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

v.
FLORENCIO ROMAN QUINONES, III ,

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

PENNSYLVANIA

No. 803 MDA 2019 Appeal from the Judgment of Sentence Entered May 1, 2019 i n the Court of Common Pleas of Berks County Criminal Division at No(s): CP

- 06

- CR

- 0003151

- 2014 BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.: FILED: FEBRUARY 7, 2020 Florencio Roman Quinones, III (“Quinones”) , appeals from the judgment of sentence imposed following the revocation of his probation. Upon review, we affirm. On September 30, 2015, Quinones pled guilty to one count of second

d egree robbery following a June 26, 2014 incident in which Quinones robbed and assaulted his uncle in Reading, Pennsylvania. On the same day, the tria l court sentenced Quinones to eleven and one

- half months to twenty

- three months in prison, to be followed by three years of probation , under the supervision of the county probation off ice. Following his release, Quinones was required to regularly report his whereabouts to the county probation office. Following Quinones’s failure to report as directed after his last reporting date of September 12 , 2017, the trial court issued a bench warrant on January 26, 2018, alleging Quinones ’s non

- compliance with probation requirem ents.J

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A Gagnon II 1 hearing was held on May 1, 2019. 2 During the Gagnon
II hearing, Quinones admitted to violati ng his probation. N.T., 5/1/19, at 2. Thereafter, the court found that Quinones had violated the conditions of his probation, revoked his pro bation, and sentenced him to eleven and one

- half months to twenty

- three months in prison, with credit for fifty

- two days of time served. Id. at 6

- 7. On May 7, 2019, Quinones filed a timely post

- sentence Motion to modify his sentence, which was denied on May 8, 2019. Quinones filed his timely pro se Notice of A ppeal , and a court

- ordered Concise
Statement

. 3 Quinones presents the following issue for our review: Whether the trial court abused its discretion when it imposed a sentence of eleven and one

- half (11.5) to twenty

- three (23) months [in prison] for [Quinones’s] first technical probation violations at his Gagnon II hearing[?] Brief for Appellant at 10.

_________________ __________ ______ ____ _______ 1 Gagnon v. Scarpelli , 411 U.S. 778 (1973).

2 The trial court indicates in its Pa.R.A.P. 1925(a) Opinion that Quinones was “apprehended” at some point between the issuance of the bench warrant and the Gagnon II hearing. The record does not appear to reveal the circumstances or the date on which Quinones was apprehended.

3 On May 17, 2019, the trial court ordered Quinones to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On June 20, 2019, after Quinones failed to file his concise statement, the trial court filed a statement with this Court requesting that we dismiss the appeal. On September 6, 2019, we issued an Order remanding the matter to the trial court, in order to allow Qui nones to file his concise statement , nunc pro tunc . On September 9, 2019, Quinones filed his counseled Concise Statement.J

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Qui nones contends that the sentence imposed following the revocation of his probation was excessive because the trial court “failed to take into consideration numerous mitigating factors when fashioning [ its ] sentence for the probation violations.” Id. at 19 . In particular, Quinones argues that his homelessness was the reason he did not change his address with his probation officer and, prior to the violation, he had complied with all of the terms of his probation for a period of nearly two years. Id. He a lso points out that he expressed remorse for his failure to report during the Gagnon II heari ng; the violations that resulted in his new sentence were much less severe than the original robbery conviction; and “[t]he conduct does not indicate that [Quinone s] is likely to commit another crime[; i]t only indicates that he is not good at keeping appointments.” Id. at 20. “A challenge to the discretionary aspects of sentencing is not automatically reviewable as a matter of right.” Commonwealth v. Grays , 167 A.3d 793, 815 (Pa. Super. 2017). First, a n appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four

- part test to determine (1) whether the appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether the 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 Sentencin g Code, 42 Pa.C.S.A. § 9781(b).J

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Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010) (quotation marks and some citations omitted). Here, Quinones filed a timely Notice of A ppeal, and properly preserved the issue in a post

- sentence Motion to modify his sentence on May 7, 2019. Additionally, we detect no fatal defects in Quinones’s brief. Accordingly, our analysis turns to whether Quinones has raised a subs tantial question. Quinones argues in his Rule 2119(f) Statement that “t he sentencing court failed to consider mitigating factors and the impact of the technical violations on the community.” Brief for Appellant at 15

