J-S25029-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVON THOMAS CLARK 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1907 MDA 2019

Appeal from the Judgment of Sentence Entered September 19, 2019

In the Court of Common Pleas of Centre County Criminal Division at 

No(s): CP-14-CR-0000563-2017

BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

MEMORANDUM BY DUBOW, J.: FILED JULY 30, 2020

Appellant, Davon Thomas Clark, appeals from the Judgment of Sentence

(“Revocation Sentence”) of one to two years of incarceration, imposed 

September 19, 2010, after the lower court revoked Appellant’s statesupervised probation for ongoing technical violations. Appellant challenges

the discretionary aspects of this Revocation Sentence. Upon careful review, 

we affirm.

In September 2017, Appellant agreed to plead guilty to Robbery, 

Terroristic Threats, and related crimes, in exchange for an aggregate sentence 

of one to two years of incarceration, followed by one year of probation. In 
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addition, the Commonwealth agreed to nolle prosse additional charges against 

Appellant.1 Appellant did not appeal from this Judgment of Sentence.

In September 2019, the lower court (“Revocation Court”) commenced a 

hearing to determine whether Appellant had violated the terms of his 

probation. In lieu of testimony, Appellant and the Commonwealth stipulated 

to a report compiled by the Pennsylvania Board of Probation and Parole

(“BPP”). N.T. Revocation Hearing, 9/19/19, at 3-7 (stipulating to a threepage “Supervision History” report).

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This report documented that, following his release from incarceration, 

beginning as early as June 2018, Appellant repeatedly violated the terms of 

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1 Appellant pleaded guilty to Robbery – Inflicts or Threatens Immediate Bodily 

Injury, Terroristic Threats, Simple Assault, Theft from a Motor Vehicle, Theft 

by Unlawful Taking, and Criminal Trespass. 18 Pa.C.S. §§ 3701(a)(1)(iv), 

2706(a)(1), 2701(a)(3), 3934(a), 3921(a), 3503(b)(1)(i), respectively. The 

Commonwealth nolle prossed Robbery – Threatens Immediate Serious Injury 

and two counts of Harassment. 18 Pa.C.S. §§ 3701(a)(1)(ii), 2709(a)(1), 

respectively.

2 On April 1, 2020, Appellant filed an Application to Strike the Commonwealth’s 

Brief, asserting that it contained an exhibit never admitted into evidence 

before the Revocation Court. The exhibit consists of documents compiled by 

the Pennsylvania BPP relevant to Appellant case, including the “Supervision 

History” report to which Appellant stipulated. It is settled that a stipulation is 

binding on the parties and the court. See Commonwealth v. Mitchell, 902 

A.2d 430, 460 (Pa. 2006). In this case, Appellant expressly opted to forego 

actual testimony at the revocation hearing in exchange for stipulating to the 

accuracy of the Supervision History. See N.T. Revocation Hearing at 7. The 

Revocation Court considered this evidence in reaching its decision. Id. Under 

these circumstances, we deem the Supervision History part of the record. To 

the extent the Commonwealth’s exhibit includes additional information, we 

have not considered this information on appeal. For these reasons, we will 

deny Appellant’s Application.
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his probation, which required that he (1) maintain treatment for his substance 

abuse, (2) refrain from assaultive behavior, and (3) refrain from alcoholic 

beverages and non-prescribed controlled substances. See N.T. Revocation 

Hearing at 8-11 (referencing several violent incidents, positive drug tests and 

admitted narcotics use, and repeated failures to comply with “directives to get 

treatment”).

Appellant conceded these violations and acknowledged that he needed 

help with his addiction. See N.T. Revocation Hearing at 5, 7, 21-22. Through 

counsel, Appellant offered to commence drug treatment in exchange for no 

further incarceration. See id. at 13-14, 16-17. However, after considering 

Appellant’s Supervision History and the arguments of counsel, the court 

concluded that without total confinement, Appellant was likely to commit 

another crime. Id. at 22-23. The court, therefore, revoked Appellant’s 

probation and imposed an aggregate sentence of one to two years of 

incarceration in a state correctional facility.3

Appellant timely filed a Post-Sentence Motion, asking the Revocation 

Court to reconsider its sentence.4 In his Post-Sentence Motion, noting that he 

had committed only technical violations of his state probation, Appellant 

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3 The Revocation Sentence consisted of two, concurrent terms of one to two 

years of incarceration, relevant to his prior convictions for Robbery and 

Terroristic Threats. See N.T. Revocation Hearing at 23-25. Appellant was no 

longer under supervision for his other crimes at this docket. See N.T. 

