J-S11006-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL ROY HOPPER

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 8 WDA 2019

Appeal from the Judgment of Sentence Entered December 3, 2018

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

No(s): CP-02-CR-0001935-2015

BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.: FILED JUNE 18, 2020

Appellant Michael Roy Hopper appeals from the judgment of sentence

imposed following the revocation of his probation. Appellant asserts that the

trial court illegally required him to register for life under current Subchapter

H1 of the Sexual Offender Registration and Notification Act (SORNA) instead

of Subchapter I.2 Appellant also challenges the discretionary aspects of his

new sentence. We affirm in part, vacate in part, and remand with

instructions. ____________________________________________

1 42 Pa.C.S. §§ 9799.10-9799.41. 2 42 Pa.C.S. §§ 9799.51-9799.75. Subchapter I is entitled “Continued

Registration of Sex Offenders.” Appellant refers to Subchapter I as “the

Continued Registration of Sex Offenders Act (CRSO).” See Appellant’s Brief

at 13-16. As discussed below, the trial court and the Commonwealth agree

that Appellant is subject to the registration requirements of Subchapter I.
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On July 1, 2014, the Allegheny County Police Department filed a

criminal complaint charging Appellant with aggravated indecent assault,

rape, and related offenses. See Criminal Compl., 7/1/14. According to the

affidavit of probable cause attached to the criminal complaint, the thenfourteen-year-old victim stated that Appellant had sexually assaulted her

multiple times between the ages of three and eleven. See Aff. of Probable

Cause, 7/1/14, at 2-3. The Commonwealth subsequently filed an

information on April 6, 2015 charging Appellant with the same offenses, but

alleging that the offenses occurred between October 17, 2012 and October

16, 2013. See Criminal Information, 4/6/15, at 1, 3.

On August 25, 2015, Appellant entered a negotiated guilty plea to

aggravated indecent assault of person less than sixteen years of age.3 N.T.

Plea Hr’g, 8/25/15, at 2-3. During the guilty plea hearing, it was established

that the victim’s date of birth was September 17, 1999. Id. at 3. Appellant

waived the reading of the factual summary and stipulated to the affidavit of

probable cause. Id. at 13-14. Pursuant to the plea agreement, the trial

court sentenced Appellant to four years of probation and ordered Appellant

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3 18 Pa.C.S. § 3125(a)(8).
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to register for life under the former version of Subchapter H. Id. at 2-3, 18- 21.4

On August 20, 2018, the trial court conducted a violation of probation

(VOP) hearing, found Appellant violated his probation, revoked Appellant’s

probation, and resentenced Appellant to term of five years’ probation.5 N.T.

VOP Hr’g, 8/20/18, at 18-20. The conditions of probation included seeking

placement at Remnant House and complying with all sexual offender and

mental health treatment requirements. Id. The trial court indicated that it

was imposing “zero tolerance” with respect to Appellant’s compliance with

mental health and sexual offender treatment and warned him that if he did

not comply, he could be subject to a sentence of state incarceration. Id. at

18-19.

The Probation Office arrested Appellant pursuant to a probation

violation warrant on October 9, 2018. Probation Violation Report, 11/5/18, at 2. On November 5, 2018, the Commonwealth filed a probation violation

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4 The Commonwealth referred to SORNA as “Megan’s Law” during the guilty

plea hearing. N.T. Plea Hr’g, 8/25/15, at 2-3.

5 At the August 20, 2018 VOP hearing, the Commonwealth alleged that

Appellant had not made any progress in his sexual offender treatment and

that he was unsuccessfully discharged from the treatment program. N.T.

VOP Hr’g, 8/20/18, at 2-3. Additionally, Appellant failed a sexual offender

polygraph after which he became aggressive, screamed at the probation

officers, and was removed from the probation office. Id. Lastly, it was

alleged that Appellant was not compliant with taking his psychiatric

medication. Id.
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report alleging that Appellant failed to report to his probation officer as

ordered on October 4, 2018 and that Appellant was expelled from Remnant

House on October 6, 2018. Id.; N.T. Gagnon I Hr’g, 11/5/18, at 1-2.

The trial court held a Gagnon I6 hearing on November 5, 2018. At

the hearing, Pastor David Sutton of Remnant House testified that when

Appellant arrived at Remnant House he told Pastor Sutton that he did not

want to follow the House’s rules. N.T. Gagnon I Hr’g, 11/5/18, at 3. Pastor

Sutton testified that Appellant alternated between defiant behavior and

acquiescence over the next several days after his arrival. Id. at 3-5. Four

days after arriving at Remnant House, Appellant told another resident that

he was “sick of that f---ing n----r,” referring to Pastor Sutton. Id. at 6.

