Com. v. Walker, A.

• Court: Superior Court of Pennsylvania
• Decided: March 21, 2025
• Docket: 1456 EDA 2024
• Status: Unpublished

Opinion

J-S47019-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AUSTIN WALKER : : Appellant : No. 1456 EDA 2024

Appeal from the Judgment of Sentence Entered April 26, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002234-2023

BEFORE: KUNSELMAN, J., SULLIVAN, J., and BECK, J.

MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 21, 2025

Austin Walker appeals from the judgment of sentence imposed following

revocation of his probation for technical violations. He challenges the

discretionary aspects of his new sentence. Upon review, we affirm.

The relevant factual and procedural history follows. On the night of

January 16, 2023, Walker, while intoxicated, broke into his wife’s home in

Philadelphia by kicking in the back door. He entered her home. When police

arrived and attempted to take him into custody, he resisted, attempted to

punch the officers, and disregarded their commands. He was arrested and

charged with several offenses.

On July 19, 2023, Walker entered a negotiated guilty plea for criminal

trespass.1 The trial court sentenced him to 3 years’ probation. The court also

____________________________________________

1 18 Pa.C.S.A. § 3503(a)(1)(ii). The remaining charges were dismissed. J-S47019-24

imposed the following probation conditions: a stay away order against his

wife; supervision by the domestic violence unit of the probation department,

which required that Walker attend batterer’s intervention treatment; a mental

health evaluation; and a drug and alcohol assessment. A protection from

abuse (“PFA”) order was entered against Walker, which coincided with his

period of probation.

Following his sentence, Walker reported to probation on August 15,

2023. At that time, he tested positive for cocaine. He was to report again on

September 13, 2023, but failed to do so. Walker absconded.

The probation department attempted several times to contact Walker

but was unable to reach him. Consequently, on October 17, 2023, a warrant

was issued. Walker was picked up on December 4, 2023, when he was

arrested for another domestic violence incident which included contempt of

the PFA, terroristic threats, stalking, simple assault, and resisting arrest.

Subsequently, the probation department sought to revoke his probation

for technical violations.2 In addition to failing to report and absconding,

Walker failed to attend the batterer’s intervention treatment and obtain other

required assessments. As a result, the probation department sought

revocation of Walker’s probation and imposition of a sentence of incarceration.

2 Originally, the request to revoke Walker’s probation included charges for a

violation of the PFA order and new criminal charges. However, those charges were dismissed and the matter proceeded solely based on his technical violations.

-2- J-S47019-24

On April 26, 2024, the court held a violation of probation (“VOP”)

hearing and found that Walker violated his probation which warranted a

sentence of total confinement. That same day, the VOP court resentenced

Walker to 1½ to 3 years’ incarceration and ordered drug treatment. Walker

filed a post-sentence motion, which the court did not decide.

Walker filed this timely appeal.3 He and the trial court complied with

Appellate Rule 1925.

On appeal, Walker raises the following issue:

Did the [VOP] court abuse its discretion in sentencing [] Walker to one-and-one-half to three years' incarceration for a first, technical violation of his probation where such an extended period of total confinement was manifestly excessive under the circumstances?

Walker’s Brief at 2.

Walker challenges the discretionary aspects of his VOP sentence. A

challenge to the discretionary aspects of a sentence, following probation

revocation, does not entitle an appellant to review as of right; rather, the

appellant must petition this Court for permission to appeal. See

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008). Before

3 The VOP court claimed that the appeal was premature since it had not yet

decided Walker’s post-sentence motion. Trial Court Opinion, 7/8/24, at 2 n.2. However, as Walker noted, the filing of a post-sentence motion does not toll the appeal period for a probation revocation sentence. Pa.R.Crim.P 708(E). Accordingly, Walker had to file his appeal within 30 days of his sentencing or risk it be quashed as untimely.

-3- J-S47019-24

reaching the merits of a discretionary sentencing issue, we must conduct a

four-part analysis to determine:

(1) whether the appeal is timely; (2) whether [a]ppellant preserved his issue; (3) whether [a]pellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence [in accordance with 2119(f)]; 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. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014)

(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013).

