J-S42031-18

* Retired Senior Judge assigned to the Superior Court 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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CARLOS ANTHONY CLAIBORNE,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1546 MDA 2017

Appeal from the Judgment of Sentence August 24, 2017

in the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0000022-2014

BEFORE: BOWES, MCLAUGHLIN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 26, 2018

Carlos Anthony Claiborne (Appellant) appeals from the judgment of 

sentence entered August 24, 2017, after the trial court found that Appellant 

committed several technical violations, which resulted in the termination of 

his parole and revocation of his probation. We affirm.

By way of additional background, by criminal information 

docketed to number CP-36-CR-0000022-2014 [(docket number

22-2014), Appellant] was charged with allegedly having 

committed the offense of retail theft, graded as a misdemeanor 

of the first degree. On February 28, 2014, [Appellant] appeared 

before the Honorable Margaret C. Miller [] and entered into a 

negotiated guilty plea. Pursuant to the terms of said negotiated 

plea agreement, [Appellant] was sentenced to a period of 

incarceration of not less than three nor more than twenty-three 

months to be followed by a consecutive one[-]year period of

probation on a split sentence basis.

On March 28, 2014, a capias and bench warrant were filed 

against [Appellant] alleging that he had absconded from his 

approved residence and that his whereabouts were unknown to 

his supervising probation officer. Following [Appellant’s]
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apprehension, on June 6, 2014, [Appellant] appeared before the 

Honorable Jeffery D. Wright [] relative to a violation of his 

parole/probation. At such time, the court found [Appellant] to 

be in violation of the terms of his probation/parole and deferred 

sentencing pending completion of a pre-sentence investigation

[(PSI) report]. On September 8, 2014, [Appellant] appeared for

sentencing. At such time, the court sentenced [Appellant] to 

serve the unexpired balance of his sentence, but ordered that he 

be paroled after serving six months directly to an in-patient 

treatment facility. The consecutive probationary sentence was 

to remain in effect. On November 20, 2014, pursuant to a

written petition filed by his counsel, [Appellant] was granted 

early parole from said sentence. 

On April 28, 2016, a capias and bench warrant were filed 

against [Appellant] alleging that he failed to report to his 

scheduled probation office appointments on April 4, 2016, April 

6, 2016, and April 14, 2016; admitted to the use of cocaine and 

marijuana on January 20, 2016 during an office appointment on 

January 28, 2016; and, had tested positive for the use of 

controlled substances on February 26, 2016. On November 4, 

2016, [Appellant] appeared before the Honorable Louis J. Farina 

[] relative to said parole/probation violations. At such time, 

[Appellant] was found to be in violation; his probationary period 

was revoked; and, [Appellant] was resentenced to a period of

incarceration of not less than time served nor more than twentythree months to be followed by a three[-]year period of 

consecutive probation on a split sentence basis. As a condition 

of sentence, [Appellant] was specifically ordered to complete 

drug and alcohol and mental health evaluations and to 

successfully complete any such treatment deemed necessary.

On May 15, 2017, a capias and bench warrant were filed 

against [Appellant] alleging that he failed to report to his 

supervising probation officer as directed on April 26, 2017; 

verbally admitted to the use of cocaine on April 17, 2017; and, 

was administratively discharged from the White Deer Run

treatment facility for non-compliance with facility rules on May 

11, 2017. On June 19, 2017, [Appellant] appeared before the 

trial court relative to said parole/probation violation. [Appellant]

was found to be in violation of the terms of his probation and 

parole at the time of his violation hearing. The court ordered 

[PSI] report, and sentencing was to be scheduled upon receipt of 

such report.
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On August 24, 2017, th[e trial court] terminated [Appellant’s]

parole; revoked [Appellant’s] probation; and sentenced 

[Appellant] to serve a period of incarceration of not less than 

one year nor more than three years in the state correctional 

system. Said sentence was to be served concurrently with the 

sentence imposed on information number CP-36-CR-0004413-

2009 [(docket number 4413-2009).

