Com. v. Jones, E.

• Court: Superior Court of Pennsylvania
• Decided: October 27, 2015
• Docket: 636 MDA 2015
• Status: Unpublished

Opinion

J-S61043-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : EMMANUEL PERREL JONES, : : Appellant : No. 636 MDA 2015

Appeal from the Judgment of Sentence Entered February 23, 2015, in the Court of Common Pleas of Lancaster County, Criminal Division, at No(s): CP-36-CR-0005293-2000

BEFORE: PANELLA, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 27, 2015

Emmanuel Perrel Jones (Appellant) appeals from a judgment of

sentence which followed the revocation of his probation. We affirm.

The trial court aptly summarized the background underlying this

matter as follows.

On October 27, 2000, Lancaster City Police executed a search warrant at 721 North Shippen Street, Lancaster, Pennsylvania. During the search, [Appellant] was found in possession of approximately three grams of crack cocaine, along with associated paraphernalia. [Appellant] was arrested and charged with two offenses, as follows: (1) PWID-Cocaine [] and (2) Possession of Drug Paraphernalia []. [Appellant] pled guilty to both counts and was sentenced on December 6, 2001. On Count 1, [h]e was sentenced to a minimum of 1 year of incarceration to a maximum of 2 years of incarceration, followed by two years of probation consecutive to the incarceration on Count 1 and a fine of $5000. On Count 2, [Appellant] was sentenced to 1 year of probation consecutive to the incarceration period on Count 1. [He] was given credit for 353 days. Costs and Restitution totaled $831.13. The sentences were concurrent to any other sentences.

*Retired Senior Judge assigned to the Superior Court. J-S61043-15

Since [Appellant’s] release from the SCI on December 17, 2002, he committed eight probation violations for new criminal charges, drug use, missed appointments, and discharge from the Wedge Treatment Center.

[Appellant stipulated to his eighth probation violation. 1 On February 23, 2015, the trial court sentenced him] to one-and-a- half to three years of incarceration with credit from September 25, 2014 until the sentencing date, noted that [Appellant] was RRRI eligible with a RRRI minimum sentence of thirteen and one-half months, and made him immediately eligible for any drug, alcohol, educational, and vocational programs while incarcerated.

On March 6, 2015, [Appellant] filed a counseled nunc pro tunc post-sentence motion to modify sentence. [The trial court granted Appellant’s request to file his post-sentence motions nunc pro tunc.] [Appellant’s] motion to modify sentence alleged six grounds for reconsideration of [his] sentence: (1) that [the court] failed to consider the Sentencing Guidelines, 42 Pa.C.S.A. § 9721(b) in fashioning [his] sentence; (2) that [the court] failed to consider the protection of the public because [Appellant’s] violation does not threaten the public in any way; (3) that [the court] failed to consider the gravity of the offense as it relates to the impact on the life of the victim and on the community because [Appellant’s] alleged disease is both allegedly de minimis and non-threatening to himself and the community; (4) that [the court] failed to consider the rehabilitative needs of [Appellant] because the sentence imposed treats addiction as a crime rather than as a medical condition; (5) that [the court] abused [its] discretion by imposing a sentence that was unreasonable and excessive under the circumstances; and (6) that [the court] failed to adequately consider the age of the docket, and especially the amount of time which had passed since [Appellant] committed a new crime, when fashioning [Appellant’s] sentence. [The trial court] denied [Appellant’s] motion to modify sentence [in a] March 17, 2015 Order. [Appellant] then filed a notice of appeal with the Superior Court of Pennsylvania on March 18, 2015. [Appellant] filed a timely concise statement of matters complained of on appeal[.]

1 According to Appellant, his latest violation stems from his testing positive for marijuana. Appellant’s Brief at 6.

-2- J-S61043-15

Trial Court Opinion, 6/4/2015, at 1-3 (footnotes, citations, and unnecessary

capitalization omitted).

In his brief to this Court, Appellant asks us to consider one question,

namely, “Was a sentence of one and one half to three years [of]

incarceration for a probation and parole violation so manifestly excessive as

to constitute too severe a punishment and contrary to the fundamental

norms of the sentencing process?” Appellant’s Brief at 4. Appellant

challenges the discretionary aspects of his sentence.2

It is well settled that, with regard to the discretionary aspects of sentencing, there is no automatic right to appeal.

