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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37 COMMONWEALTH OF PENNSYLVANIA

v.

JONATHAN MITCHELL

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2080 EDA 2022 Appeal from the Judgment of Sentence Entered July 12, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0004480

- 2018

BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.  MEMORANDUM BY COLINS, J.: FI LED AUGUST 22, 2023 Jonathan Mitchell appeals from the judgment of sentence imposed following the revocation of his probation , which resulted in a one - to
- two
- year term of incarceration to be followed by on e year of probation. On appeal, Mitchell challenges the discretionary aspects of this sentence, averring that the court failed to consider all of the relevant sentencing guidelines. Specifically, Mitchell contends that the court ’s lack of consideration into his overall danger to the community and rehabilitative needs resulted in too excessive of a sentence

. We disagree and therefore affirm , but remand for the
court to file a new sentencing order that is consistent with the sentence original ly imposed on June 1, 2022

. As background, t he record reflects that Mitchell entered into a non

-

_________________ __________ ______ ____ _______

 Retired Senior Judge assigned to the Superior Court.J

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negotiated guilty plea on January 22, 2020, wherein he pleaded guilty to one count of aggravated assault stemming from a May 28, 2018 incident involving the us e of a machete on the victim’s left ankle

. See 18 Pa.C.S. § 2702

. Resultantly, on July 9, 2020, the court imposed a sentence of time served to twenty
- three months of incarceration to be followed by three years of probation , predicated on his cooperation wi th the probation department’s mental health unit

. By that point, however , Mitchell “had been in custody approximately 26 months.” Trial Court Opinion, 9/22/22, at 2. As such, he was immediately released from incarceration , identified by the court as it “gr anting [Mitchell] immediate parole,” id ., at 3, an d Mitchell then began serving his term of probation. On November 20, 2020, the court conducted its first violation of probation (“VOP”) hearing. Subsequently, t he court conducted seven additional VOP hearings due to issues stemming from Michell’s noncompliance with the terms of his probation, but at each of these juncture s , probation was continued. Ultimately, due to Mitchell’s inability to adhere to his probation’s terms regarding drug and mental health treatment , e.g., testing positive for cocaine usage, in addition to an out
- of

- county arrest and sentencing , the court revoked probation on June 1, 2022, and immediately sentenced Mitchell to

one - to
- two years of incarceration to be followed by one year of probation. On June 8, 2022, Mitchell filed a timely motion for reconsideration of this newly imposed post
- revocation sentence. The court, on June 29, 2022, filed an order simultaneously vacating its judgment of sentence andJ

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scheduling the matter for a new sentencing hearing on July 12, 2022. See 42 Pa.C.S. § 5505 (trial court may rescind any order within 30 d ays after its entry if no appeal has been taken therefrom). On that July date, the court issued an order that purported to deny Mitchell’s motion for reconsideration , further writing “[s]ame sentence to stand.” Order Denying Motion for Reconsideration, 7/12/22

. The court did not issue a new sentencing order. Responsively, Mitchell filed yet another motion for reconsideration of his sentence, which , on August 10, 2022, was denied by the lower court. On that same date, Mitchell filed a not ice of appeal from the July 12 Order. 1 On appeal, Mitchell presents one issue for review:
1. Was the court’s imposition of a state sentence excessive, as it was not only disproportionate to his violating conduct, but also violative of Pennsylvania Sentenci ng Code’s subsection 9721(b)? See Appellant’s Brief, at 3.

_________________ __________ ______ ____ _______ 1 On October 19, 2022, this Court issued a n order directing Mitchell to show cause why this appeal should not be quashed as having been taken from the July 12, 2022 order, which purported to deny Mitchell’s motion for reconsideration and was not entered on the docket as a judgment of sentence

. Mitchell’s response indicates that the trial court intended , through its July 12, 2022 order , for Mitchell to serve the one

- to
- two
- year VOP sentence imposed on June 1, 2022 , but that was subsequently vacated. The rule to s how cause was thereafter vacated , and the issue was referred to the merits panel

. Upon review of the record here , including the transcript of the July 12, 2022 hearing, and as evidenced in the briefs filed in this appeal, it is clear that the trial court intended to reimpose the June 1, 2022 sentence. Nevertheless, in light of the procedural peculiarity of the proceedings below and as discussed further , infra , we remand the matter for the court to issue a new sentencing order that is congruent with its original sentencing scheme.J

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Mitchell’s sole claim challenges the discretionary aspects of his
sentence. 2 Correspondingly, to review such a claim, we are guided by a well

settled standard of review : [s]entencing 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. In this context, an abuse of discretion is not shown merely by error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill[