When Pastor Sutton confronted Appellant about the slur, Appellant did not

deny saying it, instead he told Pastor Sutton that he “didn’t mean it.” Id. at

7. Appellant explained that he was upset at what he believed was unfair

treatment. Id. As a result, Pastor Sutton expelled Appellant from Remnant

House. Id. At the conclusion of the hearing, the trial court scheduled a

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6 “A Gagnon I hearing is a pre-revocation hearing to determine if probable

cause exists that a violation was committed. After this determination is

made, a Gagnon II hearing is conducted where the Commonwealth is

required to establish that the defendant did violate his parole/probation.

The Gagnon decision has become the common moniker for both parole and

probation revocation proceedings.” Commonwealth v. Stafford, 29 A.3d

800, 802 n.1 (Pa. Super. 2011) (citation omitted); see also Gagnon v.

Scarpelli, 411 U.S. 778 (1973).
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Gagnon II hearing and deferred arguments about alternative placement for

Appellant to that hearing. Id. at 7-10.

During the December 3, 2018 Gagnon II hearing, the trial court

stated that because Appellant had not availed himself of treatment or

supervision in the community, he was not an appropriate candidate for

community supervision. N.T. VOP Hr’g, 12/3/18, at 2. Although Appellant

apologized to Pastor Sutton for his previous remarks, the trial court stated

that it did not believe that Appellant’s apology was sincere. Id. at 3. The

trial court acknowledged that there was a recommendation from Judicial

Related Services (JRS) that Appellant be placed in Farkas House, which it

considered a “step down” in community supervision and not a “step up.” Id.

The probation officer agreed with the trial court’s assessment that Farkas

House was a less restrictive environment. Id.

The probation officer recommended that the trial court revoke

Appellant’s probation and sentence him to a period of state incarceration so

that he could “address his sex offender needs, [which] he [had] not been

able to do because of behavior issues at treatment.” Id. at 5. The

probation officer further argued that Appellant did not have stable

employment, as he had not held the same job for more than a year. Id. at

6. Appellant responded that he left his job of nine months for a similar one

with higher pay. Id.
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The trial court noted that it had a presentence investigation report

(PSI) that was prepared for a prior VOP hearing, and Appellant’s counsel

stated that the PSI did not need to be updated. Id. at 7. Appellant’s

counsel argued that Appellant had only committed technical violations and

that Appellant’s mental state had improved since counsel first met Appellant.

Id. at 7-8. The trial court admonished Appellant for his use of a racial slur,

but stated that it viewed Appellant’s comment as not a personal insult to

Pastor Sutton, “but rather as a way to torpedo [his] placement at Remnant

House.” Id. at 8-9.

Ultimately, the trial court revoked Appellant’s probation and sentenced

him a term of two to five years’ incarceration followed by two years’

probation. Id. at 9-10; see also Sentencing Order, 12/3/18, at 1. The trial

court also ordered Appellant to register as a sex offender. Specifically, the

sentencing order stated that Appellant was subject to “Megan’s Law

Registration – TIER 3 – Lifetime Registration: SORNA registration required

for lifetime.” Sentencing Order, 12/3/18, at 1.

On December 11, 2018, Appellant filed a motion to modify his

sentence. Appellant argued, among other things, that he had performed

well in sex offender treatment for over two years, that his expulsion from

Remnant House for using a racial slur was not a basis to sentence Appellant

to two to five years’ incarceration, and the trial court should not have

imposed a sentence of incarceration when the JRS treatment plan
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recommended placement at Farkas House. Mot. to Modify Sent., 12/11/18, at ¶ 1-20. Appellant sought a new VOP hearing and release from custody to

Farkas House. Id. at ¶ 21. The trial court denied Appellant’s motion on

December 12, 2018.

Appellant filed a timely notice of appeal on December 28, 2018. On

January 7, 2019, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b)

statement. The trial court granted two extensions for Appellant to file his

Rule 1925(b) statement. Appellant timely filed a Rule 1925(b) statement on

March 11, 2019, which challenged both the requirement that he register as a

Tier 3 offender under SORNA and the discretionary aspects of the trial

court’s sentence following the revocation of Appellant’s probation.

Appellant’s Rule 1925(b) Statement, 3/11/19, at ¶ 5. Appellant raises the following issues for our review:

1. Did the trial court impose an illegal sentence when it subjected

[Appellant] to SORNA, and Tier 3 “Megan’s Law registration,”

instead of 42 Pa.C.S.[ §§] 9799.51-9799.75, as the conduct at

issue at count 3 was all[e]ged to have occurred before December

20, 2012?

2. Did the trial court abuse its discretion when it imposed a

manifestly excessive and unreasonable sentence of total

confinement in violation of 42 Pa.C.S.[] § 9771(c), and when it

failed to properly consider all of the relev[a]nt sentencing criteria

under 42 Pa.C.S.[] § 9721(b)?

Appellant’s Brief at 5 (some capitalization omitted).

