J-S12011-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHRISTOPHER MICHNYA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 349 EDA 2019

Appeal from the Judgment of Sentence Entered May 11, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0005973-2015

BEFORE: SHOGAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY SHOGAN, J.: Filed May 21, 2020

Appellant, Christopher Michnya, appeals nunc pro tunc from the 

judgment of sentence entered on May 11, 2017, following the revocation of 

his probation. After review, we affirm.

The trial court summarized the relevant facts and procedural history of 

this matter as follows:

On July 21, 2015, Appellant, Christopher Michnya, 

voluntarily and knowingly tendered a negotiated guilty plea to 

Retail Theft [(18 Pa.C.S. § 3929(a)(1))], graded as a third degree 

felony [at trial court docket number CP-51-CR-0005973-2015]. 

On that same date, pursuant to the negotiations and following 

submission of a thorough written and oral colloquy and waiver of 

presentence investigation[] reports, the Honorable Anne Marie B. 

Coyle, Judge of the Court of Common Pleas for the First Judicial 

District of Pennsylvania Criminal Division, hereinafter referred to 

as “this [c]ourt,” imposed a sentence of two (2) years of county 

supervised probation. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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As the submitted and reviewed and incorporated GAGNON[1]

Summaries prepared by the assigned Probation Officer Jameka 

Bing reflected, Appellant had reported as required for the months

of September, October, and November 2016 following his release 

from Buck’s County incarceration on August 31, 2016. On 

November 4, 2016, a [Forensic Intensive Recovery (“FIR”)] 

evaluation was completed but Appellant never reported back to 

initiate and comply with the FIR recommendation for [intensive 

outpatient (“IOP”)] treatment at [Greater Philadelphia Asian 

Social Service Center (“GPASS”)]. Appellant then absconded from 

the supervision of the probation department, having last reported 

on November 7, 2016. On January 29, 2017, Appellant was 

arrested for new narcotics charges [at trial court docket number 

CP-51-CR-0002638-2017]. He was released before a probation 

warrant could be lodged. On January 31, 2017, an absconder 

warrant was issued. On February 2, 2017, Appellant was arrested 

for [a new charge of] retail theft [at trial court docket number CP51-CR-0003073-2017].

After a full and fair violation hearing, during which the 

largely uncontested data supplied within the GAGNON summaries 

was introduced into the record following Appellant’s waiver of

reading, this [c]ourt was satisfied that the probation officer’s 

recommendation of revocation was appropriate given the reported 

violations of the terms and conditions of the Order of Sentence 

which included: non-reporting and two (2) open bills.

Following revocation of probation, this [c]ourt directed and 

subsequently reviewed the mental health assessment and 

presentence investigative reports before the sentencing hearing. 

On May 11, 2017, Appellant entered a negotiated stipulated trial 

regarding the simple possession drug charge and was sentenced

to a period of nine (9) months of probation [at trial court docket 

number CP-51-CR-0002638-2017].

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1 Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v. 

Moriarty, 180 A.3d 1279, 1282 n.2 (Pa. Super. 2018) (explaining that when 

a probationer or parolee is detained pending a revocation hearing, due process 

requires a pre-revocation hearing (a Gagnon I hearing) to determine if there 

is probable cause to support a violation of probation or parole; if probable 

cause exists, a second, more comprehensive hearing (a Gagnon II hearing) 

is held before the trial court makes a final revocation decision).
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On that same date, following a full and fair evidentiary 

hearing on the revocation [of probation at trial court docket 

number CP-51-CR-0005973-2015], this [c]ourt concluded that a 

term of state supervised confinement was necessary to not only 

vindicate the authority of the [c]ourt but to deter future criminal 

conduct consistent with factors set forth in 42 Pa.C.S. § 9771. 

