J-A11026-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

THOMAS JAMES KOLLIAS 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1463 MDA 2018

Appeal from the Judgment of Sentence Entered August 3, 2018

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

No(s): CP-06-CR-0002330-2003

BEFORE: BOWES, J., OLSON, J., and STABILE, J.

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 13, 2019

Appellant, Thomas James Kollias, appeals from the judgment of 

sentence entered on August 3, 2018. We affirm.

On August 18, 2003, Appellant pleaded guilty to receiving stolen 

property and criminal attempt to commit criminal trespass.1 That day, the

trial court sentenced Appellant to serve a term of one to two years in prison 

for the receiving stolen property conviction, followed by a term of five years

of probation for the attempted criminal trespass conviction. 

On April 1, 2010, April 16, 2013, and December 1, 2016, the trial court 

revoked Appellant’s probation and, each time, the trial court resentenced 

Appellant to serve a term of probation for the underlying attempted criminal 

trespass conviction. See Probation Order, 4/1/10, at 1 (sentencing Appellant 

____________________________________________

1 18 Pa.C.S.A. §§ 3925(a) and 901(a), respectively.
J-A11026-19

- 2 -

to serve seven years of probation); Special Probation Order, 4/16/13, at 1 

(sentencing Appellant to serve seven years of probation); Probation Order, 

12/1/16, at 1 (sentencing Appellant to serve a term of four years of 

probation).

On July 3, 2018, while Appellant was still on probation, the Court of 

Common Pleas of Delaware County sentenced Appellant to serve a term of 

four to 23 months in jail for a simple assault conviction. See N.T. Revocation 

Hearing, 8/3/18, at 2. As a result of Appellant’s arrest and conviction, the 

Commonwealth began revocation of probation proceedings against Appellant. 

During the August 3, 2018 violation of probation hearing, Appellant

stipulated to violating his probation and the trial court resentenced Appellant 

to serve a term of 20 months to five years in prison for the underlying 

attempted criminal trespass conviction. Id. at 11.

On August 8, 2018, Appellant filed a timely motion to modify sentence. 

In relevant part, Appellant’s motion to modify sentence declared:

6. [At the sentencing hearing,] the Adult Probation Office 

recommended [that the trial court sentence Appellant to

serve] two to seven years in [a State Correctional Institution

(“SCI”)], with time credit of 405 days.

7. [Appellant] requested a county sentence, with 405 days 

credit, followed by probation as the [trial] court deemed 

appropriate.

8. [The trial] court then sentenced [Appellant] to a term of

imprisonment of 20 months to [five] years SCI, with 405 days 

credit. . . .
J-A11026-19

- 3 -

9. [Appellant] is requesting probation to follow the probation 

that he already will be serving in Delaware [County], or in 

the alternative, a county sentence followed by probation.

. . .

11. [Appellant] requests that the [trial] court consider the 

following factors in regard to sentencing:

a. [Appellant] will be on supervision for an extended

amount of time in Delaware County due to the sentence 

on the new charges, and the . . . [sentences at other 

docket numbers].

b. [Appellant] has significant mental health issues that 

require treatment and medication and if [Appellant] is 

sent to state prison, he will likely decompensate and not 

receive the treatment that he would be able to obtain on 

county supervision.

c. [Appellant] is required to enroll in treatment within 10 

days of release from Delaware County and will also have 

drug and alcohol, psychological and psychiatric 

evaluations as part of his Delaware County supervision.

WHEREFORE, [Appellant] prays that [the trial court] consider 

his petition requesting a modification of the sentence 

imposed upon him, and that [the trial court] reduce and 

modify the sentence imposed upon him.

Appellant’s Motion to Modify Sentence, 8/8/18, at 2-3 (emphasis and some 

capitalization omitted).

On August 27, 2018, the trial court denied Appellant’s motion to modify 

sentence. Trial Court Order, 8/27/18, at 1. Appellant filed a timely notice of 

appeal on August 31, 2018. Appellant raises the following claims in his brief:

A. Appellant’s re-sentence of [20] months to [five years’] 

incarceration was a manifest abuse of discretion due to the 

overall excessiveness of his sentence from a 2003 conviction.
J-A11026-19

- 4 -

1. The trial court failed to comply with 42 Pa.C.S.A. 

§ 9771(b) when imposing sentence.

2. Using the factors in 42 Pa.C.S.A. § 9781(d), [the 

Superior] Court should vacate the sentence because the 

specific circumstances make this sentence manifestly 

unreasonable.

a. Under 42 Pa.C.S.A. § 9781(d)(1), the 

circumstances of the case and Appellant’s history of

severe mental illnesses merit considerable weight in 

overturning his sentence.

b. The [trial] court’s findings pursuant to 42 Pa.C.S.A. 