Preliminary Hearing, 9/11/19, at 3.

4 The court expressly granted reconsideration. Revocation Ct. Order, 

10/17/19.
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asserted that the revocation sentence imposed by the lower court was 

excessive because Appellant was “agreeable to receiving treatment for his 

substance abuse issues” as an alternative to state incarceration. PostSentence Motion, 9/25/19, at 5 ¶ 24. Following further review, the Revocation 

Court issued an Opinion denying Appellant’s Motion.

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) 

Statement. In response, the Revocation Court referenced its October 29, 

2019 Opinion and Order.

Appellant raises the following issue on appeal:

[Whether] the [revocation] court abused[d] its discretion by 

sentencing [Appellant] to a [one- to two-year] sentence at a 

[s]tate [c]orrectional [i]nstitution with the only alleged violations 

being technical violations and when such a sentence was contrary 

to [Appellant’s] individual circumstances and rehabilitative needs 

and less excessive options than a [s]tate prison sentence were 

available[.]

Appellant’s Br. at 6.

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

A challenge to discretionary aspects of a sentence is not reviewable as a 

matter of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 

2015). Rather, an appellant challenging the sentencing court’s discretion 

must invoke this Court’s jurisdiction by (1) filing a timely notice of appeal; (2) 

properly preserving the issue at sentencing or in a post-sentence motion; (3) 

complying with Pa.R.A.P. 2119(f), which requires a separate section of the 

brief setting forth a concise statement of the reasons relied upon for allowance 
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of appeal with respect to the discretionary aspects of a sentence; and (4) 

presenting a substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b). Id.;

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).

Appellant timely appealed. Further, Appellant sufficiently preserved his 

claim in a Post-Sentence Motion asserting that his sentence was excessive. 

Within his brief, Appellant has included a statement pursuant to Rule 2119(f),

asserting that his claim raises a substantial question because the Revocation 

Court imposed a sentence of total confinement for merely technical violations 

of his probation. See Appellant’s Br. at 16-17.

Whether an appellant has raised a substantial question is determined on 

a case-by-case basis. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. 

Super. 2010). “A substantial question exists only when the appellant 

advances a colorable argument that the sentencing judge’s actions were 

either: (1) inconsistent with a specific provision of the Sentencing Code; or 

(2) contrary to the fundamental norms [that] underlie the sentencing 

process.” Id. (citation and quotation omitted).

“The imposition of a sentence of total confinement after the revocation 

of probation for a technical violation, and not a new criminal offense, 

implicates the ‘fundamental norms which underlie the sentencing process.’” 

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) (citation 

omitted); see Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 

2000) (recognizing a substantial question where imposition of revocation 
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sentence exceeded original sentence following technical violations of 

probation). Here, the Revocation Court sentenced Appellant to incarceration 

due solely to technical violations of his probation. Thus, Appellant has raised 

a substantial question, and we shall review the merits of his claim.

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Appellant’s over-arching contention is that he needs treatment in a local, 

outpatient setting, rather than incarceration in a state institution. See 

generally Appellant’s Br. at 22-38. Appellant concedes that “he had made 

some missteps, [but] he was at least putting forth [an] effort to try and reform 

and acknowledge[d] the issues that were presenting obstacles.” Id. at 24. 

Prior to imposing a state sentence, Appellant asserts that the court should 

have offered him “an opportunity to see if the structure and treatment that 

were available on the local level were sufficient to help his substance abuse 

issues[.]” Id. at 27. In depriving Appellant of this opportunity, Appellant

concludes, the court failed to consider his “individual circumstances and 

rehabilitative and treatment needs.” Id. at 38.

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5 Appellant also asserts that he has raised a substantial question because the 

Revocation Court failed to consider adequately mitigating factors specific to 

Appellant. See Appellant’s Br. at 17-19. This does not constitute a substantial 

question. See Commonwealth v. Griffin, 804 A.2d 1, 9 (Pa. Super. 2002) 

(citing Commonwealth v. Williams, 562 A.2d 1385, 1388 (Pa. Super. 1989) 

(en banc) (declining to recognize a substantial question because 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)). 

