Com. v. Vasilinda, R.

• Court: Superior Court of Pennsylvania
• Decided: September 12, 2017
• Docket: 316 WDA 2017
• Status: Unpublished

Opinion

J-S60035-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT VASILINDA : : Appellant : No. 316 WDA 2017

Appeal from the Judgment of Sentence July 28, 2015 In the Court of Common Pleas of Cambria County Criminal Division at No(s): CP-11-CR-0001957-2008, CP-11-CR-0002402-2008, CP-11-CR-0002408-2008

BEFORE: OLSON, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 12, 2017

Appellant Robert Vasilinda appeals from the judgment of sentence

entered in the Court of Common Pleas of Cambria County on July 28, 2015,

following the revocation of his probation. We affirm.

On March 19, 2010, Appellant pled guilty to numerous counts of bad

checks (18 Pa.C.S.A. § 4105(a)(1)) and of theft by deception (18 Pa.C.S.A.

§ 3922(a)(1)).1 Appellant was sentenced to an aggregate term of eleven

and one-half (11 ½) months to twenty-three (23) months in prison to be

followed by eighteen years of probation and to pay restitution in the amount

of $9,981.77. N.T., 3/19/10, at 12-13. Appellant’s sentence was to be

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1 Appellant had been serving a prison sentence in West Virginia on a bad check charge at the time. N.T., 3/19/10, at 2.

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served in Cambria County Jail upon his parole from the West Virginia prison.

Id. at 13.

While on probation, Appellant was incarcerated on July 7, 2014, as a

result of new charges that alleged Appellant had embezzled money for his

own benefit while serving as power of attorney for his elderly aunt. A

violation of probation (VOP) hearing was held on August 12, 2014, following

which the trial court determined Appellant had violated the terms of his

probation due to the new charges and the hearing was continued pending

the outcome of those charges. N.T., 7/28/15, at 2. On May 26, 2015,

Appellant was sentenced on one count of bad checks, reduced from fifty-four

counts, to pay the costs of prosecution and restitution and to serve one year

less a day to two years less a day in prison. Id. at 3.

At Appellant’s VOP hearing, the trial court stressed the charges on

which it had sentenced Appellant in 2010 arose out of various cases from

2007-2008, his conduct while on probation evinced he was “unable to

conform [him]self to the requirements expected of people in our society”

and that he “seem[ed] to have the propensity to take advantage of the

elderly in these matters.” Id. at 10. When sentencing Appellant to an

aggregate term of 101 ½ months to 216 months in prison, the trial court

opined that Appellant “continue[d] to prey on people and write checks and

[that]—regardless of the breaks [he had] been given[, he had] not taken

advantage of that.” Id. at 12.

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Appellant filed a post-sentence motion to modify his sentence on July

31, 2015. Following oral argument on October 1, 2015, the trial court

denied the motion on October 2, 2015. Thereafter, Appellant filed an appeal

with this Court on October 28, 2015. In an Order filed on December 21,

2016, this Court quashed the appeal as untimely due to trial counsel’s failure

to file the same within thirty (30) days of Appellant’s re-sentencing and

instead waiting until after post-sentence motions had been ruled upon which

ruling occurred after the appeal period had lapsed. See Commonwealth v.

Vasilinda, 1746 WDA 2015 (Pa.Super. 2016) (judgment order).

On January 12, 2017, Appellant filed a petition pursuant to the Post-

Conviction Relief Act (PCRA).2 Therein, Appellant asserted trial counsel had

been ineffective for failing to file a timely notice of appeal and sought to

have his direct appeal rights reinstated nunc pro tunc. On January 13,

2017, the trial court granted Appellant’s PCRA petition. On February 7,

2017, Appellant filed a notice of appeal nunc pro tunc. Appellant filed a

concise statement of errors complained of on appeal on February 17, 2017,

wherein he averred the trial court had erred in imposing a sentence of eight

and one half (8 ½) years to eighteen (18) years in prison because this was

his first violation of probation, he had maintained his employment and was

current in his fines and costs payments, and he was drug and alcohol free.

2 42 Pa.C.S.A. §§ 9541-9546.

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In his brief, Appellant presents a single question for this Court’s

review: Whether the Court of Common Pleas of Cambria County was in error in imposing a sentence of 8 ½ to 18 years, State incarceration for failing to take into consideration mitigating factors at the Sentencing Hearing?

Brief on Behalf of Appellant at 5.

When reviewing the outcome of a revocation proceeding, this Court is

limited to determining the validity of the proceeding, the legality of the

judgment of sentence imposed, and the discretionary aspects of sentencing.

Commonwealth v. Cartrette, 83 A.3d 1031, 1033–34 (Pa.Super. 2013)

(en banc) (explaining appellate review of revocation sentence includes

discretionary sentencing challenges). “In general, the imposition of

sentence following the revocation of probation is vested within the sound

discretion of the trial court, which, absent an abuse of that discretion, will

not be disturbed on appeal.” Commonwealth v. Hoover, 909 A.2d 321,

322 (Pa.Super. 2006). Following the revocation of probation, the court may

impose a sentence of total confinement if any of the following conditions

exist: the defendant has been convicted of another crime; the conduct of the

defendant indicates it is likely he will commit another crime if he is not

imprisoned; or, such a sentence is essential to vindicate the authority of the

court. Id. at 323. See also 42 Pa.C.S.A. § 9771(c).