Appellant was then sentenced to a minimum term of two (2) years 

to a maximum of seven (7) years of state supervised confinement, 

with credit accorded for custodial time served and rehabilitative 

conditions were imposed.[2]

Post-Sentence Motions were filed on May 19, 2017[,] solely 

seeking a reduction of sentence and citing the single claim of an 

excessive sentence.[3] The Post-Sentence Motion was denied after 

a hearing on June 2, 2017. An appeal was not filed.

On May 8, 2018, Appellant filed a pro se PCRA Petition 

seeking the reinstatement of his direct appeal rights. Peter Levin, 

Esquire was appointed by the Court to represent Appellant. Mr.

Levin filed an amended petition and with the agreement of the 

Commonwealth, Appellant’s direct appeal rights were reinstated. 

On January 30, 2019, Appellant, by and through counsel, filed a

timely Notice of Appeal [nunc pro tunc] to the Superior Court of 

Pennsylvania. A Statement of Errors Complained of on Appeal 

pursuant to Pa. R.A.P. Rule 1925 (b) was ordered on May 14, 

2019. On June 6, 2019, a Statement of Errors Complained of on 

Appeal was filed.

Trial Court Opinion, 7/3/19, at 1-4 (original footnotes omitted).

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2 As mentioned in the recitation of the facts of this case, Appellant committed 

new crimes. Trial Court Opinion, 7/3/19, at 2. Appellant’s new crimes were 

direct violations of his probation in the instant case. See Commonwealth v. 

Foster, 214 A.3d 1240, 1247 (Pa. 2019) (stating that a probationer violates 

his probation where he violates a specific condition of his probation or commits 

a new crime).

3 The record reveals that Appellant was sentenced on May 11, 2017. Appellant 

filed a post-sentence motion for reconsideration of sentence, but due to a 

clerical error, the motion was not docketed until June 1, 2017. Nevertheless, 

the trial court held a hearing and announced that it deemed Appellant’s postsentence motion timely filed. N.T., 6/2/17, at 3. 
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On appeal, Appellant asserts that the trial court abused its discretion by 

imposing a manifestly excessive and unreasonable sentence following the 

revocation of his probation. Appellant’s Brief at 8. Specifically, Appellant 

avers that a sentence of two to seven years of incarceration was too severe, 

and the trial court failed to consider mitigating factors such as Appellant’s 

background, character, and rehabilitative needs. Id. at 14.

Appellant’s assertion is a challenge to the discretionary aspects of his 

sentence. See Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa. 

Super. 1995) (a claim that the trial court imposed a manifestly excessive 

sentence and failed to consider mitigating factors is a challenge to the 

discretionary aspects of the sentence). We note that “[t]he right to appellate 

review of the discretionary aspects of a sentence is not absolute.”

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014). Rather, 

where an appellant challenges the discretionary aspects of a sentence, the 

appeal should be considered a petition for allowance of appeal. 

Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. 

Super. 2010):

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a fourpart test:

[W]e 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 
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motion to reconsider and modify sentence, see 

Pa.R.Crim.P. [708]; (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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 

2006)). The determination of whether there is a substantial question is made 

on a case-by-case basis, and this Court will grant the appeal only when the 

appellant advances a colorable argument that the sentencing judge’s actions 

were either: (1) inconsistent with a specific provision of the Sentencing Code; 

or (2) contrary to the fundamental norms which underlie the sentencing 

process. Commonwealth v. Sierra, 752 A.2d 910, 912-913 (Pa. Super. 

2000).

Herein, the first three requirements of the four-part test are met: 

Appellant brought a timely appeal, raised the challenge in a post-sentence 

motion, and included in his appellate brief the necessary separate concise 

statement of the reasons relied upon for allowance of appeal pursuant to 

Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raised a 

substantial question requiring us to review the discretionary aspects of the 

sentence imposed.