6 Appellant’s further assertion, that his situation did not demonstrate that he 

was likely to commit additional crimes, is not persuasive. See Appellant’s Br. 
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“Sentencing is a matter vested in the sound discretion of the sentencing 

judge,” and we shall not disturb a sentence absent an abuse of that discretion. 

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citation 

omitted). “An abuse of discretion is more than a mere error of judgment; 

thus, a sentencing court will not have abused its discretion unless the record 

discloses that the judgment exercised was manifestly unreasonable, or the 

result of partiality, prejudice, bias or ill-will.” Moury, 992 A.2d at 169-70 

(quoting Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007).

“[U]pon sentencing following a 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. Fish, 752 

A.2d 921, 923 (Pa. Super. 2000) (citation omitted). Nevertheless, a sentence 

of total confinement is appropriate only if: “(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. 

§ 9771(c).

The court must state on the record its reasons for imposing sentence. 

42 Pa.C.S. § 9721(b). However, “a lengthy discourse on the trial court's 

sentencing philosophy is not required.” Commonwealth v. McAfee, 849 

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at 29. Appellant stipulated that he had repeatedly engaged in assaultive 

behavior and continued to use illegal and/or prescription drugs without a 

prescription. N.T. Revocation History at 7. Although Appellant did not incur 

new charges, this conduct constitutes potentially criminal behavior.
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A.2d 270, 275 (Pa. Super. 2004) (citation omitted). “Rather, the record as a 

whole must reflect the court's reasons and its meaningful consideration of the 

facts of the crime and the character of the offender.” Commonwealth v. 

Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006) (citation omitted).

Following our review of the Revocation Court’s reasons for the sentence 

imposed, we discern no abuse of the court’s discretion in sentencing Appellant 

as it did. Of particular concern to the court was Appellant’s need for drug 

treatment. N.T. Revocation Hearing at 25 (concluding that a “state 

correctional facility will be in a better position to offer [Appellant] the 

programming and the help that he needs” and encouraging Appellant to 

participate in the programming). We note also that the court clearly 

considered progress Appellant made in achieving some stability in his day-today life. Id. (referencing Appellant’s employment history, housing, and desire 

to attend school, the court stated, “I hope you remember the things you said 

to me and remember the positive changes [you have made]”).

In denying Appellant’s Post-Sentence Motion, the Revocation Court

further explained its reasoning:

The [c]ourt finds that [Appellant’s] argument [that the court failed 

to consider his need and request for drug treatment] is 

opportunistic, as [Appellant] has repeatedly ignored instructions 

to seek drug and alcohol treatment, and has tested positive for 

drugs during his probation; however, now that [Appellant] is faced 

with imprisonment for his [probation] violations, he has a renewed 

vigor in seeking treatment. [Appellant] had the opportunity to 

comply with the terms of his probation and seek treatment, but 

chose not to do so. As a result of his actions, [Appellant] has now 

lost the opportunity to seek treatment on his own terms, and it is 
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the hope of this [c]ourt that [Appellant] will be able to receive the 

treatment he needs in an appropriate setting. 

Revocation Ct. Op. and Order, 10/29/19, at 2-3 (unpaginated) (further noting 

that Appellant would not have access to controlled substances during state 

incarceration).

The record reflects that the Revocation Court considered progress 

Appellant had made but remained concerned that his repeated refusal to take 

advantage of local treatment options available to him while on probation had 

undermined this progress and ultimately posed a risk that Appellant would 

commit additional crimes. Moreover, the court explained that the 

programming available in a state facility offered Appellant a better opportunity 

for rehabilitation and more effectively eliminated his access to controlled 

substances. 

For these reasons, we deem unpersuasive Appellant’s contention that 

the court failed to consider his individual rehabilitative needs, thus abusing its 

discretion. Further, we note that the record does not support any claim that 

Appellant’s sentence is the result of prejudice, bias, or ill-will. To the contrary, 

the record confirms that the court was most concerned with Appellant’s 

rehabilitative needs and encouraged Appellant to build upon the progress that 

he had begun to make. Under these circumstances, we discern no abuse of 

the court’s sentencing discretion.

Application to Strike denied. Judgment of Sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/30/2020