J-S32033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MICHAEL R. NEPPACH, :

: Appellant : No. 1965 WDA 2014 Appeal from the Judgment of Sentence entered on Oct ober 28, 2013

in the Court of Common Pleas of Beaver County, Criminal Division, No(s): CP-04-CR-0002257-2010;

CP-04-CR-0002434-2012 BEFORE: SHOGAN, OLSON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED JUNE 03, 2015 Michael R. Neppach (“Neppach”) appeals from the jud gment of sentence imposed following the revocation of his pr obation/parole. We

affirm. This appeal involves three separate cases that were consolidated at the probation revocation court level: 2257-2010 (“N o. 2257”); 1667-2012 (“No. 1667”); and 2434-2012 (“No. 2434”). At No. 2 257, the Commonwealth charged Neppach, in November 2010, wit h retail theft, to which he subsequently pled guilty and received a se ntence of three years of probation. While Neppach was on probation, the Com monwealth charged him with retail theft at No. 1667, to which he pled guilty in October 2012, and was sentenced to two years of probation. In De cember 2012, the Commonwealth charged Neppach at No. 2434 with crimi nal trespass andJ-S32033-15

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possession of drug paraphernalia. Neppach pled gui lty to criminal trespass

and was sentenced to serve 61⁄2 to 23 months in the Be aver County Jail, followed by three years of probation. In January 2013, concerning Nos. 2257 and 1667, the Commonwealth filed a Petition to revoke Neppach’s probation, all eging technical violations based upon the new charges against Neppach at No. 2 434. Following Neppach’s subsequent stipulation to the probation v iolations, the court revoked his probation and sentenced him to 6 to 231⁄2 months in the Beaver County Jail, followed by one year of probation. In August 2013, after Neppach had completed his min imum 61⁄2-month sentence imposed at No. 2434, he was released on pa role, and ordered by the trial court to enter inpatient drug and alcohol treatment at the Gaudenzia Treatment Center (“Gaudenzia”). 1 However, Neppach left Gaudenzia within 24 hours, without informing the Ad ult Probation and Parole Office. Accordingly, a warrant was issued for his arrest. On August 30, 2013, the Commonwealth again filed a Petition to revoke Neppach’s probation/parole, on all three cas e numbers, based upon Neppach’s technical violation by leaving Gaudenzia. After ordering a presentence investigation report and considering th e Commonwealth’s

1 This Court has noted that “a sentencing court can, as a condition of parole, require a defendant to ‘satisfy any other condition s reasonably related to the rehabilitation of the defendant and not unduly rest rictive of his liberty or incompatible with his freedom of conscience.’” Commonwealth v. Cappellini , 690 A.2d 1220, 1226 (Pa. Super. 1997) (quoting 42 Pa.C.S.A. § 9754(c)(13)).J-S32033-15

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Petition, the probation revocation court revoked Ne ppach’s probation/parole, and imposed the following sentences: (1) at No. 166 7, time served of 237 days; (2) at No. 2257, sixteen to sixty months in a State Correctional Institution; and (3) at No. 2434, sixteen to sixty months in a State Correctional Institution, to run concurrently with the sentence at No. 2257. Notably to the instant appeal, the probation revoca tion court gave Neppach 242 days’ credit for time served concerning No. 225 7, and 308 days at No. 2434. The probation revocation court applied these periods as back-time toward the parole portion of the underlying sentenc es, and terminated parole in both cases. Neppach timely filed a post- sentence Motion, arguing that his sentences were excessive, and challenging the court’s application of credit for time served to the parole portion of his underlying sentences at Nos. 2257 and 2434. The probation revocation court denied Neppach’s

Motion. Following a procedural history that is not relevant to this appeal, Neppach timely filed a Notice of Appeal, nunc pro tunc , in November 2014. 2 Neppach timely filed a Pa.R.A.P. 1925(b) Concise St atement of Errors Complained of on Appeal, after which the probation revocation court issued an Opinion. On appeal, Neppach presents the following issues fo r our review:

2 Neppach’s appeal concerns only his sentences at No s. 2257 and 2434. Neppach’s sentence at No. 1667 is not implicated be cause it was terminated and closed after the probation revocation court imp osed a sentence of time served.J-S32033-15

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I. [Whether the probation revocation] court abused its discretion in imposing a sentence of total confinem ent following a parole/probation revocation hearing, by stating on the record that the parole was terminated, and t hat [] Neppach would receive credit for time served on a 1 6 to 60 month sentence imposed at [Nos. 2257 and 2434], but then later drafting the written sentencing [O]rder[,] wh ich directed that all credit for time served went towar d the terminated parole, with zero credit toward the conc urrent 16 to 60 month sentence at each case[?] This sentence , handled in this fashion, was excessive and unreason able in light of the amount of time already served on the u nderlying cases; the nature of the underlying cases involving criminal trespass and retail theft; and the fact that the re vocation was caused by a technical violation – namely, that [] Neppach did not return to an inpatient treatment fa cility and contacted his probation officer two days later.

