J-A31044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL ALLEN ELY,

Appellant No. 730 MDA 2015

Appeal from the Judgment of Sentence March 26, 2015

in the Court of Common Pleas of Dauphin County

Criminal Division at No.: CP-22-CR-0000489-2012

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

MEMORANDUM BY PLATT, J.: FILED JANUARY 07, 2016

Appellant, Michael Allen Ely, appeals from the judgment of sentence 

entered on March 26, 2015, following the revocation of his probation. On 

appeal, Appellant challenges the discretionary aspects of sentence. For the 

reasons discussed below, we affirm the judgment of sentence.

We take the underlying facts and procedural history in this matter 

from the trial court’s July 9, 2015 opinion.

In 2011, Appellant . . . was arrested and charged with a 

single count each of [o]bscene [m]aterials, [u]nlawful [c]ontact 

or [c]ommunication [w]ith a [m]inor, and [c]orruption of 

[m]inors.[1] The charges stemmed from him sending sexually 

graphic text messages to the [sixteen-year-old] daughter of his 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa. C.S.A. §§ 5903(c)(1), 6318(a)(4), and 6301(a)(1), respectively. 
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then girlfriend. In resolution of these charges, on June 27, 

2013, Appellant entered into a negotiated guilty plea agreement 

which resulted in [c]ounts 1 and 2 being withdrawn and 

sentencing being deferred for purpose of a Megan’s Law 

evaluation. On September 30, 2013, he was sentenced on 

[c]ount 3 to a thirty[-]month term of probation. Appellant was 

also ordered to refrain from contact with the victim and also 

register as a sexual offender. In addition to the normal 

conditions of county probation, [the trial court] ordered that he 

undergo a sexual offender’s assessment by the Dauphin County 

Probation [Office] to determine what, if any, treatment was 

necessary.

Later, on March 25, 2015, Appellant appeared before [the 

trial court] for the purpose of a revocation of probation hearing. 

At the hearing it was established that he had been terminated 

from his sex offender treatment program which was a condition 

of his probation. Additionally, the Commonwealth represented 

to the [trial court] that on December 17, 2014, Appellant had 

been sentenced by the Hon. Todd A. Hoover to a twelve[-]month 

term of probation on several new violations of the vehicle code 

including counterfeit display documents, driving on a suspended 

license, having a suspended registration, and illegal use of a 

license plate.

At the revocation proceeding, [the trial court] heard 

testimony from the county probation officer and Appellant 

regarding the facts underlying the alleged probation violation. In 

addition to being terminated from his sexual offenders treatment 

program, he was accused of sending several text messages to 

the victim, [twenty] years old at the time of the hearing, inviting 

her to dinner and asking about the types of alcohol she likes. 

Appellant still lives with the victim’s mother and has two 

biological sons with her. The victim lives with her father 

elsewhere.

Upon consideration of the facts presented, [the trial court] 

found that he had violated the conditions of his probation and 

sentenced him to a 2.5[-]5[-]year term of incarceration at [a] 

state correctional institution. On March 2[6], 2015, Appellant 

filed a [p]ost-[s]entence [m]otion requesting a downward 

modification of his sentence which request was denied by order 

dated April 8, 2015. On April 24, 2015, Appellant filed a [n]otice 

of [a]ppeal to the Pennsylvania Superior Court. In compliance 
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with [the trial court’s] order, on May 20, 2015, Appellant filed a 

[s]tatement of [e]rrors [c]omplained of on [a]ppeal Pursuant to 

Pa.RAP. 1925(b)[. The trial court filed an opinion on July 9, 

2015. See Pa.R.A.P. 1925(a)].

(Trial Court Opinion, 7/09/15, at 1-3) (record citations and footnotes 

omitted, emphasis added).

 On appeal, Appellant raises the following question for our review:

Whether the trial court erred in denying Appellant’s [p]ost-

[s]entence [m]otion where his sentence was excessive and 

unreasonable and constitutes too severe a punishment in light of 

the alleged gravity of the offense, Appellant’s rehabilitative 

needs, and what is needed to protect the public?

(Appellant’s Brief, at 5).