- ]will, or arrived at a manifestly unreasonable decision. Commonw

ealth v. Moye , 266 A.3d 666, 676

- 77 (Pa. Super. 2021) (citation omitted).
Prior to our examination of Mitchell’s substantive claim, however, we note that “ [t]he 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). As such, “[a]n appellant must satisfy a four

- part test to invoke this Court's jurisdiction when challenging the discretionary aspects of a sentence.” Id

. The four

- part test requires an appellant to demonstrate that: (1) the appellant preserved the issue either by raising it at the time of s entencing or in a post[

- ]sentence motion; (2) the

_________________ __________ ______ ____ _______ 2 As Mitchell was sentenced following the revocation of his probation, the sentencing guidelines do not apply to his sentence. See 204 Pa. Code § 303.1(b). However, a sentencing court is still required to “consider the general principles and standards of the Sentencing Code.” Commonwealth v. Russell , 460 A.2d 316, 322 (Pa. Super. 1983).J

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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 su bstantial question for our review. Commonwealth v. Baker , 72 A.3d 652, 662 (Pa. Super. 2013) (citation omitted). In establishing a “substantial question,” an appellant must set “forth a plausible argument that the sentence violates a provision of the sente ncing code or is contrary to the fundamental norms of the sentencing process.” Commonwealth v. Dodge , 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations omitted); see also 42 Pa.C.S. § 9721(b) (requiring a sentence of confinement to be consistent with “the pr otection 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[ ]”). If there is satisfaction of an appellant’s obligations under the four

- part te st, this Court will then review the underlying discretionary aspects of sentencing issue predicated on an abuse of discretion standard. See Commonwealth v. Akhmedov , 216 A.3d 307, 328

- 29 (Pa. Super. 2019) ( en banc )

. G iven that Mitchell filed both the appropriate post

- sentence motion and a timely notice of appeal and, too, through his inclusion of a concise Rule 2119(f) statement in his brief, see Appellant's brief, at 8

- 10 , we conclude that he has satisfied the first three requirements of the four

- part test. As such, we must ascertain whether that Rule 2119(f) statement contains a substantial question. In his Rule 2119(f) statement, he argues that his “sentence wasJ

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disproportionate to his violating conduct [,]” that the court “took no ac count of [his] mitigating circumstances, specifically his mental illness[,]” and that he “was not a danger to the community[.]” Id ., at 8. As a result of these actions , “[t]he lower court violated the Sentencing Code [, specifically Section 9721(b),] and im posed an excessive sentence contrary to the fundamental norms which underlie the sentencing process.” Id

. Accordingly, Mitchell asserts that he has raised a substantial question

. Section 9721(b) of the Sentencing Code indicates 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.” 42 Pa.C.S. § 9721(b). I n prior cases, we have determined that a substantial question exists where the contention is that a sentencing court failed to consider Section 9721(b) factors

. See , e.g. , Commonwealth v. Derry , 150 A.3d 987, 99 4

- 9 5 (Pa. Super. 2016) ( concluding that a VOP court ’s failure to consider Section 9721(b) factors presents a substantial question).
As Mitchell has raised a substantial question, we may proceed to review the merits of his argument on appeal. Specifically in the context of post

- VOP sentenc ing, [u] pon revoking probation, “the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation.” 42 Pa.C.S. § 9771(b ). Thus, upon revoking probation, the trial court is limited only by the maximum sentence that it could have imposed originally at the time of theJ

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probationary sentence, although once probation has been revoked, the court shall not impose a sentence of tot al confinement 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). Commonwealth v. Pasture , 107 A.3d 21, 27

- 28 (Pa. 2014). “ Moreover, 42 Pa.C.S. § 9721(b) specifies that in every case following the revocation of probation, ‘ the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed. ’ See also Pa.R.Crim.P. 708(C)(2) (indicating at the time of sentence following the revocation of probation, ‘ [t]he ju dge shall state on the record the reasons for the sentence imposed. ’ ). ” Pasture , 107 A.3d at 28 (footnote omitted). However, following revocation, a sentencing court need not undertake a lengthy discourse for its reasons for imposing a sentence or specifi cally reference the statutes in question. Simply put, since the defendant has previously appeared before the sentencing court, the stated reasons for a revocation sentence need not be as elaborate as that which is required at initial sentencing. The ration ale for this is obvious. When sentencing is a consequence of the revocation of probation, the trial judge is already fully informed as to the facts and circumstances of both the crime and the nature of the defendant [.] Id

