J-S52026-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. RAYMOND LEROY ADAMS, Appellant No. 213 WDA 2015

Appeal from the Judgment of Sentence of October 15, 2014 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0000960-2010

and CP-07-CR-0000961-2010

BEFORE: SHOGAN, OLSON and WECHT, JJ. MEMORANDUM BY OLSON, J.: FILED NOVEMBER 09, 2015 Appellant, Raymond Leroy Adams, appeals from the j udgment of sentence entered on October 15, 2014, following the revocation of probation. Upon review, we affirm. We briefly summarize the facts and procedural hist ory of this case as follows. On October 4, 2010, Appellant pled guilty to four counts of possession with intent to deliver (PWID) narcotics. As per the terms of a plea agreement with the Commonwealth, the trial cou rt sentenced Appellant to an aggregate term of two to four years of incarc eration on the first two counts of PWID, followed by a consecutive term of f ive years of specialJ-S52026-15

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probation on the second two PWID counts. 1 While on parole for the first two counts of PWID, the Pennsylvania Department of Prob ation and Parole alleged that Appellant committed three technical vi olations of his probation and parole, including failure to: (1) receive perm ission to change residences; (2) report to supervision staff, and; ( 3) attend and complete batterer’s intervention, specifically, the “Men Hel ping Men” program. The trial court summarized the resulting procedural his tory as follows:

Although [Appellant] admitted to violating his supe rvision at a parole hearing, [he] contested the violations at the [revocation of probation] hearing on October 14, 20 14. After hearing from both parties, the [trial] [c]our t found [Appellant] had violated his probation as alleged a bove. The [trial] [c]ourt revoked [Appellant’s] five[-]ye ar period[] of special probation [] and resentenced him [] to a period of incarceration of 9 to 24 months at S.C.I. Camp Hill [.] [This sentence was] consecutive to the []sentence [Appell ant] [] received from the Pennsylvania Board of Probation a nd Parole [as a result of his parole violations]. On October 24, 2014, [Appellant] filed a timely mot ion for reconsideration of the [trial] court’s sentence ave rring that 9 to 24 months ‘was too harsh’ as this was [his] fi rst probation violation and the Pennsylvania State Paro le Board had sentenced [Appellant] for the same technical vi olations. The [trial] court denied [Appellant’s] motion for reconsideration without a hearing on November 6, 20 14. [Appellant] filed a motion for appeal nunc pro tunc on December 30, 2014 which the [trial] court granted o n January 20, 2015. [Appellant] filed a notice of ap peal on January 29, 2015 and the [trial] court directed [Ap pellant] to file a concise statement of matters pursuant to Pa.R.A.P.

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1 Special probation directs supervision by the Parol e Board by order of the court of common pleas. See 37 Pa.Code §§ 65.1 – 65.7.J-S52026-15

- 3 - 1925(b) by order dated February 10, 2015; [Appellan t] complied on February 19, 2015. Trial Court Opinion, 3/27/2015, at 3 (superfluous c apitalization and record citation omitted). On appeal, Appellant presents the following issue for our review:

Whether the [s]entencing [c]ourt abused its discret ion and imposed a [] grossly disproportionate [sentence] on [Appellant] for technical violations of his probati on [by] failing to adequately consider this was [Appellant’ s] first violation of probation after serving a two year per iod of parole, as well as failing to take into account his age? Appellant’s Brief at 9. Appellant initially “admits there was a basis to fi nd a violation of [his special probation] conditions[.]” Id. at 16. He claims the trial court “only considered the violations of probation” but, “did n ot consider [his] successful period of parole[, which showed that] supervision w as working for him[.]”

Id. at 17. Appellant also claims the trial court fail ed to take his age into

account. Id. In sum, he avers the trial court abused its discr etion and should have sentenced him to an additional period o f probation or sixmonths of concurrent imprisonment commensurate with the sentence imposed following revocation of his parole. Id. at 18. This claim does not challenge the revocation of App ellant’s probation. Rather, Appellant’s claim challenges the discretion ary aspects of his

sentence. See Commonwealth v. Schutzues , 54 A.3d 86, 91 (Pa. Super. 2012), appeal denied , 67 A.3d 796 (Pa. 2013); Commonwealth v.J-S52026-15

