give adequate consideration to the facts that Gallik had

been employed and employment was still available to him, that he had not

been convicted of another crime, that he had obtained a drug and alcohol

evaluation on October 6, 2016, and outpatient treatment was recommended,

that he did volunteer work at a sober living facility and that a bed and

transportation for appointments was available to him there, and that he had

an appointment scheduled for November 21, 2016, for drug and alcohol

treatment. See Gallik’s Brief, id.

      To the extent Gallik’s Rule 2119(f) statement presents the claim the

trial court did not adequately consider the sentencing factors in Sections

9721(b) and 9771(c), we conclude Gallik does present a substantial question

for our review.    See Commonwealth v. Derry, 150 A.3d 987, 992 (Pa.
                       _______________________
(Footnote Continued)


          (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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Super. 2016) (“[A]n averment that the trial court failed to consider relevant

sentencing criteria … presents a substantial question for our review in typical

cases.”).

        Here, however, Gallik failed to either raise an objection to the

discretionary aspects of his sentence during the sentencing hearing or file a

post sentence motion.         While Gallik’s counsel made argument regarding

reasons why Gallik should “be released after 65 days with credit for time

served of 65 days”5 prior to the trial judge imposing sentence, the only

discussion following the imposition of the sentence of 16 months’ to 3 years’

incarceration related to         proper    credit for   time   served.   See N.T.,

11/17/2016, at 26–30.

        Pa.R.Crim.P. 708(E) states:        “A motion to modify a sentence after a

revocation shall be filed within 10 days of the date of imposition.”

Furthermore, the explanatory comment to Rule 708 states:

        Issues properly preserved at the sentencing proceeding need
        not, but may, be raised in a motion to modify sentence in order
        to preserve them for appeal. In deciding to decide whether to
        move to modify sentence, counsel must carefully consider
        whether the record created at the sentencing proceeding is
        adequate for appellate review of the issue, or the issues may be
        waived.6

____________________________________________


5
    N.T., 11/17/2016, at 23.
6
  Gallick was advised of his post-trial rights by a video recording played
immediately before sentence was imposed by the trial court. See N.T.,
11/17/2016, at 10–11.



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Pa.R.Crim.P. 708, Comment.

      On   this   record,    we   conclude   Gallik’s   discretionary   aspects    of

sentencing claim has not been properly preserved for review due to his

failure to follow Rule 708 or object at the sentencing hearing after the court

imposed its sentence.       As such, the claim must be deemed waived.             See

Cartrette, supra, 83 A.3d at 1043 (finding waiver of defendant’s

discretionary sentencing claim for not being preserved in post-sentence

motion or at sentencing).

      Even if the claim were not waived, it is meritless and we would reject

it. The following principles guide a court’s review of a VOP sentence:

      [A] trial court has broad discretion in sentencing a defendant,
      and concomitantly, the appellate courts utilize a deferential
      standard of appellate review in determining whether the trial
      court abused its discretion in fashioning an appropriate sentence.
      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.

                                         ****


      Upon revoking probation, “the sentencing alternatives available
      to the court shall be the same as were available at the time of
      initial sentencing, due consideration being given to the time
      spent serving the order of probation.” 42 Pa.C.S. § 9771(b).
      Thus, upon revoking probation, the trial court is limited only by

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     the maximum sentence that it could have imposed originally at
     the time of the probationary sentence, although once probation
     has been revoked, the court shall not impose a sentence of total
     confinement 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).

                                    ****


     [A] trial court does not necessarily abuse its 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. In point of fact, where
     the revocation sentence was adequately considered and
     sufficiently explained on the record by the revocation judge, in
     light of the judge’s experience with the defendant and awareness
     of the circumstances of the probation violation, under the
     appropriate deferential standard of review, the sentence, if
     within the statutory bounds, is peculiarly within the judge’s
     discretion.

Commonwealth v. Pasture, 107 A.3d 21, 27–29 (Pa. 2014) (case citations

omitted).     See also Commonwealth v. Derry, supra, 150 A.3d at 995

(holding a VOP sentencing court must consider 42 Pa.C.S. § 9721(b) factors,

and must also consider factors set forth in 42 Pa.C.S. § 9771(c)).

     Here, the court explained its sentence, stating:

     Okay. You just said something and there were a few other things
     that you said that -- that have bearing on what I’m about to do.


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     First of all, I remember this case. I remember the prior
     proceedings and of course I remember because it’s part of the
     record that you were convicted of a burglary and instead of a
     state sentence being imposed which was appropriate under the
     guidelines you were given a period -- a sentence that was local
     supervision as far as county whether here or in Cattaraugus
     County.

     So I start out with well what was this defendant convicted of,
     what was the sentence, how serious were the charges, what
     were the factors. All of those things and what went into
     sentencing before because it could have been a state sentence
     then. But the Court put faith in you to follow the terms of the
     sentence that was given.

     So then we start out with that and then we look forward well,
     what’s happened since then and back to some things that you’ve
     said. You threw in that’s the first time I spoke to Adam in two
     years. In talking about your probation officer in New York and
     she wasn’t available for meetings. And so that’s – you’re working
     that in to say well it’s their fault, they didn’t do what they were
     supposed to do and it happened more than once so it wasn’t just
     a little thing that came out and I misread. With two probation
     officers you – you’ve put that out there like well, you know those
     people aren’t doing what their [sic] supposed to be doing when
     you were ordered to obtain a mental health evaluation you didn’t
     do it. You missed appointments with probation up in Cattaraugus
     County. You were smoking marijuana, you were using cocaine
     and you didn’t get your drug and alcohol evaluation done. So
     instead of throwing things out at others and it’s not like a
     personal [af]front, how dare you imply something against a
     probation officer, it has nothing to do with that. I’m focusing on
     it because I’m focusing on are you likely to work with them in
     the future.

     And talk is good, and letters from others are good, but as they
     say “Actions speak louder than words.”

     And it’s not out of anger -- I have so many cases I don’t take
     any of them personally and if I did I would recuse myself. It’s
     out of where will this case go. If I sentence this defendant back
     to basically the same sentence as before will it be productive and
     the argument was made would it be likely that you will commit
     another offense. I think it would be, I think it would be because

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     your attitude is such that you just don’t get it. That you were
     given this opportunity and the end result was where is he, using
     cocaine, using marijuana and didn’t get his drug and alcohol and
     didn’t get his mental health.

     So the actual facts show that it wouldn’t be productive to try this
     all over again. That it’s more productive to try something
     different and there’s a much greater chance that would be
     productive than the same approach that we previously took.

N.T., 11/17/2016, at 24–26.

     The trial court’s statement clearly demonstrates the court did consider

the Section 9721(b) and Section 9771(c) sentencing factors, and properly

justified its sentence of total confinement.   See Pasture, supra; Derry,

supra.    The court considered the seriousness of the original charges,

Gallick’s failure to comply with his sentence by missing appointments with

probation and by failing to obtain a drug and alcohol evaluation and mental

health evaluation, and his use of cocaine and marijuana while on probation,

his likelihood of committing another offense, his unconcerned attitude

toward fulfilling the conditions of his sentence, his need for effective

rehabilitation, and also the vindication of the court’s authority.     As such,

Gallik’s argument to the contrary fails. Therefore, even had the issue been

preserved for our review, we would grant no relief.

     Accordingly,   having    concluded   Gallik’s   discretionary   aspects   of

sentencing claim is waived and, in any event, meritless, we affirm.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/2017




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