Appellant’s first claim is that “[t]he trial court imposed an illegal

sentence when it required lifetime registration under” current Subchapter H
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instead of Subchapter I. Appellant’s Brief at 14. According to Appellant,

based on the affidavit of probable cause, which he stipulated to during his

guilty plea colloquy, the offense to which he pled guilty occurred between

September 17, 2002 and September 16, 2011. Id. at 14-15. As the offense

occurred between April 22, 1996 and December 20, 2012, the operative

dates of Subchapter I, Appellant argues he is subject to registration under

Subchapter I, not current Subchapter H. Id. at 15. Appellant contends that

his sentence is illegal insofar as the trial court ordered him to register as a

Tier 3 offender under Subchapter H, and requests that the registration

requirement be vacated and this matter remanded to the trial court for

resentencing under Subchapter I. Id. at 15-16.

The Commonwealth agrees that a remand is required for correction by

the trial court. Commonwealth’s Brief at 14-15. The Commonwealth notes

that while the information stated that the offenses occurred between

October 17, 2012 and October 16, 2013, the crime to which Appellant pled

guilty occurred prior to December 20, 2012, based on the victim’s date of

birth and Appellant’s stipulation to the affidavit of probable cause. Based on

these facts, the Commonwealth concludes that Appellant is subject to sex

offender registration under Subchapter I. Id. at 14 (citing 42 Pa.C.S. §§

9799.52, 9799.55(b)(2)). The Commonwealth asserts that the trial court’s

sentencing order referencing a registration requirement under Subchapter H

is a scrivener’s error that should be corrected by the trial court. Id. at 15.

In its Rule 1925(a) opinion, the trial court acknowledges that
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based on Appellant’s conviction of aggravated indecent assault,

committed after 1996 and prior to 2012, [A]ppellant is subject to

lifetime registration pursuant to [42 Pa.C.S.] § 9799.55. It

appears from the record that a scrivener’s error occurred

regarding the resentencing order, wherein lifetime registration is

listed through SORNA instead of § 9799.55. This error is a

distinction without a difference, as this court correctly sentenced

him to lifetime registration.

Trial Ct. Op., 5/17/19, at 3 (some capitalization omitted). The trial court

concluded that we should affirm its judgment of sentence in its entirety. Id.

at 7. Unlike the Commonwealth, the trial court did not request a remand to

correct the error. See id.

This Court has treated a claim that the trial court erred in requiring a

defendant to register under current Subchapter H rather than Subchapter I

as a challenge to the legality of the sentence. See Commonwealth v.

Alston, 212 A.3d 526, 528 (Pa. Super. 2019) (citing, inter alia, Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017)).7 Because a

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7 The theory that a party may challenge a registration requirement as a

matter of the legality sentence was set forth by this Court in

Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017). In that case,

we noted that in light of Muniz’s holding that the registration and

verification provisions of former Subchapter H were punitive, registration

was part of the judgment of sentence, and therefore that a challenge to a

sexually violent predator could be raised as an illegal sentencing claim

because it relied on facts not found beyond a reasonable doubt at trial. See

id at 1217–18. The Pennsylvania Supreme Court, however, overruled this

Court’s decision in Butler to the extent that Butler found that the

registration, notification, and counseling provisions of former Subchapter H

were punitive as applied to a sexually violent predator. Butler, 226 A.3d

972, 993 (Pa. 2020). We acknowledge that the questions of whether current

Subchapter H and Subchapter I are punitive and therefore would raise a

challenge to the legality of a sentence may be in doubt. However, given the

(Footnote Continued Next Page)
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legality of sentence claim raises questions of law, our standard of review is

de novo and our scope of review is plenary. See id. at 528.

By way of background, in 2011, the Pennsylvania General Assembly

passed former Subchapter H, also referred to as “SORNA I,” to govern the

registration of individuals convicted of certain sexual offenses with the

Pennsylvania State Police. See Act of Dec. 20, 2011, P.L. 446, No. 111 § 12

(effective Dec. 20, 2012); see also Commonwealth v. Lippincott, 208

A.3d 143, 146 (Pa. Super. 2019) (en banc). Although enacted on December

20, 2011, SORNA I took effect on December 20, 2012.

In Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (plurality),

our Supreme Court declared SORNA I unconstitutional because its

registration provisions were punitive and therefore violated the ex post facto

clauses of both the United States and Pennsylvania Constitutions.

Commonwealth v. Butler, 226 A.3d 972, 980–81 (Pa. 2020). In

Lippincott, this Court concluded that the effective date of a statute was

determinative for considering whether SORNA I applied to a defendant.

Lippincott, 208 A.3d at 149.

