J-S78011-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TROY HOGAN,

Appellant No. 1886 WDA 2015

Appeal from the Judgment of Sentence Entered November 4, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0007977-2009

BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 02, 2016

Appellant, Troy Hogan, appeals from the judgment of sentence of 30 

to 120 months’ incarceration, imposed after the court revoked his prior 

sentence of probation for the offense of possession with intent to deliver 

(PWID). Appellant argues that the court failed to consider his rehabilitative 

needs in fashioning his sentence. After careful review, we affirm.

The trial court briefly summarized the procedural history of Appellant’s 

case, as follows:

[Appellant] originally pled guilty to one count of [PWID] 

cocaine on April 26, 2010 and he was sentenced to a term of 

imprisonment of not less than 18 months nor more than 36 

months followed by three years’ probation. The sentence was 

imposed pursuant to a negotiated plea agreement which also 

included [Appellant’s] pleading guilty in another case in this 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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[c]ourt (CC 200907633) to [PWID] 

Methylenedioxymethamphetamine (Ecstasy) for a concurrent 

period of incarceration of [9] to 18 months[,] and yet another 

case (CC 200918240) for a concurrent period of incarceration of 

[15] to [30] months for a felony charge of Escape. At the time 

of that sentencing (April 26, 2010), [Appellant] had already been 

convicted of possessing cocaine with intent to deliver it in this 

[c]ourt (CC 200400569) and had been sentenced to serve a 

state sentence of [15] to [30] months’ incarceration. In addition 

to the prior felony conviction for [PWID] cocaine ..., [Appellant] 

had been convicted of possessing heroin (CC 200709173) and 

possessing heroin and cocaine (CC 200907919).

On May 28, 2014, [Appellant] appeared before this [c]ourt 

to address allegations that he violated the terms of his 

probation. This [c]ourt revoked the original term of probation 

and imposed a new 3-year term of probation.

On November 4, 2015, [Appellant] appeared again before 

this [c]ourt to address allegations that he violated probation for 

a second time. The probation violation was based on 

[Appellant’s] plea of guilty in the Court of Common Pleas of Blair 

County to [PWID] heroin on September 26, 2014. He received a 

sentence of not less than 2 nor more than 5 years[’] 

incarceration relative to that conviction. This [c]ourt revoked 

the term of probation in this case and imposed the sentence set 

forth above to be served consecutively to the Blair County 

sentence. 

Trial Court Opinion (TCO), 1/19/16, at 1-2. 

Appellant filed a timely motion for reconsideration of his sentence, 

which the court denied. He then filed a timely notice of appeal, and also 

timely complied with the court’s order to file a Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. Herein, he presents one issue 

for our review:

I. Was the sentence of 30-120 months of incarceration 

manifestly excessive and an abuse of discretion where the court 

did not consider the sufficiency of sanctions already imposed and 

the availability of community-based resources to address 

[Appellant’s] serious rehabilitative needs?
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Appellant’s Brief at 4 (unnecessary capitalization and emphasis omitted).

We begin by noting that:

An appellant wishing to appeal the discretionary aspects of 

a probation-revocation sentence has no absolute right to do so 

but, rather, must petition this Court for permission to do so. 

Specifically, the appellant must present, as part of the appellate 

brief, a concise statement of the reasons relied upon for 

allowance of appeal. In that statement, the appellant must 

persuade us there exists a substantial question that the sentence

is inappropriate under the sentencing code. 

In general, an appellant may demonstrate the existence of 

a substantial question by advancing a colorable argument that 

the sentencing court's actions were inconsistent with a specific 

provision of the sentencing code or violated a fundamental norm 

of the sentencing process. While this general guideline holds 

true, we conduct a case-specific analysis of each appeal to 

decide whether the particular issues presented actually form a 

substantial question. Thus, we do not include or exclude any 

entire class of issues as being or not being substantial. Instead, 

we evaluate each claim based on the particulars of its own case. 