Here, Walker satisfied the first three requirements under Colon.

Accordingly, we must determine whether he raised a substantial question.

In his Rule 2119(f) statement, Walker claims that the trial court abused

its discretion by imposing an excessive sentence of total confinement following

revocation of probation for a first violation based solely on technical violations.

He further maintains that the court did not consider his rehabilitative needs

or relevant mitigating factors. Walker’s Brief at 6.

The imposition of a sentence of total confinement after revocation of

probation for a technical violation, and not a new criminal offense, implicates

the “fundamental norms which underlie the sentencing process” and therefore

raises a substantial question. Commonwealth v. Crump, 995 A.2d 1280,

1282 (Pa. Super. 2010); Commonwealth v. Malovich, 903 A.2d 1247, 1252

(Pa. Super. 2006) (claim that probation revocation sentence was excessive

-4- J-S47019-24

considering its underlying technical violations can present a question that this

Court should review). Additionally, “an excessive sentence claim—in

conjunction with an assertion that the court failed to consider mitigating

factors [or rehabilitative needs]—raises a substantial question.”

Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en

banc). Therefore, we will address Walker’s sentencing claim.

This Court has stated:

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. 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.

In determining whether a sentence is manifestly excessive, the appellate court must give great weight to the sentencing court's discretion, as he or she is in the best position to measure factors such as the nature of the crime, the defendant's character, and the defendant's display of remorse, defiance, or indifference.

Upon revoking probation, a sentencing court may choose from any of the sentencing options that existed at the time of the original sentencing, including incarceration. [U]pon 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.

Colon, 102 A.3d at 1044 (quotations and citations omitted). A sentence

should not be disturbed where it is evident the court was aware of the

appropriate sentencing considerations and weighed them in a meaningful

fashion. Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000).

-5- J-S47019-24

Additionally, where probation has been revoked, a sentence of total

confinement may only be imposed if:

(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) such a sentence is essential to vindicate the authority of the court.

42 Pa.C.S.A. § 9771(c).4 In all cases where the trial court resentences an

offender following revocation of probation, the trial court must place its

reasons for the sentence on the record. 42 Pa.C.S.A. § 9721(b);

Commonwealth v. Cartrette, 83 A.3d 1030, 1040–41 (Pa. Super. 2013). “A

trial 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.” Crump, 995 A.2d at 1282–1283.

This Court has held that, “[t]echnical violations can support revocation

and a sentence of incarceration when such violations are flagrant and indicate

[a resistance] to reform.” Commonwealth v. Carver, 923 A.2d 495, 498

(Pa. Super. 2007). “[A] trial court does not necessarily abuse its discretion in

imposing a seemingly harsher post-revocation sentence where the defendant

4 The law was amended effective June 11, 2024, which renders these criteria

inapplicable. However, because Walker’s VOP hearing occurred prior to the amendment’s effective date, we apply this version of the statute.

-6- J-S47019-24

received a lenient sentence and then failed to adhere to the conditions

imposed on him.” Commonwealth v. Pasture, 107 A.3d 21, 28 (Pa. 2014).

However, we have rejected lengthy incarceration sentences imposed

solely based upon technical violations of probation on grounds of

unreasonableness. Commonwealth v. Williams, 69 A.3d 735 (Pa. Super.

2013); Commonwealth v. Parlante, 823 A.2d 927 (Pa. Super. 2003). Given

this Court's highly deferential standard of review, such relief should be

afforded only in rare cases. Commonwealth v. Walls, 926 A.2d 957, 964

(Pa. 2007).

In his sole issue, Walker claims that the VOP court abused its discretion

when it imposed an excessive sentence of confinement. According to Walker,

although a sentence of incarceration may have been warranted, the VOP court

should not have sentenced him to a “substantial” state prison sentence for a

first violation. Specifically, Walker argues that his violations were only

technical and that he took substantial steps on his own toward his

rehabilitation by maintaining employment, attending job training classes, and

undertaking drug treatment. Walker’s Brief at 9, 13. He maintains that our

courts have vacated excessive state sentences based on only technical

violations. Additionally, Walker argues that, if his hearing occurred six weeks

later, his sentence would have been capped at fourteen days’ incarceration

under 42 Pa.C.S.A. section 9771(c), which now limits a probation revocation

sentence of total confinement for technical violations. Walker maintains that

this is persuasive authority demonstrating that his sentence is excessive. Id.

