J. S27040/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

EFREN DANDRADE, :

:

Appellant : No. 2617 EDA 2014

Appeal from the Judgment of Sentence August 5, 2014

In the Court of Common Pleas of Lehigh County 

Criminal Division No(s).: CP-39-CR-0003585-2008

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JULY 21, 2015

Appellant, Efren Dandrade, appeals from the judgement of sentence 

entered in Lehigh County Court of Common Pleas following the trial court’s 

revocation of his probation. He challenges the discretionary aspects of his 

sentence. We affirm.

We adopt the recitation of facts and procedural history as set forth by 

the trial court. Trial Ct. Op., 10/13/14, at 1-2. We add the following. 

During Appellant’s July 15, 2014 Gagnon II hearing,1 he stipulated to 

violating terms of his probation by failing to comply with verbal or written 

 

*

Former Justice specially assigned to the Superior Court.

1 Gagnon v. Scarpelli, 411 U.S. 778 (1973). At a Gagnon II hearing, “the 

Commonwealth is required to establish that the defendant [violated] his 

parole/probation.” Commonwealth v. Stafford, 29 A.3d 800, 801 n.1 (Pa. 

Super. 2011).
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instructions and failing to remain drug-free. N.T. Gagnon II Hr’g, 7/15/14, 

at 2-3. At that hearing, the trial court revoked Appellant’s probation. Order, 

7/15/14. It scheduled a sentencing hearing for August 5, 2014. Id. The 

trial court ordered a presentence investigation report (“PSI”) with 

calculations of credit for time served and available maximum sentence. Id. 

The trial court sentenced Appellant to sixteen to thirty-six months’ 

imprisonment with a Recidivism Risk Reduction Incentive (RRRI) minimum of 

twelve months. Order, 8/7/14. On August 15, 2015, Appellant filed a timely 

motion to modify his sentence. The trial court denied the motion on August 

19, 2014. This timely appeal followed.2 Appellant filed a timely courtordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal and 

the trial court filed a responsive opinion.

On appeal, Appellant challenges discretionary aspects of his sentence. 

He raises the following issue for our review: “DID THE LOWER COURT ERR 

BY IMPOSING A DISPROPORTIONATE SENTENCE BASED UPON THE NATURE 

OF THE VIOLATION AND BY FAILING TO PROPERLY CONSIDER THE 

REQUISITE STATUTORY FACTORS, THUS IMPOSING AN EXCESSIVE 

 

2

“An appellant whose revocation of probation sentence has been imposed 

after a revocation proceeding has 30 days to appeal [the] sentence from the 

day [the] sentence is entered, regardless of whether or not [he or] she files 

a post-sentence motion.” Commonwealth v. Parlante, 823 A.2d 927, 929 

(Pa. Super. 2003) (citing Pa.R.Crim.P. 708(D)).
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SENTENCE CONTRARY TO THE FUNDAMENTAL NORMS OF THE SENTENCING 

PROCESS?” Id. at 4.

Appellant argues the trial court abused its discretion. He contends the 

following. “[T]he Sentencing Court manifestly abused its discretion by 

imposing a sentence of total confinement for relatively non-serious technical 

violations . . . .” Id. The trial court failed to properly consider factors in 42 

Pa.C.S. § 9721(b) during sentencing. Id. at 14. “[T]here is no indication on 

the record that the public needs to be protected from [him]” and his 

rehabilitative needs are unmet by his sentence. Id. at 15. 

This Court has stated, 

discretionary aspects of [an appellant’s] sentence are not 

appealable as of right. Rather, an appellant challenging 

the sentencing court’s discretion must invoke this Court’s 

jurisdiction by satisfying a four-part test.

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.A. § 9781(b).

Commonwealth v. Leatherby, ___ A.3d ___, ___, 2015 WL 1788797 at 

*7 (Pa. Super. April 21, 2015) (some citations omitted). 

Instantly, Appellant timely filed this appeal, preserved the issue of a 

disproportionate or excessive sentence by objecting during sentencing and in 
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his post-sentence motion, and included a statement in his brief which 

conforms with Pa.R.A.P. 2119(f).3 See Appellant’s Brief at 10. Accordingly, 

we ascertain whether Appellant has raised a substantial question. 

Leatherby, 2015 WL 1788797 at *7.

“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.” 

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

(punctuation omitted), appeal denied, 91 A.3d 161 (Pa. 2014). 

