J-S37008-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

WAYNE ELLIS DEMIKO

Appellant No. 3385 EDA 2014

Appeal from the Judgment of Sentence October 29, 2014

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0002638-2010

BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 28, 2015

Appellant, Wayne Ellis Demiko, appeals from the judgment of sentence 

entered in the Delaware County Court of Common Pleas, following 

revocation of his probation. We affirm. 

The relevant facts and procedural history of this case are as follows. 

On October 18, 2011, Appellant pled nolo contendere to aggravated assault 

after he slashed a prison guard with a razor blade. The court sentenced 

Appellant to two (2) to four (4) years’ imprisonment, followed by three (3) 

years’ probation. On April 16, 2014, Appellant assaulted an individual in a 

mental health facility. Appellant pled guilty to simple assault on September 

25, 2014, and the court sentenced him to six (6) to twelve (12) months’ 

imprisonment. 
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On October 29, 2014, the court conducted a Gagnon II1 hearing and 

revoked Appellant’s probation on the 2011 aggravated assault conviction. 

The court immediately resentenced Appellant to two (2) to six (6) years’ 

imprisonment, consecutive to his 2014 simple assault sentence. On 

November 6, 2014, Appellant timely filed a motion to reconsider his 

revocation sentence, which the court denied on November 10, 2014. 

Appellant timely filed a notice of appeal on November 25, 2014. The court 

ordered Appellant on December 1, 2014, to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely 

complied on December 15, 2014. 

Appellant raises the following issue for our review:

WHETHER THE SENTENCE OF TWO TO SIX YEARS 

IMPRISONMENT IMPOSED AT THE GAGNON II HEARING 

HELD IN THIS MATTER ON OCTOBER 29, 2014 WAS 

HARSH AND EXCESSIVE UNDER THE CIRCUMSTANCES 

WHERE THE COURT RELIED ON AN IMPERMISSIBLE 

FACTOR THAT AMOUNTED TO THE COURT SENDING A 

MESSAGE TO A THIRD PARTY UNRELATED TO 

[APPELLANT]. 

(Appellant’s Brief at 7). 

Appellant argues his revocation sentence of two (2) to six (6) years’ of 

state time is harsh and excessive because the court relied on an 

impermissible factor in resentencing Appellant. Specifically, Appellant 

____________________________________________

1 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 

(1973). 
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contends the court used Appellant’s circumstances as an opportunity to 

address a personal issue the court had with a supervisor of the Pennsylvania 

Board of Probation and Parole (“Board”). Appellant alleges the court used 

his revocation sentence to send a message to a Board supervisor on how the 

court felt about the Board’s recommended sentence of six (6) to twelve (12) 

months’ county imprisonment. Appellant maintains the court’s actions were 

outside the norms of sentencing, and that the court dismissed the agent’s 

reasoning because of personal bias against the state, unrelated to 

Appellant’s conduct on probation. Appellant concludes this Court should 

vacate his revocation sentence and remand for resentencing. As presented, 

Appellant challenges the discretionary aspects of his revocation sentence. 

See Commonwealth v. Anderson, 830 A.2d 1013 (Pa.Super. 2003) 

(stating claim that court considered improper factors at sentencing refers to 

discretionary aspects of sentencing). 

When reviewing the outcome of a revocation proceeding, this Court is 

limited to determining the validity of the proceeding and the legality of the 

judgment of sentence imposed. Commonwealth v. Heilman, 876 A.2d 

1021 (Pa.Super. 2005). Notwithstanding the stated scope of review 

suggesting only the legality of a sentence is reviewable, an appellant may 

also challenge the discretionary aspects of a sentence imposed following 

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

See also Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) 
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(en banc) (discussing that scope of review following revocation proceedings 

includes discretionary sentencing claims). 

Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to an appeal as of right. Sierra, supra. Prior to reaching the 

merits of a discretionary sentencing issue:

[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. 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.A. § 9781(b). 

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

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). 

When appealing the discretionary aspects of a sentence, an appellant 

must invoke the appellate court’s jurisdiction by including in his brief a 

separate concise statement demonstrating a substantial question as to the 

appropriateness of the sentence under the Sentencing Code. 

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 

2119(f). The concise statement must indicate “where the sentence falls in 

relation to the sentencing guidelines and what particular provision of the 

code it violates.” Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.Super. 

2004) (quoting Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super. 

