J-S01007-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : STEPHEN SUMMERS, :

: Appellant : No. 97 WDA 2014 Appeal from the Judgment of Sentence entered on Oct ober 29, 2013

in the Court of Common Pleas of McKean County, Criminal Division, No. CP-42-CR-0000472-2010 BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 19, 2015 Stephen Summers (“Summers”) appeals from the judgm ent of sentence imposed following the revocation of his pr obation. 1 We affirm. In August 2011, Summers entered guilty pleas, in t wo separate cases, in the McKean County Court of Common Pleas. At cas e number 472 CR 2010 (hereinafter “No. 472”), Summers pled guilty t o possession with intent to deliver a controlled substance (“PWID”). 2 At case number 473 CR 2010 (hereinafter “No. 473”), Summers pled guilty to pos session of a controlled substance and possession of drug paraphernalia. 3 On September 22, 2011,

1 Although Summers purports to appeal from the trial court’s Order revoking his probation, the proper subject of this appeal is the judgment of sentence imposed following revocation. We have altered the caption accordingly, and observe that Summers’s appeal is timely.

2 35 P.S. § 780-113(a)(30).

3 35 P.S. § 780-113(a)(16), (32).J-S01007-15

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the trial court imposed a sentence, at No. 472, of six to twelve months in prison, followed by three years of probation. On t he same date, at No. 473, the trial court imposed an aggregate sentence of se ven to twenty-four months in prison, and ordered this sentence to run consecutively to the sentence at No. 472. Therefore, Summers received a n aggregate sentence, to be served in a state correctional institution, o f thirteen to thirty-six months, followed by three years of probation. Summers timely filed a Motion to modify sentence co ncerning both No. 472 and No. 473. The trial court granted Summers’s Motion, re-sentencing him as follows: at No. 472, to three years of proba tion; and at No. 473, to a consecutive aggregate sentence of seven to twenty-f our months, to be served in the McKean County Jail. The re-sentencin g Order further provided that Summers’s probation and parole was to be withi n the province of the Pennsylvania Board of Probation and Parole (“the PB PP”). In April 2012, Summers was released on parole from his sentence of incarceration at No. 473, and placed under the supervision of the PBPP. In its Pa.R.A.P. 1925(a) Opinion, the probation rev ocation court set forth the relevant history, which transpired therea fter, as follows:

A probation officer of the PBPP attempted a home vi sit to [Summers’s] residence [in Bradford, Pennsylvania] o n December 12, 2012, and he was unable to locate [Summers] at his registered address. [The] PBPP issued a warrant for [Summers’s] arrest. [Summers] was subsequently arrested[, in New York s tate,] on March 22, 2013, for absconding from supervision at [No.] 473 .... [Summers’s] parole was revoked, and he was committe d to theJ-S01007-15

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McKean County Jail. The Commonwealth filed a [P]et ition to revoke [Summers’s] probation at [No.] 472 .... The [ probation revocation c]ourt held a revocation hearing at whic h [Summers] admitted to absconding from supervision .... Upon co nsideration of the Commonwealth’s request to revoke [Summers’s] probation[,] and [Summers’s] admission to abscondin g from supervision, the [c]ourt revoked the probation [at No. 472] and sentenced [Summers, on October 29, 2013,] to [a ter m of] incarceration of 1 to 2 years[,] to be served conse cutive to the sentence at [No.] 473 .... [4] [Summers] filed a Motion to Modify Sentence, which the [probation revocation c]ourt de nied by Order dated December 20, 2013. Probation Revocation Court Opinion, 4/23/14, at 1-2 (footnote added). Thereafter, Summers timely filed a Notice of Appeal , and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of Errors Compl ained of on Appeal. On appeal, Summers presents the following issues fo r our review:

A. Whether the [probation revocation] court abused its discretion in imposing a state sentence of total co nfinement of not less than one [] year nor more than two [] year s[,] upon revocation of [Summers’s] probation for a technical probation violation of absconding from supervision, contrary to the limitation set forth in 42 Pa.C.S.[A.] § 9771(c) (r e:

4 Pursuant to an Order of the PBPP, at No. 473, Summ ers was recommitted to prison to serve the balance of his unexpired ter m for his technical parole violation.J-S01007-15

- 4 - “Limitation on sentence of total confinement”)? [5]

