J-S02009-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MIGUEL RODRIGUEZ,

Appellant No. 3265 EDA 2014

Appeal from the Judgment of Sentence October 30, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0015925-2010

BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 25, 2016

Appellant, Miguel Rodriguez, appeals from the judgment of sentence 

entered on October 30, 2014, following the revocation of his probation. 

We affirm.

The trial court set forth the relevant facts and procedural history of 

this matter as follows:

Appellant entered a negotiated guilty plea on December 6, 

2012, to possession with the intent to distribute controlled 

substances. See docket at CP-51-CR-0015295-2010. He was 

sentenced by this court to a term of eleven and one-half to 

twenty-three months’ incarceration, followed by a maximum of 

three years’ probation. Id. 

On March 20, 2014, this court found Appellant to be in 

violation of the terms of his probation. Id. Previously, on 

January 7, 2014, a detainer was issued because of two positive 

drug tests. See Gagnon I Hearing Summary, 01/07/2014. 

Appellant had tested positive for marijuana and PCP on 

11/05/2013 and 12/19/2013. Id. Due to Appellant’s violations 
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and continued use of illegal narcotics, this court re-sentenced 

Appellant to a new term of three years’ probation with drug 

treatment. See docket at CP-51-CR-0015295-2010.

On October 30, 2014, another violation of probation 

hearing was held before this court. Notes of Testimony (“N.T.”), 

10/30/2014, at 1. Appellant’s probation officer, Stewart 

McKendry, testified regarding Appellant’s status at that time. Id. 

at 5. Despite being on probation, Appellant repeatedly tested 

positive for illegal narcotics while in a treatment program. Id. 

There were seventy-two positive drug tests administered 

while Appellant was under supervision. Id. at 6. Appellant was 

terminated from his outpatient drug treatment program just 

prior to the hearing, and referred to a residential program. Id. 

at 5-7. After testifying to Appellant’s behavior while on 

probation, Mr. McKendry recommended incarceration with 

further drug treatment, and testified that he did not feel 

Appellant was ready for an out-of-custody drug treatment 

program. Id. at 6. Appellant was resentenced to two and onehalf to six years’ incarceration at that time. Id. at 9.

Trial Court Opinion, 5/28/15, at 2-3 (emphasis added).

On November 10, 2014,1 Appellant filed a timely motion for 

reconsideration, which the trial court denied in an order filed on 

November 20, 2014. On December 1, 2014, Appellant filed a timely notice 

____________________________________________

1

 Appellant’s motion was filed eleven days after sentencing. However, 

because the tenth day fell on a Sunday, the motion was timely filed on 

Monday, November 10, 2014. See Pa.R.Crim.P. 708(E) (stating that a 

motion to modify a sentence imposed after revocation of probation shall be 

filed within 10 days of the date of sentencing); and see 1 Pa.C.S. § 1908 

(explaining that when any period of time is referred to in a statute, such 

period shall be so computed as to exclude the first and include the last day 

of such period; however, if the last day of any such period shall fall on 

Saturday or Sunday, or on any day made a legal holiday by the laws of this 

Commonwealth or of the United States, such day shall be omitted from the 

computation).
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of appeal. Both Appellant and the trial court have complied with Pa.R.A.P. 

1925.

On appeal, Appellant raises the following issue for this Court’s 

consideration:

Did not the lower court err by imposing a manifestly excessive 

and grossly disproportionate sentence of 21⁄2 to 6 years of 

incarceration where appellant had only committed technical 

violations of his probation?

Appellant’s Brief at 3.

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

An appellant seeking to appeal the discretionary aspects of a probationrevocation sentence has no absolute right to do so but rather, must petition 

this Court for permission. Commonwealth v. Kalichak, 943 A.2d 285, 289 

(Pa. Super. 2008); 42 Pa.C.S. § 9781(b). However, before this Court may 

review the merits of a challenge to the discretionary aspects of a sentence, 

we must engage in a four-pronged analysis: 

[W]e conduct a four part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 

and 903; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify sentence, 

see Pa.R.Crim.P. [708]; (3) whether appellant’s brief has a fatal 

defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial 

question that the sentence appealed from is not appropriate 

under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing

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

also Pa.R.Crim.P. 708, cmt. (discussing proper preservation of issues 
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challenging discretionary aspects of a sentence imposed following a 

revocation hearing).

We note that Appellant has met the first three parts of the four-prong 

test: Appellant timely filed an appeal; Appellant preserved the issue in a 

post-sentence motion; and Appellant included a statement pursuant to 

Pa.R.A.P. 2119(f) in his brief. Thus, we next assess whether Appellant has 

raised a substantial question.

A determination as to whether a substantial question exists is made on 

a case-by-case basis. Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super. 

2000). This Court will grant the appeal “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 which underlie the sentencing process.” Id. at 

912-913.

