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[U] Commonwealth v. Rodgers

Superior Court of Pennsylvania

March 5, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
JOHN RODGERS Appellant

NON-PRECEDENTIAL DECISION

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

BEFORE: PANELLA, J., MUNDY, J., and STABILE, J.

MEMORANDUM

MUNDY, J.

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 ...

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