-7- J-S47019-24

at 7, 13-14. According to Walker, this Court should vacate his sentence. Id.

at 8. We disagree.

Here, the VOP court found that Walker violated multiple conditions of

his probation. As a result, the court sentenced him to 1½ to 3 years’

incarceration. In imposing a sentence of total confinement, the VOP court

explained that it was warranted for several reasons. First, the court found

that Walker was likely to commit another crime. The court noted that Walker’s

positive drug screen for cocaine indicated that he had possessed an illegal

substance. VOP Court Opinion, 7/8/24, at 5-6. Possession of a controlled

substance while on probation shows that a defendant is likely to commit

another crime (and in fact has). Malovich, 903 A.2d at 1254.

Further, Walker violated the PFA order and the court’s stay away order,

while on probation; both orders pertained to his wife. Although Walker’s

charge for violating the PFA was dismissed, his refusal to comply with these

orders shows that he is likely to commit another crime. Additionally, Walker

was arrested on new criminal charges while on probation, although they were

dismissed. Nonetheless, where a probationer is arrested and receives new

charges that are nolle prossed, a VOP court can and should consider the

totality of this evidence, particularly the factual allegations in support thereof,

before imposing a sentence of total confinement. Commonwealth v. Banks,

198 A.3d 391, 403 (Pa. Super. 2018) (quoting Commonwealth v. Ahearn,

670 A.2d 133, 135 (Pa. 1996), and distinguishing Commonwealth v. Brown,

469 A.2d 1371 (Pa. 1983) (regarding charges acquitted by a jury)). The court

-8- J-S47019-24

further noted that the continuing nature of Walker’s antisocial behavior further

suggested that he was likely to commit future offenses unless confined. VOP

Court Opinion, 7/8/24, at 7.

The court also found that Walker was not amenable to supervision. Id.

6. The court observed that the purpose of a VOP hearing is to "determine

whether probation remains rehabilitative and continues to deter future

antisocial conduct." Commonwealth v. Holder, 805 A.2d 499, 504 (Pa.

2002). At his VOP hearing, the court told Walker that his prior probation

sentence was an opportunity for him. However, instead of taking advantage

of it, Walker failed to make any positive rehabilitative efforts and

demonstrated a clear pattern of antisocial conduct. See N.T., 4/26/24, at

24-25. In particular, the court found that Walker’s actions by absconding were

flagrant and demonstrated his inability to reform and lack of remorse.

Consequently, the court found that probation was not a viable means to

rehabilitate Walker and deter antisocial behavior. VOP Court Opinion, 7/8/24,

at 6.

Lastly, the court indicated that a sentence of total confinement was

necessary to "vindicate the authority" of the court given appellant's willful

non-compliance with probation, rules, and court orders. In particular, the

court noted the flagrant nature of Walker’s actions by absconding. Id. Walker

blatantly disregarded the terms of his probation almost immediately after he

was sentenced. This continued for almost 4 months. A sentence of

imprisonment for a defendant who absconded is essential to vindicate the

-9- J-S47019-24

court’s authority. Commonwealth v. Ortega, 995 A.2d 879, 884 (Pa. Super.

2010).

Therefore, the court’s sentence of total confinement was appropriate.

Additionally, the length of Walker’s sentence was not unreasonable.5

Here, the standard range, minimum sentence was 3 to 14 months’

incarceration, plus or minus 3 months. The court’s minimum sentence of 18

months was one month outside the aggravated range. However, as the VOP

court indicated, the maximum sentence for criminal trespass, a second-degree

felony, is 5 to 10 years’ incarceration. See 18 Pa.C.S.A. § 1103(2). Walker’s

sentence of 1½ to 3 years was well below the sentence the court originally

could have imposed.