§ 9781(d)(3) were insufficient to justify the sentence 

imposed.

3. Appellant’s re-sentence was disproportional and 

contrary to fundamental sentencing norms.

4. Appellant asks this [Court] to consider the controversy 

surrounding perpetual probation as a factor in finding 

abuse of discretion.

Appellant’s Brief at i-ii (emphasis omitted).

Appellant’s claims challenge the discretionary aspects of his sentence. 

See Commonwealth v. Lee, 876 A.2d 408 (Pa. Super. 2005) (claim that the 

trial court erred in imposing an excessive sentence is a challenge to the 

discretionary aspects of a sentence). We note that, in an appeal following the 

revocation of probation, our scope of review includes discretionary aspects of 

sentencing claims. Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. 

Super. 2013) (en banc). With respect to our standard of review, we have held 

that “sentencing is a matter vested in the sound discretion of the sentencing 

judge, whose judgment will not be disturbed absent an abuse of discretion.” 

Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001). 
J-A11026-19

- 5 -

Moreover, 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 Court for permission to appeal the 

discretionary aspects of his sentence. Id.

As this Court has explained:

[t]o reach the merits of a discretionary sentencing issue, we 

conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 

903; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify sentence, 

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

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

Cartrette, 83 A.3d at 1042 (“issues challenging the discretionary aspects of 

a sentence [following the revocation of probation] must be raised in a 

post-sentence motion or by presenting the claim to the trial court during the 

sentencing proceedings. Absent such efforts, an objection to a discretionary 

aspect of a sentence is waived”); Commonwealth v. Kalichak, 943 A.2d 

285, 289 (Pa. Super. 2008) (“when a court revokes probation and imposes a 

new sentence, a criminal defendant needs to preserve challenges to the 

discretionary aspects of that new sentence either by objecting during the 

revocation sentencing or by filing a [motion to modify] sentence”).
J-A11026-19

- 6 -

The claims Appellant advances in his brief were not raised at the 

resentencing hearing or in Appellant’s motion to modify his sentence.2 See

N.T. Revocation Hearing, 8/3/18, at 11-12; Appellant’s Motion to Modify 

Sentence, 8/8/18, at 1-3; N.T. Motion to Modify Sentence Hearing, 8/27/18, 

at 1-5; Pa.R.Crim.P. 708(E). Therefore, Appellant waived the discretionary 

aspects of sentencing claims he currently raises on appeal. Cartrette, 83 

A.3d at 1042.

Moreover, even if Appellant had properly preserved his current claims 

(which he did not), the claims would fail. Since Appellant was sentenced 

following the revocation of probation, the sentencing guidelines do not apply 

to Appellant's sentence. 204 Pa.Code § 303.1(b); Commonwealth v. 

Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006). Nevertheless, in sentencing 

Appellant, the trial court was required to “consider the general principles and 

____________________________________________

2 We note that, in both Appellant’s brief and motion to modify sentence,

Appellant premised a claim for relief upon his “significant mental health 

issues.” However, the claims are materially distinct. Specifically, in 

Appellant’s brief, Appellant argued that his sentence is manifestly excessive

(in part) because his “mental health condition[s] clearly inhibit his ability to 

adhere to probation conditions” and his recidivism “indicate[s] a legitimate 

mental disability that is beyond Appellant’s ability to change or control.” 

Appellant’s Brief at 23-24. Appellant did not raise this mens rea claim in his

motion to modify sentence. Rather, within Appellant’s motion to modify 

sentence, Appellant argued only that his mental health issues favored 

probation because his mental health issues “require treatment and medication 

and if [Appellant] is sent to state prison, he will likely decompensate and not 

receive the treatment that he would be able to obtain on county supervision.”

Appellant’s Motion to Modify Sentence, 8/8/18, at 2. Therefore, the claim 

raised in Appellant’s motion to modify sentence did not preserve the claim 

Appellant raised in his brief to this Court.
J-A11026-19

- 7 -

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 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.A. § 9721(b). 

Further, as we have held:

In addition to issuing a sentence 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,” a [violation of 

probation (“VOP”)] court must also consider, for example, 

whether the sentence imposed is “essential to vindicate the 

authority of the court,” and must give “due consideration . . 

. to the time spent serving the order of probation.”

Commonwealth v. Derry, 150 A.3d 987, 994 (Pa. Super. 2016) (corrections 

omitted), quoting 42 Pa.C.S.A. §§ 9721(b) and 9771.

“The determination of whether a particular case raises a substantial 

question is to be evaluated on a case-by-case basis. Generally, however, in 

order to establish that there is a substantial question, the appellant must show 

actions by the sentencing court inconsistent with the Sentencing Code or 

contrary to the fundamental norms underlying the sentencing process.” 