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Rhoades , 8 A.3d 912, 916 (Pa. Super. 2010), appeal denied , 25 A.3d 328 (Pa. 2011). “[T]his [C]ourt’s scope of review in a n appeal from a revocation sentencing includes discretionary sentencing challe nges.” Commonwealth

v. Cartrette , 83 A.3d 1030, 1034 (Pa. Super. 2013) ( en banc ). “Sentencing is a matter vested in the sound discret ion of the sentencing judge, and a sentence will not be distur bed on appeal absent a

manifest abuse of discretion.” Commonwealth v. Clarke , 70 A.3d 1281, 1287 (Pa. Super. 2013), appeal denied , 85 A.3d 481 (Pa. 2014) (citation omitted). Pursuant to statute, Appellant does not have an automatic right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petition this C ourt for permission to appeal the discretionary aspects of his sentence. Id. As this Court has explained: To reach the merits of a discretionary sentencing i ssue, we conduct a four-part analysis to determine: (1) whe ther appellant has filed a timely notice of appeal, Pa.R .A.P. 902, 903; (2) whether the issue was properly preserved at sen tencing or in a motion to reconsider and modify sentence, Pa.R.Cr im.P. [708]; (3) whether appellant’s brief has a fatal defect, P a.R.A.P. 2119(f); and (4) whether there is a substantial que stion that the sentence appealed from is not appropriate under the Sentencing Code, 42 [Pa.C.S.A.] § 9781(b).

Commonwealth v. Cook , 941 A.2d 7, 11 (Pa. Super. 2007); see also

Commonwealth v. Kalichak , 943 A.2d 285, 289 (Pa. Super. 2008) (“when a court revokes probation and imposes a new sentenc e, a criminal defendant needs to preserve challenges to the discretionary a spects of that sentenceJ-S52026-15

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either by objecting during the revocation sentencin g or by filing a postsentence motion”). Here, Appellant filed a timely notice of appeal and the issue was properly preserved in a post-sentence motion. Appe llant includes a statement pursuant to Pennsylvania Rule of Appellat e Procedure 2119(f) in his brief. Thus, we turn to whether the appeal pre sents a substantial question. Since Appellant was sentenced following the revocat ion of probation, the sentencing guidelines do not apply to Appellant ’s sentence. 204 Pa. Code § 303.1(b); Commonwealth v. Williams , 69 A.3d 735, 741 (Pa. Super. 2013), appeal denied , 83 A.3d 415 (Pa. 2014). “[U]pon sentencing following a revocation of probation, the trial cour t is limited only by the maximum sentence that it could have imposed origina lly at the time of the probationary sentence.” Commonwealth v. Coolbaugh , 770 A.2d 788, 792 (Pa. Super. 2001) (citation omitted). Thus, in sentencing Appellant, the trial court was required to “consider the general p rinciples and standards of the Sentencing Code.” Commonwealth v. Russell , 460 A.2d 316, 322 (Pa. Super. 1983). Section 9721 expresses these general principles in the following manner: the sentence imposed should call for confinement th at is consistent with the protection of the public, the g ravity 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.A. § 9721(b). As we have explained:J-S52026-15

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The determination of whether a particular case rais es a substantial question is to be evaluated on a case-b y-case basis. Generally, however, in order to establish that ther e is a substantial question, the appellant must show actio ns by the sentencing court inconsistent with the Sentencing C ode or contrary to the fundamental norms underlying the se ntencing process. Commonwealth v. Marts , 889 A.2d 608, 612 (Pa. Super. 2005) (internal citations omitted). In his Rule 2119(f) statement, Appellant states tha t the trial court’s

sentence of nine to 24 months’ incarceration for te chnical probation

violations is excessive. He contends that he was a good candidate for rehabilitation, because he successfully completed t wo years of parole before committing technical violations. He also argues th at the trial court failed to consider he is 62 years old as a mitigating factor. We have previously determined that a challenge to t he discretionary aspects of a sentence imposed following the revocat ion of probation presents a substantial question when an appellant “argues th at the trial court’s sentence is not consistent with the gravity of his violation, the need for public protection, or his needs for rehabilitation” under 42 Pa.C.S.A. § 9721(b). See Commonwealth v. Cartrette , 83 A.3d 1030, 1042 (Pa.J-S52026-15

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Super. 2013) ( en banc ). Thus, we will review this aspect of Appellant’s

claim. 2 Here, the trial court determined: [O]n October 14, 2014, [the trial court] heard test imony from Agent James Yaworksi of the Pennsylvania State Board of Parole and Probation regarding [Appellant’s] thr ee alleged violations for changing his approved reside nce without permission, failing to maintain regular con tact with parole supervision staff, and failing to successful ly complete Men Helping Men. Agent Yaworksi’s testimony demonst rated that [Appellant] admitted to [absconding] in a tele phone conversation on March 4, 2014 and in a parole heari ng on September 22, 2014. Agent Yaworski further testifi ed that [Appellant] had failed to maintain regular contact with him after January 3, 2014. However, the most concerning violation to the [tria l court] was [Appellant’s] failure to successfully complete Men Helping Men. [Appellant] who was subject to a spec ial [d]omestic [a]buse condition, was directed numerous times