Further, we acknowledge that the Legislature adopted new limitations

for probation violation sentences based on technical violations. 42 Pa.C.S.A.

§ 9771(c). However, as Walker recognizes, these rules were not in effect at

the time of his VOP sentencing and, therefore, do not apply to him. Moreover,

this change in the law does not persuade us that Walker’s sentence was

excessive.

A review of the VOP sentencing transcript reveals that the VOP court

considered the factors under section 9771(c), discussed above, and the

5 For a technical violation resulting in the revocation of an order of probation,

the resentencing guidelines shall be the same as the initial sentencing guidelines, pursuant to 204 Pa. Code Chapter 303 (relating to sentencing guidelines, 7th edition), with consideration given to any service of the original sentence.” 204 Pa. Code § 307.3.

- 10 - J-S47019-24

general principles of sentencing in fashioning Walker’s sentence. Specifically,

it considered the circumstances of this case, the information provided by the

supervising probation officer; arguments of the Commonwealth and defense

counsel, and, significantly, Walker’s rehabilitative and treatment needs.

Walker’s conduct while on probation weighed heavily in determining Walker’s

sentence as did the court’s desire to ensure that Walker received the help he

needed. N.T., 4/26/24, at 25-26.

Walker argues nonetheless that, based upon Parlante and

Commonwealth v. Cottle, 426 A.2d 598, 602 (Pa. 1981), his state sentence

for technical violations of his probation, should likewise be vacated. Although

Walker acknowledges that he absconded, he argues that he took substantial

steps toward rehabilitation which warrants a lesser sentence. We disagree.

In Parlante, this Court found that the trial court abused its discretion

where it imposed a lengthy sentence based on a number of technical

violations. There, the trial court based its revocation sentence solely on the

likelihood that the defendant would violate probation again without

considering that her few crimes were not violent among other important

factors. While this Court agreed that the defendant should serve some prison

time for her violations, we concluded 4 to 8 years was excessive. Id. at 930-

931.

Similarly, in Cottle the court imposed a maximum sentence of

confinement based solely on Cottle’s failure to report. Despite his failure to

report, Cottle took significant steps to rehabilitate himself which was the goal.

- 11 - J-S47019-24

Because this had been accomplished and there was no basis for a sentence of

total confinement, incarceration would be more punitive than rehabilitative.

Thus, our Supreme Court vacated Cottle’s sentence. Cottle, 426 A.2d at 602.

Based upon our review, the instant case does not warrant the type of

relief afforded in Parlante and Cottle. As discussed above, the VOP court

imposed a revocation sentence well below the maximum for multiple

technical violations of his probation, as well as being arrested while on

probation for new offenses like that of the underlying offense in this case.

Furthermore, as the trial court found, Walker has not taken substantial steps

towards his own rehabilitation. Thus, Walker’s sentence was not “a manifestly

unreasonable amount of time” as the sentence was in Parlante. Additionally,

there were several reasons, supported by the record, why the VOP court

imposed a sentence of total incarceration, unlike the circumstances in Cottle.

In sum, we conclude that the trial court did not abuse it discretion in

imposing Walker’s VOP sentence as his sentence was not manifestly excessive

or unreasonable under the circumstances of this case.

Judgment of sentence affirmed.

Date: 3/21/2025

- 12 - J-S47019-24

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AUSTIN WALKER : : Appellant : No. 1456 EDA 2024

Appeal from the Judgment of Sentence Entered April 26, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002234-2023

Austin Walker appeals from the judgment of sentence imposed following

revocation of his probation for technical violations. He challenges the

discretionary aspects of his new sentence. Upon review, we affirm.

