J-S32011-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. ALBERT P. PUSATERI, Appellant No. 1210 WDA 2014

Appeal from the Judgment of Sentence July 7, 2014 In the Court of Common Pleas of Butler County Criminal Division at No(s): CP-10-CR-0001338-2004

BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ. MEMORANDUM BY SHOGAN, J.: FILED AUGUST 11, 2015 Appellant, Albert P. Pusateri, appeals from the ju dgment of sentence entered on July 7, 2014, following the revocation o f his probation. We

affirm. The record reveals that on June 9, 2004, Appellant approached a seventeen-year-old female (“the victim”) on a sidew alk near his home in Butler, Pennsylvania. Affidavit of Probable Cause, 6/10/04, at 1; N.T., Sentencing, 10/18/05, at 4. Appellant requested a cigarette from the victim, but she informed him that she did not have any. N.T., Sentencing, 10/18/05, at 4. Appellant then offered the victim money to come inside his house, but she refused. Id . At this point, Appellant grabbed the victim, dragged her inside his house, barricaded the door s o that she could not escape, removed her clothing, and sexually assaulte d her. Id . at 5.J-S32011-15

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Appellant was subsequently arrested and charged wit h rape, kidnapping, unlawful restraint, aggravated indecent assault, and simple assault. Complaint, 6/23/04. On January 27, 2005, Appellant entered a guilty plea to one count of aggravated indecent ass ault. On October 18, 2005, Appellant was determined to be a sexually vio lent predator (“SVP”), and the trial court sentenced Appellant to a term o f thirty-six to ninety months of incarceration followed by thirty months o f probation. N.T., Sentencing, 10/18/05, at 14. Appellant was not paroled, and as his maximum sente nce and release date approached, he was required to provide the Pen nsylvania Board of Probation and Parole (hereinafter “the Board”) an a pproved home plan identifying where he would live during his thirty m onths on state-supervised special probation. However, as Appellant is an SVP , the home plans he suggested were not acceptable to the Board due to t hose residences being located close to schools and parks where children g ather. N.T., Revocation/Sentencing, 7/7/14, at 13. Because Appe llant violated his probation by failing to provide an approved home pl an, which was a condition of his probation, the trial court revoked Appellant’s probation and recommitted him to a term of twelve to thirty month s of incarceration, with credit for time already served. Id . at 15. Appellant filed a timely appeal, and both the trial and Appellant have complied with Pa.R.A.P. 1925.J-S32011-15

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In this appeal, Appellant raises one issue for this Court’s

consideration:

WHETHER A PROBATION VIOLATION CAN BE VESTED AGAINST A DEFENDANT FOLLOWING HIS MAXIMUM EXPIRATION OF AN INCARCERATION SENTENCE UPON THE IMMEDIATE FAILURE T O SECURE AN APPROVED RESIDENCE SUBJECT TO THE DISCRETIONARY APPROVAL PROCESS CONDUCTED BY THE PENNSYVANIA BOARD OF PROBATION AND PAROLE UNDER THE PENNSYVANIA SEXUAL OFFENDERS REGISTRATION AND NOTIFICATION ACT (SORNA) WHEN THE DEFENDNAT IS INDIGENT, DISABLED, AND WITHOUT ANY RESOURCES PROVIDED BY SORNA TO ASSIST WITH RESIDENCY? Appellant’s Brief at 6 (verbatim).

Our standard of review is as follows: In general, the imposition of sentence following th e revocation of probation is vested within the sound discretion of the trial court, which, absent an abuse of that dis cretion, will not be disturbed on appeal. Commonwealth v. Sierra , 752 A.2d 910, 913 (Pa. Super. 2000). Our standard of review is limited to determining the validity of the probation revocatio n proceedings and the authority of the sentencing court to consid er the same sentencing alternatives that it had at the time of the initial sentencing. 42 Pa.C.S.A. § 9771(b); Commonwealth v. Gheen , 688 A.2d 1206, 1207–08 ([Pa. Super.] 1997) (the s cope of review in an appeal following a sentence imposed after probation revocation is limited to the validity of the revocation proceedings and the legality of the judgment of sen tence). Once probation has been revoked, a sentence of total con finement may be imposed if any of the following conditions e xist: (1) the defendant has been convicted of another crime; or ( 2) the conduct of the defendant indicates that it is likel y that he will commit another crime if he is not imprisoned; or, ( 3) such a sentence is essential to vindicate the authority of court. 42 Pa.C.S.A. § 9771(c); Commonwealth v. Coolbaugh , 770 A.2d 788, 792 (Pa. Super. 2001).

Commonwealth v. Hoover , 909 A.2d 321, 322-323 (Pa. Super. 2006).J-S32011-15

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When assessing whether to revoke probation, the tri al court must balance the interests of society in preventing future criminal conduct by the defendant against the possi bility of rehabilitating the defendant outside of prison. In order to uphold a revocation of probation, the Commonwealth must sh ow by a preponderance of the evidence that a defendant viol ated his probation.