As set forth above, Appellant asserts that the trial court imposed a 

manifestly excessive sentence and failed to consider mitigating factors when 

it fashioned Appellant’s sentence. Appellant’s Brief at 14. We conclude that 

Appellant presents a substantial question for our review. See 
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Commonwealth v. DiClaudio, 210 A.3d 1070, 1075 (Pa. Super. 2019) 

(stating that a claim that a sentence is excessive, in conjunction with an 

assertion that the trial court failed to consider mitigating factors, presents a 

substantial question).

Our standard of review is as follows:

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).

Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014). When 

evaluating the outcome of a revocation proceeding, this Court is limited to 

reviewing the validity of the proceeding, the legality of the judgment of 

sentence imposed, and the discretionary aspects of sentencing.

Commonwealth v. Cartrette, 83 A.3d 1030, 1033-1035 (Pa. Super. 2013). 

“[T]he revocation of a probation sentence is a matter committed to the sound 

discretion of the trial court and that court’s decision will not be disturbed on 

appeal in the absence of an error of law or an abuse of discretion.” 

Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006). 

Additionally, when sentencing a defendant 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. Commonwealth 
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v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000); 42 Pa.C.S. § 9771(b). Once 

probation has been revoked, a sentence of total confinement may be imposed 

if any of the following conditions exist: “(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); Fish, 752 A.2d at 923.

Furthermore, because our Sentencing Guidelines do not apply to 

sentences imposed following the revocation of probation, we are guided by 

the provisions of 42 Pa.C.S. § 9721, which state the general standards that a 

court is to apply in sentencing a defendant. Commonwealth v. Ferguson, 

893 A.2d 735, 739 (Pa. Super. 2006).

When imposing a sentence, the sentencing court must 

consider the factors set out in 42 Pa.C.S. § 9721(b), that is, the 

protection of the public, gravity of offense in relation to impact on 

victim and community, and rehabilitative needs of defendant, and 

it must impose an individualized sentence. The sentence should 

be based on the minimum confinement consistent with the gravity 

of the offense, the need for public protection, and the defendant’s 

needs for rehabilitation.

Id. Moreover, this Court has explained that when the “sentencing court had 

the benefit of a presentence investigation report (‘PSI’), we can assume the 

sentencing court ‘was aware of relevant information regarding [the] 

defendant’s character and weighed those considerations along with mitigating 

statutory factors.’” Moury, 992 A.2d at 171. 
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As noted, Appellant alleges that the trial court imposed an excessive 

sentence without considering Appellant’s rehabilitative needs and mitigating 

factors such as his family history, drug addiction, and previous attempts at 

drug rehabilitation. Appellant’s Brief at 14, 18-19. After review, we conclude 

that the record belies Appellant’s assertion.

At the sentencing hearing, the trial court discussed Appellant’s family 

and personal history in great detail. N.T., 5/11/17, at 16. The trial court 

stated its awareness that Appellant’s father had died. Id. The court noted 

that Appellant’s brother died from a heroin overdose and that Appellant’s 

mother, who died of lung cancer, also had issues with drugs. Id. After 

Appellant’s mother died, Appellant lived with his uncle and then in a group 

home. Id. Appellant ran away from the home and lived with his grandmother, 

who then died a few weeks later. Id. at 16-17. The trial court noted that 

Appellant is dependent on alcohol and drugs, dropped out of high school, does 

not have a GED, refuses treatment, and cannot maintain employment. Id. at 

17. The trial court concluded that without incarceration and treatment, 

Appellant would reoffend and likely die because Appellant is not amenable to 

probation. Id. at 16-19. The trial court then stated:

THE COURT: ... As an adult, sir, you’ve been arrested 11 times, 

8 convictions, 1 commitment[], 8 violations of probation or parole 

thus far, 6 revocations of your sentence. It’s highly recommended 

that there be a strict follow-up of treatment. This matter came 

before this [c]ourt as a result of a negotiated guilty plea for a

probation period of two years with conditions set forth that were 

not followed.
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The retail theft, it was an F3, right?[4]

[ASSISTANT DISTRICT ATTORNEY] HALL: Yes, Your Honor.