In response to Muniz, the General Assembly enacted legislation to

amend SORNA I. See Act of Feb. 21 2018, P.L. 27, No. 10 (Act 10) and Act

(Footnote Continued) _______________________

limited arguments raised in this appeal, we decline to revisit our cases

holding that a challenge to the proper statutory basis for a defendant’s

registration requirements goes to the legality of the sentence.
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of June 12, 2018, P.L. 1952, No. 29 (Act 29) (collectively, SORNA II). Act

10 amended several provisions of Subchapter H and added Subchapter I.8

Both current Subchapter H and Subchapter I define aggravated indecent

assault as an offense triggering a lifetime of registration. See 42 Pa.C.S. §§

9799.14(d)(7), 9799.55(b)(2)(i)(A). However, the current version of

Subchapter H states that it applies to defendants who commit sexually

violent offenses on or after December 20, 2012. See 42 Pa.C.S. § 9799.12

(defining sexually violent offense for the purpose of Subchapter H).

Subchapter I is entitled “Continued Registration of Sexual Offenders.”

Subchapter I, in relevant part, states that it applies to defendants who

commit a “sexually violent offense” on or after April 22, 1996, but before

December 20, 2012. See 42 Pa.C.S. §§ 9799.53 (defining sexually violent

offense for the purpose of Subchapter I), 9799.55(b)(2)(i)(A). Subchapter I

does not use the tier system used in Subchapter H to determine the length

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8 Our Supreme Court is currently considering the constitutionality of

Subchapter I. See Commonwealth v. Lacombe, 35 MAP 2018 (Pa. 2018).

In Commonwealth v. Moore, 222 A.3d 16 (Pa. Super. 2019), this Court

held that the dissemination of information regarding sexual offenders on a

Pennsylvania State Police website under Subchapter I violates the federal Ex

Post Facto Clause in light of Muniz. Moore, 222 A.3d at 27. However, we

held that Section 9799.63 was severable from SORNA II and that the

remainder of the SORNA II registration and reporting requirements for pre- SORNA offenders remained in effect. Id. More recently, the Commonwealth

Court has held that Subchapter I is unconstitutional insofar as it is applied to

a defendant whose offenses were committed in 1990 and did not carry a

registration requirement at the time of the offense. T.S. v. Pennsylvania

State Police, ___ A.3d __, 129 M.D. 2019, 2020 WL 2312567 (Pa. Cmwlth.

filed May 11, 2020) (en banc).
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of time for which an offender must register. Compare 42 Pa.C.S. § 9799.14

with 42 Pa.C.S. § 9799.55. Furthermore, “Subchapter I imposes less

stringent reporting requirements than [current] Subchapter H.” Alston, 212

A.3d at 529 (citations omitted); compare 42 Pa.C.S. § 9799.15(e)

(requiring Subchapter H, Tier III offenders to appear in person quarterly to

verify information included in the sexual offender registry) with 42 Pa.C.S. §

9799.60(b) (requiring annual in person verification of residence).

In Alston, this Court concluded that the trial court erred in requiring a

defendant to register under Subchapter H and remanded the case for “the

trial court to instruct Appellant on his proper registration and reporting

requirements.” Alston, 212 A.3d at 530. Specifically, the Alston Court

vacated the portion of a defendant’s sentence relating to reporting

requirements, holding that when a defendant’s “offenses straddle the

effective dates of Subchapters H and I of SORNA, he is entitled to the lower

reporting requirements of Subchapter I, absent a specific finding of when the

offenses related to the convictions actually occurred.” Id.

Here, Appellant pled guilty to one count of aggravated indecent

assault, which is subject to lifetime registration under Subchapters H and I

of SORNA II. See 42 Pa.C.S. §§ 9799.14(d)(7), 9799.55(b)(2)(i)(A). Based

on the stipulations of the parties at the guilty plea hearing, the offense

occurred before September 16, 2011. Because the date of the offense fell

within the operative dates of Subchapter I and not Subchapter H, Appellant
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is subject to the registration requirements of Subchapter I. See 42 Pa.C.S.

§§ 9799.53. Moreover, we do not agree with the trial court’s reasoning that

Appellant’s sentence should be affirmed in its entirety despite the clerical

error referencing “Megan’s Law” and the tier system under Subchapter H,

instead of Subchapter I. Although both Subchapter H and Subchapter I

require lifetime registration for Appellant, the erroneous reference “is not a

distinction without a difference,” because Subchapter I contains less

restrictive registration and verification requirement than Subchapter H. See

Alston, 212 A.3d at 529. Accordingly, we vacate the portion of the judgment of sentence

indicating that Appellant was to comply with the reporting requirements

under “Megan’s Law” as a “Tier 3 offender” and remand for the trial court to

correct its order and notify Appellant of his registration requirements under

Subchapter I. See id.; see also 42 Pa.C.S. § 9799.57. Appellant next challenges the discretionary aspects of his sentence

following the revocation of his probation. Appellant contends that the trial

court erred in imposing a sentence of total confinement and that the

sentence was excessive. Appellant’s Brief at 22-33. We address both claims

in further detail below.

