J-S92007-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TIMOTHY ARTHUR NICHOLS,

Appellant No. 19 WDA 2016

Appeal from the Judgment of Sentence December 1, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0011203-2008

BEFORE: SHOGAN, MOULTON, and STRASSBURGER,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED JANUARY 20, 2017

Appellant, Timothy Arthur Nichols, appeals from the judgment of 

sentence entered following the revocation of his probation. We affirm.

The trial court set forth the procedural history of this case as follows:

On July 7, 2008, Appellant, Timothy Nichols, was charged 

with Conspiracy/Forgery, Theft by Unlawful Taking and Receiving 

Stolen Property. On July[] 21, 2009, Appellant entered a 

negotiated guilty plea before this Court and was sentenced to 

11.5 to 23 months incarceration and three years [of] consecutive 

probation. This Court resentenced him to three years [of] 

probation on October 9, 2012 after finding he had violated 

probation. On January 13, 2015, Appellant again violated 

probation and this Court reimposed its sentence of three years 

[of] probation. On December 1, 2015, this Court found 

Appellant to have violated probation and resentenced him to four 

to eight years [of] incarceration. Appellant’s Post Sentence 

Motion was denied on December 10, 2015.

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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Trial Court Opinion, 5/18/16, at 2. This appeal followed. Both Appellant and 

the trial court complied with Pa.R.A.P. 1925.

Appellant presents the following issue for our review:

I. WAS THE SENTENCE OF 4 TO 8 YEARS OF INCARCERATION 

MANIFESTLY EXCESSIVE AND AN ABUSE OF DISCRETION 

WHERE THE TRIAL COURT DID NOT CONSIDER THE 

SUFFICIENCY OF SANCTIONS ALRERADY [sic] IMPOSED AND 

THE AVAILABILITY OF COMMUNITY-BASED RESOURCES TO 

ADDRESS MR. NICHOLS’ SERIOUS REHABILITATIVE NEEDS?

Appellant’s Brief at 4.

Appellant’s sole issue challenges the discretionary aspects of his 

sentence. Appellant’s Brief at 13-14. Specifically, Appellant contends that 

the trial court failed to properly consider Appellant’s rehabilitative needs 

when it imposed a sentence of incarceration.

As this Court clarified in Commonwealth v. Cartrette, 83 A.3d 1030 

(Pa. Super. 2013) (en banc), our scope of review following the revocation of 

probation is not limited solely to determining the validity of the probation 

revocation proceedings and the authority of the sentencing court to consider 

the same sentencing alternatives that it had at the time of the initial 

sentencing. Rather, it also includes challenges to the discretionary aspects 

of the sentence imposed. Specifically, we unequivocally held that “this 

Court’s scope of review in an appeal from a revocation sentencing includes 

discretionary sentencing challenges.” Cartrette, 83 A.3d at 1034. Further, 

as we have long held, the imposition of sentence following the revocation of 

probation is vested within the sound discretion of the trial court, which, 
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absent an abuse of that discretion, will not be disturbed on appeal. 

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).

It is well settled that there is no absolute right to appeal the 

discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d 

800, 805 (Pa. Super. 2006). Rather, where an appellant challenges the 

discretionary aspects of a sentence, the appeal should be considered a 

petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 

155, 163 (Pa. Super. 2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. 

Super. 2010):

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test:

[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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)). The determination of whether there is a substantial question is 

made on a case-by-case basis, and 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 
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Sentencing Code; or (2) contrary to the fundamental norms which underlie 

the sentencing process. Sierra, 752 A.2d at 912-913.

Herein, the first three requirements of the four-part test are met, 

those being that Appellant brought an appropriate appeal, raised the 

challenge in a post-sentence motion, and included in his appellate brief the 

necessary separate concise statement of the reasons relied upon for 

allowance of appeal pursuant to Pa.R.A.P. 2119(f). Therefore, we next 

determine whether Appellant raises a substantial question requiring us to 

review the discretionary aspects of the sentence imposed by the trial court.

Appellant argues in his Pa.R.A.P. 2119(f) statement that the trial court 

abused its discretion by imposing a sentence following the revocation of 

probation that was unduly excessive and by failing to consider his 

rehabilitative needs. Appellant’s Brief at 10-12. Essentially, Appellant 

asserts that the sentencing court failed to properly consider factors set forth 

under 42 Pa.C.S. § 9721(b).1 Thus, we conclude that in this instance, 

Appellant has raised a substantial question. See Commonwealth v. Fullin, 

892 A.2d 843, 847 (Pa. Super. 2006) (concluding that the appellant raised a 

substantial question where it was alleged that the trial court failed to 

consider the factors set forth in 42 Pa.C.S. § 9721(b)). Nevertheless, we 

____________________________________________

1

 The factors to be considered under 42 Pa.C.S. § 9721(b) include the 

protection of the public and rehabilitative needs of the defendant. 

Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006).
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conclude that Appellant is entitled to no relief on his claim, as the record 

reveals that the court properly considered Appellant’s rehabilitative needs in 

fashioning the sentence.

Again, we are mindful of our standard of review, which is as follows:

The 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.

Sierra, 752 A.2d at 913 (citations and quotation marks omitted).

With regard to our review of a sentence imposed following the 

revocation of probation, we observe that, “[p]ursuant to 42 Pa.C.S. 

§ 9771(b), when a defendant is found in violation of his probation, upon 

revocation the sentencing alternatives available to the court shall be the 

same as were available at the time of initial sentencing, due consideration 

being given to the time spent serving the order of probation.” 