The relevant factual and procedural history follows. On the night of

January 16, 2023, Walker, while intoxicated, broke into his wife’s home in

Philadelphia by kicking in the back door. He entered her home. When police

arrived and attempted to take him into custody, he resisted, attempted to

punch the officers, and disregarded their commands. He was arrested and

On July 19, 2023, Walker entered a negotiated guilty plea for criminal

trespass.1 The trial court sentenced him to 3 years’ probation. The court also

1 18 Pa.C.S.A. § 3503(a)(1)(ii). The remaining charges were dismissed. J-S47019-24

imposed the following probation conditions: a stay away order against his

wife; supervision by the domestic violence unit of the probation department,

which required that Walker attend batterer’s intervention treatment; a mental

health evaluation; and a drug and alcohol assessment. A protection from

abuse (“PFA”) order was entered against Walker, which coincided with his

Following his sentence, Walker reported to probation on August 15,

2023. At that time, he tested positive for cocaine. He was to report again on

The probation department attempted several times to contact Walker

but was unable to reach him. Consequently, on October 17, 2023, a warrant

was issued. Walker was picked up on December 4, 2023, when he was

arrested for another domestic violence incident which included contempt of

the PFA, terroristic threats, stalking, simple assault, and resisting arrest.

Subsequently, the probation department sought to revoke his probation

for technical violations.2 In addition to failing to report and absconding,

Walker failed to attend the batterer’s intervention treatment and obtain other

required assessments. As a result, the probation department sought

revocation of Walker’s probation and imposition of a sentence of incarceration.

2 Originally, the request to revoke Walker’s probation included charges for a

violation of the PFA order and new criminal charges. However, those charges were dismissed and the matter proceeded solely based on his technical violations.

On April 26, 2024, the court held a violation of probation (“VOP”)

hearing and found that Walker violated his probation which warranted a

sentence of total confinement. That same day, the VOP court resentenced

Walker to 1½ to 3 years’ incarceration and ordered drug treatment. Walker

filed a post-sentence motion, which the court did not decide.

Walker filed this timely appeal.3 He and the trial court complied with

Did the [VOP] court abuse its discretion in sentencing [] Walker to one-and-one-half to three years' incarceration for a first, technical violation of his probation where such an extended period of total confinement was manifestly excessive under the circumstances?

Walker challenges the discretionary aspects of his VOP sentence. A

challenge to the discretionary aspects of a sentence, following probation

revocation, does not entitle an appellant to review as of right; rather, the

appellant must petition this Court for permission to appeal. See

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008). Before

3 The VOP court claimed that the appeal was premature since it had not yet

decided Walker’s post-sentence motion. Trial Court Opinion, 7/8/24, at 2 n.2. However, as Walker noted, the filing of a post-sentence motion does not toll the appeal period for a probation revocation sentence. Pa.R.Crim.P 708(E). Accordingly, Walker had to file his appeal within 30 days of his sentencing or risk it be quashed as untimely.

reaching the merits of a discretionary sentencing issue, we must conduct a

(1) whether the appeal is timely; (2) whether [a]ppellant preserved his issue; (3) whether [a]pellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence [in accordance with 2119(f)]; 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. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014)

(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013).

Here, Walker satisfied the first three requirements under Colon.

Accordingly, we must determine whether he raised a substantial question.

In his Rule 2119(f) statement, Walker claims that the trial court abused

its discretion by imposing an excessive sentence of total confinement following

revocation of probation for a first violation based solely on technical violations.

He further maintains that the court did not consider his rehabilitative needs

The imposition of a sentence of total confinement after revocation of

probation for a technical violation, and not a new criminal offense, implicates

the “fundamental norms which underlie the sentencing process” and therefore

raises a substantial question. Commonwealth v. Crump, 995 A.2d 1280,

1282 (Pa. Super. 2010); Commonwealth v. Malovich, 903 A.2d 1247, 1252

(Pa. Super. 2006) (claim that probation revocation sentence was excessive

considering its underlying technical violations can present a question that this

Court should review). Additionally, “an excessive sentence claim—in

conjunction with an assertion that the court failed to consider mitigating

factors [or rehabilitative needs]—raises a substantial question.”

Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en

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. 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.

In determining whether a sentence is manifestly excessive, the appellate court must give great weight to the sentencing court's discretion, as he or she is in the best position to measure factors such as the nature of the crime, the defendant's character, and the defendant's display of remorse, defiance, or indifference.

