J-S50017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARK ANDREW RIVERS, JR.                    :
                                               :
                       Appellant               :   No. 9 WDA 2019

       Appeal from the Judgment of Sentence Entered December 4, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0005845-2010


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                          FILED SEPTEMBER 30, 2019

        Mark Andrew Rivers, Jr. (Appellant) appeals from the judgment of

sentence imposed following revocation of his probation.        Upon review, we

affirm.

        On August 24, 2011, Appellant pled guilty to one count each of

possession of a controlled substance with the intent to deliver, possession of

a controlled substance, and possession of marijuana,1 as well as two summary

traffic offenses. Trial Court Opinion, 5/17/19, at 2. The trial court sentenced

Appellant to an aggregate 2 to 4 years of incarceration, followed by 3 years

of probation. Trial Court Order, 8/24/11, at 1.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   35 P.S. §§ 780-113(a)(30), (16), and (31), respectively.
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      On December 4, 2018, the trial court found Appellant to be “both a

convicted and technical violator of the terms of his probation.” Trial Court

Opinion, 5/17/19, at 2.    The trial court revoked Appellant’s probation and

resentenced him to an aggregate 2.5 to 6 years of incarceration.        Id.   In

addition, the court ran Appellant’s sentence consecutive to the sentence he

received for new convictions at criminal docket number 7465-2017. Id.

      Appellant filed a timely post-sentence motion, which the trial court

denied on December 10, 2018. Thereafter, Appellant filed a timely notice of

appeal. Both Appellant and the trial court have complied with Pennsylvania

Rule of Appellate Procedure 1925.

      Appellant presents two issues for our review:

      1. In revoking and re-sentencing [Appellant] to 2½-6 years’ total
      statement [sic] confinement, whether the trial court abused its
      discretion by failing to consider the protection of the public, the
      gravity of the underlying offenses and violation, and the character,
      personal history, and rehabilitative needs of [Appellant], as
      required by 42 Pa.C.S.A. § 9721(b)?

      2. In ordering [Appellant’s] sentence of 2½-6 years’ total state
      confinement at CC 201005845 to be served consecutively to his
      sentence of 3-6 years’ incarceration at CC 201707465, whether
      the trial court abused its discretion by imposing an unduly
      excessive sentence, particularly when the requirements of 42
      Pa.C.S.A. § 9721(b) were not met?

Appellant’s Brief at 5.

      Preliminarily, we note that Appellant’s brief fails to conform with

Pa.R.A.P. 2119(a), which requires the argument section of an appellate brief

to “be divided into as many parts as there are questions to be argued[.]” Id.;



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see Appellant’s Brief at 23 n.4 (“[B]ecause [Appellant’s] two discretionary-

aspect-of-sentencing claims are substantially intertwined, they will be argued

together in this brief for [A]ppellant[.]”). However, Appellant’s error does not

impair our ability to review his issues. See Commonwealth v. Johnson,

985 A.2d 915 (Pa. Super. 2009); see also LSI Title Agency, Inc. v.

Evaluation Services, Inc., 951 A.2d 384 (Pa. Super. 2008). Further, we

agree that Appellant’s sentencing claims are “substantially intertwined,” and

therefore we address them together.

      “The right to appellate review of the discretionary aspects of a sentence

is not absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).

“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction

when challenging the discretionary aspects of a sentence.” Id. We conduct

this four-part test to determine whether:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of
      appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
      a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted). “A defendant presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”




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Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations

omitted).

      Appellant has complied with the first three prongs of this test by raising

his discretionary sentencing claims in a timely post-sentence motion, filing a

timely notice of appeal, and including in his brief a Rule 2119(f) concise

statement. See Appellant’s Brief at 15-22. Therefore, we examine whether

Appellant has presented substantial questions.

      The Commonwealth argues that Appellant has failed to present a

substantial question. Commonwealth Brief at 5-9. We agree that Appellant’s

second claim, in which he avers that the trial court erred in imposing his

revocation sentence consecutive to his new sentence at docket number 7465-

2017, does not raise a substantial question.          See Commonwealth v.

Radecki, 180 A.3d 441, 469 (Pa. Super. 2018) (“[A] claim that a sentence is

excessive due to it[s] consecutive nature generally does not raise a substantial

question for purposes of Section 9781(b) of the Sentencing Code.”).

      However, in his first claim, Appellant asserts that the trial court failed to

consider the factors delineated in 42 Pa.C.S.A. § 9721(b). See Appellant’s

Brief at 15-22. This claim raises a substantial question. Commonwealth v.

Derry, 150 A.3d 987, 995 (Pa. Super. 2016) (“[An appellant] presents a

substantial question for our review . . . to the extent that he challenges the

sentencing court’s failure to consider Section 9721(b) factors.”) (citation

omitted).


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      We review Appellant’s claim mindful of the following:

      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.

Commonwealth v. Simmons, 56 A.3d 1280, 1283-84 (Pa. Super. 2012)

(citations omitted).     “Also, upon sentencing following a revocation of

probation, the trial court is limited only by the maximum sentence that it could

have imposed originally at the time of the probationary sentence.”          Id. at

1286-87 (citation omitted).

      Upon revoking probation, a sentencing court may choose from any
      of the sentencing options that existed at the time of the original
      sentencing, including incarceration.        42 Pa.C.S. § 9771(b).
      However, the imposition of 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.” 42 Pa.C.S. 9771(c).

Commonwealth v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015) (footnote

omitted).

