J-A31043-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KELVIN M. JACKSON, JR.,

Appellant No. 610 MDA 2015

Appeal from the Judgment of Sentence March 6, 2015

in the Court of Common Pleas of Lancaster County

Criminal Division at Nos.: CP-36-CR-0000828-2014

CP-36-CR-0002604-2013

BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JANUARY 21, 2016

Appellant, Kelvin M. Jackson, Jr., appeals from the judgment of 

sentence imposed on March 6, 2015 after revocation of his probation and 

parole. Appellant argues that an aggregate sentence of two and one-half to 

five years’ incarceration was manifestly excessive and an abuse of the 

court’s discretion. We affirm.

The trial court aptly summarized the history of this case as follows:

On Docket 2604-2013, [Appellant] was charged with two 

counts of aggravated assault and one count of possession of a 

firearm by a minor.[1] On December 17, 2013, [Appellant] pled 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S.A. §§ 2702(a)(4), 6110.1(a) respectively
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guilty to two counts of recklessly endangering another person[2] 

and the possession of a firearm by a minor charge. [Appellant] 

received a sentence of time served to [twenty-three] months[’ 

incarceration] on each of the reckless endangerment counts, to 

be run concurrent, and to a consecutive term of three years of 

probation for the possession of a firearm by a minor. On Docket 

0828-2014, [Appellant] was charged with DUI general 

impairment, intentional possession of a controlled substance by 

a person not registered, false identification to law enforcement 

officer, minor prohibited from operating with any alcohol in 

system, purchase of an alcoholic beverage by a minor, driving 

while operating privilege is suspended or revoked, and driving on 

roadways laned for traffic.[3] On June 18, 2014, [Appellant] 

pled guilty to all charges on [D]ocket 0828-2014. [Appellant] 

received a sentence of [seventy-two] hours to [six] month[s’ 

incarceration] on the DUI count, one year probation each on the 

intentional possession and false identification charges, to be 

concurrent with incarceration, and [a] fine and costs on the 

summary charges.

[Appellant] failed to report to his regularly scheduled 

probation appointments. A capias was issued on July 30, 2014. 

An amendment was issued on August 7, 2014 to include a 

violation based on [Appellant’s] new criminal charges. . . . On 

September 25, 2014, an amendment was issued to include a 

new set of criminal charges, including fleeing or attempting to 

elude police, receiving stolen property, recklessly endangering 

another person, reckless driving, traffic control signal, and 

driving on a suspended license. . . . On December 12, 2014, 

[Appellant] proceeded to the probation violation hearing before 

this court. [Appellant] stipulated that he violated his parole and 

the court found [him] in violation of his probation. Accordingly, 

the court revoked his parole. As there was a possibility of a 

state prison sentence, the court directed the adult probation and 

parole office to prepare a pre-sentence investigation [report 

(PSI)]. . . .

____________________________________________

2 See 18 Pa.C.S.A. § 2705.

3 See 75 Pa.C.S.A. § 3802(a)(1), 35 P.S. § 780-113(a)(16), 18 Pa.C.S.A. § 

4914(a), 75 Pa.C.S.A. § 3718(a), 18 Pa.C.S.A. § 6308(a), 75 Pa.C.S.A. §§ 

1543(a), 3309(1) respectively.
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(Trial Court Opinion, 5/08/2015, at 1-3) (footnotes and unnecessary 

capitalization omitted).

On March 6, 2015, with the benefit of the PSI, the court sentenced 

Appellant to an aggregate sentence of not less than two and one-half nor 

more than five years’ incarceration. (See N.T. Sentencing, 3/06/15, at 15-

16). The court denied Appellant’s timely post-sentence motion on April 1, 

2015. This timely appeal followed.4

Appellant raises one question for our review:

I. Was an aggregate sentence of two and one-half to five 

years[’] incarceration for violations of probation and parole 

manifestly excessive and an abuse of the court’s discretion?

(Appellant’s Brief, at 4).

Appellant’s issue challenges the discretionary aspects of his sentence. 