B. Whether the [probation revocation] court abused its discretion in imposing a state sentence of total co nfinement by considering [Summers’s] pre-probationary crimina l history in concluding that [Summers] was likely to commit a nother crime, in violation of 42 Pa.C.S.[A.] § 9771(d)[? 6 ] Brief for Appellant at 2 (footnotes added, internal citation to record omitted). Summers first argues that the probation revocation court abused its discretion by imposing a sentence of total confinem ent for his technical probation violation, contrary to section 9771(c). 7 Id. at 6-7. Summers challenges the discretionary aspects of his sentence. See

Commonwealth v. Cartrette , 83 A.3d 1030, 1041 (Pa. Super. 2013) ( en banc ) (stating that challenges under section 9771(c) im plicate the

5 Section 9771(c) provides as follows: The court shall not impose a sentence of total conf inement upon revocation unless it finds that: (1) the defendant has been convicted of another cri me; 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 a uthority of the court. 42 Pa.C.S.A. § 9771(c).

6 Section 9771(d) provides, in relevant part, that “ [t]here shall be no revocation or increase of conditions of sentence un der this section except after a hearing at which the court shall consider t he record of the sentencing proceeding together with evidence of the conduct of the defendant while on probation.” 42 Pa.C.S.A. § 9771(d).

7 We observe that Summers’s probation revocation sen tence at No. 472 was within the statutory limits for his underlying conv iction of PWID.J-S01007-15

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discretionary aspects of sentencing). Challenges t o the discretionary aspects of sentencing do not entitle an appellant to review as of right. Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary sentencing i ssue, [this Court conducts] a four[-]part analysis to det ermine: (1) whether appellant has filed a timely notice of appe al, see Pa.R.A.P. 902 and 903; (2) whether the issue was pr operly preserved at sentencing or in a motion to reconside r and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, [ see ] Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence a ppealed from is not appropriate under the Sentencing Code, [ see ] 42 Pa.C.S.A. § 9781(b). Moury , 992 A.2d at 170 (citation omitted). Here, Summers filed a timely Notice of Appeal. He also has included a concise statement of the reasons relied upon for al lowance of appeal in his brief, pursuant to Pa.R.A.P 2119(f). Additionally, Summers preserved his challenge concerning section 9771(c) at sentencing. Summers claims that he has raised a substantial question that his proba tion revocation sentence of total confinement is not appropriate because (1) it was imposed as a result of a mere technical violation of his probati on; and (2) there was not sufficient evidence to support this sentence under either sub-sections 9771(c)(2) or (3). See Brief for Appellant at 6-7. Specifically, Summers argues as follows:

In this case, there was no evidence of conduct of [Summers] that indicated it was likely that he woul d commit another crime if not imprisoned. In its Rule 1925( a) [Opinion], the [probation revocation] court found that [Summer s] was likely to commit another crime because of his “spot tyJ-S01007-15

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employment, criminal and residential histories....” [Probation Revocation Court Opinion, 4/23/14, at] 4. It is su ggested that these factors are insufficient to demonstrate a lik elihood to commit another crime. Additionally, a sentence of total confinement was n ot essential to vindicate the authority of the [probat ion revocation] court, especially considering that [Summers] was se rving a sentence of total confinement on his parole violati on at No. 473.... Brief for Appellant at 7 (footnotes omitted). Summers’s claim presents a substantial question. See

Commonwealth v. Sierra , 752 A.2d 910, 913 (Pa. Super. 2000) (stating that a substantial question is presented when a pro bation revocation sentence of total confinement, in excess of the ori ginal sentence, is imposed as a result of a technical violation of parole or p robation). 8 The imposition of sentence following the revocatio n of probation is vested within the sound discretion of the probation revocation court, which, absent an abuse of that discretion, will not be dis turbed on appeal. Id. On review, we determine the validity of the probation revocation proceedings

8 We observe that technical violations, including abs conding from supervision, are sufficient to trigger the revocati on of probation. See Commonwealth v. Ortega , 995 A.2d 879, 884 (Pa. Super. 2010); see also Commonwealth v. Infante , 888 A.2d 783, 791 (Pa. 2005) (stating that “the reason for revocation of probation need n ot necessarily be the commission of or conviction for subsequent criminal conduct. Rather, ... [a] probation violation is established whenever it is s hown that the conduct of the probationer indicates the probation has proven to have been an ineffective vehicle to accomplish rehabilitation an d not sufficient to deter against future antisocial conduct.” (citation omitt ed)); Commonwealth v. Carver , 923 A.2d 495, 498 (Pa. Super. 2007) (acknowledgin g that technical violations, where flagrant and indicative of an ina bility to reform, can support revocation and imprisonment).J-S01007-15