Initially, we note that “challenges to the discretionary aspects of

sentencing do not entitle an appellant to review as of right.”
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Commonwealth v. Derry, 150 A.3d 987, 991 (Pa. Super. 2016) (citation

omitted). Before reaching the merits of such claims, we must determine:

(1) whether the appeal is timely; (2) whether Appellant

preserved his issues; (3) whether Appellant’s brief includes a

[Pa.R.A.P. 2119(f)] concise statement of the reasons relied upon

for allowance of appeal with respect to the discretionary aspects

of sentence; and (4) whether the concise statement raises a

substantial question that the sentence is inappropriate under the

sentencing code.

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citations

omitted). “Issues not presented to the sentencing court are waived and

cannot be raised for the first time on appeal.” Commonwealth v.

Malovich, 903 A.2d 1247, 1251 (Pa. Super. 2006) (citation omitted).

If an appellant presents a reviewable challenge to the discretionary

aspect of a sentence, the following standards govern our review:

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. In this context, an abuse

of discretion is not shown merely by an error in judgment.

Rather, the appellant must establish, by reference to the record,

that the sentencing court ignored or misapplied the law,

exercised its judgments for reasons of partiality, prejudice, bias

or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation

omitted).

Appellant initially argues that the trial court abused its discretion when

it imposed a sentence of total confinement for a technical violation of his

probation and where none of the three criteria set forth in 42 Pa.C.S. §

9771(c) were met. Appellant’s Brief at 25. According to Appellant, he did
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not commit a new crime, his conduct did not indicate that he was likely to

commit another crime if he were not imprisoned, and incarceration was not

necessary to vindicate the authority of the trial court. Id. at 25-26.

More specifically, Appellant contends that the trial court erred when it

emphasized Appellant’s use of a racial slur to describe the pastor at

Remnant House because “the language was a product of [his] upbringing in

an all-white, rural and low-income environment.” Id. at 26-29. Appellant

further claims that the trial court’s finding that Appellant “was attempting to

torpedo his placement at Remnant House was unsubstantiated.” Id. at 27.

Lastly, Appellant asserts that the trial court “wrongly presupposed that [he]

would not be able to find alternative housing options” when the trial court

had the option of placing him at Farkas House. Id. at 28.

The Commonwealth responds that the trial court did not abuse its

discretion when it stated that Appellant was not an appropriate candidate for

community supervision. Commonwealth’s Brief at 28. The Commonwealth

emphasizes that “the [t]rial [c]ourt was well informed about [A]ppellant’s

rehabilitative efforts in the community before the [c]ourt imposed

[A]ppellant’s new sentence in this case.” Id. The Commonwealth notes that

the trial court had the benefit of Appellant’s PSI and had presided over

Appellant’s prior revocation hearings, as well as several other review

hearings, and expressed a familiarity with Farkas House. Id. at 27.
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A claim that the trial court erred in imposing a new sentence of total

confinement is a challenge to the discretionary aspect of the sentence. See

Commonwealth v. Schutzues, 54 A.3d 86, 90 (Pa. Super. 2012).

Instantly, Appellant preserved this claim in his motion to modify the

sentence imposed following revocation. He then timely appealed the claim, and raised it in his Rule 2119(f) statement. Moreover, Appellant’s claim

raises a substantial question. See Commonwealth v. Crump, 995 A.2d

1280, 1282 (Pa. Super. 2010) (holding that imposing a sentence of total

confinement after he revocation of probation for a technical violation

presents a substantial question). Therefore, we will address Appellant’s

claim.The statute governing the sentencing following revocation of probation

provides:

(c) Limitation on sentence of total confinement.—The court shall

not impose a sentence of total confinement upon revocation

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). “Technical violations can support revocation and a

sentence of incarceration when such violations are flagrant and indicate an

inability to reform.” Commonwealth v. Carver, 923 A.2d 495, 498 (Pa.
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Super. 2007). Under certain circumstances, where probation is ineffective

as a rehabilitative tool, a sentence of incarceration may be appropriate. See

Malovich, 903 A.2d at 1254 (holding that the trial court properly considered

the statutory sentencing factors, prior probation violations, and that the

defendant was not responding to the court’s authority, accordingly, it did not

abuse its discretion in imposing total confinement due to technical probation

violations).

Instantly, the trial court explained that it “considered, in addition to

the [PSI] Report, [Appellant’s] poor supervision history, the fact that

Appellant chose not to avail himself of treatment and [that Appellant]

routinely exhibited a poor attitude toward his probation officer, other

participants in his group therapy, staff at Remnant House and th[e trial

c]ourt.” Trial Ct. Op. at 6. The trial court remarked that Appellant “was

unsuccessfully released from Remnant House after only four days for

uttering a derogatory slur relating to the ethnic background of the executive

director” and “Appellant has demonstrated that he is not amenable to

treatment and supervision in the community.” Id. at 6-7.