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal 

citations omitted). “When considering the merits of a discretionary aspects of 

sentencing claim, we analyze the sentencing court's decision under an abuse 
J-A11026-19

- 8 -

of discretion standard.” Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. 

Super. 2015). “An abuse of discretion is more than just an error of judgment 

and, on appeal, a trial court will not be found to have abused its discretion 

unless the record discloses that the judgment exercised is manifestly 

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

Commonwealth v. Lane, 424 A.2d 1325, 1328 (Pa. 1981) (quotations 

omitted).

Appellant claims: 1) “the new sentence was manifestly unreasonable 

considering the circumstances of this case,” as the trial court failed to give 

adequate weight to Appellant’s “severe mental health issues;” 2) the trial 

court “failed to consider 42 Pa.C.S.A. § 9771(b) when imposing total 

confinement,” in that the trial court failed to give “due consideration . . . to 

the time [Appellant] spent serving the order of probation;” 3) the “re-sentence 

violates the general sentencing principles in 42 Pa.C.S.A. § 9721(b) because 

it was disproportional to the violations;” and, 4) the trial court’s “findings 

pursuant to 42 Pa.C.S.A. § 9781(d)(3) were insufficient to justify the sentence 

imposed.”

3 See Appellant’s Brief at 15-31.

____________________________________________

3 Appellant’s final numbered sub-claim – requesting that this Court “consider 

the controversy surrounding perpetual probation as a factor in finding abuse 

of discretion” – reiterates his claim that the trial court “failed to consider 42 

Pa.C.S.A. § 9771(b) when imposing total confinement,” in that the trial court 

failed to give “due consideration . . . to the time [Appellant] spent serving the 

order of probation.” See Appellant’s Brief at 30. 
J-A11026-19

- 9 -

Even if the claims were preserved and presented substantial questions

for our review, the claims would fail. We will consider the first three numbered 

claims together.

First, at sentencing, the trial court was well aware of – and thoroughly 

considered – Appellant’s mental health issues and the time Appellant spent 

serving the prior orders of probation. See N.T. Sentencing, 8/3/18, at 5-6

(Appellant’s attorney informed the trial court of Appellant’s mental health 

problems); N.T. Sentencing, 8/3/18, at 3-4 (the Commonwealth noted

Appellant’s prior time serving probation); c.f. Commonwealth v. Rhoades, 

8 A.3d 912, 919 (Pa. Super. 2010) (holding that, when “the sentencing court 

had the benefit of a pre-sentence investigation report, we can assume the 

sentencing court was aware of relevant information regarding the defendant's 

character and weighed those considerations”). Further, the trial court 

meticulously weighed the facts and considered the necessary statutory factors 

when it sentenced Appellant to serve a term of 20 months to five years in 

prison. As the trial court explained:

Considering the procedural history, the recommendation of 

both Commonwealth and [Appellant], the allocution of 

[Appellant] and his background, as well as balancing the 

punitive needs of the Commonwealth with the rehabilitative 

needs of [Appellant] and his inability to succeed with the 

lesser restrictions of probation, the sentence imposed is not 

manifestly excessive nor grossly disproportionate to the 

crime and is supported by the record. It should [] be noted

that the sentence imposed was a lesser minimum sentence 

than requested by the supervising probation officer. The 

sentence was also imposed concurrently with [Appellant’s]
J-A11026-19

- 10 -

new Delaware County conviction in light of the court's 

concern with the potential issue of aggregation of sentences.

The court is permitted to revoke an order of probation upon 

proof of the violation of specified conditions and has available 

all the sentencing alternatives that existed at the time of

initial sentencing. While due consideration should be given 

to the time spent serving the order of probation, it is one of 

many factors to consider. Although not required, the court

considered the traditional sentencing factors, including the 

likelihood that probation with its lesser restrictions could

rehabilitate [Appellant]. 42 Pa.C.S.A. § 9771(c) permits total

confinement upon probation revocation. It lists three factors 

that indicate the appropriateness of incarceration. The 

existence of any one of them shows the appropriateness of 

the type of sentence imposed on [Appellant]. In this case, 

all the listed factors existed on some level for him, weighing

in favor of total confinement. First, [Appellant] was convicted 

of a new crime. Second, the conduct of [Appellant] over the 

time since August of 2003 shows that it is likely that he will

commit another crime if he is not imprisoned, having three 

new convictions in addition to technical violations. 