Before [this Court may] reach the merits of [a challenge to the discretionary aspects of a sentence], 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.... [I]f the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

Appellant timely filed a notice of appeal; he preserved his issue in his

post-sentence motion; and his brief contains a Pa.R.A.P. 2119(f) statement.

2 “[T]his Court’s scope of review in an appeal from a [probation] revocation sentencing includes discretionary sentencing challenges.” Commonwealth v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013)

-3- J-S61043-15

Thus, we must determine whether Appellant has raised a substantial

question worthy of appellate review.

The determination of whether a substantial question exists must be made on a case-by-case basis. It is only where an aggrieved party can articulate clear reasons why the sentence issued by the trial court compromises the sentencing scheme as a whole that we will find a substantial question and review the decision of the trial court. This [C]ourt has been inclined to find that a substantial question exists where 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 underlying the sentencing process.

Also, a bald allegation that a sentence is excessive does not raise a substantial question.

Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa. Super. 2002) (citations

In his Pa.R.A.P. 2119(f) statement, Appellant contends that his

sentence is excessive because the trial court “failed to consider [his] need

for drug and alcohol rehabilitation as well as the fact that the public did not

need to be protected from [him] as he had not committed a crime in seven

years.” Appellant’s Brief at 10. Appellant has raised a substantial question

for our review. Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super.

2012) (concluding that Riggs raised a substantial question by arguing “that

the trial court failed to consider relevant sentencing criteria, including the

protection of the public, the gravity of the underlying offense and [Rigg’s]

rehabilitative needs[], as 42 Pa.C.S.A § 9721(b) requires…”).

-4- J-S61043-15

The proper standard of review when considering whether to affirm the sentencing court’s determination is an abuse of discretion. The trial court is afforded broad discretion in sentencing criminal defendants because of the perception that the trial court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.

Commonwealth v. Hoch, 936 A.2d 515, 519 (Pa. Super. 2007) (citations

and quotation marks omitted).

After a review of the parties’ briefs and the certified record, we

conclude that the trial court’s 1925(a) opinion adequately addresses and

properly rejects Appellant’s challenge to the discretionary aspects of his

sentence. We therefore adopt that portion of the court’s opinion in response

to Appellant’s argument on appeal. Trial Court Opinion, 6/4/2015, at 7-10.

The parties shall attach a copy of the trial court’s April 30, 3015 opinion to

this memorandum in the event of further proceedings.

For these reasons, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/27/2015

-5- Circulated 10/07/2015 10:56 AM .,· .. ~ ~s .· . . . t;~"·. -~~ '

tV~~~~~t:#~t., . . ·· . . ~~E &~T OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA ~ 'i-~~r::, CRI M I NA L . \,~

COMMONWEALTH .OF PENNSYLVANIA

V. No. 5293-2000

EMMANUEL JONES

OPINION BY: WRIGHT, J. June~. 201.5

This Opinion is written pursuant to Rule 1925(a) of the Pennsylvania. Rules of

Appellate Procedure. Defendant, Emmanuel Jones, claims that I erred in the sentence I

imposed on Defendant on February 23, 2015 for his eighth probation violation. (See

N.T. Sentencing, 2/23/15, at 6:24-7:4.) A review of the record and applicable law

demonstrates that Defendant's claim lacks merit and, therefore, his appeal should be

dismissed.

BACKGROUND On October 27, 2000, Lancaster City Police executed a search warrant at 721

North Shippen Street, Lancaster, Pennsylvania. (Aff. Prob. Cause ,r 3.) During the.

search, Defendant was found in possession of approximately three grams of crack

cocaine, along with associated paraphernalia. (Id.) Defendant was arrested and

charged with two offenses, as follows: (1) PWID-Cocaine (F)1 and (2) Possession of

Drug Paraphernalia (M)2• Defendant pied guilty to both counts and was sentenced on

1 At the time the statute cited was§ 13(a)(30) of Act 64. (Compl.) Now the statute would be 35 Pa. C.S.A. § 780-113(a)(30). · • · 2 N.. the time the statute cited was§ 13(a)(32} of Act 64. (Compl.} Now the statute would be 35 Pa. C.S.A. § 780-113(a)(32). APPENDIX B Circulated 10/07/2015 10:56 AM

December 6, 2001. (Guilty Plea Slip, 12/6/01; Sentencing Orders, 12/6/01.) On Count 1,

He was sentenced to_ a minimum of 1 year of incarceration to a maximum of 2 years .of

incarceration, followed by two years of prob~tion consecutive to the incarceration on

Count 1 and a fine of $5000. (Sentencing Orders, 12/6/01.) On Count 2, Defendant was

sentenced to 1 year of probation consecutive to the incarceration period on Count 1.