1

 Appellant] was deemed 

ineligible for participation in the RRRI Program and the 

Commonwealth did not waive [Appellant’s] ineligibility therefor.

[Appellant] was also made eligible for all educational, vocational, 

drug and alcohol, mental health or other counseling programs as 

deemed necessary by the Department of Corrections. 

[Appellant] also remained obligated for all financial obligations.

Trial Court Opinion, 12/1/2017, at 2-4.

Appellant thereafter timely filed a post-sentence motion and, following 

its denial, a notice of appeal.

2

 Appellant presents the following question for 

our review: “Did the [trial c]ourt err in denying Appellant’s post-sentence 

motion requesting relief upon review of the sentence with respect to 

available mitigating factors, thus misapplying the sentencing guidelines, 

 

1 On appeal, Appellant complains of the aggregate sentence imposed at 

docket numbers 4413-2009 and 22-2014. However, as correctly noted by 

the trial court, Appellant filed a post-sentence motion, notice of appeal, and

concise statement of matters complained of on appeal only relative to docket 

number 22-2014. Trial Court Opinion, 12/1/2017, at 1-2; Post-Sentence 

Motion, 9/3/2017; Notice of Appeal, 10/5/2017; Concise Statement of 

Matters Complained of on Appeal, 10/30/2017. “We therefore lack 

jurisdiction to review the sentence imposed at docket number” 4413-2009. 

Commonwealth v. Hardy, 99 A.3d 577, 579 (Pa. Super. 2014). “Thus, we 

shall proceed by considering the merits of Appellant’s claims only to the 

extent they relate to the judgment of sentence at docket number” 22-2014. 

Id.

2 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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resulting in an abuse of discretion by imposing a sentence that was 

manifestly excessive?” Appellant’s Brief at 6. Appellant’s sole issue on 

appeal challenges the discretionary aspects of his sentence. Id. 

It is within this Court’s scope of review to consider challenges to the 

discretionary aspects of an appellant’s sentence in an appeal following a 

revocation of probation. Commonwealth v. Ferguson, 893 A.2d 735, 737 

(Pa. Super. 2006).

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.

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.

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. [U]pon 

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. However, 42 Pa.C.S.[] 

§ 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[s]:

(1) the defendant has been convicted of another 

crime; or
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(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.

In addition, in all cases where the court resentences an 

offender following revocation of probation ... the court shall 

make as a part of the record, and disclose in open court at the 

time of sentencing, a statement of the reason or reasons for the 

sentence imposed [and] [f]ailure to comply with these provisions 

shall be grounds for vacating the sentence or resentence and 

resentencing the defendant. A trial 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. Colon, 102 A.3d at 1033, 1044 (Pa. Super. 2014) 

(citations and quotation marks omitted).

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right. An appellant 

challenging the discretionary aspects of his [or her] sentence 

must invoke this Court’s jurisdiction by satisfying a four-part 

test:

We 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. 720; (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.[] § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some 

citations omitted). 
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Here, Appellant timely filed a post-sentence motion and a notice of 

appeal, and included a statement pursuant to Rule 2119(f) in his brief. We 

now turn to consider whether Appellant has presented a substantial question 

for our review.

The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 

825, 828 (Pa. Super. 2007). “A substantial question exists 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.” Griffin, 65 A.3d at 935 (citation and quotation marks 

omitted).

In his 2119(f) statement, Appellant contends the trial court

failed to properly take into consideration mitigating factors 

presented by counsel at sentencing such as the age of []

Appellant, the nature of his technical violations, as well as his 

rehabilitative needs.

In light of the gravity of the technical offenses and an 

appropriate diagnosis responsible for his conduct, the [trial 

court’s] lengthy sentence was not necessary to rehabilitate 

Appellant and was not justified by the need protect the public or 

vindicate the authority of the court. The [c]ourt misapplied the 

legislative intent in sentencing an individual by ignoring the 

factors underlying his conduct as well as not utilizing the 

rehabilitative treatment available by sentencing Appellant to 

[s]tate [p]rison, accordingly, the sentence handed down by the 

[trial court] was clearly unreasonable, unnecessary, and 

manifestly excessive.

