J-S27041-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
DREW D’AGOSTINO,
Appellant No. 1207 EDA 2016
Appeal from the Judgment of Sentence March 22, 2016 in the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0013598-2008
BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JUNE 19, 2017
Appellant, Drew D’Agostino, appeals from the judgment of sentence of
not less than two and one-half years’ nor more than five years’ incarceration
in a state correctional institution, imposed following the third revocation of
his probation. Appellant claims chiefly that his sentence was manifestly
excessive. We affirm.
On December 14, 2007, Appellant was arrested and charged with
aggravated assault, robbery, and conspiracy to commit robbery. (See Trial
Court Opinion, 6/17/16, at 1).1 On March 2, 2010, Appellant entered a
____________________________________________
* Retired Senior Judge assigned to the Superior Court. 1 Appellant drove the getaway car in an armed robbery. (See Commonwealth’s Brief, at 2). J-S27041-17
negotiated guilty plea to robbery and conspiracy, both felonies of the first
degree. The trial court imposed the agreed-on sentence of ten years’
probation on each count, concurrent.
The court revoked Appellant’s probation twice previously for a variety
of violations, most notably, twice attempting to provide fake urine samples,
and numerous urinalysis tests which proved positive for opiates, cocaine,
and benzodiazepines.2 The trial court treated Appellant with notable
leniency (e.g., granting early parole twice). However, the court also warned
Appellant both times that if he violated his probation again he faced state
incarceration. (See Trial Ct. Op., at 2).
After his most recent drug test failure, the trial court revoked
Appellant’s probation and imposed a sentence of not less than two-and-a-
half nor more than five years’ incarceration in a state correctional
institution.3 The court noted that the sentence was necessary to vindicate
the authority of the court. (See id. at 4; see also N.T. Sentencing, at 12).
This timely appeal followed.4
Appellant presents one question for our review. ____________________________________________
2 Appellant also failed to get a GED or complete job training. (See N.T. Sentencing, 3/22/16, at 4-5). 3 The court included a recommendation for incarceration at SCI Chester which had facilities for drug treatment. 4 Appellant filed a court-ordered statement of errors on June 14, 2016. The court filed an opinion on June 17, 2016. See Pa.R.A.P. 1925.
-2- J-S27041-17
Was not the sentence of two and one-half to five years [of] incarceration for a technical violation of probation manifestly excessive, unreasonable, disproportionate to the conduct at issue, and not in conformity with the requirements of the Sentencing Code?
(Appellant’s Brief, at 4).
Appellant challenges the discretionary aspects of his sentence. Our
standard of review in an appeal from the discretionary aspects of a sentence
is well settled:
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, bias or ill- will.
Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa. Super. 2003) (citations
omitted).
Upon revoking probation, “the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation.” 42 Pa.C.S. § 9771(b). Thus, upon revoking probation, the trial court is limited only by the maximum sentence that it could have imposed originally at the time of the probationary sentence, although once probation has been revoked, the court shall not impose a sentence of total confinement unless it finds that:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or
-3- J-S27041-17
(3) such a sentence is essential to vindicate the authority of the court.
42 Pa.C.S. § 9771(c).
Commonwealth v. Pasture, 107 A.3d 21, 27–28 (Pa. 2014).
“There is no absolute right to appeal the discretionary aspects of a
sentence.” Commonwealth v. Reyes, 853 A.2d 1052, 1055 (Pa. Super.
2004) (citation omitted). To reach the merits of a discretionary sentencing
issue, we conduct a four-part analysis to determine: (1) whether Appellant
filed a timely notice of appeal; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify sentence; (3) whether
Appellant’s brief contains a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a sentence
pursuant to 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, or is contrary to the fundamental norms which underlie
the sentencing process. See Commonwealth v. Mastromarino, 2 A.3d
581, 585 (Pa. Super. 2010), appeal denied, 14 A.3d 825 (Pa. 2011).
Here, Appellant timely filed his notice of appeal, satisfying the first
prong of the test. Appellant also filed a timely post-sentence motion raising
a claim of an excessive sentence. However, as noted, two more
requirements must be met before we will review such a challenge on its
merits.