The imposition of a sentence of total confinement after the 

revocation of probation for a technical 

violation . . . implicates the fundamental norms which 

underlie the sentencing process. Additionally, a 

substantial question that the sentence was not appropriate 

under the Sentencing Code may occur even where a 

sentence is within the statutory limits. 

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) 

(quotation marks and citations omitted). “[A]rguments that the sentencing 

court failed to consider the factors proffered in 42 Pa.C.S. § 9721 . . . 

present a substantial question.” Dodge, 77 A.3d at 1272 n.8. Appellant 

 

3 This Court has held that a “Rule 2119(f) statement must specify where the 

sentence falls in relation to the sentencing guidelines and what particular 

provision of the Code is violated . . . .” Commonwealth v. Goggins, 748 

A.2d 721, 727 (Pa. Super. 2000) (en banc). Appellant’s 2119(f) statement 

failed to include a statement of where his sentence fell within the sentencing 

guidelines. Appellant’s Brief at 10. However, as the Commonwealth did not 

argue a defect in his Rule 2119(f) statement, we decline to find waiver on 

these technical grounds. See Dodge, 77 A.3d at 1271.
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sufficiently alleges his sentence is disproportionate to the technical nature of 

his probation violations and that the trial court failed to consider the factors 

in 42 Pa.C.S. § 9721. We therefore find Appellant has raised a substantial 

question. Dodge, 77 A.3d at 1272 n.8; Crump, 995 A.2d at 1282. 

Our standard of review is as follows:

Sentencing is a matter vested in the sound 

discretion of the sentencing judge, and a sentence 

will not be disturbed on appeal absent a manifest 

abuse of discretion. An abuse of discretion is more 

than just an error in judgment and, on appeal, the 

trial court will not be found to have abused its 

discretion unless the record discloses that the 

judgment exercised was manifestly unreasonable, 

or the result of partiality, prejudice, bias, or ill-will. 

More specifically, 42 Pa.C.S.A. § 9721(b) offers the 

following guidance to the trial court’s sentencing 

determination:

[T]he 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.

Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa. Super. 2012) (some 

citations omitted). 

“Subsequent to revocation of probation, the sentencing court has 

available to it all the options permissible at the time of initial 

sentencing . . . .” Crump, 995 A.2d at 1285.

Under 42 Pa.C.S. § 9771(c), a court may sentence a 

defendant to total confinement subsequent to revocation of 

probation if any of the following conditions exist: 1. the 
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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 

this court.

Id. at 1282-83 (citing 42 Pa.C.S. § 9771(b)). This court declined to find an 

abuse of discretion when “continued drug use, combined with [the 

appellant’s] resistance to treatment and supervision, [was] enough to make 

a determination that, unless incarcerated, appellant would in all likelihood 

commit another crime.” Commonwealth v. Capellini, 690 A.2d 1220, 

1225 (Pa. Super. 1996).

Further,

[w]here pre-sentence reports exist, we shall continue to 

presume that the sentencing judge was aware of relevant 

information regarding the defendant's character and 

weighed those considerations along with mitigating 

statutory factors. . . . Having been fully informed by the 

presentence report, the sentencing court’s discretion 

should not be disturbed. This is particularly true . . . in 

those circumstances where it can be demonstrated that 

the judge had any degree of awareness of the sentencing 

considerations, and there we will presume also that the 

weighing process took place in a meaningful fashion.

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Therefore, to 

determine whether the trial court weighed the factors in 42 Pa.C.S. 

§ 9721(b) during sentencing, we must presume the trial court reviewed the 

PSI. Id.

First, we analyze whether the trial court abused its discretion by 

imprisoning Appellant following revocation of probation. We find it did not. 
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Here, as in Capellini, Appellant failed to pursue the rehabilitative goals of 

probation. N.T., 7/15/14, at 3-4; see Capellini, 690 A.2d at 1225-26. The 

record as a whole shows the trial court weighed Appellant’s risk of recidivism 

as well as whether incarceration was “essential to vindicate the authority” of 

the court. See 42 Pa.C.S. § 9771(b); see Crump, 995 A.2d at 1285. It 

concluded that Appellant’s probation violations were “technical violations, 

but [his] history . . . under probation and parole . . . leads me to believe the 

only thing that [he] may take seriously is to go to state prison for some 

time.” N.T., 8/5/14, at 13. We therefore decline to find the trial court 

abused its discretion by imprisoning Appellant for the remainder of the 

maximum sentence available on his original crime. Crump, 995 A.2d at 

1283; Capellini, 690 A.2d at 1225-26.