Appellant’s Brief at 13 (citation omitted).
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At the outset, we recognize that a claim alleging the court “failed to 

properly take into consideration” the mitigating factors presented does not 

raise a substantial question. See Commonwealth v. Disalvo, 70 A.3d 900, 

903 (Pa. Super. 2013) (“[T]his Court has held on numerous occasions that a 

claim of inadequate consideration of mitigating factors does not raise a 

substantial question for our review.”) (quoting Commonwealth v. 

Downing, 990 A.2d 788, 794 (Pa. Super. 2010)); Commonwealth v. 

Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (“[W]e have held that a claim 

that a court did not weigh the factors as an appellant wishes does not raise a 

substantial question.”). 

To the extent Appellant raises a substantial question for our review by 

alleging an excessive sentence in relation to the technical violations 

committed by Appellant,3 we find his claim without merit. In its opinion to 

this Court, the trial court thorough addressed Appellant’s arguments as 

follows. 

In re-sentencing [Appellant] in the instant matter, the 

court was guided by an extensive pre-sentence investigation

[(PSI report)]. In fashioning sentence, the court gave thoughtful 

consideration to the entirety of [PSI4] report, with all its 

 

3 See Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 

2006).

4 “Where the sentencing court had the benefit of a [PSI], we can assume the 

sentencing court ‘was aware of relevant information regarding the 

defendant’s character and weighed those considerations along with 

mitigating statutory factors.’” Commonwealth v. Griffin, 65 A.3d 932, 937 

(Footnote Continued Next Page)
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attachments; the penalties authorized by the Legislature; the 

comments offered by the attorney for the Commonwealth; the 

comments offered by [Appellant] and his counsel; the letters 

from the Cove Forge treatment facility and the Lancaster County 

Prison; the recommendation and comments made by 

[Appellant’s] supervising probation officer; [Appellant’s] 

extensive rehabilitative needs; the need for the protection of the 

community; the need for there to be a deterrence; the facts and 

circumstances of the underlying offenses; and, most notably, 

[Appellant’s] troubled history under the supervision of the court. 

The court noted that [Appellant] is forty-one years of age. 

The court further considered [Appellant’s] troubled upbringing, 

inasmuch as his father suffered from alcohol abuse and was 

physically and verbally abusive in nature. The court noted that 

[Appellant] frequently relocated throughout his formative and 

adult years. [Appellant] is married, but separated, and also was 

involved in a separate committed relationship while residing in 

the City of Harrisburg. [Appellant] is the father of a fifteen year 

old son. The court considered [Appellant’s] educational 

background noting that he was expelled from Columbia High 

School after completing eleven grades of formal education, 

although he did earn his GED certification while in Juvenile Court 

commitment at an Abraxas facility. The court considered that 

[Appellant] received special education services for a learning 

disability. The court noted that there is a history of behavioral 

difficulties during [Appellant’s] academic years. The court noted 

[Appellant’s] sporadic employment history since his release from 

incarceration whereby he only worked for twenty-three days in 

2015 and four months in 2016. 

The court noted [Appellant’s] prior criminal background, 

which demonstrated an extensive criminal record involving a 

juvenile offense of burglary in Louisiana; a robbery offense in 

Maryland; numerous charges in Florida, including lodging in 

prohibited places, possession charges, trespass charges, charges 

of carrying a concealed weapon, possession of drug 

paraphernalia, and grand theft auto. In Pennsylvania, 

[Appellant] has convictions for drug paraphernalia; false 

(Footnote Continued) _______________________

(Pa. Super. 2013) (quoting Commonwealth v. Devers, 546 A.2d 12, 18 

(Pa. 1988)).
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identification to law enforcement; receiving stolen property; 

unauthorized use of a motor vehicle; theft offenses; harassment 

charges’ and numerous violations of th[e trial] court’s 

supervision. The court considered that [Appellant] has made 

little, if any, effort to change his pattern of anti-social behavior 

since turning eighteen years of age.