(kl) . Defendant . was given credit for 353 days. Costs and Restitution totaled $831.13.

(Court Commitment Sentencing W.orksheet, 12/19/2001; Guilty Plea Slip.) The

sentences were concurrent to any other sentences. (19.:.)

Since Defendant's release from the SCI on December 17, 2002, he committed

eight probation violations· for new criminal charges, drug use, missed appointments, and . . discharge_ from the Wedge Treatment Center.3 (P~I 3-10; 14; Petition-to Issue Capias

· and Bench Warrant, '04/18/2012).

On February . 23, 2015, I sentenced Defendant . on his eighth probation violation to

one-and-a-half to three years of incarceration wlth credit from September 25, ·2014 until

the sentencing date, noted that Defendant was RRRI eligible with a RRRI minimum

sentence of thirteen and one-half months, and made him immediatelyeligible for any

drug, alcohol,. educational, and vocational programs while incarcerated. (N.T..

Sentencing, 2/23/15, at 6:24-7:4.)

3 See N.T. Sentencing, 2/23/2015, at 5:21-22 (describing criminal history); Notice of Charges and Hearings Special Probation/Parole, 4/7/2003 (providing release date); Pre-Sentence Investigation Report ("PSI") 3-10 (providing crimina,I history); Petition to Issue Capias and Bench Warrant, 04/18/2012} (describing discharge fro'm Wedge Treatment Center.} 2 Circulated 10/07/2015 10:56 AM

On March 6, 2015, Defendant filed a counseled Nuno Pro Tune Post-Sentence Motion to Modify Sentence.4 I granted Defendant's request to consider his Motion in my

March 16, 2015 Order. Defendant's Motion to Modify Sentence alleged six grounds for

reconsideration of Defendant's sentence: (1) that I failed to oonsder the Sentencing

Guidelines, 42 Pa. C.S.A.· § 9721(b) in fashioning my sentence; (2) that I failed to

· consider the protection of the public because Defendant's violation does not threaten

the public in any way; (3) that I failed to consider the gravity of the offense as it relates

to the impact on the life of the victim and on the community because Defendant's

alleged disease is both allegedly de minimis and non-threatening to himsetf and the

community; (4) that I failed to consider the rehabilitative needs of the defendant

· because the sentence imposed treats addiction as a crime rather than as a medical

condltlon: (5) that I abused my dlscretlon by imposing a sentence that was

unreasonableand excessive under the circumstances; and (6) that I failed to

adequately consider the age of the docket, and especially the amount of time which had

passed since Defendant committed a new crime, when fashioning Defendant's

sentence. I denied D.efendant's Motion to Modify Sentence in my March 17, 2015 Order.

Defendant then filed a Notice of Appeal with the Superior Court of Pennsylvania on

March 18, 2015. Defendant filed a timely Concise Statement of Matters Complained of

on Appeal ("Concise Statement") and the Commonwealth filed a timely Response.

4 Defendant filed the Motion nunc pro tune on March 6, 2015 rather than by the ten-day deadline of March 5, 2015 because the Lancaster County Courthouse was closed on March 5, 2015 due to inclement weather. 3 Circulated 10/07/2015 10:56 AM

DISCUSSION

In his Concise Statement Defendant claims that I erred by sentencing him to

eighteen to thirty-six months of incarceration for his eighth probation violation on this

docket, contending that my sentence was "so manifestly excessive as to consntute too

severe a punishment and clearly unreasonable under the circumstances of this case."

(Concise Statement ,r 1.) Specifically, he argues that the sentence I imposed (1) was not consistent with the protection of the public, maintaining that the "public did not need

protection from Defendant"; (2) was not consistent with the gravity of the offenses; (3)

was not consistent with Defendant's rehabilitative needs, arguing that Defendant "would

have benefitted from rehabilitation" for his addiction; and (4) was not individualized for

Defendant' because it did not consider "that Defendant had not committed a new crime

in at least seven years." (kh ,r 1.)