. “ [A] n allegation that the sentencin g court failed to consider mitigating factors generally does not raise a substantial question for our review.” Commonwealth v. Rhoades , 8 A.3d 912, 918

- 19 (Pa. Super. 2010). An appellate court “ cannot look beyond the statement of questions presented and the prefatory 2119(f) statement to determine whether a substantial question exists.” Commonwealth v. Provenzano , 50 A.3d 148, 154 (Pa. Super. 2012). Here, Quinones has failed to raise a substantial question in his challenge to the trial court’s alleged c onsideration of mitigating factors in his Rule 2119(f)
Statement. See Rhoades , 8 A.3d at 918

- 19. Even if we were to determine that Quinones had raised a substantial quest ion, we would conclude that his claim lacks merit. 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 recordJ

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discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill

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

The reason for this broad discretion and deferential standard of appellate review is that the sentencing court is in the best position to measure various factors and determine the proper penalty for a particular offense based upon an evaluation of the ind ividual circumstances before it. Simply stated, the sentencing court sentences flesh

- and

- blood defendants and the nuances of sentencing decisions are difficult to gauge from the cold transcript used upon appellate review. Moreover, the sentencing court e njoys an institutional advantage to appellate review, bringing to its decisions an expertise, experience, and judgment that should not be lightly disturbed. The sentencing court’s institutional advantage is, perhaps, more pronounced in fashioning a sente nce following the revocation of probation, which is qualitatively different than an initial sentencing proceeding. At initial sentencing, all of the rules and procedures designed to inform the court and to cabin its discretionary sentencing authority prop erly are involved and play a crucial role. However, it is a different matter when a defendant appears before the court for sentencing proceedings following a violation of the mercy bestowed upon him in the form of a probationary sentence. For example, in such a case, contrary to when an initial sentence is imposed, the Sentencing Guidelines do not apply, and the revocation court is not cabined by Section 9721(b)’s requirement that “the sentence imposed should call for confinement that is consistent with t he 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. Commonwealth v. Pasture , 107 A.3d 21, 27 (Pa. 2014) (s ome citations and quotation marks omitted). Upon the revocation of probation, a sentencing court may choose from any of the sentencing options that existed at the time of the original sentence, including incarceration. 42 Pa.C.S.A. § 9771(b). However, th e imposition ofJ

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total confinement upon revocation requires a finding that either “(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 imprison ed; or (3) such a sentence is essential to vindicate the authority of the court.” Id. at § 9771(c). Additionally , “[i]n every case in which the court ... resentences an offender following revocation of probation, ... the court shall make as part of the recor d, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.” Id. at § 9721(b); see also Pa.R.Crim.P. 708(D)(2) (providing that “[t]he judge shall state on the record the reasons for the sentence imposed.”). However, foll owing revocation of probation, the sentencing court need not undertake a lengthy discourse for its reasons for imposing a sentence or specifically reference the statutes in question. See Pasture , 107 A.3d at 28 (stating that “sin ce 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.”). Here, the record indicates that the trial court ably considered the mitigating factors that Quinones brings to our attention on appeal. At the Gagnon II hearing, Quinones testified to his ongoing homelessness, his regret and his acceptance of responsibility for his failure to report, as well as various personal setbac ks that, he testified, made it more difficult to comply with the terms of his probation. N.T., 5/1/19, at 3

- 6. At the conclusion ofJ

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Quinones’s testimony, the trial court stated, on the record, its reasons f or imposing a sentence of total confinement :
T h e troubling thing here is the initial charge[,] which brings us here[,] is a very serious one. It appears that [Quinones] had every opportunity to comply, and we wouldn’t be here right now if he had done so. And, instead, he stayed away until[,] I gather [,] he was apprehended a year and a half after his last report into the office, including the contact in January 2018. Id. at 6. Our review of the record confirms that the trial court sufficiently analyzed the evidence and testimony , including any potenti al mitigating factors, in order to make a fully informed sentencing decision following the revocation of Quinones’s probation. As a result, we discern no abuse of discretion by the trial court , and will not disrupt Quinones ’s sentence on appeal. Judgment of sentence affirmed. Judge Lazarus joins the memorandum. Judge Shogan concurs in the result.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 0 2/07/2020