      Section 9721(b) provides:

      In selecting from the alternatives set forth in subsection (a), the
      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. . . . In every case in which
      the court imposes a sentence for a felony or misdemeanor . . . the
      court shall make as a part of the record, and disclose in open court


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     at the time of sentencing, a statement of the reason or reasons
     for the sentence imposed.

42 Pa.C.S.A. § 9721(b). We have explained:

     The [trial] court is not required to parrot the     words of the
     Sentencing Code, stating every factor that must    be considered
     under Section 9721(b). However, the record as      a whole must
     reflect due consideration by the court of          the statutory
     considerations enunciated in that section.

Commonwealth v. Coulverson, 34 A.3d 135, 145-46 (Pa. Super. 2011)

(citations omitted). In addition, “[w]hen a sentencing court has reviewed a

pre[-]sentence investigation report, we presume that the court properly

considered and weighed all relevant factors in fashioning the defendant’s

sentence.” Baker, 72 A.3d at 663 (citing Commonwealth v. Fowler, 893

A.2d 758, 767 (Pa. Super. 2006)).

     In imposing sentence, the trial court is required to consider the
     particular circumstances of the offense and the character of the
     defendant. The trial court should refer to the defendant’s prior
     criminal record, age, personal characteristics, and potential for
     rehabilitation. However, where the sentencing judge had the
     benefit of a presentence investigation report, it will be presumed
     that he or she was aware of the relevant information regarding
     the defendant’s character and weighed those considerations along
     with mitigating statutory factors. Additionally, the sentencing
     court must state its reasons for the sentence on the record. 42
     Pa.C.S.A. § 9721(b). The sentencing judge can satisfy the
     requirement that reasons for imposing sentence be placed on the
     record by indicating that he or she has been informed by the pre-
     sentencing report; thus properly considering and weighing all
     relevant factors.

Fowler, 893 A.2d at 767-68 (citing Commonwealth v. Boyer, 856 A.2d 149,

154 (Pa. Super. 2004)) (citations omitted) (emphasis added).




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      Here, the trial court noted on the record that it had reviewed both an

original and updated pre-sentence investigation report. N.T., 12/4/18, at 2.

In its opinion, the court recognized the law and explained its reasoning:

            When imposing a sentence, this [c]ourt is required to
      consider, among other things, the protection of the public, the
      gravity of the offense in relation to the impact on the victims and
      community and the rehabilitative needs of the defendant. 42
      Pa.C.S. § 9721(b).       Appellant’s mere unhappiness with his
      sentence does not constitute grounds for relief. . . .

            This [c]ourt considered these statutory factors in sentencing
      Appellant, and was aided in doing so by having the benefit of an
      original and an updated Pre-Sentence Investigation Report
      (“PSI”). . . .

             In sentencing Appellant, this [c]ourt considered, in addition
      to the Pre-Sentence Report, the fact that Appellant reoffended and
      chose not to avail himself of treatment or supervision in the
      community. Initially, in order to allow Appellant an opportunity
      to avail himself of the State Boot Camp Program, this [c]ourt gave
      Appellant a below the mitigated range sentence of two to four
      years with a recommendation for boot camp, and consecutive
      probation. This [c]ourt imposed the original sentence despite
      Appellant’s status as an RFEL, with a Prior Record Score of five,
      the maximum possible score possible. Since that sentence,
      Appellant has had three new convictions, the most recent being a
      violent home invasion burglary and robbery. Appellant’s criminal
      behavior has escalated from stealing a purse and fleeing from the
      police to planning and executing a home invasion burglary with
      his wife. Appellant has demonstrated that he is not willing or able
      to follow the reasonable rules of society. Therefore, this [c]ourt
      did not err in imposing a sentence of 2.5 to 6 years of
      incarceration.

              Next, Appellant asserts that this Court abused its discretion
      in imposing a sentence consecutive to the sentence imposed at
      CP-02-CR-7465-2017, resulting in an unduly excessive sentence.
      . . . The aggregation of the two sentences imposed by this [c]ourt
      reflects both the serious nature of the offense involved as well as
      the separate victims of those offenses and Appellant’s failure to
      comply with community supervision conditions. Moreover, the
      two crimes are entirely separate offenses, and Appellant is not

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      entitled to a volume discount at sentencing. Commonwealth v.
      Belsar, 676 A.2d 632, 634 (Pa. 1996).

Trial Court Opinion, 5/17/19, at 5-6 (some citations omitted).

      Based on our review of the record, we discern no error. In addition to

reviewing Appellant’s pre-sentence investigation reports, the trial court, at

the sentencing, noted Appellant’s repeated probation violations, his multiple

criminal convictions since his original sentencing, the severity of the behavior

attendant to his new criminal convictions, and the escalating nature of the

behavior. N.T., 12/4/18, at 4, 6, 10-11, 13. Also, while Appellant argues that

he received an “excessive” sentence, the trial court imposed a mitigated-range

sentence. Id. at 18 (“That is still a mitigated range sentence, even in light of

everything else.”).   Ultimately, and in its discretion, the trial court ran

Appellant’s sentence consecutive to the sentence he received for the more

recent convictions at 7465-2017. See Commonwealth v. Zirkle, 107 A.3d

127, 133 (Pa. Super. 2014) (“We have stated that the imposition of

consecutive rather than concurrent sentences lies within the sound discretion

of the sentencing court.”) (citations omitted). In sum, the record reflects that

the trial court did not abuse its discretion in imposing Appellant’s sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/2019




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