Our review of the record supports the trial court’s conclusion that it

considered Appellant’s probation history, and other factors as discussed

herein, which demonstrated that he was not amenable, nor cooperative with

treatment and probationary supervision in the community. Therefore,

probation was demonstratively ineffective as a rehabilitative tool for
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Appellant and the court imposed incarceration to vindicate the trial court’s

authority and concern for safe community supervision of Appellant. Previously, Appellant was unsuccessfully discharged from a treatment

program and the trial court revoked Appellant’s probation and resentenced

him to five years’ probation. See N.T. VOP Hr’g, 8/20/18, at 2-3, 18. One

of the conditions of his probation was placement at Remnant House, which

required compliance with mental health and sex offender treatment. Id. at

18. Further, the trial court indicated that it was imposing a condition of

“zero tolerance” with respect to the probation conditions, informing

Appellant that he must comply with them in order to be safely supervised in

the community. The trial court warned that failure to comply could result in

the revocation of Appellant’s probation and the imposition of a custodial

sentence. Id. at 18-20.

At the VOP hearing, the trial court found that Appellant had not availed

himself of treatment, missed appointments and medication. N.T. VOP Hr’g,

12/3/18, at 2. The trial court also noted that Appellant had been given

several opportunities to remain in the community under supervision, but

found that he demonstrated that he was not amenable for community

supervision. Id.

Appellant was aware that his probation was conditioned on compliance

with his treatment and placement at Remnant House. Appellant was defiant

towards Pastor Sutton, was not interested in following the House rules, and
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was eventually expelled for using a racial slur to describe Pastor Sutton.

N.T. Gagnon I Hr’g, 11/5/18, at 3-7. Furthermore, the instant case is the

second time the trial court revoked Appellant’s probation.

Based on our review of the record, the trial court did not abuse its

discretion when it concluded that Appellant demonstrated that he was not

amenable to, nor cooperative with, treatment and probation supervision.

Accordingly, probation was not an effective rehabilitative tool for Appellant.

See Carver, 923 A.2d at 498; Malovich, 903 A.2d at 1254. Accordingly,

we discern no merit to Appellant’s claim that the trial court improperly

imposed a sentence of total confinement.

Appellant next claims that the sentence of two to five years’

imprisonment was excessive because the trial court “did not properly

consider the extensive mitigating evidence under [42 Pa.C.S.] § 9721(b) . . .

.” Appellant’s Brief at 29. Appellant asserts that the trial court could not

have properly considered the mitigating evidence because the trial court

decided to incarcerate him before hearing any argument or evidence at the

VOP hearing. Id.

Moreover, Appellant contends that the trial court “based the sentence

on impermissible factors when it falsely characterized or made incorrect

assumptions about much of the mitigating evidence that [Appellant] did

present.” Id. at 30 (citation omitted). Appellant specifically challenges four

points referenced by the trial court. First, Appellant asserts that the trial
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court incorrectly found that Appellant failed to maintain stable

unemployment when there was evidence that he had a successful work

history and left jobs for raises, promotions, or better opportunities. Id.

Second, Appellant contends that the trial court “incorrectly claimed that [he]

could not maintain stable housing, even though he had his own apartment

until he was detained” for the present VOP. Id. Third, Appellant challenges

the trial court’s skepticism regarding his mental health diagnoses and

asserts that the trial court “paradoxically claimed” that he was not

addressing his mental-health needs. Id. at 30-31.

Lastly, Appellant contends that the trial court ignored his success in his

sex-offender treatment and improperly focused on Appellant’s failure of a

polygraph examination. Id. at 31. Appellant notes that the trial court

“repeatedly rejected” his assertions that his bipolar disorder could have

affected the results of the polygraph test. Id. Appellant further argues that

by punishing Appellant for failing the polygraph test, the trial court ignored

the progress that Appellant made and the difficulties that sexual offenders

often face in accepting responsibility for their actions.9 Id. at 31-33. ____________________________________________

9 Appellant refers to the trial court’s consideration of impermissible factors in

his brief. See Appellant’s Brief at 30. However, as summarized above, a

careful review of his arguments reveals that he does not argue that the trial

court relied on an improper fact. Cf. Commonwealth v. Bethea, 379 A.2d

102, 104 (Pa. 1977) (reiterating that a trial court may not punish a

defendant more severely because he exercised his constitutional right to

stand trial). Rather, Appellant’s argument focuses on the reasonableness of

(Footnote Continued Next Page)
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The Commonwealth contends that because the trial court was familiar

with Appellant and his rehabilitative efforts and because the trial court also

had the benefit of Appellant’s PSI, “this Court can conclude that the trial

court considered all relevant and necessary sentencing factors before

sentencing Appellant for his probation violation.” Commonwealth’s Brief at

28.