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In contesting the court’s lack of contemplation of mitigating
circumstances , Mitchell’s excessiveness claim has two components : (1) he was not a danger to the community; and (2) the court did not consider his rehabilitative needs. See Appellant’s Brief, at 16

- 18. As to the former contention, Mitchell observes that, after a series of status hearings, which featured a series of probation continuances from the court, his probation officers “never recommended incarceration.” Id ., at 16 . As to the latter assertion, the court “gav e no consideration that [his] mental illness was a contributing factor to his noncompliance. Nor did the lower court explain how prison would address [his] rehabilitative needs.” Id ., at 17. In response, the court found that its VOP sentence “was strict ly within the range” for the aggravated assault charge in which Mitchell had originally been convicted . Trial Court Opinion, 9/22/22, at 5 ; see also 18 Pa.C.S. § 106(b)(3) ( providing that a second

- degree felony carries a maximum sentence of “not more than ten years”). The court then outlined the eight VOP hearings that were replete with examples of Mitchell’s “continued failure to comply with probation and related violations.” Trial Court Opinion, 9/22/22, at 6. However, the parties “requested the [c]ourt to continue probation to allow [Mitchell] additional opportu nities to attend drug treatment and mental health services.” Id

. In the pen ultimate hearing preceding revocation, Mitchell was “pointedly advised ... this was his ‘last chance’ or his probation [would] be revoked.” Id

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At the VOP hearing, the court reviewe d with Mitchell its prior continuances of his probation. Specifically, the court highlighted its prior continuation order: “ [The court’s] order is clear: Probation continued. Granted, defendant is ordered to comply with the rules of Northeast Mental Health . That was a CRR program. It is very clear. He is to comply or his probation will be revoked. ... This is defendant’s last chance.” VOP Hearing, 6/1/22, at 16

- 17. The court then asked Mitchell, regarding his f ailure to comply with that order, “[d]id I say

– did I say five words to you, ‘I will lock you up?’” Id ., at 17. Mitchell responded, “[y]es, you did, Your Honor.” Id ., at 18. The court continued: “ If there was noncompliance, [the court] was not continuing probation any further in this case. Probation has been continued in an effort for treatment with drug compliance since June of 2020.” Id

. After revoking his probation, the court then inquired, “is there a specific facility that can address his treatment?” Id ., at 18

- 19. The court incorporated the Commonw ealth’s response, specifically recommending “SCI Waymar t for mental health and substance abuse issues.” Id ., at 19. After that, t he court, in discussing its imposition of probation as a component of the post

- revocation
sentence , indicated its desire that Mitchell receive treatment from the “mental health unit” of the probation office. Id ., at 19

- 20. While the court did not discuss , with any specificity, Mitchell’s overall danger t o the community, it was apprised of all of the relevant facts necessary to craft the sentence that it did. See , e.g ., id ., at 6 ( demonstrating , forJ

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example, that the Commonwealth advised the court that Mitchell had pleaded guilty to disorderly conduct in a nother county while on probation in the present
matter ). Moreover , the court’s sentence , through its very construction, unequivocally establishes that it was concerned with Mitchell’s rehabilitative needs . The sentence explicitly allow s for him to receive adequate treatment with the anticipation of helping his admitted “drug problem.” Id ., at 18. Mitchell does not contest whether he violated the terms of his probation.
Instea d, he challenges the court’s imposition of a term of incarceration. In giving crede nce to the wide amount of deference afforded to the sentencing
court and when juxtaposed against both Mitchell’s transgressions leading to probation revocation as well as the court’s concern over his prospective drug treatment, the court thoroughly considered his rehabilitative needs in sentencing him. As such, it did not abuse its discretion in impos ing a sentence of one to two years of incarceration to be followed by one year of probation. Notwithstanding our affirmation of Mitchell’s judgment of sentence, we note the procedural irregularity necessitating remand. Having already vacated the sentence it imposed on June 1, 2022, the court, on July 12, 2022, denied Mitchell’s motion for reconsideration of that sentence

. The court then wrote in its July 12, 2022 order: “[s]ame sentence to stand.” Order Denying Motion for Reconsideration, 7/12/22. In essen ce, then, despite all parties acknowledging the court’s original June 1, 2022 order as the one currently governing Mitchell’s sentence, there is no actual judgment of sentence order of recordJ

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that sets forth the terms of the sentence that Mitchell is curre ntly serving

. Accordingly, we remand for the court to issue a new sentencing order that materially reflects its prior June 1, 2022 order. Judgment of sentence affirmed. Case remanded for the filing of a new sentencing order. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/22/2023