-4- J-S27041-17
First, an appellant must set forth in his brief a concise statement of the
reasons relied upon for allowance of appeal with respect to the discretionary
aspects of a sentence. See Pa.R.A.P. 2119(f). Secondly, the appellant must
show that there is a substantial question that the sentence imposed is not
appropriate under the Sentencing Code, or the fundamental norms which
underlie the sentencing process. We evaluate whether a particular issue
raises a substantial question on a case-by-case basis. See Commonwealth
v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006), appeal denied, 906
A.2d 1196 (Pa. 2006); Commonwealth v. Titus, 816 A.2d 251, 255 (Pa.
Super. 2003).
Here, Appellant has included in his brief a Rule 2119(f) statement in
support of review of the discretionary aspects of the sentence. (See
Appellant’s Brief, at 8-10); see also Pa.R.A.P. 2119(f).
However, the Commonwealth argues that Appellant has failed to
present a substantial question because his Rule 2119(f) statement consists
only of a bare conclusory allegation of excessiveness and a series of citations
and authority, without an explanation of how the general principles cited
Free access — add to your briefcase to read the full text and ask questions with AI
J-S27041-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
DREW D’AGOSTINO,
Appellant No. 1207 EDA 2016
Appeal from the Judgment of Sentence March 22, 2016 in the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0013598-2008
BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JUNE 19, 2017
Appellant, Drew D’Agostino, appeals from the judgment of sentence of
not less than two and one-half years’ nor more than five years’ incarceration
in a state correctional institution, imposed following the third revocation of
his probation. Appellant claims chiefly that his sentence was manifestly
excessive. We affirm.
On December 14, 2007, Appellant was arrested and charged with
aggravated assault, robbery, and conspiracy to commit robbery. (See Trial
Court Opinion, 6/17/16, at 1).1 On March 2, 2010, Appellant entered a
____________________________________________
* Retired Senior Judge assigned to the Superior Court. 1 Appellant drove the getaway car in an armed robbery. (See Commonwealth’s Brief, at 2). J-S27041-17
negotiated guilty plea to robbery and conspiracy, both felonies of the first
degree. The trial court imposed the agreed-on sentence of ten years’
probation on each count, concurrent.
The court revoked Appellant’s probation twice previously for a variety
of violations, most notably, twice attempting to provide fake urine samples,
and numerous urinalysis tests which proved positive for opiates, cocaine,
and benzodiazepines.2 The trial court treated Appellant with notable
leniency (e.g., granting early parole twice). However, the court also warned
Appellant both times that if he violated his probation again he faced state
incarceration. (See Trial Ct. Op., at 2).
After his most recent drug test failure, the trial court revoked
Appellant’s probation and imposed a sentence of not less than two-and-a-
half nor more than five years’ incarceration in a state correctional
institution.3 The court noted that the sentence was necessary to vindicate
the authority of the court. (See id. at 4; see also N.T. Sentencing, at 12).
This timely appeal followed.4
Appellant presents one question for our review. ____________________________________________
2 Appellant also failed to get a GED or complete job training. (See N.T. Sentencing, 3/22/16, at 4-5). 3 The court included a recommendation for incarceration at SCI Chester which had facilities for drug treatment. 4 Appellant filed a court-ordered statement of errors on June 14, 2016. The court filed an opinion on June 17, 2016. See Pa.R.A.P. 1925.
-2- J-S27041-17
Was not the sentence of two and one-half to five years [of] incarceration for a technical violation of probation manifestly excessive, unreasonable, disproportionate to the conduct at issue, and not in conformity with the requirements of the Sentencing Code?
(Appellant’s Brief, at 4).
Appellant challenges the discretionary aspects of his sentence. Our
standard of review in an appeal from the discretionary aspects of a sentence
is well settled:
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, bias or ill- will.
Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa. Super. 2003) (citations
omitted).
Upon revoking probation, “the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation.” 42 Pa.C.S. § 9771(b). Thus, upon revoking probation, the trial court is limited only by the maximum sentence that it could have imposed originally at the time of the probationary sentence, although once probation has been revoked, the court shall not impose a sentence of total confinement unless it finds that:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or
-3- J-S27041-17
(3) such a sentence is essential to vindicate the authority of the court.