2000), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000)). “The 
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requirement that an appellant separately set forth the reasons relied upon 

for allowance of appeal ‘furthers the purpose evident in the Sentencing Code 

as a whole of limiting any challenges to the trial court’s evaluation of the 

multitude of factors impinging on the sentencing decision to exceptional 

cases.’” Commonwealth v. Williams, 562 A.2d 1385, 1387 (Pa.Super. 

1989) (en banc). 

[O]nly where the appellant’s Rule 2119(f) statement 

sufficiently articulates the manner in which the sentence 

violates either a specific provision of the sentencing 

scheme set forth in the Sentencing Code or a particular 

fundamental norm underlying the sentencing process, will 

such a statement be deemed adequate to raise a 

substantial question so as to permit a grant of allowance of 

appeal of the discretionary aspects of the sentence. See

[Commonwealth v. Koehler, 558 Pa. 334, 370, 737 A.2d 

225, 244 (1999)] (party must articulate why sentence 

raises doubts that sentence was improper under the 

Sentencing Code). 

Mouzon, supra at 435, 812 A.2d at 627. 

The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis. Anderson, supra. 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.” Sierra, supra at 912-13. An 

appellant raises a substantial question where he alleges an excessive 

sentence due to the court’s reliance on impermissible factors. 

Commonwealth v. McNabb, 819 A.2d 54 (Pa.Super. 2003). 
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“In general, 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.” 

Commonwealth v. Hoover, 909 A.2d 321, 322 (Pa.Super. 2006). A 

sentence should not be disturbed where it is evident the court was aware of 

the appropriate sentencing considerations and weighed them in a meaningful 

fashion. Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.Super. 2000). 

The Sentencing Guidelines do not apply to sentences imposed 

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

735, 739 (Pa.Super. 2006), appeal denied, 588 Pa. 788, 906 A.2d 1196 

(2006). “[U]pon sentencing following a 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. 

Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001). A court can sentence a 

defendant to total confinement after revoking probation if the defendant was 

convicted of another crime, the defendant’s conduct indicates it is likely that 

he will commit another crime if he is not imprisoned, or such a sentence is 

essential to vindicate the court’s authority. Commonwealth v. Crump, 

995 A.2d 1280 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475 

(2010). 

Instantly, Appellant properly preserved his discretionary aspects of 

sentencing claim. See Evans, supra. Moreover, Appellant’s claim raises a 
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substantial question. See McNabb, supra. Nevertheless, the court 

concluded:

This [c]ourt imposed the sentence because [Appellant] is a 

violent recidivist who has serious mental illness and cannot 

be effectively supervised by the County of Delaware. He 

has a criminal record with arrests for Retail Theft, Criminal 

Trespass, Resisting Arrest, Theft, Criminal Mischief, 

Reckless Endangerment, Disorderly Conduct, Simple 

Assault, [and] Attempt to Commit Aggravated Assault. 

While in prison, he incurred a new criminal charge of 

aggravated harassment and had 39 misconducts. He 

committed a new violent offense within a few weeks of his 

release. 

Although the State Probation Officer who appeared at the 

Gagnon II hearing recommended that [Appellant] be 

given a County sentence, the State has superior resources 

to contend with a man with such violent propensities as a 

result of severe mental illness. The County lacks the 

resources to supervise him once he is released. 

This [c]ourt did not fashion the sentence with the intent to 

send a message to any third party about an issue 

unrelated to [Appellant]. The State dispatched a probation 

officer to the Gagnon II hearing to advocate for a County 

sentence. This [c]ourt saw this maneuver as a tactical 

ploy by the State to rid itself of responsibility for 

[Appellant]. The State provided [Appellant] with little 

assistance when he was in its custody, and it made an 

effort to ensure that he would not return to any form of 

State responsibility. This [c]ourt believes that the State, 

not the County, has the superior, relevant resources. 

Thus, it asked that the probation officer advise Ms. Mackie 

of the local State probation and parole office that she 

should employ State resources. The admonition was 

directly relevant to [Appellant’s] needs; it was not 

“unrelated.” 

(Trial Court Opinion, filed February 12, 2015, at 2-3) (citation to record 

omitted). The record supports the court’s decision. Thus, Appellant’s 
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discretionary aspects of sentencing claim merits no relief. Accordingly, we 

affirm the judgment of sentence. 

Judgment of sentence affirmed. 

Judge Lazarus joins this memorandum.

Judge Shogan concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/28/2015