The court considered that [Appellant] has an extensive 

drug and alcohol history, which began when he was fourteen 

years of age. [Appellant] was drinking on a daily basis, but said 

use had diminished as an adult. [Appellant] was a heavy user of 

marijuana from fourteen to twenty-four years of age. 

[Appellant] was also heavily addicted to cocaine between the 

ages of fourteen and twenty-seven. [Appellant] used PCP four 

to five times per day from the age of twenty-seven to twentyeight. Between the ages of twenty-seven and thirty-one, 

[Appellant] used LSD. Between the age of thirty-four and forty, 

[Appellant] used fifteen packs of synthetic marijuana per week. 

While there is a prior treatment history, the court notes that 

[Appellant] only spent eleven days at White Deer Run earlier in 

2017 and was administratively discharged when he left the 

program of his own free will due to his father’s medical issues. 

The court noted it was more concerned by the fact that 

[Appellant] refused any after-care o[r] follow-up treatment. 

The court considered [Appellant’s] mental health history 

with his diagnosis and treatment at Wellness Counseling 

Associates and Pennsylvania Counseling Services for numerous 

conditions, including bipolar disorder, depression, anxiety 

disorder not otherwise specified, cannabis dependence, alcohol 

dependence, mood disorder not otherwise specified, intermittent 

explosive disorder, multiple personality disorder, and obsessive 

compulsive disorder. [Appellant] was prescribed various 

medications for these conditions and was hospitalized on at least 

three occasions relative to mental health concerns. 

For [Appellant] to suggest that the sentence imposed by 

th[e trial] court is so manifestly excessive as to constitute an 

abuse of discretion is belied by an examination of his history on 

court supervision. As noted above, [Appellant’s] first violation 

occurred one month after his release from incarceration and 

[Appellant’s] eighth violation[] since 2011 included the admitted 

use of drugs, repeated failure to report to his supervising 

probation officer as directed, and non-compliance with drug and 
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alcohol treatment. The sentence imposed in this case was not 

manifestly unreasonable, nor was it the result of partiality, 

prejudice, bias, or ill-will. It was the result of extensive 

reflection upon all considerations discussed above. 

Unfortunately, probation, parole, and community[-]based 

treatment have been ineffective vehicles to address [Appellant’s]

rehabilitative needs. 

Trial Court Opinion, 12/1/2017, at 8-10 (citations omitted). 

The record supports the foregoing. See N.T., 8/24/2017, at 10-12 

(noting before sentencing the court considered, inter alia, “penalties 

authorized by the Legislature[;]” “facts and circumstances of the underlying 

offense, the facts and circumstances of the current violations on [Appellant’s 

c]ourt supervision, and [Appellant’s] history while on the supervision of th[e 

trial court;] the PSI report; “the position of the Commonwealth, the position 

of the probation officer ... the comments made by [Appellant’s counsel and 

Appellant;]” Appellant’s rehabilitative needs, “the need for there to be a 

deterrence and vindication of th[e trial court’s] authority as we as protection 

of the entire community.”). See also Id. at 18 (finding Appellant has 

“thumbed” his nose at various opportunities provided to help him and “that 

probation and parole and community-based treatment has been an 

ineffective vehicle to address [Appellant’s] concerns or an ineffective vehicle 

to address his rehabilitative needs[,]” and concluding that based on 

Appellant’s conduct, Appellant “is likely to commit another crime if he is not 

in prison, and there simply can be no doubt that the sentence which the 

[trial court imposed was] necessary to vindicate the authority of” the court.).
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Here, we find the trial court properly considered all the factors, 

including the mitigating evidence presented, and was well within its 

discretion to determine that Appellant’s multiple violations “had 

demonstrated a continuing refusal to abide by the conditions of court 

supervision.” Trial Court Opinion, 12/1/2017, at 10. See Commonwealth 

v. Mouzon, 812 A.2d 617, 620 (Pa. 2002) (“Traditionally, the trial court is 

afforded broad discretion in sentencing criminal defendants ‘because of the 

perception that 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.’”) (quoting Commonwealth v. Ward, 812 A.2d, 

617 (Pa. 1990)).

Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/26/2018