Commonwealth v. Simmons , 56 A.3d 1280, 1283-1284 (Pa. Super. 2012), affirmed , 91 A.3d 102 (Pa. 2014) (citation omitted). Moreo ver, an order of probation can be changed or revoked “if, a t any time before the defendant has completed the maximum period of proba tion, or before he has begun service of his probation” the defendant commi ts offenses or otherwise demonstrates that he is unworthy of probation. Hoover , 909 A.2d at 323- 324. Finally, the Pennsylvania Code provides as f ollows: [The Board] may, during the probation or parole per iod, in case of violation of the conditions of probation or paro le, detain the special probationer or parolee in a county prison a nd make a recommendation to the court, which may result in th e revocation of probation or parole and commitment to a penal or correctional institution to serve a sentence in the case of prob ation or the remainder of the sentence in the case of parole. 37 Pa. Code § 65.3. Here, Appellant argues that he:

is in the situation where he cannot surmount the Bo ard’s statutory authority to deny residences and exhauste d all of his options after submitting seven or eight of them for approval. He is indigent and disabled and is now serving a proba tion violation sentence because of his lack of residence. Appellan t was never released from incarceration following the expiratio n of his maximum jail sentence. Appellant believes such viol ation and subsequent sentence is illegal, and the Board’s act ions of immediate and continued detention of him are uncons titutional. Appellant believes that he can be effectively and s trictlyJ-S32011-15

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monitored within the community by special condition s of probation imposed by [the Board]. Appellant believe s his continued incarceration is illegal. Appellant’s Brief at 20-21. Initially, we point out that Appellant has failed t o direct this Court’s attention to any authority that would permit us to review the discretion of the Board in approving or disapproving a home plan, nor has our independent research uncovered any such authority. 1 As such, the appealable order is the judgment of sentence and it s propriety, which we

review under the standard set forth above. Hoover , 909 A.2d 322-324;

Simmons , 56 A.3d at 1283-1284. To that end, we disagree w ith Appellant’s claim of error, and we conclude that the Board had no duty to approve Appellant’s home plan, did not err in rejecting App ellant’s home plan due to their locations relative to children, and the trial court did not err revoking probation and resentencing Appellant. The residency restrictions placed on sex offenders were addressed in an opinion filed in our sister court. In Nieves v. Pennsylvania Board of

Probation and Parole , 995 A.2d 412 (Pa. Cmwlth. 2010), 2 the

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1 We note also that Appellant has failed to comply w ith the rules of appellate procedure by failing to include a statement of both the scope of review and the standard of review in violation of Pa.R.A.P. 21 11.

2 Although our Court is not bound by decisions of th e Commonwealth Court, we may elect to deem the rationale of those decisio ns as persuasive. Commonwealth v. Thomas , 814 A.2d 754, 759 (Pa. Super. 2002).J-S32011-15

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Commonwealth Court reviewed the Board’s residency r estrictions which were applied pursuant to Megan’s Law, the predecessor to the Sex Offender Registration and Notification Act (“SORNA”). Neith er 42 Pa.C.S. § 9799.10 of SORNA nor 42 Pa.C.S. § 9798 of Megan’s Law conta ins specific residency restrictions. However, the Commonwealth Court stat ed that “silence, by itself, is not sufficient to create a mandatory dut y in the Board to impose no residence restrictions on sex offenders or sexually violent predators whose

victims have been minors.” Nieves , 995 A.2d at 418. Rather, as Appellant concedes, the Board has the authority to approve th e home plan as follows: “[i]f parole is granted, the parolee shall . . . [l]ive at the residence approved by the Board at release and not change residence without the written permission of the parole supervision staff. ” Appellant’s Brief at 16 (quoting 37 Pa. Code § 63.4(2)) (emphasis added); see also 37 Pa. Code § 65.4 (concerning probationers). As noted above, each residence Appellant submitted was in close proximity to an area where children gather. Becaus e Appellant is an SVP convicted of sexually assaulting a child, it is und isputed that an approved home plan was a condition of Appellant’s probation. However, it is also undisputed that Appellant failed to provide an appr oved home plan. Therefore, Appellant was in violation of the terms of his probation. It was within the Board’s discretion to approve the home p lan as the purpose of SORNA is to protect the citizens of Pennsylvania fr om sex offenders, 42J-S32011-15

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Pa.C.S. §§ 9799.10 – 9799.11, and it is within the discretion of the trial court to determine if Appellant is worthy of probat ion. Hoover , 909 A.2d at

323-324. We discern no abuse of discretion. Accor dingly, we discern no error in the trial court’s decision to revoke Appel lant’s probation and resentence Appellant due to the aforementioned viol ation of his probation. Thus, we affirm Appellant’s judgment of sentence. 3 Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/11/2015

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3 To the extent that Appellant claims he did not rec eive the benefit of his plea agreement, we conclude that this claim is spec ious. There is nothing in Appellant’s plea agreement relieving him of his dut ies to comply with the terms of release on either probation or parole. Ap pellant received his bargained-for sentence, and his written plea agreem ent reveals that the duration of probation was left to the discretion of the trial court. Guilty Plea, 1/27/05. During his incarceration, Appellant elect ed not to participate in sex-offender therapy, which resulted in the denial of parole, and Appellant subsequently failed to provide an approved home pla n, which, as discussed above, was a violation of his probation. None of t hese factors impugns the integrity of Appellant’s plea agreement as Appellan t’s subsequent failures are distinct from his initial sentencing after the plea.