Defendant's argument amounts to a challenge to the discretionary aspects of

sentencing for which there is no automatic right of appeal. See 42 Pa.C.S.A. § 9781;

Commonwealth v. Colon, 102 A.3d 1033, 1042-.(Pa. Super. Ct. 2014) (citing

Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super. Ct. 2004). Before a court

may even consider the merits of a discretionary-sentencing claim, a defendant first must

demonstrate that: (1) the issue was properly preserved at sentencing or in a motion to

reconsider and modify sentence; (2) a timely notice of appeal was filed; (3) Defendant

fully complied with Pennsylvania Rule of Appellate Procedure 2119(f); and (4) there was

a "substantial question" that the sentence imposed was not appropriate under the

4 Circulated 10/07/2015 10:56 AM

. Sentencing Code.5 42 Pa.C.S.A. § 9781(b); Colon, 102 A.3d at 1042-43. These

prerequisites will be addressed in turn.

· Here, Defendant has met the first three prerequisites. He preserved his claim by

filing a timely post-sentence motion to modify the new sentence followed by a timely . . notice of appeal. For. the purpose of this appeal, I will assume that he will likewise

satisfy the requirements of Rule 2119(f) when he files his appellate. brief.

· As to the fourth prerequisite, whether an issue constitutes a "substantial

question" is "evaluated on a case-by-case basis." Commonwealth v. Cunningham, 805

A.2d 566, 574 (Pa. Super. Ct. 2002) (citation omitted). A substantial question must

"advance a colorable argument" that the sentence imposed was either "D inconsistent

with a specific provision of the Sentencing Code; or D contrary to the fundamental

norms which underlie the sentencing process." kL. (citation omitted). To determine

whether a challenqetoa sentence imposed after a revocation of probation raises a

substantial question, I "focus on the pertinent statutory provisions in the Sentencing

Code." Commonwealth v. Williams, 69 A.3d 735, 741 (Pa. Super. Ct. 2013). The

relevant statutory provisions are 42 Pa.C.S.A. § 9771(b), 42 Pa.C.S.A. § 9771(c), and

42 Pa.C.S.A. § 972f(b). k!:.

Here, Defendant's .general claim that the sentence is "manifestly excessive" and·

first three specific claims each raise a substantial question because they argue that the

sentence I imposed was contrary to the fundamental norms of the sentencing process

or are taken from 42 Pa.C.S.A. § 9721(b). (See Commonwealth v. Colon, 102 A.3d

1033, 1043 (Pa. Super. Ct. 2014) (noting that a claim that a sentence of total

5 42 Pa.C.S.A. § 9701 et seq. 5 Circulated 10/07/2015 10:56 AM

confinement for a technical probation violation is excessive raises a substantial

question); Commonwealth v. Cartrette, 83 A.3d 10.30, 1042 (Pa. Super. Ct. 2013)

(finding that a challenge to a sentence based on alleged inconsistencies . with 42 .

Pa.C.S.A. § 9721(b) raises a substantial question).) Defendant's fourth_specific claim

does not raise a suostantia' question and, accordingly, will not be addressed.s

The Superior Court of Pennsylvania has succinctly set forth the standard for

_ reviewing a claim of excessiveness:

The imposition· of sentence following the revocation of probation is vested within the sound discretion of the trial court, whlch, absent an abuse of that discretion, will not be disturbed on appeal. An abuse of discretion is more than an error in judgment-a sentencing court has not abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. . . Colon, 102 A.3d at 1043 (quoting Commonwealth v. Simmons, 56 A.3d 1280,

1283-84 (Pa. Super. Ct. 2012). When imposing a sentence of incarceration after

revocation of probation, "the [sentencing] court is limited only by the maximum sentence

that it could have imposed originally at the time of the probationary sentence." Colon