We now must determine whether the trial court failed to properly 

consider the sentencing objectives enumerated in 42 Pa.C.S. § 9721(b). We 

find it did not. During Appellant’s probation revocation proceeding, the trial 

court considered Appellant’s positive drug screens and failure to appear for 

ordered drug treatment. N.T., 7/15/14, at 3-4. The trial court later 

reviewed Appellant’s PSI on the record. N.T., 8/5/14, at 10. In addition, 

the trial court adopted the PSI’s sentencing recommendations. See id. at 

12. Because the trial court considered the PSI on the record, and keeping in 

mind it adopted the sentencing recommendations therein, we must not 

disturb the trial court’s decision. See Devers, 546 A.2d at 18.
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In its responsive opinion, the trial court concluded, 

[i]n this case, the sentence Appellant received is 

appropriate and was fully warranted under the 

circumstances. This was Appellant’s fourth violation. 

Every time he has been released from incarceration, he 

has violated the terms of his sentence. He demonstrated 

an unwillingness to comply with the terms of his 

incarceration and parole. Appellant also has a very 

lengthy [criminal] record . . . which strongly indicates that 

he is likely to commit another crime . . . . The Court also 

considered Appellant’s rehabilitative needs, and based on 

his performance while on parole and probation, 

confinement is more appropriate as a rehabilitative setting.

Trial Ct. Op. at 5. Based on a review of the record as a whole, we find the 

trial court did not abuse its discretion. No relief is due.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/21/2015
1 

1 75 Pa.C.S.A. § 3733(a). 

2 18 Pa.C.S.A. § 392l(a). 

3 18 Pa.C.S.A. § 3925(a). 

4 18 Pa.C.S.A. §§ 903(a)(l), 3921(a). 

s 18 Pa.C.S.A, § 2705. 

as a Misdemeanor of the First Degree, Recklessly Endangering Another Person.' graded ag a 

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graded as a Misdemeanor of the First Degree, Conspiracy to Theft by Unlawful Taking," graded 

Unlawful Taking,2 graded as a Misdemeanor of the First Degree, Receiving Stolen Property.' 

Attempting to Elude a Police Officer, 1 graded as a Felony of the Third Degree, Theft by 

On November 6, 2008, Appellant entered into negotiated guilty pleas on Fleeing or 

Factual and Procedural History 

proper and lawful and Appellant's judgment of sentence should be affirmed. 

discretionary aspects of the Court's sentence. For the reasons set forth herein, the sentence was 

to thirty months in state prison. Appellant contends this sentence is excessive and challenges the 

and failing to follow written and verbal instructions. Appellant was resentenced to serve sixteen 

hearing during which he conceded that he violated his probation for failing to remain drug free 

Efrain Dandrade, Appellant, appeals from a judgment of sentence following a Gagnon II 

1925(a) Opinion 

Douglas G. Reichley, J. 

October 6, 2014 

EFRAIN DANDRADE, 

Appellant 

No. 3585 I 2008 

2617 EDA 2014 

vs. 

COMMONWEALTH OF PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA 

CRIMINAL DIVISION 

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2 

Misdemeanor of the Second Degree, and Driving While Operating Privilege is Suspended or 

Revoked,6 a summary offense. 

On December 8, 2008, the Honorable William H. Platt sentenced Appellant to twelve 

months less one day to twenty-four months less one day in Lehigh County Prison, followed by 

one year on probation and a fine. 

On August 2, 2009, Appellant was paroled. However, his parole was revoked following a 

violation hearing on August 13, 2010. Judge Platt remanded Appellant to serve the balance of his 

sentence, followed by one year on probation. 

On August 16, 2011, following a Gagnon II hearing, the Honorable Lawrence J. Brenner 

found Appellant had again violated his parole and probation. Judge Brenner remanded Appellant 

to serve the balance and he reimposed the one-year probationary period. Appellant was paroled 

on October 15, 2011. 

Appellant appeared before the undersigned on January 24, 2012 for a third Gagnon II 

hearing. At that point, the Court revoked the parole portion of the sentence and remanded 

Appellant to serve the balance. The Court also revoked the probationary period and resentenced 

Appellant to twelve months less one day to twenty-four months less one day in Lehigh County 

Prison with a consecutive one year probationary period. The new sentence aggregated with the 

balance to send Appellant to state prison. 

On November 15, 2012, Appellant paroled from state prison. He completed the parole 

portion of his sentence. 

In May of 2014, a fourth violation petition was filed against Appellant. He appeared for a 

Gagnon II hearing on July 15, 2014. He conceded the allegations of the petition, acknowledging 

that he failed to remain drng free and failed to follow written and verbal instructions. The 

6 75 Pa.C.S.A. § 1543(a). 