Our review establishes that Appellant preserved his arguments

regarding the excessiveness of the sentence in his motion to modify, his

Rule 1925(b) statement, and his Rule 2119(f) statement. Moreover, we

conclude that Appellant’s challenge raises a substantial question. See

Malovich, 903 A.2d at 1253 (noting that “a claim that a particular probation

revocation sentence is excessive in light of its underlying technical

violations” presents a substantial question for our review). See

Commonwealth v. Swope, 123 A.3d 333, 339 (Pa. Super. 2015) (stating

that “[t]his Court has also held that an excessive sentence claim—in

conjunction with an assertion that the court failed to consider mitigating

factors—raises a substantial question” (citations and quotation marks

omitted)). Accordingly, we will review the merits of Appellant’s arguments.

This Court has held that after a trial court revokes probation, the trial

court must also consider the sentencing factors contained in 42 Pa.C.S. §

(Footnote Continued) _______________________

the trial court’s consideration of legitimate sentencing factors, such as stable

housing and employment, as well as mitigating factors.
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9721(b) when imposing a new sentence. See Commonwealth v.

Cartrette, 83 A.3d 1030, 1040-41 (Pa. Super. 2013) (en banc). Specifically, the trial court must “‘follow the general principle 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.’” Id. (citation omitted). Furthermore, we have held that a

sentencing court “is required to consider the particular circumstances of the

offense and the character of the defendant. In particular, the sentencing

court should refer to the defendant’s prior criminal record, his age, personal

characteristics, and his potential for rehabilitation.” Commonwealth v.

Edwards, 194 A.3d 625, 637 (Pa. Super. 2018) (citations and quotation

marks omitted), appeal denied, 202 A.3d 41 (Pa. 2019).

Where a PSI exists, we shall “presume that the sentencing judge was

aware of the relevant information regarding the defendant’s character and

weighed those considerations along with mitigating statutory factors.”

Commonwealth v. Conte, 198 A.3d 1169, 1177 (Pa. Super. 2018)

(citation omitted), appeal denied, 206 A.3d 1029 (Pa. 2019); see also

Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa. Super. 2005) (stating

that “[s]ince the sentencing court had and considered a [PSI], this fact alone

was adequate to support the sentence, and due to the court’s explicit
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reliance on that report, we are required to presume that the court properly

weighed the mitigating factors present in the case”). Instantly, at the beginning of the VOP hearing, the trial court stated:

I do have a JRS plan. It is for Farkas House. That is not

acceptable to me. I’m quite familiar with Farkas House, and I’m

familiar with [Appellant] and his history. * * * He chooses not to avail himself of treatment or supervision in

the community, misses appointments[,] misses medication. He

has been given quite a number of opportunities in the

community. At this point, I no longer believe that he is

appropriate for community supervision.

N.T. VOP Hr’g, 12/3/18, at 2.

When defense counsel raised the point that Appellant began to miss

appointments after failing a polygraph, the trial court responded:

We are not here because of a failed polygraph. He was

unsuccessfully released from Remnant House after four days.

His volatile behavior is what caused his unsuccessful discharge.

We have had Behavior Clinic evaluations. At one point, he

indicated that he was having auditory hallucinations. The

Behavior Clinic did not believe that he was being candid. He

made statements here in court that caused me to refer him to

get a Behavior Clinic evaluation.[10] If I recall correctly, the

Behavior Clinic found [Appellant] to be malignant.

Id. at 4.

____________________________________________

10 The probation officer asserted that occurred approximately two to three

years before the present VOP proceeding. N.T. VOP Hr’g, 12/3/18, at 4.
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With respect to steady employment and housing the following

exchange occurred at the VOP hearing:

THE COURT: We have not been able to get him to maintain

employment or stable housing. We have not been able to get

him to address his mental health needs or his sex offender

needs.

[Appellant’s Counsel]: He was working before he was placed in

jail. . . .

THE COURT: Stable employment and housing has been a

problem over a period of time?

[Probation Officer]: Correct, Your Honor.

[Appellant’s Counsel]: Even employment?

[Probation Officer]: Stable employment means that he has had a

job for more than a year. Our office doesn’t consider having

multiple jobs at the same -- that is a risk factor actually on our

LSI-R[11] that we do for [Appellant’s] criminogenic needs. That’s

just one more need that he has. Without having stable

employment for more than a year is a risk factor.

[Appellant’s Counsel]: Your Honor, he worked at Bravo and

another pizzeria. How long?

[Appellant]: For nine months.

[Appellant’s Counsel]: He only left the one place because of a

better job.

[Appellant]: Your Honor, when I started, I got $8.50. Then I got

$9, then $10. When I left, I was making $11.50. I was wearing a

chef coat. They were going to teach me how to be a chef.