42 Pa.C.S. § 9771(c).
Commonwealth v. Pasture, 107 A.3d 21, 27–28 (Pa. 2014).
“There is no absolute right to appeal the discretionary aspects of a
sentence.” Commonwealth v. Reyes, 853 A.2d 1052, 1055 (Pa. Super.
2004) (citation omitted). To reach the merits of a discretionary sentencing
issue, we conduct a four-part analysis to determine: (1) whether Appellant
filed a timely notice of appeal; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify sentence; (3) whether
Appellant’s brief contains a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a sentence
pursuant to 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, or is contrary to the fundamental norms which underlie
the sentencing process. See Commonwealth v. Mastromarino, 2 A.3d
581, 585 (Pa. Super. 2010), appeal denied, 14 A.3d 825 (Pa. 2011).
Here, Appellant timely filed his notice of appeal, satisfying the first
prong of the test. Appellant also filed a timely post-sentence motion raising
a claim of an excessive sentence. However, as noted, two more
requirements must be met before we will review such a challenge on its
merits.
-4- J-S27041-17
First, an appellant must set forth in his brief a concise statement of the
reasons relied upon for allowance of appeal with respect to the discretionary
aspects of a sentence. See Pa.R.A.P. 2119(f). Secondly, the appellant must
show that there is a substantial question that the sentence imposed is not
appropriate under the Sentencing Code, or the fundamental norms which
underlie the sentencing process. We evaluate whether a particular issue
raises a substantial question on a case-by-case basis. See Commonwealth
v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006), appeal denied, 906
A.2d 1196 (Pa. 2006); Commonwealth v. Titus, 816 A.2d 251, 255 (Pa.
Super. 2003).
Here, Appellant has included in his brief a Rule 2119(f) statement in
support of review of the discretionary aspects of the sentence. (See
Appellant’s Brief, at 8-10); see also Pa.R.A.P. 2119(f).
However, the Commonwealth argues that Appellant has failed to
present a substantial question because his Rule 2119(f) statement consists
only of a bare conclusory allegation of excessiveness and a series of citations
and authority, without an explanation of how the general principles cited
relate to the trial court’s alleged abuse of discretion.5 (See Appellant’s Brief,
5 Notably, Appellant concedes that the violation of his probation entitled the court to re-sentence him. (See Appellant’s Brief, at 9).
-5- J-S27041-17
at 8-10; Commonwealth’s Brief, at 10-11). On independent review, we
agree.
Appellant makes bald, serial claims that his sentence is
disproportionate, manifestly excessive, and so forth, but fails to show
specific actions by which the trial court acted inconsistently with the
Sentencing Code or contrary to the fundamental norms underlying the
sentencing process.
Appellant notes repeatedly that the probation officer requested
inpatient drug treatment, implying that the court’s sentence of incarceration
was an abuse of discretion. (See e.g., Appellant’s Brief, at 6). The
assertion is incomplete and misleading. The probation officer did suggest
that Appellant “have another FIR6 inpatient treatment” because “[o]utpatient
isn’t working for him.” (N.T. Sentencing, at 7, 8). The trial court responded
that Appellant had already received a FIR evaluation, which recommended
outpatient treatment. (See id. at 8).
“We emphasize a trial court does not necessarily abuse its discretion in
imposing a seemingly harsher post-revocation sentence where the defendant
received a lenient sentence and then failed to adhere to the conditions
6 FIR (Forensic Intensive Recovery) is a diversionary program managed by PHMC (the Public Health Management Corporation of Philadelphia). FIR offers eligible participants substance abuse treatment in lieu of incarceration. FIR appears to provide predominantly for outpatient treatment.
-6- J-S27041-17
imposed on him.” Pasture, supra at 28 (citation omitted). Accordingly, we
conclude that Appellant has failed to raise a substantial question for review.7
Judgment of sentence affirmed.
President Judge Gantman joins the Memorandum.
Judge Ott concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/19/2017
7 Moreover, we observe for completeness and clarity that Appellant’s claim of excessiveness focuses exclusively on the sentence as it relates to the violation of probation, with no regard for the sentencing options available based on the original offenses to which he pleaded guilty. See 42 Pa.C.S.A. § 9771(b); Pasture, supra at 27–28.
-7-