[Appellant] himself stated that he wasn't sure he could ever 

finish a term of probation. Third, total incarceration is 

appropriate when such a sentence is essential to vindicate 

the authority of the court. [Appellant] was given four 

opportunities to comply with a probationary sentence before 

incarceration was imposed. He was given repeated 

opportunities to comply and was unable to comply with the 

conditions of probation, most importantly to remain crime 

free. To impose another term of probation would undermine 

the authority of the court. [At sentencing, the] trial court 

noted, “I have cut you some amazing breaks already with 

regard to this docket. And nevertheless, you have kept 

getting into difficulties, so I don't see any choice but to in fact 

impose a state sentence this time around.”

The trial court is in the best position to determine the proper 

penalty for a particular offense based upon an evaluation of 

the individual circumstances before it. This is the basis for 

the broad discretion afforded to trial court judges. When 

considering the nature and circumstances of the offense and 

the history and characteristics of [Appellant] and the multiple 

opportunities the sentencing court had to observe [him], 
J-A11026-19

- 11 -

there is no basis to conclude there was an abuse of discretion. 

The sentence entered in this case is not manifestly excessive 

nor grossly disproportionate to the actions of [Appellant].

Sufficient reasons for the imposition of the sentence were 

placed on the record. The court's exercise of judgment was 

not manifestly unreasonable when contrasted to the facts,

the guidelines, and the history of violations by [Appellant].

The age of the original docket or the probation previously 

imposed were not ignored in this case. [Appellant’s]

allocution was carefully considered. [Appellant] indicated his 

belief that he could never complete a term of probation; 

indicating that probation would essentially be setting him up 

for additional failure. A sentence of incarceration was 

appropriate.

Trial Court Opinion, 7/5/19, at 4-6 (some citations omitted).

The trial court’s careful analysis demonstrates that it carefully weighed

the totality of the facts and the necessary statutory factors prior to imposing 

sentence. The sentence the trial court imposed was not “manifestly 

unreasonable” – and it certainly cannot be said that the sentence was “the 

result of partiality, prejudice, bias or ill-will.” See Lane, 424 A.2d at 1328. 

As such, the trial court did not abuse its discretion when it sentenced Appellant

to serve a term of 20 months to five years in prison. 

Finally, Appellant claims that the trial court abused its discretion when 

it provided a “terse” and “insufficient” reason for his sentence during the 

sentencing hearing. See Appellant’s Brief at 25-26. This claim fails. 

During the sentencing hearing, the trial court declared:

I had the sheet that had the docket for the Delaware County 

[conviction]. . . . The sentence in this matter takes into 

consideration all of the information provided, as well as the 

history of this charge. [Appellant,] there [are] two problems 

that I have. One would be the problem of aggregation if I 

gave you even a county sentence, it would probably 
J-A11026-19

- 12 -

aggregate into a state sentence. The second is I have cut 

you some amazing breaks already with regard to this docket. 

And[,] nevertheless, you have kept getting into difficulties so 

I don’t see any choice but to in fact impose a state sentence 

this time around.

Sentence will be based upon the violations of the prior 

probation and the history. The sentence is that you shall be 

committed for a period of not less than 20 months, no more 

than five years to the Bureau of Corrections for confinement 

in a state correctional facility. . . . This sentence will be 

effective today, and will be concurrent with the sentence 

imposed at [the Delaware County docket].

N.T. Sentencing Hearing, 8/3/18, at 11.

As our Supreme Court explained:

At initial sentencing, all of the rules and procedures designed 

to inform the court and to cabin its discretionary sentencing 

authority properly are involved and play a crucial role. 

However, it is a different matter when a defendant reappears 

before the court for sentencing proceedings following a 

violation of the mercy bestowed upon him in the form of a 

probationary sentence.

. . .

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 judge shall state on the record the reasons 

for the sentence imposed.”).

However, following revocation, a sentencing court 

need not undertake a lengthy discourse for its reasons 

for imposing a sentence or specifically 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 
J-A11026-19

- 13 -

sentencing. The rationale 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, particularly where, as here, the trial judge had the 

benefit of a PSI during the initial sentencing proceedings.

Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014) (emphasis 

added) (footnote omitted).

It is true that, during Appellant’s sentencing hearing, the trial court’s 

record statement for imposing the sentence was not as detailed and elaborate 

as it might have been for an initial sentence. However, under our Supreme 

Court’s precedent, it did not need to be. Id. Here, the trial court complied 

with 42 Pa.C.S.A. § 9721(b) by placing “a statement of the reason or reasons 

for the sentence imposed” on the record. See 42 Pa.C.S.A. § 9721(b); 

Pasture, 107 A.3d at 27-28. Appellant’s claim that the statement was “terse” 

or “insufficient” fails under our Supreme Court’s holding in Pasture.

We thus conclude that, even if Appellant had not waived his claims on 

appeal, the claims would have failed.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/13/2019