II. [Whether the probation revocation] court abused its discretion in imposing a sentence of total confinem ent – which was tantamount to an aggravated[-]range sente nce, just shy of the statutory maximum – [and] which was unduly harsh, excessive and unreasonable in light o f the objectives of the Sentencing Code[,] as established in [42 Pa.C.S.A.] § 9721(b), where the sentence imposed di d not address [] Neppach’s time already served, his speci fic circumstances which caused the technical violation, the underlying charges of retail theft and criminal tre spass; and [] Neppach’s rehabilitative needs[,] when compared to the need to protect the public, and where the [probatio n revocation] court failed to state on the record ade quate reasons that would support the need to impose an aggravated[-]range sentence[?] Brief for Appellant at 6 (capitalization omitted). First, Neppach argues that the probation revocatio n court erred in its application of credit for time he had served in jai l toward Nos. 2257 andJ-S32033-15

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2434, i.e. , 242 days, and 308 days, respectively. See id. at 18-19. 3 The probation revocation court explained and addre ssed Neppach’s claim in its Pa.R.A.P. 1925(a) Opinion as follows:

[Neppach] alleges that the [probation revocation c] ourt, during [Neppach’s] sentencing hearing, stated that [] Neppach would receive credit for time served on the sixteen to sixty month sentence[s] [imposed concurrently at Nos. 225 7 and 2434], but then drafted the written [sentencing] Or der to say that this credit would be directed towards parole, which was then revoked. [ See Brief for Appellant at 19.] The [c]ourt did indee d credit that time towards parole in its written [O]r der, and that sentence, delivered on the record during the hearin g, was consistent with the written Order, as the record re veals. The transcript shows that the [c]ourt stated the follow ing with regard to [No.] 2257 ...: [Neppach’s] parole is terminated. He is to receive credit for the dates in [jail] that he has on that case, w hich is 242 days. [Neppach] is sentenced to serve not less than 16 months, nor more than 60 months in a State penia l [ sic ] or correctional institution or facility as the Bu reau of Corrections shall determine. N.T., 10/28/13, at 19. Similarly, with regard to [ No.] 2437 ..., the [c]ourt stated: [Neppach’s] parole is terminated. [Neppach] is [] given credit for the time period that he had in [jail], w hich in this case[,] my determination from the pre-sentence report[,] is 308 days. [Neppach] is sentenced to s erve not less than 16 months to 60 months in a State pen ial [ sic ] or correctional institution or facility[,] as the Bureau of Corrections shall determine, as I indicated, not less than 16 months, nor more than 60 months.

3 Though Neppach patterns his instant claim as a cha llenge to the discretionary aspects of his sentence, in reality, it is a challenge to the legality of the sentence. See Commonwealth v. Johnson , 967 A.2d 1001, 1003 (Pa. Super. 2009) (stating that a challenge to a sentencing court’s failure to award proper credit for time served prio r to sentencing implicates the legality of sentence).J-S32033-15

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Id. at 21. At no time did the [c]ourt state that the t ime would be credited to [Neppach’s] new confinement portion rather than the parole portion. Indeed, the [c]ourt’s statemen t that [Neppach] would receive credit immediately after the [c]ourt had stated that parole was terminated, and before imposing its sixteen to sixty month sentence on the probation vi olation, is a clear indication that the credit would be applied t o the parole portion. Thus, the [c]ourt’s statements in imposin g sentence during the hearing were in no way inconsistent with its later written Orders. Probation Revocation Court Opinion, 1/9/05, at 11-1 2 (emphasis in original, citation to Neppach’s brief added). Our review dis closes that the court’s foregoing analysis is supported by the record. The probation revocation court gave Neppach back-time credit toward the paro le portion of his underlying sentences at Nos. 2257 and 2434; grantin g him additional credit would amount to an inappropriate double credit for Neppach. See Jackson v. Vaughn , 777 A.2d 436, 438 (Pa. 2001) (holding that the ap pellant was

not entitled to double credit for time served where “that time ha[d] already been credited towards his parole violation sentence .”). Accordingly, we discern no error by the probation revocation court in its application of credit for time served toward Nos. 2257 and 2434, and Nepp ach’s contention to the contrary lacks merit. Next, Neppach argues that the probation revocation court abused its discretion by imposing a sentence of total confinem ent for his technical probation violation in leaving Gaudenzia. See Brief for Appellant at 10, 22- 24. Neppach contends that the aggregate sentence a t Nos. 2257 and 2434 of sixteen to sixty months in prison is unduly hars h, excessive andJ-S32033-15