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and the authority of the probation revocation court to consider the same sentencing alternatives that it had at the time of the initial sentencing. See 42 Pa.C.S.A. § 9771(b); Commonwealth v. Gheen , 688 A.2d 1206, 1207- 08 (Pa. Super. 1997). Following revocation of prob ation, a probation revocation court need not undertake a lengthy disco urse for its reasons for imposing a sentence of total confinement, but the r ecord as a whole must reflect the probation revocation court’s considerat ion of the facts of the

crime and character of the offender. Commonwealth v. Crump , 995 A.2d 1280, 1283 (Pa. Super. 2010). Here, the probation revocation court addressed Summ ers’s sentencing challenge concerning section 9771(c) in its Rule 19 25(a) Opinion as follows: At the sentencing hearing on the revocation of [Summers’s] probation, the [probation revocation c] ourt stated the reasons for imposition of a sentence of total c onfinement. [T]he sentence of total confinement was [imposed] p ursuant to subsections (2) and (3) [of section 9771(c)]. The [c]ourt stated as follows [prior to imposing sentence]: [T]he [c]ourt has of course reviewed the record here, the Petition to Revoke Probation[,] and it[] [has] also looked back to the first sentencing. We have the transcript and[,] at th[e] time [of Summers’s first sentencing,] I noted out of the PSI, [Summers’s] cr iminal history indicates there is a prior criminal record of unauthorized use and disorderly conduct both in New York State and Pennsylvania. The [c]ourt looked at the fact that ... there’s n o good history of employment. For the past three years, [Summers] has just lived at various different addre sses in Bradford and he doesn’t even have an established life for himself at his age. He has children but I don’ t think he probably is supporting them if he doesn't have a job....J-S01007-15

- 8 - ... And it was a total state sentence at the tim e. Then [Summers’s counsel] came back and had a Motion to Reconsider[,] and at that time the [c]ourt consi dered the fact that [Summers] had a child and he must hav e given me the whole story the way he’s giving it to me now. And even though I’ve been around long enough that I usually don’t buy it; I bought it with you. I relented and changed your sentence. I amende d the sentence to make it a sentence ... to be served [ in the county jail]. And what do you do? I find that you r[a]n off for four months [and] absconded. You haven’t l ived up to what I said. You haven’t been working in ... a job to try and make money to take care of this family y ou say you’re taking care of. The whole past record that I have is still the same. Obviously[,] you were in prison so you couldn’t mak e some changes at the beginning or in jail[. Y]ou lu ckily had convinced me not to send you to [a] state [correctional institution]. But [] I see on the dr ug and alcohol report that you’re making gradual change. Well, that means that you haven’t gotten to a point yet w here you should be out on probation because you still ne ed treatment. And so with that attitude that you’ve s hown, disregard for the [c]ourt having given you a break that you ... pull the stunt like this, I think that you do need incarceration because there is likelihood that with no job and with a criminal history ..., [] you’ll commit ano ther crime.... ... A[]lso, the sentence is essential to vindica te the authority of the [c]ourt that you were able to snow one time and you’re not going to snow this [c]ourt agai n. ([N.T., 10/29/13, at] Page 9, Line 6 to Page 11, Li ne 2.) The [probation revocation c]ourt found that [Summe rs’s] conduct indicated that there was the likelihood tha t he will commit another crime if not incarcerated. The [c]o urt also explained that the sentence of total incarceration was necessary to vindicate the [c]ourt in having previously sente nced [Summers], on the underlying charges, to a lenient term upon reconsideration from a state sentence because of [S ummers’s] plea to the [c]ourt to make him available to his fa mily. TheJ-S01007-15

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[c]ourt then found that his plea was a sham. The [ c]ourt’s authority in sentencing had been manipulated by dec eitful representations of [Summers]. The authority of the [c]ourt was vindicated by its returning to a state sentence. ... The [c]ourt articulated the reasons in support of a sentence of total confinement upon revocation of [S ummers’s] probation. Moreover, the reasons giving rise to th e sentence are pursuant to the exceptions that are expressly carve d out of the general limitation against a sentence of total conf inement in Section 9771. Because the [c]ourt found that [Summ ers], with spotty employment, criminal, and residential histor ies, was likely to commit another crime if not incarcerated, and be cause [Summers] flaunted the [c]ourt’s discretion in rese ntencing him on the underlying charge, the current re-sentence o f total confinement was not an abuse of discretion. Probation Revocation Court Opinion, 4/23/14, at 2-4

