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[U] Commonwealth v. Yenser

Superior Court of Pennsylvania

December 16, 2013

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
DENNIS ALLEN YENSER, JR. Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
DENNIS ALLEN YENSER, JR. Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence of January 9, 2013 In the Court of Common Pleas of Lehigh County Criminal Division at No.: CP-39-CR-0003513-2011.

Appeal from the Judgment of Sentence of January 8, 2013 In the Court of Common Pleas of Lehigh County Criminal Division at No.: CP-39-CR-0003386-2011

BEFORE: BOWES, J., LAZARUS, J., and WECHT, J.

MEMORANDUM

WECHT, J.

Dennis Yenser, Jr. ("Appellant") appeals from two separate judgments of sentence. At No. 358 EDA 2013, Appellant appeals the judgment of sentence entered on January 8, 2013, which was imposed after Appellant was found to be in violation of a previously imposed sentence of intermediate punishment. At No. 354 EDA 2013, Appellant appeals the judgment of sentence entered on January 9, 2013, which was imposed after Appellant violated parole in a separate case. On both cases, we affirm.[1]

On December 12, 2011, at CP-39-CR-0003513-2011, Appellant pleaded guilty to one count of driving under the influence ("DUI"), [2] which was his third DUI offense. On that same date, Appellant was sentenced to one to three years' imprisonment in the Lehigh County Prison, followed by two years of probation.

On December 21, 2011, at CP-39-CR-0003386-2011, Appellant pleaded guilty to burglary[3] pursuant to a plea agreement.[4] Following the review of a pre-sentence investigative report, the trial court determined that Appellant had struggled with drugs and alcohol in the past. The trial court had Appellant evaluated to determine whether he was a viable candidate for the Treatment Continuum Alternative Program ("TCAP"), a drug and alcohol treatment-based intermediate punishment program. On January 30, 2012, the trial court sentenced Appellant to eighteen months to seven years in a state correctional institution. On February 2, 2012, Appellant filed a post-sentence motion requesting to withdraw his guilty plea and/or a modification of his sentence. On March 1, 2012, following a hearing, the trial court denied Appellant's motion to withdraw his guilty plea. However, the trial court vacated Appellant's prison sentence and resentenced Appellant to TCAP for twenty-two months, to be followed by five consecutive years of probation.

On August 23, 2012, after completing the minimum incarceration portion of his DUI sentence, Appellant was paroled to the Keenan House to participate in TCAP. As a condition of his parole, Appellant was required to attend and to complete inpatient treatment at the Keenan House, as well as any recommended aftercare. Appellant was only at the Keenan House for five days before he escaped. The Lehigh County Adult Probation Department filed a parole violation for failure to complete treatment and because Appellant's whereabouts were unknown. Appellant was found three months later at his home. On January 8, 2013, at a Gagnon II[5] hearing, Appellant conceded that he ran away from the TCAP facility. Based upon his criminal history and his escape from the TCAP facility, the trial court sentenced Appellant to four to ten years in a state correctional facility.

On January 9, 2013, at another Gagnon II hearing stemming from the violation of his parole on the DUI sentence, Appellant again conceded that he violated his parole based upon the allegations lodged against him by the Lehigh County Adult Probation Department. Pursuant to Appellant's concession, his parole and probation were revoked by the trial court. The trial court then resentenced him to serve the balance of his one to three-year sentence for his DUI guilty plea, along with an additional one to two years' incarceration on his probation sentence. The trial court ordered this sentence to run concurrently with Appellant's four to ten-year sentence imposed for his burglary case.

On January 16, 2013, Appellant filed a motion to reconsider his new sentence in the DUI case. The trial court denied Appellant's motion on

January 25, 2013. On January 30, 2013, Appellant filed a timely notice of appeal docketed at No. 354 EDA 2013. On February 5, 2013, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On February 20, 2013, Appellant filed his concise statement. On March 26, 2012, the trial court issued its Pa.R.A.P. 1925(a) opinion.

On January 16, 2013, in his burglary case, Appellant also filed a motion to reconsider his sentence. The trial court denied Appellant's motion on January 18, 2013. On January 30, 2013, Appellant filed a timely notice of appeal docketed at No. 358 EDA 2013. On February 1, 2013, the trial court ordered Appellant to file a concise statement of errors complained of on appeal. On February 20, 2013, Appellant filed his concise statement. On February 28, 2013, the trial court issued its Pa.R.A.P. 1925(a) opinion.

In Appellant's briefs, he raises nearly identical issues. Appellant's fundamental issue as to each case is: Whether the sentence imposed by the court is manifestly excessive or otherwise unjustified based upon the nature of the Appellant's probation violation. Brief for Appellant at 7 (for both docket ...


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