J-S73035-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

FLORENCIO ROMAN QUINONES, III,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 803 MDA 2019

Appeal from the Judgment of Sentence Entered May 1, 2019

in 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 seconddegree robbery following a June 26, 2014 incident in which Quinones robbed 

and assaulted his uncle in Reading, Pennsylvania. On the same day, the trial 

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 office. 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 requirements.
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A Gagnon II1 hearing was held on May 1, 2019.2 During the Gagnon 

II hearing, Quinones admitted to violating his probation. N.T., 5/1/19, at 2. 

Thereafter, the court found that Quinones had violated the conditions of his 

probation, revoked his probation, 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 Appeal, 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.

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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 

Quinones to file his concise statement, nunc pro tunc. On September 9, 2019, 

Quinones filed his counseled Concise Statement.
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Quinones 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 also points out that he 

expressed remorse for his failure to report during the Gagnon II hearing; 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 

[Quinones] 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, an 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 Sentencing Code, 42 Pa.C.S.A. § 9781(b).
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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 Appeal, 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 substantial question.

Quinones argues in his Rule 2119(f) Statement that “the 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 sentencing 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 consideration 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 

question, 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 record 
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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 

individual 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 

enjoys 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 sentence 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 properly 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 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.

Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (some 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, the imposition of 
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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 imprisoned; 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 record, 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, following 

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 “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.”).

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 setbacks 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 of 
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Quinones’s testimony, the trial court stated, on the record, its reasons for 

imposing a sentence of total confinement:

The 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 potential 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: 02/07/2020