102 A.3d 1033 at 1044 (Pa. Super. Ct. 2014) (citation omitted).

6 Defendant's specific claim of error (4) does not raise a substantial question because it is not taken from a relevant statutory provision and does not address the fundamental norms of the sentencing process. It is settled law that the alleged failure of a sentencing Judge to consider mitigating factors like abreak in accruing new criminal charges or personal struggles with drug addiction do not raise a substantial question, at least in the context of guideline sentences as· opposed to sentences imposed after probation revocations. See, e.g .• Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa. Super. Ct. 2003); Coolbaugh, 770 A.2d at 792-93. Thus, I consider specific claim (4) only the extent that it addresses Defendant's rehabilitative needs. I note that I imposed Defendant's sentence after considering an extremely comprehensive and detailed Pre-sentence Investigative ("PSI") Report (N.T. Sentencing 2/23/2015, at 5:25-6:1.) See Commonwealth v~ Griffin, 65 A3d 932, 937.:.38 (Pa. Super. Ct. 2013) (noting that use of PSI Report gives rise to assumption that sentencing Court considered defendant's character along with any mitigating factors when fashioning sentence). Furthermore, I specifically mentioned, on the record, conslderafion of the statements of counsel, by which his attorney informed me, among other things, that Defendant had not"committed a new crime" for some time. (N.T. Sentencing, 2/23/2015, at 4:7-8.) 6 Circulated 10/07/2015 10:56 AM

· ·· As evidenced· bythe-foregoi·ng·,·oefendcfiit's sentence was entite1y· jusfifieo hy the · circumstances of his. offense and his character. Probation has proven to be an

ineffective tool to accomplish rehabilitation as well an inadequate deterrent to future

offenses. This was not the first time Defendant was convicted of a drug-related offense.

Defendant's PSI indicates that he, in addition to ei_ght probation violations on this docket

as described previously, also has six other dockets in three jurisdictions, several of

which involve narcotics offenses.7 (PSI 3-10.) The PSI reflects Defendant's report that:

he began selling drugs at age 13, was placed on juvenile probation, and successfully

completed juvenile programs in Pennsylvania and Texas. 8 (PSI 12.) Additionally,

Defendant's PSI indicates that Defendant started smoking marijuana at age 13, smoked

· marijuana every day until he started adult probation, and smoked approximately 20

times while on probation. (PSI 14.) Contrary to Defense Counsel's assertion that

Defendant had not committed a new crime in twelve (12) years, the PSI reveals that

Defendant was convicted of several crimes in Bucks County, Pennsylvania in 2008.9

(N.T. Sentencing, 2/23/2015, at 4:6~8); bY! see (PSI 7.)

Defendant's history demonstrates that rehabilitative treatment alone is not

effective. While Defendant reportedly completed the Wedge Treatment Program in

Philadelphia in 2007'or 2008, he violated his probation by being discharged from that

same center on November 17, 2011, due to disengagement. (PSI 14; Petition to Issue

1 Any contact with law enforcement may be considered when fashioning a sentence. Commonwealth v. Lupatsky, 492 A.2d 845, 847 (Pa Super. Ct. 1985} ("[p]rior connections, of whatever nature, with law enforcement authorities are unquestionably among the circumstances to be scrutinized' in determining the appropriate sentence.") 8 This information was an appropriate sentencing· consideratiOn. See Commonwealth v. Petras, 534 A.2d

483, 488 (Pa. Super. Ct. 1987} (holding thatjuvenile contact with law enforcementdetailed in PSI is . appropriate sentencing consideration.) 0 Defendant later amended this assertion from twelve years to seven years. (Concise Statement 1f 1.) Either way, Defendant Is mistaken about his criminal history. Circulated 10/07/2015 10:56 AM

· Gapias and Bench·Warrant;·04l18/2012:)-Defendant·fttrther demonstratedthatha lsnot ·

amenable to treatment by violating probation on four separate occasions after

reportedly completing treatment at the Wedge Center. (PSI 7-10, 14; Probation Violation

Stipulation 10/31/2014.) Finally, while the PSI indicates that Defendant completed a

treatment-program for drugs and alcohol in 20111 Defendant vioiated probation three

times after that, with his eighth and most recent violation due to a positive test for

marijuana in 2014. (PSI 9-10, 14; Petition to Issue Capias and Bench Warrant,

04/23/2014.) Thus, Defendant's behaviorshows that treatment programs alone do not

adequately address his rehabilitative needs.

The PSI also reveals that, despite a diagnosis of Attention Deficit Disorder and

Attention Deficit Hyperactivity Disorder ( ADD/ADHD 11 11), Defendant is otherwise in good

physical and mental health. (PSI 14.) At his probation violation hearing, Defendant

claimed that he wanted to support his wife and newborn baby. (N.T. Probation Violation

Hr'g., 10/31/2014, at 3:4-6.) Yet, Defendant has no verifiable work history and despite . bein~ only 34 years old, having completed the eleventh grade, and generally enjoying

good physical and mental health, Defendant's sole source of income is $700 per month

due to his ADD/ADHD diagnosis. (See N.T. Sentencing, 2123/2014, at 5:15-17; PSI 1,

14-15.) Furthermore, while Defendant claimed he worked eightto twelve hours per day

to supplement his disability income, he has "never paid any child support for this first

three children and has paid nothing on his fines and costs for over twelve years." (N.T.