It is important to note that this Court is not persuaded by 

bald assertions or the invocation of special words in a concise 

statement of reasons. To the contrary, a concise statement must 

articulate the way in which the court's conduct violated the 

sentencing code or process. 

Commonwealth v. Kalichak, 943 A.2d 285, 289-90 (Pa. Super. 2008) 

(citations omitted).

Appellant has provided us with a concise statement of the reasons 

relied upon for allowance of appeal in accordance with Pa.R.A.P. 2119(f). In 

that statement, Appellant asserts that the trial court violated 42 Pa.C.S. § 

9721(b) by imposing a sentence without considering his rehabilitative needs. 

See Appellant’s Brief at 9-11. We conclude that Appellant has presented a 

substantial question for our review. See Commonwealth v. Riggs, 63 
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A.3d 780, 786 (Pa. Super. 2012) (finding the appellant presented a 

substantial question by arguing “that the trial court failed to consider 

relevant sentencing criteria, including the protection of the public, the 

gravity of the underlying offense and the rehabilitative needs of [the] 

[a]ppellant, as 42 Pa.C.S.A. § 9721(b) requires....”). Therefore, we now will 

assess the merits of Appellant’s sentencing claim.

When we do so, our standard of review is clear: Sentencing is 

vested in the sound discretion of the court and will not be 

disturbed absent an abuse of that discretion. Moreover, an abuse 

of discretion is not merely an error in judgment. Instead, it 

involves bias, partiality, prejudice, ill-will, or manifest 

unreasonableness. 

Kalichak, 943 A.2d at 290 (citations omitted).

Here, Appellant argues that the trial court abused its discretion in 

fashioning his sentence by failing to consider his rehabilitative needs, and 

also by not taking into account the fact that Appellant “had already served a 

substantial period of incarceration in a state correctional institution and had 

been engaged in rehabilitative programming at the prison.” Appellant’s Brief 

at 13. Essentially, Appellant stresses that “periods of incarceration [have] 

had little impact on controlling [his] continued use of controlled substances” 

and, thus, his “rehabilitative needs would best be met by continued outpatient treatment available in the community setting.” Id. 

Appellant’s argument fails to convince us that the trial court abused its 

sentencing discretion. In its Rule 1925(a) opinion, the trial court explains 

the considerations and rationale underlying Appellant’s sentence, as follows:
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This [c]ourt considered the contents of the presentence 

report. [Appellant] is forty-one years old. He has been involved 

in drug-dealing activity for well over ten years. This [c]ourt 

noted that [Appellant] was provided with ample opportunities to 

conform his conduct to the dictates of the law but he continues 

to choose not to do so. [Appellant] has had multiple prior drugdealing convictions that resulted in state prison sentences being 

imposed. Although [Appellant] claims that drug use was the 

cause of his problems and this [c]ourt believes that some sort of 

rehabilitation may be beneficial, this [c]ourt was and is 

convinced that [Appellant’s] conscious, repeated decisions to 

distribute drugs on the street require a substantial period of 

incarceration. This [c]ourt believes that any rehabilitation and 

treatment should occur while [Appellant] is incarcerated. In

sum, this [c]ourt imposed the sentence it did because of 

[Appellant’s] persistence in participating in drug trafficking 

despite having already served substantial prison sentences and 

probationary terms for the same conduct. The need to protect 

society from [Appellant’s] drug dealing and his need for 

regimented treatment in a state prison facility warranted the 

sentence imposed in this case.

TCO at 4-5.

Clearly, the trial court and Appellant both agree that his prior 

incarceration has had little impact on his rehabilitation. However, contrary 

to Appellant’s argument in favor of out-patient treatment, the court found 

that the interest in protecting the public must now outweigh Appellant’s 

rehabilitative needs. In light of Appellant’s unrelenting criminal conduct, we 

ascertain no abuse of discretion in the trial court’s decision.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/2/2016