Id. at 6. ____________________________________________

11 “LSI-R” appears to refer to a Level of Service Inventory-Revised, which is

a tool used to assess a probationer or parolee’s level of risk and supervision

needs. See generally Barnes v. Wenerowicz, 280 F.R.D. 206, 209 (E.D.

Pa. 2012).
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Addressing Appellant’s use of a racial slur, the trial court noted its

personal experience with knowing that the use of the slur was unacceptable.

Id. at 8. The trial court explained:

I would venture to guess that there is not a person alive in this

country who is unaware that referring to anyone by a derogatory

slur relating to their ethnic background is absolutely

unacceptable. You put yourself in this situation. You made the

choices that you made, and you have made them over a period

of time.

I view your comments here not as personal toward Pastor Sutton

in any way but rather as a way to torpedo your placement at

Remnant House, and I have nothing left to offer.

Id. at 8-9.

Subsequently, in its Rule 1925(a) opinion, the trial court stated:

In sentencing Appellant, the [trial c]ourt considered, in addition

to the [PSI] Report, his poor supervision history,

[fn3] the fact that

Appellant chose not to avail himself of treatment and routinely

exhibited a poor attitude toward his probation officer, other

participants in his group therapy, staff at Remnant House and

this [c]ourt. After an earlier Gagnon 2 [sic] hearing, [the trial

c]ourt gave Appellant another opportunity to remain in the

community and become a productive member of society by

providing him with a JRS . . . plan through which he again

agreed to reside at Remnant House. He was unsuccessfully

released from Remnant House after only four days for uttering a

derogatory slur relating to the ethnic background of the

executive director. He failed sex offender mental health

treatment and the Behavioral Clinic found him to be malignant,

potentially faking auditory hallucinations. In addition to failing to

address his conditions, he has failed to maintain stable

employment and housing. Appellant has demonstrated that he

is not amenable to treatment and supervision in the community.

[fn3] Examples of Appellant’s non-compliance with probation

supervision abound in the record. For example, at his Sex

Offense Court (“SOC”) review hearings, his probation

officer reported that he requires constant refocusing and

was rarely in compliance. By November 16, 2015, he had
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twice been kicked out of Remnant House. Mercy Gatehouse

reported that he minimized his offense and talked down to

others in treatment. Subsequent review hearings

established that Appellant lacked motivation to gain

employment and thought that most work was beneath

him. After several compliant reviews, Appellant began to

miss therapy sessions and was unsuccessfully discharged

from Mercy Gatehouse. Appellant’s therapist indicated

substantial barriers in therapy, including problems with

attendance, honesty, denial, and manipulation.

Trial Ct. Op. at 6-7 (some formatting altered and record citations omitted).

Following our review, we discern no merit to Appellant’s argument that

the trial court failed to consider mitigating factors. Since the trial court

reviewed Appellant’s PSI, it is presumed that it was aware of and properly

weighed the mitigating sentencing factors. See Conte, 198 A.3d at 1177;

Fowler, 893 A.2d at 766.

Moreover, as to Appellant’s challenges to the trial court’s specific

conclusions regarding the stability of Appellant’s employment and housing,

his mental health condition and need for treatment, and his progress in sex- offender treatment, we find no basis to disturb the trial court. Appellant

does not address the concerns and possible risks expressed by the Probation

Department based on its definition of “stable employment” as meaning that

being with the same employer for at least a year. See N.T. VOP Hr’g,

12/3/18, at 6. Although Appellant refers to the fact that he resided in his

own apartment before he was detained in this matter, the record shows that

he was expelled from Remnant House after less than a week. Id. at 4-7.

Furthermore, the trial court previously revoked Appellant’s probation
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because he was unsuccessfully discharged from treatment, deemed

treatment resistant, and was not compliant with his medications. N.T. VOP

Hr’g, 8/20/2018, at 4, 9-11. Lastly, to the extent Appellant argues that the

trial court ignored the difficulties sex offenders generally have in treatment,

we conclude that the trial court adequately considered Appellant’s

individualized needs before imposing sentence and did not overemphasize

Appellant’s failure of a polygraph examination. See Edwards, 194 A.3d at

637; see also Cartrette, 83 A.3d at 1040-41.

Accordingly, having reviewed the parties’ arguments, the trial court’s

explanations for its sentence, and the record, we find no merit to Appellant’s

claim that his sentence of two to five years’ imprisonment was excessive.

Accordingly, Appellant’s challenge to the discretionary aspect of the sentence

fails. See Raven, 97 A.3d 1244, 1253

In sum, we affirm the judgment of sentence in part, and vacate only

that portion of the judgment of sentence regarding Appellant’s sex offender

registration and reporting requirements under Subchapter H. We remand

the case to the trial court to impose the Subchapter I registration and

reporting requirements of SORNA and to instruct Appellant on those

requirements.

Judgment of sentence affirmed in part and vacated in part. Case

remanded with instructions. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/18/2020