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[U] Commonwealth v. Rodgers

Superior Court of Pennsylvania

March 5, 2014



Appeal from the Judgment of Sentence May 31, 2013 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000500-2008




Appellant, John Rodgers, appeals from the May 31, 2013 aggregate judgment of sentence of three to seven years' imprisonment imposed following the revocation of his probation. After careful review, we affirm.

The relevant factual and procedural history, as gleaned from the certified record, follows. On July 19, 2008, Appellant and Jess Null, restrained and assaulted Jordan Bogacki (the victim) and subsequently stole $347.00 from the victim 's pocket. As a result of the incident Appellant was charged with robbery, simple assault, and theft by unlawful taking or disposition.[1] Appellant plead guilty to simple assault and theft by unlawful taking, and was sentenced to an aggregate term of four years' probation at docket number CP-33-CR-500-2008. Probation Order, 10/ 2/ 08 at 1; Amended Probation Order 10/ 21/ 08 at 1.

On November 30, 2009, a bench warrant was issued for Appellant for an alleged violation of his probation. A Gagnon I [2] hearing was held on December 4, 2009, and a Gagnon I I hearing was held on February 14, 2011. On February 14, 2011, Appellant was resentenced to 18 months' probation on the theft charge, and 6 months' probation on the simple assault charge, to run consecutive to each other and any other sentences he is serving.

Appellant was again arrested, and on April 3, 2013, a plea, sentencing and Gagnon I hearing was held on Appellant's probation violations. At said hearing, Appellant pled guilty to possession with the intent to deliver (PWID)[3] (Subutex) in exchange for a sentence of nine months to five years' imprisonment at docket number CP-33-CR-618-2012. Additionally, Appellant plead guilty to a second count of PWID (heroin) at docket number CP-33-CR-621-2012, in exchange for a concurrent sentence of nine months to five years' incarceration. By pleading guilty to the a for ementioned charges, Appellant acknowledged he was admitting to violating his probation. N.T., 4/ 3/ 13, at 4.

On May 31, 2013, the trial court held a Gagnon I I hearing at docket CP-33-CR-500-2008, the docket that is the subject of the instant appeal. A lengthy discussion took place regarding several separate state parole sentences Appellant was serving. N.T., 5/ 31/ 13, at 3-10. At the conclusion of said discussion, the trial court revoked Appellant's probation and sentenced Appellant to two and one-half to five years' imprisonment on the theft charge, to run concurrent with docket numbers CP-33-CR-618-2012 and CP-33-CR-621-2012. I d. at 10. Additionally, on the simple assault charge the trial court sentenced Appellant to six months to two years' imprisonment, consecutive to the theft charge at docket number CR-0000500-2008. Therefore, Appellant's aggregate sentence was three to seven years' imprisonment. On June 28, 2013, Appellant filed a timely notice of appeal.[4]

On appeal, Appellant raises the following issue for our review.

1. Whether the trial court's imposing a maximum sentence at the Gagnon I I hearing was manifestly excessive[ ?]

Appellant's Brief at v.

Our standard of review in assessing whether a trial court has erred in fashioning a sentence following the revocation of probation is well settled. The "[ r] evocation of a probation sentence is a matter committed to the sound discretion of the trial court and that court's decision will not be disturbed on appeal in the absence of an error of law or an abuse of discretion." Commonwealth v. William s, 997 A.2d 1205, 1208 (Pa. Super. 2010) (citation omitted). "An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused." Commonwealth v. Burns, 988 A.2d 684, 689 (Pa. Super. 2009) (en banc) (citation omitted), appeal denied, 8 A.3d 341 (Pa. 2010). "Our review is limited 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." Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006) (citations om itted). We also observe that, "whether an offender is serving a sentence of probation or intermediate punishment, if he violates the assigned conditions, the order of probation or intermediate punishment (as the case may be) may be revoked and a new sentence imposed." Commonwealth v. Wegley, 829 A.2d 1148, 1153 (Pa. 2003) (citations om itted).

[W] e must accord the sentencing court great weight as it is in the best position to view the defendant's character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime. … [ A] sentence should not be disturbed where it is evident that the sentencing court was aware of sentencing considerations and weighed the considerations in a meaningful fashion.

Id. at 887 (citations and quotation m arks om itted).

Herein, Appellant asserts that the trial court abused its discretion in sentencing Appellant "to a maximum sentence at the Gagnon I I [ h] earing without taking any mitigating factors into consideration." Appellant's Brief at 3. Appellant acknowledges that "the sentence imposed was within the statutory limits, " but argues, "it was manifestly excessive when considering the mitigating factors." I d. at 3-4. Specifically, Appellant argues the trial court did not take into consideration that he was already serving a sentence of nine months to five years', as well as an additional 18 months towards state parole violations, and that he had made "efforts to get his life back together so as to break out of the pattern he had been in and correct those behaviors." I d. at 4. Accordingly, Appellant's issue raises a challenge to the trial court's discretion in sentencing him.

I t is well settled that, with regard to the discretionary aspects of sentencing, there is no automatic right to appeal. [ Therefore, b]efore we reach the merits of this issue, we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary

aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code. The third and fourth of these requirements arise because Appellant's attack on his sentence is not an appeal as of right. Rather, he must petition this Court, in his concise statement of reasons, to grant consideration of his appeal on the grounds that there is a substantial question. [ I ] f the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013) (citations om itted), appeal denied, 81 A.3d 75 (Pa. 2013).

Instantly, Appellant has failed to preserve his claim . First, Appellant did not file a post-sentence motion or motion for reconsideration following the trial court's May 31, 2013 sentencing.[5] Further, Appellant's brief does not include a Pa.R.A.P. 2119(f) statement, a procedural error which the Commonwealth has noted in its brief. See Commonwealth's Brief at 12 (noting, "Appellant's brief is defective as it fails to com ply with the instructions put fort[ h] in Pa.R.A.P. 2119(f)"). "I f a defendant fails to include an issue in his Rule 2119(f) statement, and the Commonwealth objects, then the issue is waived and this Court may not review the claim ." Commonwealth v. Karns, 50 A.3d 158, 166 (Pa. Super. 2012), appeal denied 65 A.3d 413 (Pa. 2013), quoting Commonwealth v. Robinson, 931 A.2d 15 (Pa. Super. 2007). Accordingly, because Appellant has failed to comply with the technical requirements necessary to challenge the discretionary aspects of his sentence, Appellant's claim is waived.

Based on the foregoing, we conclude Appellant is not entitled to review of the discretionary aspects of his sentence. Accordingly, the trial court's May 31, 2013 judgment of sentence is affirmed.

Judgment of sentence affirmed. Judgment Entered.

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