On appeal, Appellant challenges the discretionary aspects of his 

sentence.2 In Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 

2013) (en banc), this Court held that “[the] scope of review in an appeal 

from a revocation sentencing includes discretionary sentencing challenges.” 

Cartrette, supra at 1034. Thus, Appellant’s claim is properly before us. 

The right to appeal the discretionary aspects of a sentence is not 

absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 

2004), appeal denied, 860 A.2d 122 (Pa. 2004). When an appellant 

challenges the discretionary aspects of the sentence imposed, he must 

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2 We note that Appellant preserved his discretionary aspects of sentence 

claim by filing a timely post-sentence motion for reconsideration of 

sentence. See McAfee, infra at 275.
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present “a substantial question as to the appropriateness of the sentence[.]” 

Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003) 

(citations omitted). An appellant must, pursuant to Pennsylvania Rule of 

Appellate Procedure 2119(f), articulate “a colorable argument that the 

sentence violates a particular provision of the [s]entencing [c]ode or is 

contrary to the fundamental norms underlying the sentencing scheme.”

Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005) 

(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If 

an appellant’s Rule 2119(f) statement meets these prerequisites, we 

determine whether a substantial question exists. See Commonwealth v. 

Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied,

759 A.2d 920 (Pa. 2000). “Our inquiry must focus on the reasons for which 

the appeal is sought, in contrast to the facts underlying the appeal, which 

are necessary only to decide the appeal on the merits.” Id. (emphases in 

original).

Here, Appellant has included a Rule 2119(f) statement in his brief. 

(See Appellant’s Brief, at 8-10). In it, Appellant argues that the sentence 

was excessive and unreasonable and constitutes too severe a punishment 

because he had a reasonable explanation for his expulsion from the sex 

offender treatment program, he attempted to pay the fines on his case, and 

he participated in programming while incarcerated. This claim raises a 
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substantial question. See Commonwealth v. Swope, 123 A.3d 333, 339-

40 (Pa. Super. 2015). 

. . . [T]he 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. . . . Once probation has been revoked, a sentence of 

total confinement may 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 court.

Commonwealth v. Edwards, 71 A.3d 323, 327 (Pa. Super. 2013), appeal 

denied, 81 A.3d 75 (Pa. 2013) (citations omitted). 

Here, as discussed above, despite being ordered not to do so, 

Appellant engaged in lengthy contact with the underage victim of the crime 

and implied that he would furnish alcohol to her. While on probation, 

Appellant was sentenced on new criminal charges in a separate action. 

Further, Appellant’s statement at the revocation hearing displayed an 

attempt to minimize and excuse his deliberate contact with the victim. (See 

N.T. Revocation Hearing, 3/25/15, at 4). Thus, Appellant has demonstrated 

his inability to conform to the requirements of probation. (See Trial Ct. Op., 

at 1-3). Lastly, Appellant’s sentence was well within the statutory limits.3 

(See id. at 4-5). Thus, the record amply supports Appellant’s sentence of 

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3 We note that the sentencing guidelines do not apply to sentences imposed 

following a revocation of probation. See Commonwealth v. Williams, 69 

A.3d 735, 741 (Pa. Super. 2013), appeal denied, 83 A.3d 415 (Pa. 2014).
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total confinement, and his claim that the sentence was unreasonable is 

frivolous. See Edwards, supra at 327. 

Further, even if this were not the case, Appellant’s argument consists 

of boiler-plate citation to case law and a single paragraph argument that 

simply summarizes the testimony at the revocation hearing and concludes 

with the statement that the trial court erred in denying his motion for 

modification. (See Appellant’s Brief, at 11-13). It is settled that “we do not 

accept bald assertions of sentencing errors. Rather, Appellant must support 

his assertions by articulating the way in which the court’s actions violated 

the sentencing code.” Commonwealth v. Malovich, 903 A.2d 1247, 1252 

(Pa. Super. 2006) (citation omitted). Appellant failed to do so. (See 

Appellant‘s Brief, at 11-13). Appellant’s issue does not merit relief. See 

Malovich, supra at 1252. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/7/2016