Sentencing, 2/23/2015, at 5:15-19.)

Moreover, when given the opportunity to make a statement at his probation

violation hearing, Defendant never took responsibility for his repeated probation

8 Circulated 10/07/2015 10:56 AM

violations; statrng-instead that probation-has "beena burden on [his] life"· andthaftiEf ·

"can't see[m] to get off of' probation. (N.T. Probation Violation Hr'g., 10/31/2014, at

2:24-3:4.) pefendant's probation officer noted that Defendant l_ived in Philadelphia at

the time of the hearing, and that the Lancaster_ County Probation Office had attempted

three times to transfer Defendant's supervtslon to Philadelphia County. iliL,at.3:14-16.)

He added that he was "at a loss as to what to do with [Defendantr because

Philadelphia returned supetvision each time and would "no longer even accept a

transfer request" due to Defendant's repeatedly failing to report for appointments. (Id. at

3:15-20.) The Probation Officer stated that the sentence requested by his office was

"the only available remedy to address [Defendant) and his issues with reporting and

drug use." Q9.:. at 3:21-24.)

Given another opportunity to explain himself at the sentencing, Defendant again ·

offered only excuses when he stated that he had made "some mistakes in [his] life[,]"

but added that he felt did riot deserve a state sentence, .and concluded ·by requesting

"another chance" while admitting that this was his. seventh or eighth pr~bation violation

on this docket alone. (N.T. Sentencing, 2/23/2015, at 3:11-19.)

I tailored my sentence in accordance with the dictates of 42 Pa.C.SA. § 9721 (b)

· and considered Defendant's offenses, history, and conduct while being supetvised,

statements of Defendant and his Counsel, my own observations, the PSI, and the

November .5, 2014 letter written on Defendant's behalf by Tylicla Matthews. (See KL. at 5:1-5.). Defendant has convictions on six new dockets and eight probation violations on

this docket in the time he has been on supervision. Defendant has demonstrated a . . failure to take responsibility for his actions, to pay child support or fines and costs, and

9 Circulated 10/07/2015 10:56 AM

lei ·comply· witfl tner terms··and ·conditions· of probation ·and parole. A se-ntenc~- of less· ·-

than total incarceration would diminish the seriousness of the underlying offense,

especially in light of Defendant's criminal history. Finally, despite Defendant's contention

to the contrary, I expressly considered Defendant's rehabilitative needs when I said

"without question whatsoever, the defendant is in need of treatment" noting that

Defendant's best opportunity for effective rehabilitation would be achieved through his

"commitment to an institution outside of-this community." (N.T. Sentencing, 2/25/2015,

at 6:18-21.)

My sentence also complies with 42 Pa.C.S.A. § 9771 (B)-(C). Given Defendant's

history of probation violations and other criminal behavior, his disregard for the safety of

· the community, and !he Court's need to protect the public, It is highly likely that Defendant would commit another crime if s·imply given probation. Thus, a sentence of

total incarceration was warranted both in light of Defendant's propensity to reolfend and

to vindicate the authority of the Court. Under these circumstances, Defendant's

sentence at issue was entirely justified and is not manifestly excessive.

CONCLUSION

Defendant's claim of error lacks merit. Therefore, this Court respectfully requests

the dismissal of his appeal.

Accordingly, I.enter the following:

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IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CRIMINAL

COMMONWEALTH OF PENNSYLVANIA

ORDER

AND NOW, this b day of, June, 2015, the Court hereby submits this Opinion

pursuant to Rule 192S(a) of the Pennsylvania Rules of Appeilate Procedure.

I certify this document to be filed BY THE COURT: In the Lancaster County Office of the C~ ~f the Courts. (2 : l~JtiFFERY O. WRIGHT JUDGE • $ -~ JEFFERY D. WRIGHT :~i ·1r1:11 Joshua G. Parsons JUDGE i c.,n\",\'~ 1 Clerk of the Courts

Copies to: . J. Alexander Marcinko, Assistant District Attorney Diana C. Kelleher, Esq., Assistant Public Defender