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2 We note that Appellant also suggests the trial cou rt abused its discretion in sentencing him consecutively to the sentence impose d upon violation of his parole. Appellant did not present this aspect of h is argument in his Rule 2119(f) statement. Moreover, Appellant’s claim doe s not present a substantial question. See Commonwealth v. Dodge , 77 A.3d 1263, 1270 (Pa. Super. 2013) (“[A] bald claim of excessiveness due to the consecutive nature of a sentence will not raise a substantial q uestion.”). Thus, we will not examine that facet of Appellant’s discretionary aspect of sentencing claim. Moreover, Appellant did not raise the trial court’s alleged failure to consider his age in his concise statement of errors complain ed of on appeal pursuant to Pa.R.A.P. 1925(b). He cannot raise the claim fo r the first time on appeal. See Pa.R.A.P. 302. Thus, we are constrained to find t his portion of Appellant’s claim waived. See Commonwealth v. Hill , 16 A.3d 484, 488 (Pa. 2011) (“any appellate issues not raised in a compliant Ru le 1925(b) statement will be deemed waived.”).J-S52026-15

- 8 - to complete Men Helping Men, a well-respected educa tional course for men who have been involved in [d]omestic [v]iolence. [Appellant] alleged at the [revocation ] hearing that he was discharged from Men Helping Men because he was [having trouble reading and writing] and could not complete the required paperwork; he further asserte d that the Men Helping Men coordinator was ‘very ignorant, rude and disrespectful.’ The [trial court] simply did n ot find [Appellant] credible, particularly his reasons for not successfully completing Men Helping Men. The record demonstrates that [Appellant] was discha rged from this program on August 8, 2013, September 12, 2013, and December 26, 2013 for lack of attendance despit e Agent Yaworksi’s clear instructions to re-enroll an d complete treatment. [Appellant] was provided a fou rth and final opportunity to report to Men Helping Men on J anuary 13, 2014, but instead he absconded. Agent Yaworksi testified[:] This is not a fellow who simply didn’t do a couple of things. This is a guy who decided consciously, eve n though I told him this would, I literally told him in March in a phone conversation. I said if you walk through the door and turn yourself in, I won’t revo ke your probation. If I have to arrest you and the co ps get you, I’m going to revoke your probation. Five months later he is finally arrested by the police. Here is a person who every day woke up and decided I’m not going to play by the rules. I’m not going to report; they’re going to have to come get me. This is not someone who is amenable to supervision. He’s not someone who deserves a probation sentence. It was abundantly clear to the [trial court] that [ Appellant] had violated his probation and was incapable of fol lowing the conditions of his probation.

* * * The [trial court] believed that a sentence of 9 to 24 months was necessary based on [Appellant’s] refusal to com ply with the probation conditions; moreover, this sentence w ouldJ-S52026-15

- 9 - provide [Appellant] with sufficient time to success fully complete the necessary rehabilitation programs requ ired by the Department of Corrections. Trial Court Opinion, 3/27/2015, at 4-7 (record cita tions omitted). Here, the trial court credited the probation office r’s testimony over Appellant’s testimony. We will not usurp those cre dibility determinations.

See Commonwealth v. Emler , 903 A.2d 1273, 1277 (Pa. Super. 2006) (“As a reviewing court, we may not re-weigh the evi dence, substitute our judgment for that of the fact-finder, or usurp the fact-finder's prerogative to make credibility determinations and accept all, par t, or none of the evidence.”). The trial court looked at the gravity of his probation violations and determined Appellant absconded from supervision and treatment. Appellant’s probation officer gave him multiple opp ortunities to comply with the terms of his probation and he refused them. It took police seven months to arrest him. As a result, the trial court declared Appellant a poor candidate for rehabilitation and imposed a sentence of total incarceration to protect the public. We conclude the trial court ca refully weighed the factors set forth in Section 9721. Thus, we discern no abu se of discretion in imposing Appellant’s sentence following the revocat ion of his probation. Judgment of sentence affirmed.

Judgment Entered.J-S52026-15

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Joseph D. Seletyn, Esq. Prothonotary

Date: 11/9/2015