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manifestly unreasonable, particularly in light of t he fact that his underlying

convictions were for retail theft and criminal tres pass. See id. Neppach further asserts that this sentence is contrary to s ection 9771(c) of the Sentencing Code, 4 in that “Neppach did not commit a new crime; the [probation revocation] court did not determine that he was likely to commit another crime; nor did the court indicate that tota l confinement was necessary to vindicate the authority of the court.” Id. at 23. Neppach challenges the discretionary aspects of his sentence. Challenges to the discretionary aspects of sentenci ng do not entitle an appellant to review as of right. Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010). Rather, prior to reaching t he merits of a discretionary sentencing issue, [this Court conducts] a four part analysis to deter mine: (1) whether appellant has filed a timely notice of appe al, see Pa.R.A.P. 902 and 903; (2) whether the issue was pr operly preserved at sentencing or in a motion to reconside r and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, [ see ] Pa.R.A.P. 2119(f); and (4) whether

4 Section 9771(c) provides as follows: The court shall not impose a sentence of total conf inement upon revocation unless it finds that: (1) the defendant has been convicted of another cri me; 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 a uthority of the court. 42 Pa.C.S.A. § 9771(c).J-S32033-15

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there is a substantial question that the sentence a ppealed from is not appropriate under the Sentencing Code, [ see ] 42 Pa.C.S.A. § 9781(b). Moury , 992 A.2d at 170 (citation omitted). Here, Neppach filed a timely Notice of Appeal and p reserved the challenge to his sentence in a timely post-sentence Motion. He also has

included a concise statement of the reasons relied upon for allowance of appeal in his brief, pursuant to Pa.R.A.P 2119(f). Additionally, we determine that Neppach’s claim presents a substantial questio n. See Commonwealth

v. Sierra , 752 A.2d 910, 913 (Pa. Super. 2000) (stating that a substantial question is presented when a probation revocation s entence of total confinement, in excess of the original sentence, is imposed as a result of a technical violation of parole or probation); 5 see also Commonwealth v. Ferguson , 893 A.2d 735, 737 (Pa. Super. 2006) (stating that the appellant presented a substantial question by asserting that the sentencing court did not comply with section 9771(c) of the Sentencing C ode when imposing its revocation sentence). The imposition of sentence following the revocation of probation is vested within the sound discretion of the probation revocation court, which,

5 We observe that technical violations can be suffici ent to trigger the revocation of probation. See Commonwealth v. Infante , 888 A.2d 783, 791 (Pa. 2005) (stating that “the reason for revoca tion of probation need not necessarily be the commission of or conviction for subsequent criminal conduct. Rather, ... [a] probation violation is esta blished whenever it is shown that the conduct of the probationer indicates the probation has proven to have been an ineffective vehicle to accom plish rehabilitation and not sufficient to deter against future antisocial c onduct.” (citation omitted)).J-S32033-15

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absent an abuse of that discretion, will not be dis turbed on appeal. Sierra , 752 A.2d at 913. Upon review, we determine the val idity of the probation revocation proceedings and the authority of the sen tencing court to consider the same sentencing alternatives that it had at the time of the initial sentencing. 42 Pa.C.S.A. § 9771(b); Commonwealth v. Gheen , 688 A.2d 1206, 1207-08 (Pa. Super. 1997). When imposing a s entence of total confinement after a probation revocation, the sente ncing court must consider the factors set forth in sections 9771(c) and 9721(b) of the Sentencing Code. Ferguson , 893 A.2d at 739; see also 42 Pa.C.S.A. § 9721(b) (providing that when determining an appro priate sentence, the court must consider the protection of the public, t he gravity of the offense in relation to the impact on the victim and the commun ity, and the rehabilitative needs of the defendant). Following revocation of probation, a sentencing court need not undertake a lengthy disco urse for its reasons for imposing a sentence of total confinement, but the r ecord as a whole must reflect the sentencing court’s consideration of the facts of the crime and

character of the offender. Commonwealth v. Crump , 995 A.2d 1280, 1283 (Pa. Super. 2010). Here, the probation revocation court addressed Nepp ach’s challenge to his sentence in the court’s Rule 1925(a) Opinion as follows:

During [the] probation violation hearing, the [prob ation revocation c]ourt considered the presentence invest igationJ-S32033-15

- 10 - report [6] and heard testimony from Institutional Parole Representative/Jail Population Control Officer for Beaver County[,] Bradley A. Herr [“Herr”]. The presentenc e report showed that [Neppach] has an extensive criminal his tory[,] including fifteen convictions. [Neppach previously ] had been placed on ARD, probation, intermediate punishment, [County] incarceration, State incarceration, and parole. [N eppach] had been arrested and convicted six times from 2009 to 2013, and failed to complete supervision on any of these conv ictions. When placed on probation in Butler County in 2010, [Neppach] received new charges only eleven days later in Beav er County. Finally, when sent for inpatient care at [] Gaudenz ia ... in the present cases, [Neppach] left the facility [with]in less than twenty-four hours, without notice or authorization. When he finally contacted [] Herr and left a voice message three days after leaving [Gaudenzia], [Neppach] did not inform [Herr of] his location or contact information. Thus, all attempt s to divert [Neppach] away from his past criminal behavior have been unsuccessful. As [] Herr advised, “We’ve pretty mu ch done what we can do on this on a county level as far as I’m c oncerned.” In considering these facts, the [probation revocati on c]ourt[,] although not required to do so, consulted the sentencing guidelines. [7] Based on the evidence, [Neppach] has simply not been responsive to any of the alternativ e forms of treatment he has been offered. The public would no t be adequately protected by a lesser sentence. 42 Pa.C .S.A. § 9721(b). [Neppach] has shown, over a long crimin al history with numerous convictions, that he is unwilling to complete any form of supervised release or inpatient treatment a s directed. Further, the gravity of [Neppach’s] offenses is sub stantial, and includes two third-degree felonies. Id. Finally, as shown by his willful refusal to accept his court-ordered inpatie nt treatment at [] Gaudenzia ..., [Neppach’s] rehabilitative needs we re simply

6 “[W]here the trial court is informed by a pre-sent ence report, it is presumed that the court is aware of all appropriate sentencing factors and considerations[.]” Commonwealth v. Ventura , 975 A.2d 1128, 1135 (Pa. Super. 2009).

7 See Commonwealth v. Pasture , 107 A.3d 21, 27 (Pa. 2014) (observing that the sentencing guidelines do not apply to sent ences imposed as result of revocation of probation). However, the sentence s that the probation revocation court imposed at Nos. 2257 and 2434 were within the standard range of the sentencing guidelines. See N.T., 10/28/13, at 6.J-S32033-15

- 11 - not being met by the previous sentence. Id. Therefore, in the judgment of the [probation revocation c]ourt, a sig nificant period of confinement was indicated and the sentences impo sed were both reasonable and appropriate under the facts and circumstances of this case. [FN]

[FN] The [c]ourt also notes that, despite the many fact ors weighing in favor of an extended period of confinem ent in both cases, the [c]ourt did not run [Neppach’s sepa rate] sixteen to sixty month sentences in [Nos.] 2257 [] and 2434 [] consecutively, but rather ran them concurre ntly. Probation Revocation Court Opinion, 1/9/05, at 12-1 3 (citation to record and some capitalization omitted; footnote in original; additional footnotes added). After review, we agree with the probation revocatio n court’s foregoing rationale, and conclude that the court did not abus e its discretion by imposing Neppach’s sentence of total confinement, w hich we find is neither excessive nor contrary to the Sentencing Code. See Sierra , 752 A.2d at 915 (holding that the sentencing court’s imposition of a prison sentence following a probation violation was not an abuse of discretion, since the sentence was based upon the judge’s in-depth knowle dge of the individual, a finding that parole and probation were not effectiv e in rehabilitating the defendant, and that a further prison term was appro priate); see also

Commonwealth v. Carver , 923 A.2d 495, 498 (Pa. Super. 2007) (stating that technical probation violations, where flagrant and indicative of an inability to reform, can support revocation and imp risonment); Cappellini , 690 A.2d at 1226-27, 1228 (holding that the probati on revocation court properly exercised its discretion in revoking the d efendant’s probation andJ-S32033-15

- 12 - imposing a sentence of total confinement where he v iolated conditions of his probation to participate in drug and alcohol treatm ent and testing, and refrain from contact with drug offenders, which evi denced his inability to reform). In light of the foregoing, and based upon our revie w of the record, we conclude that the probation revocation court did no t commit an error of law or abuse its discretion in imposing Neppach’s sente nce, or in giving him

credit for time served. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 6/3/2015