J-S22022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RAYMOND S. MICKENS

                            Appellant                 No. 1425 WDA 2014


              Appeal from the Judgment of Sentence March 31, 2014
                In the Court of Common Pleas of Cambria County
               Criminal Division at No(s): CP-11-CR-0000867-2006
               CP-11-CR-0000868-2006, CP-11-CR-0001572-2005


BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                                 FILED MAY 08, 2015

        Raymond S. Mickens appeals from the judgment of sentence imposed

by the Court of Common Pleas of Cambria County, following the revocation

of his probation. Upon review, we affirm.

        The trial court set forth the factual and procedural history of this case

as follows:

        [Mickens] was originally sentenced by the Hon[orable] Gerard
        Long on February 2, 2008, as to the above-captioned cases, to
        serve seven (7) years of special probation under the supervision
        of the Pennsylvania Department of Probation and Parole. On or
        about March 13, 2014, his state parole officer filed a petition,
        alleging that [Mickens] had violated technical condition #3a
        (failure to report), as well as drug usage.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      [A] probation/parole violation hearing was held on March 31,
      2014. [Mickens] was found to have violated the conditions of
      parole. The court sentenced him, in the aggregate[,] to 12
      months to 36 months of state incarceration. . . .

      [Mickens] filed a petition for Post Conviction Relief on April 23,
      2014. Counsel was appointed and, on July 14, 2014, following
      [a] status conference, [Mickens’] request to file a motion for
      modification of sentence nunc pro tunc was granted. Following
      [a] sentence modification hearing on August 19, 2014, the
      motion was denied.

                                          ***

      At the violation hearing, the court was reminded by [Mickens’]
      county probation officer, Officer Mognet, that [Mickens] had pled
      to summary disorderly conduct before this court in January
      2014, and was sentenced to 90 days[’] probation, which would
      expire shortly. Approximately four years remained on Judge
      Long’s state sentence. State parole officer, James Rucosky, on
      behalf of [Mickens’] assigned parole agent, Brian Clawson,
      testified that [Mickens] had received 75 state parole sanctions
      since August 27, 2012. The sanctions included 20 positive
      urinalysis tests for alcohol or marijuana. Agent Clawson had left
      written instructions at [Mickens’] approved residence directing
      him to report to the Altoona, PA office, on March 7, 2014, and
      when he did not appear, a bench warrant issued.

Trial Court Opinion, 10/2/14, at 1-2.

      On appeal, Mickens presents a single issue for our review: “Whether

the lower court erred and abused its discretion when it failed to place

sufficient reasons on the record pursuant to 42 Pa.C.S. § 9721(b) in

sentencing the Appellant to a period of incarceration in a state correctional

institution.” Brief of Appellant, at 4.

      This claim implicates the discretionary aspects of Mickens’ sentence,

which are not appealable as of right. Rather, an appellant challenging the

sentencing court’s discretion must invoke this Court’s jurisdiction by


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satisfying a four-part test.   Commonwealth v. Prisk, 13 A.3d 526 (Pa.

Super. 2011).

      We conduct a four-part analysis to determine: (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, 42 Pa.C.S. § 9781(b).

Id. at 532, citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006). An appellate court will find a “substantial question” and review the

decision of the trial court only where an aggrieved party can articulate clear

reasons why the sentence imposed by the trial court compromises the

sentencing scheme as a whole. Commonwealth v. Tuladziecki, 522 A.2d

17 (Pa. 1987).

      Here, Mickens has preserved his claim by filing a post-sentence motion

and including it in his Rule 1925(b) statement.     His notice of appeal was

timely filed. Finally, Mickens has included in his brief a statement pursuant

to Pa.R.A.P. 2119(f), in which he claims the court failed to place sufficient

reasons for the sentence on the record. An allegation that a judge failed to

offer specific reasons for [a] sentence raises a substantial question.    See

Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011) (citing

Commonwealth v. Reynolds, 835 A.2d 720, 734 (Pa. Super. 2003).

Accordingly, we will review Mickens’ claim.




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      Specifically, Mickens argues that the court did not place information on

the record pursuant to 42 Pa.C.S. § 9771(c), which states in pertinent part,

      (c) Limitation on sentence of total confinement.--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

            (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)(1)-(3). Mickens further argues that the trial court did

not consider all relevant factors, including the protection of society, Mickens’

age, mental aptitude, education attainment, employment history or prior

criminal record. The record belies Mickens’ claim.

      At the probation violation hearing, the Commonwealth presented

evidence of extensive violations and difficulties with Mickens’ probation.

Since August 2012, Mickens had received 75 sanctions, 20 of which were

due to positive urinalysis for either alcohol or marijuana.     N.T. Probation

Violation Hearing, 3/31/14, at 3.     The record speaks for itself regarding

Mickens’ likelihood of reoffending. Additionally, Mickens’ conduct reflects a

flagrant disregard for the rehabilitative purpose of the probation program

and a lack of respect for the authority of the courts. Mickens continuously

violated the terms of his probation by abusing drugs and alcohol and

committing other technical violations. Based on Mickens’ conduct while on



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probation, it was reasonable for the trial court to impose a sentence of total

confinement to vindicate the court’s authority.

      Mickens’ further argues that the trial court did not consider all relevant

factors.   While the court did not explicitly state on the record whether it

considered    Mickens’   age,   mental   aptitude,   education   attainment   or

employment history when fashioning his sentence, it is clear that the court

did consider Mickens’ well-being and acted in his best interest.         At the

hearing on Mickens’ motion for modification of sentence, Judge Creany

declined to modify sentence because he wanted Mickens to receive the help

he needs rather than be eligible for parole. As Judge Creany explained,

      Here is the problem though, Mr. Mickens. I concluded that you
      did need treatment for a drug problem. You can see that the
      prior record indicates you had three prior drug convictions – or
      two drug convictions and a firearm violation. And we can’t
      provide [drug treatment] if you’re ineligible for the Day
      Reporting Center. That’s my – that’s my problem. That’s my
      issue.
                                     ***
      I’m going to decline to modify his sentence. As I said, he’s --
      the program that I feel would be appropriate is one for which he
      is not eligible, and the state is in a better position to provide
      those programs.      I’m sorry that it’s taken time, but the
      administrative issues are not my making.

N.T. Hearing on Motion to Modify Sentence, 8/19/14, at 7-8.

      As this Court has previously stated, “[t]he likelihood of re-offense and

the need for incarceration to vindicate the trial court’s authority are matters

that require the consideration of many factors, and two judges considering

the same record may or may not arrive at the same conclusion. Thus, the


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need to afford discretion to sentencing courts applying § 9771(c) is plainly

evident.”    Commonwealth v. Schutzues, 54 A.3d 86, 95 (Pa. Super.

2012).      Based on the aforementioned facts, we discern no abuse of

discretion on behalf of the trial court in its decision to revoke Mickens’

probation and impose a sentence of 12 to 36 months’ incarceration.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/2015




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