THE COURT: The arrest for possession occurred after your 

release from Bucks County incarceration. You initially did report 

and then absconded. Recommendation of the probation officers is 

revocation, so I reviewed the presentence investigation and 

reviewed your criminal history, sir, which -- most of which stems 

from retail thefts and drug charges. I reviewed the mental health 

assessment and note your dual diagnosis nature of bipolar as well

as a history of poly[-]substance abuse.

Okay. All right, sir. The sentence of the Court, sir -- and you 

may remain seated -- is that you serve a minimum of two years 

of state time incarceration to a maximum seven years of state 

time incarceration, sir. You are to be paroled only to an inpatient 

program deemed acceptable by the Parole Office. The follow-up 

from the inpatient program, you are to be placed in a drug-free 

environment, whether it be a halfway house or I don’t know. It 

depends on what they determine. You’re going to have random 

drug and alcohol testing, random room visits, random vehicle 

checks for drugs and/or weapons.

While you are in custody, sir, you are to avail yourself of 

any vocational training deemed possible. You are to comply with 

any recommended drug and alcohol treatment. You are to be 

assigned and evaluated under a dual diagnosis type of evaluation. 

I’m recommending SCI Chester to deal with your drug and alcohol

as well as mental health difficulties. Your supervision will be strict. 

You are to do your level best to obtain and maintain legitimate

employment when you are released, sir.

Understand, sir, the first hot urine on release, that will be 

deemed by this Court --and I’m letting the parole [board] know, 

since they’re going to be making the decisions from this time 

forward -- that it is considered a violation due [to] your difficulty 

streak. I recognize, sir, that this is not what you expected today 

judging from your expression. However, a step-down type of 

____________________________________________

4 The statutory maximum penalty for a third-degree felony is seven years of 

imprisonment. 18 Pa.C.S. § 1103(3). 
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program that I’m recommending be followed -- in fact, I’m

directing be followed, is to keep you alive. I can only do so much. 

You can’t keep coming back. You’re stealing, you’re using drugs

to -- you’re your own worst enemy. I hope this works, but given 

the fact that all else has failed, I don’t have much left. That’s

reasonable in my mind.

Id. at 19-21.

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After review, we conclude that the trial court considered all of the 

relevant factors from 42 Pa.C.S. §§ 9721 and 9771, thoroughly addressed 

Appellant’s personal circumstances, and fashioned an individualized sentence 

that was aimed at vindicating the authority of the court, deterring future 

criminal conduct, and aiding in Appellant’s rehabilitation. Ferguson, 893 A.2d

at 739. Moreover, the trial court was aided by a presentence investigation 

report; therefore, we can assume the sentencing court was aware of relevant 

information regarding Appellant’s character and weighed those considerations 

along with mitigating statutory factors. Moury, 992 A.2d at 171. 

For the reasons set forth above, and pursuant to our deferential 

standard of review, we cannot conclude that the trial court failed to consider 

relevant sentencing factors or abused its discretion in imposing a term of two 

to seven years of incarceration in a State Correctional Institution, with 

rehabilitative conditions. See Commonwealth v. Sierra, 752 A.2d 910, 915 

____________________________________________

5 The trial court also stated that it had no objection to Appellant’s participation 

in Motivational Boot Camp under 61 Pa.C.S. § 3903; Appellant also was 

eligible for Recidivism Risk Reduction Incentive after serving eighteen months 

pursuant to 61 Pa.C.S. §§ 4501-4512. N.T., 5/11/17, at 21-22.
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(Pa. Super. 2000) (finding no abuse of discretion in the trial court revoking 

the appellant’s probation and imposing the statutory maximum sentence of 

five to twenty years imprisonment based upon technical violations, where the 

record revealed the trial court’s “in-depth knowledge of this individual, that 

parole and probation were ineffective in rehabilitating [the appellant], and that 

further incarceration of this degree was appropriate”). Accordingly, we affirm 

Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/21/20