J. S20008/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

KENNETH NYBERG, : No. 317 WDA 2014

:

 Appellant :

Appeal from the Judgment of Sentence, February 4, 2014,

in the Court of Common Pleas of Erie County

Criminal Division at Nos. CP-25-CR-0002301-2001,

CP-25-CR-0002357-2001, CP-25-CR-0002507-2001,

CP-25-CR-0002508-2001, CP-25-CR-0002509-2001,

CP-25-CR-0002510-2001, CP-25-CR-0002511-2001,

CP-25-CR-0002512-2001, CP-25-CR-0002513-2001,

CP-25-CR-0002514-2001, CP-25-CR-0002515-2001,

CP-25-CR-0002516-2001, CP-25-CR-0002517-2001,

CP-25-CR-0002518-2001, CP-25-CR-0002519-2001,

CP-25-CR-0002520-2001, CP-25-CR-0002521-2001,

CP-25-CR-0002522-2001, CP-25-CR-0002523-2001,

CP-25-CR-0002524-2001, CP-25-CR-0002525-2001,

CP-25-CR-0002526-2001, CP-25-CR-0002527-2001,

CP-25-CR-0002528-2001, CP-25-CR-0002529-2001,

CP-25-CR-0002616-2001, CP-25-CR-0002815-2001,

CP-25-CR-0002816-2001, CP-25-CR-0002817-2001,

CP-25-CR-0002867-2001, CP-25-CR-0003118-2001,

CP-25-CR-0003297-2001,

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND WECHT, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 15, 2015

Kenneth Nyberg appeals from the judgment of sentence of February 4, 

2014, following revocation of his probation. We affirm.

On November 30, 2001, appellant pled guilty to numerous counts of 

insurance fraud and bad checks and was placed on intermediate 
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punishment. Appellant was accepted into the Erie County Treatment Court 

program for rehabilitation from a cocaine addiction. After approximately 

three months, appellant was discharged from the program for 

non-compliance. On March 15, 2002, appellant was revoked from 

intermediate punishment and sentenced to an aggregate of 6 to 12 years’ 

incarceration, followed by probation. This court affirmed the judgment of 

sentence on January 28, 2003. Commonwealth v. Nyberg, No. 696 WDA 

2002, unpublished memorandum (Pa.Super. filed January 28, 2003). We 

found that the trial court put adequate reasons on the record to support its 

sentence, including appellant’s lack of rehabilitative potential, his lack of 

amenability to treatment or supervision, and his perpetual dishonesty and 

abuse of the system. Id. at 9.

While on state and county community supervision, appellant continued 

to abuse cocaine and failed to pay restitution to his victims. (Trial court 

opinion, 4/22/14 at 2.) Appellant’s probation was revoked, and he was 

re-sentenced to 111⁄2 to 23 months, followed by a long probationary tail. 

Appellant’s motion for reconsideration was denied, and this timely appeal 

followed. Appellant complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., 

and the trial court has filed a Rule 1925(a) opinion.

On appeal, appellant presents a challenge to the discretionary aspects 

of his sentence, arguing that the sentence is manifestly excessive and that 

the trial court failed to consider various mitigating factors in favor of a lesser 
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sentence, including his age, employment history, and education. According 

to appellant, he had obtained employment with DirectTV in order to pay 

restitution, and he was enrolled full-time at Gannon University. (Appellant’s 

brief at 20.) Appellant argues that the sentence of 301⁄2 years’ probation is 

essentially a lifetime supervision sentence. (Id.) Appellant also claims that 

this is his first revocation, and he has not incurred any new criminal charges. 

(Id.)

1

Our standard of review is well-settled. We have 

explained:

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).

In determining whether a sentence is 

manifestly excessive, the appellate court 

must give great weight to the sentencing 

court’s discretion, as he or she is in the 

best position to measure factors such as 

the nature of the crime, the defendant’s 

character, and the defendant’s display of 

remorse, defiance, or indifference.

 

1 Appellant has included the requisite Pa.R.A.P. 2119(f) statement in his 

brief.
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Commonwealth v. Mouzon, 828 A.2d 1126, 1128 

(Pa.Super.2003).

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

denied, A.3d (Pa. Feb. 11, 2015).

Upon revoking probation, a sentencing court may 

choose from any of the sentencing options that 

existed at the time of the original sentencing, 

including incarceration. 42 Pa.C.S.A. § 9771(b). 

“[U]pon 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 v. 

Infante, 63 A.3d 358, 365 (Pa.Super.2013) 

(internal quotation marks and citations omitted). 

However, 42 Pa.C.S.A. § 9771(c) provides that once 

probation has been revoked, a sentence of total 

confinement may only 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.A. § 9771(c).

Id. at 1044.

Instantly, we agree with the trial court that appellant fails to present a 

substantial question for our review. An argument that the sentencing court 

failed to adequately consider mitigating factors in favor of a lesser sentence 

does not present a substantial question appropriate for our review. 
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Commonwealth v. Hanson, 856 A.2d 1254, 1257-1258 (Pa.Super. 2004), 

citing Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa.Super. 2003). 

See also Commonwealth v. Williams, 562 A.2d 1385 (Pa.Super. 1989) 

(en banc) (an allegation that the sentencing court did not adequately 

consider various factors is, in effect, a request that this court substitute its 

judgment for that of the lower court in fashioning a defendant’s sentence).

Furthermore, the trial court thoroughly explained its reasons for the 

sentence on the record, including appellant’s lack of amenability to 

treatment and the fact he had paid only $40 towards restitution. (Notes of 

testimony, 2/4/14 at 9.) Colon, supra, quoting Commonwealth v. 

Cartrette, 83 A.3d 1030, 1040-1041 (Pa.Super. 2013) (en banc) (“in all 

cases where the court resentences an offender following 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”).

In addition, appellant’s alleged mitigating factors are not supported by 

the record. The record indicates that appellant has not been enrolled at 

Gannon since 2010. (Notes of testimony, 2/3/14 at 6, 10-11.) In addition, 

appellant was no longer working at DirectTV as of August 2013. (Id. at 29.) 

The trial court found that appellant intentionally misrepresented his 

educational and employment record. Regarding appellant’s claim that this is 

his first revocation, as described above, his intermediate punishment was 
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revoked in March 2002. We also note that appellant was charged in April 

2014 with access device fraud, theft by unlawful taking, and theft by 

receiving stolen property. The new charges relate to an incident on or about 

December 17, 2013, wherein appellant fraudulently transferred money from 

the victim’s credit card account to his Paypal account. (See supplemental 

Rule 1925(a) opinion, 5/6/14, Exhibit A.)

As the trial court has filed a thorough, comprehensive, 17-page 

opinion, with appropriate citation to the record and to relevant case law, 

explaining why appellant does not raise a substantial question for our 

review; or, in the alternative, why the trial court did not abuse its discretion 

in fashioning appellant’s sentence upon revocation of his probation, we will 

affirm on the basis of that opinion. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

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