This Court has concluded that a challenge to a discretionary sentencing 

matter after revocation proceedings is within the scope of its review. 

Such a challenge to the discretionary aspects of a sentence is 

not appealable as of right. Rather, Appellant must petition for 

allowance of appeal pursuant to 42 Pa.C.S.A. § 9781. 

Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super. 

2004).

Before we reach the merits of this [issue], we 

must engage in a four part analysis to determine: 

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

____________________________________________

4

Pursuant to the trial court’s order, Appellant filed a timely concise 

statement of errors complained of on appeal on May 4, 2015. See Pa.R.A.P. 

1925(b). The court filed its opinion on May 8, 2015. See Pa.R.A.P. 

1925(a).
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Appellant preserved his issue; (3) whether 

Appellant’s brief includes a 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 appropriate 

under the sentencing code. The third and fourth of 

these requirements arise because . . . [Appellant] 

must petition this Court, in his concise statement of 

reasons, to grant consideration of his appeal on the 

grounds that there is a substantial question. Finally, 

if the appeal satisfies each of these four 

requirements, we will then proceed to decide the 

substantive merits of the case.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 

2013)[, appeal denied, 77 A.3d 1258 (Pa. 2013)] (citations 

omitted); see also Commonwealth v. Kalichak, 943 A.2d 

285, 289 (Pa. Super. 2008) (“[W]hen a court revokes probation 

and imposes a new sentence, a criminal defendant needs to 

preserve challenges to the discretionary aspects of that new 

sentence either by objecting during the revocation sentencing or 

by filing a post-sentence motion.”) [(citation omitted)].

Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014), 

appeal denied, 109 A.3d 678 (Pa. 2015).

Here, Appellant has properly preserved his issue by filing a postsentence motion for reconsideration of sentence, which the trial court 

denied, and a timely appeal. Appellant’s brief contains a Rule 2119(f) 

concise statement of reasons. (See Appellant’s Brief, at 9-10). In it, 

Appellant argues that the sentence “was manifestly excessive and an abuse 

of the court’s discretion . . . [and] that the court failed to consider his 

rehabilitative potential, as required by 42 Pa.C.S.[A.] § 9721, and focused 

exclusively on the gravity of the parole violations and their impact on the 

community.” (Id. at 9). This claim raises a substantial question. See
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Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015) (holding 

that claim sentence was unduly excessive together with claim court failed to 

consider rehabilitative needs and mitigating factors in fashioning sentence, 

presents substantial question). Accordingly, we will review Appellant’s 

question.

Our standard of review of an appeal from a sentence imposed 

following the revocation of probation is well-settled: “Revocation of a 

probation sentence is a matter committed to the sound discretion of the trial 

court and that court’s decision will not be disturbed on appeal in the absence 

of an error of law or an abuse of discretion.” Colon, supra at 1041 (citation 

omitted). Additionally, 

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).
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Id. at 1044.

Here, the record reveals that Appellant stipulated that he violated his 

probation. (See N.T. Probation Violation Hearing, 12/12/14, at 2-3). In 

addition, at the sentencing hearing, the court considered Appellant’s age, 

maturity, his education and work history, his prior criminal record, his prior 

parole violations, the PSI, the penalties authorized by the legislature, the 

character and statements of Appellant, and Appellant’s need for 

psychotherapy and drug and alcohol counseling. (See N.T. Sentencing 

Hearing, 3/06/15, at 13-15). Ultimately, the court decided that 

“[i]ncarceration is warranted because a lesser sentence would depreciate the 

seriousness of his behavior, the seriousness of his prior record, and the fact 

that he continues to commit significant criminal violations.” (Id. at 15). 

Furthermore, we note that the sentence imposed was below the maximum 

sentence that the court could have imposed at Appellant’s initial sentencing. 

See Colon, supra at 1044.

Upon review, we discern no error of law or abuse of discretion. See

Colon, supra at 1041. The record amply supports that the trial court 

considered the appropriate factors in determining that revocation and a 

sentence of incarceration was warranted. Accordingly, Appellant’s issue 

does not merit relief.
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Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/21/2016