Commonwealth v. Crump, 995 A.2d 1280, 1284 (Pa. Super. 2010). When 

imposing a sentence of total confinement after a probation revocation, the 

sentencing court is to consider the factors set forth in 42 Pa.C.S. § 9771(c) 

and 42 Pa.C.S. § 9721(b). Commonwealth v. Ferguson, 893 A.2d 735 

(Pa. Super. 2006). Pursuant to Section 9771(c), a court may sentence a 

defendant to total confinement after a revocation of probation if one of the 

following conditions exists:
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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. § 9771(c); Commonwealth v. Coolbaugh, 770 A.2d 788 (Pa. 

Super. 2001).

A sentencing court need not undertake a lengthy discourse for its 

reasons for imposing a sentence or specifically reference the statute in 

question, but the record as a whole must reflect the sentencing court’s 

consideration of the facts of the crime and character of the offender. 

Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006). 

See also Commonwealth v. Fish, 752 A.2d 921, 924 (Pa. Super. 2000) 

(reiterating that although a court is required to explain its reasons for 

imposing sentence, it need not specifically cite or include the language of the 

sentencing code; it must only demonstrate that the court had considered the 

factors specified in the code.).

Appellant argues that the sentence of incarceration that he was 

ordered to serve, which is within the statutory maximum, was not 

appropriate under the Sentencing Code. In effect, Appellant contends that 

the sentence failed to provide for the treatment needed to address 

Appellant’s substance abuse issues.
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Our review of the record reflects that at the time of sentencing, the 

court indicated that it had an updated presentence report that had been 

completed on November 30, 2015, the day before Appellant’s probation 

violation hearing and sentencing. N.T., 12/1/15, at 2. The presentence 

report had been reviewed by Appellant and defense counsel, and no 

additions or corrections were requested or necessary. Id. Also, our review 

of the record reflects that the court summarized the pertinent history as 

follows:

The primary issues here are that [Appellant] claims that he 

wants help for his addiction, and yet he doesn’t comply with the 

JRS[2] plan to get the help he needs.

He was released from the county jail on February 26th, 

2015, to reside at CORE,[3]through JRS, for a maximum of six 

months.

He was behaviorally discharged three days later for 

allegedly assaulting another inmate. He then began testing 

positive for heroin, cocaine, marijuana, benzodiazepine, and we 

detained him after that.

Id. at 2-3.

The court also heard from Appellant’s counsel, who offered mitigating 

arguments on Appellant’s behalf, discussed Appellant’s need for additional 

treatment, and suggested that an appropriate option was to incarcerate 

Appellant in the county jail. N.T., 12/1/15, at 3-5. The record further 

____________________________________________

2

 “JRS” refers to Justice Related Services.

3

 “CORE” refers to Capitalizing on Recovery Environment.
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reflects that the court heard Appellant’s explanation for failure to comply 

with, and complete, various rehabilitative programs and his request for 

leniency. Id. at 5-6.

In addition, prior to revoking Appellant’s probation and imposing a 

sentence of incarceration, the trial court made the following comments 

regarding Appellant’s attempts at rehabilitation:

You failed Mental Health Court. You failed Renewal. You 

failed prior JRS plans and refused prior JRS plans. And I told 

you back then, if you failed after completing Re-entry, that you 

wouldn’t get any more chances, and then I did give you another 

chance. And at this point in time, I just -- You know, actions 

speak louder than words. You know, you have had zero 

tolerance with me a couple of times. So I can’t see any other 

option than to sentence you to a period of state incarceration, 

and hope that incarceration at the state level will provide you 

with other options. That’s all I got left.

N.T., 12/1/15, at 6-7.

In explaining the reasons for the sentence imposed, the trial court 

offered the following discussion:

This Court, at Appellant’s third probation violation hearing on 

December 1, 2015, noted that Appellant had failed out of Mental 

Health Court. (VT 7) He failed at Renewal. Id. He failed prior 

JRS plans and refused other JRS plans. Id. Lastly, he failed his 

reentry plane [sic] at CORE by assaulting another resident. Id. 

In all, Appellant failed approximately eight programs3 designed 

to assist him in his rehabilitation. As Appellant is either unwilling 

or unable to address his need for rehabilitation and treatment, 

and his ongoing behavior demonstrates the community’s need to 

be protected from him, this Court determined that incarceration 

was necessary both because his conduct indicated that it is likely 

that he will commit another crime if he is not imprisoned and to 

vindicate the authority of the Court. The sentence imposed 

reflects this Court’s determination that the community’s need to 

be protected from Appellant and that his treatment needs cannot 
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be met within the county or with short-term programs. Thus, 

this Court did not err in imposing four to eight years [of] 

incarceration.

3 For a fuller exposition on Appellant’s extensive 

treatment history, his failures at various treatment 

programs, and this Court’s stern warnings regarding 

future consequences of Appellant’s aberrant 

behavior, this Court would refer to the transcripts of 

prior probation violation hearings. A detailed 

accounting of Appellant’s multiple failed attempts at 

rehabilitation is contained in the 11/30/15 PreSentence Report.

Trial Court Opinion, 5/18/16, at 5-6 (certain footnotes omitted).

Upon review, we discern no abuse of discretion. The court carefully 

considered the appropriate factors, including Appellant’s history and need for 

rehabilitation and treatment, when it imposed the prison sentence following 

revocation. Accordingly, Appellant is entitled to no relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/20/2017