In his Rule 2119(f) statement, Appellant avers that the sentence is 

manifestly excessive and grossly disproportionate to the conduct at issue as 

his probation violations were technical violations and not new criminal 

offenses. Appellant’s Brief at 7-8. We conclude that Appellant has raised a 

substantial question. See Commonwealth v. Colon, 102 A.3d 1033, 1043 

(Pa. Super. 2014) (stating that the imposition of a sentence of total 

confinement after the revocation of probation for technical violations as 
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opposed to new criminal offenses, implicates the fundamental norms 

underlying the sentencing process) (citation omitted). 

Our standard of review in cases involving challenges to the 

discretionary aspects of a sentence is well settled. We have explained that:

[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. An abuse 

of discretion is more than an error in judgment—a 

sentencing court has not abused its discretion unless 

the record discloses that the judgment exercised was 

manifestly unreasonable, or the result of partiality, 

prejudice, bias or ill-will.

Commonwealth v. Simmons, 56 A.3d 1280, 1283-84 (Pa. 

Super. 2012).

In determining whether a sentence is 

manifestly excessive, the appellate court must give 

great weight to the sentencing court’s discretion, as 

he or she is in the best position to measure factors 

such as the nature of the crime, the defendant’s 

character, and the defendant’s display of remorse, 

defiance, or indifference.

Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 

2003).

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). “Upon 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:
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(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).

Colon, 102 A.3d at 1043-1044. Finally, this Court must show a high degree 

of deference to the trial court’s sentencing determinations, because the trial 

court is in the best position to determine the proper penalty for a particular 

offense based upon an evaluation of the individual circumstances before it. 

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

Here, the trial court, in its Pa.R.A.P. 1925(a) opinion, stated as 

follows:

In the instant case, Appellant was not convicted of a new 

crime prior to his revocation hearing. However, Appellant’s 

probation officer, Stewart McKendry, testified that Appellant 

tested positive for drugs over seventy times while on probation, 

despite attending a drug treatment program. N.T., 10/30/2014, 

at 5. At a status listing two weeks prior to the hearing, 

Appellant was ordered to continue probation, with a new 

stipulation that he enter residential drug treatment. Id. 

However, Mr. McKendry testified that during this two-week 

period, Appellant refused residential treatment, and again tested 

positive for illegal narcotics. Id. Mr. McKendry also testified that 

Appellant again refused treatment when he was taken into 

custody prior to the hearing. Id. Despite Appellant’s testimony 

at his October 30, 2014 hearing that he understood he had a 

drug problem and “told the court I need help,” he has not made 

good-faith efforts to comply with treatment programs while on 

probation. Id. at 7.
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* * *

In the instant case, not only does Appellant’s continued 

use of illegal narcotics make it highly likely that he will commit 

another crime if not incarcerated, he has also fl[ou]ted the 

authority of this court with his continued disregard of the terms 

of his probation. After being found in violation of probation 

seven months prior to this latest hearing, he was given another 

opportunity to avoid incarceration with a new probationary 

period. It is clear to this court that the authority of the court is 

vindicated by this sentence, because Appellant has previously 

disregarded this court’s authority on multiple occasions by 

continuing to ignore the conditions of his probation, which 

included abstaining from illegal drug use.

Moreover, this court explained its sentencing decision at 

the hearing as follows:

THE COURT: There’s been a lot of attempts to help 

you. Mr. McKendry is one of the real probation 

officers who goes out of his way to do things. 

There’s been programs with FIR and other places.

I am somebody who strongly, strongly believes in 

treatment. But what I don’t believe in is when 

somebody is offered and reoffered, and I understand 

there’s ups and downs with drug treatment, but in 

your case I think [prison is] the only place you can 

go which will prevent your drug use and protect the 

community and help with drug treatment.

N.T. 10/30/2014, at 9.

This court gave Appellant multiple opportunities to succeed 

on probation. However, Appellant disregarded the conditions 

imposed upon him and continued to use illegal narcotics 

throughout his probation. Appellant had also previously violated 

probation and been resentenced several months prior to his 

October 30, 2014 hearing. At that time, he was given another 

opportunity to comply with probation, which he failed to do. For 

these reasons, this court found it necessary to revoke Appellant’s 

probation and resentence him to a term of two-and-one-half to 

six years’ incarceration. Therefore, Appellant’s [] claim is 

without merit.
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Trial Court Opinion, 5/28/15, at 3-5.

We agree with the trial court. Appellant committed more than seventy 

violations of his probation and refused to put forth a good faith effort and 

work toward sobriety. The sentence imposed following the revocation of 

probation was necessary to vindicate the authority of the court as it was 

axiomatic that Appellant was going to continue his pattern of illegal drug 

use. Appellant repeatedly defied the trial court’s sentences and prior 

attempts to provide rehabilitation without total confinement. Appellant’s 

violations of probation, while technical, were voluminous. Nothing about the 

sentence imposed strikes this Court as excessive or as an abuse of 

discretion; indeed, what is excessive is the number of failed drug screenings. 

Accordingly, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/25/2016