The Sentencing Guidelines do not apply to sentences imposed

following a revocation of probation. Commonwealth v. Ferguson, 893

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A.2d 735 (Pa.Super. 2006), appeal denied, 588 Pa. 788, 906 A.2d 1196

(2006). When imposing its sentence following a revocation of probation, the

trial court is limited only by the maximum sentence that it could have

imposed originally at the time of the probationary sentence.

Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001).

Pursuant to 42 Pa.C.S.A. § 9721(b), “the court shall follow the general

principle that the sentence imposed should call for confinement that is

consistent with the protection of the public, the gravity of the offense as it

relates to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). “[T]he court

shall make as part of the record, and disclose in open court at the time of

sentencing, a statement of the reason or reasons for the sentence imposed.”

Id. Nevertheless, “[a] sentencing court need not undertake a lengthy

discourse for its reasons for imposing a sentence or specifically reference the

statute in question, but the record as a whole must reflect the sentencing

court's consideration of the facts of the crime and character of the offender.”

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010)

(citation omitted), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010).

Herein, Appellant at no time has challenged the revocation of his

probation and recognizes that his sentence is within the standard range of

the Pennsylvania Sentencing Guidelines. See Brief on Behalf of Appellant at

8. Instead, in the three paragraphs he devotes to the argument portion of

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his appellate brief, Appellant baldly maintains that his sentence was “unduly

harsh and manifestly excessive” because “the [t]rial [c]ourt abused its

discretion as to the discretionary aspects of sentencing in failing to take into

consideration that the new charges were Appellant’s first violation of

probation supervision, he had maintained employment, had remained drug

and alcohol free, and was current on all cost and fine payments.” Id. at 9.

Appellant’s claim implicates the discretionary aspects of his sentence

following the revocation of his probation. “Challenges to the discretionary

aspects of sentencing do not entitle an appellant to review as of right.”

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010). An

appellant challenging the discretionary aspects of his sentence must invoke

this Court's jurisdiction by satisfying a four-part test:

We conduct a four-part analysis to determine: (1) whether the appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether the appellant's brief has a fatal defect, 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, 42 Pa.C.S.A. § 9781(b).

Id. (quotation marks and some citations omitted).

Here, Appellant filed a timely notice of appeal nunc pro tunc and filed a

motion to reconsider his sentence which the trial court denied following a

hearing. However, we find the bald claim of excessiveness Appellant set

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forth in his Rule 2119(f) Statement does not raise a substantial question for

our review.3 See Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super.

2013) (finding allegation that trial court failed to consider particular

circumstances of facts in Appellant’s case goes to the weight accorded to

various sentencing factors and does not raise a substantial question);

Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa.Super. 2012) (stating

that “a bald assertion that a sentence is excessive does not by itself raise a

substantial question justifying this Court's review of the merits of the

underlying claim.”); see also id. (concluding that appellant's claim his

sentence was excessive did not raise a substantial question, where he failed

to challenge a specific provision of the sentencing scheme, or cite to a

fundamental norm underlying the sentencing process that he believed was

violated); Commonwealth v. Mobley, 581 A.2d 949, 952 (Pa.Super. 1990)

(claim that sentence failed to take into consideration the defendant's

rehabilitative needs and was manifestly excessive did not raise a substantial

3 Appellant’s entire Concise Statement Pursuant to Rule 2119(f) reads as follows: Appellant seeks to challenge the discretionary aspect of his re-sentence. Appellant avers that his re-sentence was manifestly excessive in that the [t]rial [c]ourt failed to take into consideration all the mitigating factors at the time of re- sentencing. As a result a substantial question has been raised under Rule of Appellant Procedure 2119(f).

Brief on Behalf of Appellant at 8.

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question where sentence was within statutory guidelines and within

sentencing guidelines).

Because Appellant’s 2119(f) statement fails to present a substantial

question that his sentence was excessive on appeal, a review of the merits

of the discretionary aspects of his sentence is not warranted.4 Accordingly,

we affirm the trial court's judgment of sentence.

Judgment of sentence affirmed.

4 Even if we were to determine Appellant’s claim raised a substantial question for review, we would find no merit to the underlying allegation as the record reflects the trial court did not abuse its discretion in fashioning its sentence. A review of the sentencing VOP hearing transcript reveals the trial court was aware of Appellant’s current employment and lifestyle. Notwithstanding, it also properly considered Appellant's lengthy criminal history and stressed that despite being subject to periods of supervision for the majority of his adult life, he was unable to conform his conduct to the laws of this Commonwealth as was evident in the fact that the new charges were similar to those for which he had been on probation. See N.T., 7/28/15, at 2-3, 9-10. “Accordingly, the [c]ourt determined that [Appellant] was not amenable to rehabilitation in the relatively unrestrictive setting of probation and that a period of incarceration was necessary in order to successfully rehabilitate him and prevent him from engaging in further criminal activity.” Trial Court Opinion, filed 12/22/15, at 8. We discern no abuse of discretion by the trial court in imposing its sentence.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/12/2017

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