. For the purpose of the instant appeal, we will focu s upon the probation revocation court’s finding that there were sufficie nt grounds under section 9771(c)(3) to warrant imposing a sentence of total confinement because same was essential to vindicate the authority of th e court. After review, we

discern no abuse of discretion in the court’s findi ng in this regard, particularly in light of the facts that Summers (1) absconded from supervision and fled to another state for several m onths; and (2) flaunted the sentencing court’s previous leniency in grantin g Summers’s Motion for reconsideration of sentence, and re-sentencing him at No. 472 to merely a probationary term. See Ortega , 995 A.2d at 884 (holding that “the [probation revocation] court could have reasonably determined that revocation and a sentence of imprisonment for a def endant who absconded at the very outset of his probationary term and rem ained delinquent forJ-S01007-15

- 10 - three years was essential to vindicate the authorit y of the court.”). Moreover, we are unpersuaded by Summers’s claim tha t the probation revocation court abused its discretion by determini ng that the sentence imposed was essential to vindicate the authority of the court, purely because, as Summers points out, “[he] was serving a sentence of total confinement on his parole violation at No. 473 [].” Brief for Appellant at 7. The instant case and No. 473 were separate cases, a nd the probation revocation court had the authority to impose a sent ence of incarceration in the instant case, in addition to the parole violati on recommitment that Summers was then serving at No. 473. Accordingly, Summers’s first issue

does not entitle him to relief. Next, Summers contends that the probation revocati on court abused its discretion, and violated section 9771(d), “in i mposing a state sentence of total confinement by considering [Summers’s] pre-pr obationary criminal history in concluding that [Summers] was likely to commit another crime,”

i.e. , under section 9771(c)(2). Brief for Appellant at 7 (capitalization omitted).

Summers did not raise this claim in his court-order ed Pa.R.A.P. 1925(b) Concise Statement. Accordingly, it is waiv ed. See

Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998) (holding that “[a]ny issues not raised in a 1925(b) statement wil l be deemed waived.”);

see also Pa.R.A.P. 1925(b)(4)(vii) (providing that “[i]ssues not included in the Statement ... are waived.”). Additionally, Summe rs waived this claim byJ-S01007-15

- 11 - failing to preserve it either at sentencing or in h is pro se post-sentence

Motion. See Commonwealth v. Gibbs , 981 A.2d 274, 282-83 (Pa. Super. 2009) (stating that “[i]ssues challenging the discr etionary aspects of a sentence must be raised in a post-sentence motion o r by presenting the claim to the trial court during the sentencing proc eedings. Absent such efforts, an objection to a discretionary aspect of a sentence is waived.”). 9 In light of the foregoing, and based upon our revie w of the record, we conclude the probation revocation court did not com mit an error of law or abuse its discretion in imposing Summers’s sentence following the revocation of his probation. Judgment of sentence affirmed.

9 Nevertheless, even if this claim was not waived, w e would determine that it does not entitle Summers to relief. Summers points out that this Court has held that “[section 9771](d) states unequivocally t hat there can be neither a ‘revocation’ nor an ‘increase of conditions of sent ence’ until a hearing occurs wherein the court ‘shall consider the record of the sentencing proceeding together with evidence of the conduct of the defendant while on probation .’ 42 Pa.C.S.[A.] § 9771(d) (emphasis added). Thi s section clearly restrains the court from considering facts occurring prior to the imposition of probation when revoking probation.” Carver , 923 A.2d at 497; see also Brief for Appellant at 8; but see Sierra , 752 A.2d at 913-14 (where the appellant challenged the probation revoc ation court’s imposition of a sentence of total confinement upon resentencin g under section 9771(c)(2), holding that the probation revocation c ourt properly considered, inter alia , the appellant’s “significant criminal record as a juvenile and as an adult[.]”). Even assuming, arguendo , that the probation revocation court in the instant case erred by considering Summers’s pre -probationary criminal conduct in imposing sentence, such error did not re sult in any prejudice to Summers because, as discussed above, the probation revocation court articulated sufficient and compelling reasons, besi des Summers’s criminal history, as to why a sentence of total confinement was necessary under section 9711(c)(3) to vindicate the authority of th e court.J-S01007-15

- 12 - Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 2/19/2015