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3 

Appellant argues the Court abused his discretion by imposing a harsh and excessive 

sentence. He claims his sentence was manifestly unjust and excessive and contrary to the 

fundamental norms of the sentencing process. He also maintains it is disproportionate to what is 

necessary to achieve consistency with the sentencing standards of the Sentencing Code. 

As a general rule, trial courts are afforded broad discretion in sentencing. Commonwealth 

v. Miller, 835 A.2d 377, 380 (Pa. Super. 2003); Commonwealth v. Mouzon, 812 A.2d 617, 621 

(Pa. 2002). A sentence will not be disturbed absent an abuse of that discretion. Mouzon, 812 

A.2d at 621 ( citing Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001 )). 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." 

Discussion 

specific factual allegations to which he conceded were failing to abide by a curfew and failing to 

have a drug and alcohol evaluation when instructed. Following his concession, Appellant 

requested a Presentence Investigation Report (PSI) be prepared. 

Appellant was interviewed and a PSI was prepared by Adult Probation. On August 5, 

2014, Appellant appeared before the undersigned where he was resentenced to sixteen to thirtysix months in state prison, with a RRRI minimum of twelve months. 

On August 15, 2014, Appellant filed a counseled Motion to Modify Sentence, which the 

Court denied August 19, 2014. 

On September 4, 2014, Appellant filed a Notice of Appeal challenging his sentence. He 

was directed to serve a Concise Statement of Matters Complained of on Appeal on the Court, 

and said Concise Statement was filed on September 25, 2014. 

This Opinion follows. 

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4 

(2) the conduct of the defendant indicates that it is likely that he will commit 

another crime if he is not imprisoned; or, 

(1) the defendant has been convicted of another crime; or 

sentence of total confinement may be imposed if any of the following conditions exist: 

sentence." Coolbaugh, 770 A.2d at 792 (citations omitted). Once probation is revoked, a 

the maximum sentence that it could have imposed originally at the time of the probationary 

"Upon sentencing following a revocation of probation, the trial court is limited only by 

alternatives available at the time of the original sentencing. 42 Pa.C.S. § 9771(b). 

available to courts in resentencing following a revocation of probation are all of the sentencing 

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000)). The range of sentences 

on appeal." Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001) (quoting 

sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed 

"The imposition of sentence following the revocation of probation 'is vested within the 

42 Pa.C.S. §972l(b). 

its impact on the community and the life of the victim, and the defendant's rehabilitative needs. 

the general principles of protecting the public, weighing the gravity of the offense in relation to 

Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa. Super. 1997). Sentencing judges are guided by 

sentence will not be disturbed unless it was manifestly excessive or outside the statutory limits. 

circumstances before it." Commonwealth v. Ward, 568 A.2d 1242, 1243 (Pa. 1990). Thus, a 

determine the proper penalty for a particular offense based upon an evaluation of the individual 

court's pronouncement because of the perception that the trial court is in the best position to 

The Supreme Court of Pennsylvania explained that"[ d]eference is accorded to the trial 

1325, 1328 (Pa. 1981 ». 

Commonwealth v. Smith, 673 A.2d 893 (Pa. 1996) (quoting Commonwealth v. Lane, 424 A.2d 

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5 

By the Court: 

(3) such a sentence is essential to vindicate the authority of court 

42 Pa.C.S. § 9771(c). 

In this case, the sentence Appellant received is appropriate and was fully warranted under 

the circumstances. This was Appellant's fourth violation. Every time he has been released from 

incarceration, he has violated the terms of his sentence. He demonstrated an unwillingness to 

comply with the terms of his incarceration and parole. Appellant also has a very lengthy record 

stretching back to 1986 which strongly indicates that he is likely to commit another crime. A 

period of probation following this revocation would have been inappropriate, and a lesser 

sentence served in Lehigh County Prison would depreciate the seriousness of the offense. The 

Court also considered Appellant's rehabilitative needs, and based on his performance while on 

parole and probation, confinement is more appropriate as a rehabilitative setting. 

Conclusion 

For the reasons set forth herein, Appellant's sentence was appropriate following the 

fourth violation on his case. His behavior while on supervision outside an institutional setting 

demonstrates a consistent pattern of noncompliance with the supervisory requirements imposed 

upon him. Confinement is warranted under all of the circumstances and the duration of the 

sentence is proper. Accordingly, the Court respectfully recommends that Appellant's judgment 

of sentence be affirmed. 

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