Upon revoking probation, a sentencing court may choose from any of the sentencing options that existed at the time of the original sentencing, including incarceration. [U]pon 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.

Colon, 102 A.3d at 1044 (quotations and citations omitted). A sentence

should not be disturbed where it is evident the court was aware of the

appropriate sentencing considerations and weighed them in a meaningful

fashion. Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000).

Additionally, where probation has been revoked, a sentence of total

(2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or

(3) such a sentence is essential to vindicate the authority of the court.

42 Pa.C.S.A. § 9771(c).4 In all cases where the trial court resentences an

offender following revocation of probation, the trial court must place its

reasons for the sentence on the record. 42 Pa.C.S.A. § 9721(b);

Commonwealth v. Cartrette, 83 A.3d 1030, 1040–41 (Pa. Super. 2013). “A

trial 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.” Crump, 995 A.2d at 1282–1283.

This Court has held that, “[t]echnical violations can support revocation

and a sentence of incarceration when such violations are flagrant and indicate

[a resistance] to reform.” Commonwealth v. Carver, 923 A.2d 495, 498

(Pa. Super. 2007). “[A] trial court does not necessarily abuse its discretion in

imposing a seemingly harsher post-revocation sentence where the defendant

4 The law was amended effective June 11, 2024, which renders these criteria

inapplicable. However, because Walker’s VOP hearing occurred prior to the amendment’s effective date, we apply this version of the statute.

received a lenient sentence and then failed to adhere to the conditions

imposed on him.” Commonwealth v. Pasture, 107 A.3d 21, 28 (Pa. 2014).

However, we have rejected lengthy incarceration sentences imposed

solely based upon technical violations of probation on grounds of

unreasonableness. Commonwealth v. Williams, 69 A.3d 735 (Pa. Super.

2013); Commonwealth v. Parlante, 823 A.2d 927 (Pa. Super. 2003). Given

this Court's highly deferential standard of review, such relief should be

afforded only in rare cases. Commonwealth v. Walls, 926 A.2d 957, 964

In his sole issue, Walker claims that the VOP court abused its discretion

when it imposed an excessive sentence of confinement. According to Walker,

although a sentence of incarceration may have been warranted, the VOP court

should not have sentenced him to a “substantial” state prison sentence for a

first violation. Specifically, Walker argues that his violations were only

technical and that he took substantial steps on his own toward his

rehabilitation by maintaining employment, attending job training classes, and

undertaking drug treatment. Walker’s Brief at 9, 13. He maintains that our

courts have vacated excessive state sentences based on only technical

violations. Additionally, Walker argues that, if his hearing occurred six weeks

later, his sentence would have been capped at fourteen days’ incarceration

under 42 Pa.C.S.A. section 9771(c), which now limits a probation revocation

sentence of total confinement for technical violations. Walker maintains that

this is persuasive authority demonstrating that his sentence is excessive. Id.

at 7, 13-14. According to Walker, this Court should vacate his sentence. Id.

Here, the VOP court found that Walker violated multiple conditions of

his probation. As a result, the court sentenced him to 1½ to 3 years’

incarceration. In imposing a sentence of total confinement, the VOP court

explained that it was warranted for several reasons. First, the court found

that Walker was likely to commit another crime. The court noted that Walker’s

positive drug screen for cocaine indicated that he had possessed an illegal

substance. VOP Court Opinion, 7/8/24, at 5-6. Possession of a controlled

substance while on probation shows that a defendant is likely to commit

Further, Walker violated the PFA order and the court’s stay away order,

while on probation; both orders pertained to his wife. Although Walker’s

charge for violating the PFA was dismissed, his refusal to comply with these

orders shows that he is likely to commit another crime. Additionally, Walker

was arrested on new criminal charges while on probation, although they were

dismissed. Nonetheless, where a probationer is arrested and receives new

charges that are nolle prossed, a VOP court can and should consider the

totality of this evidence, particularly the factual allegations in support thereof,

before imposing a sentence of total confinement. Commonwealth v. Banks,

198 A.3d 391, 403 (Pa. Super. 2018) (quoting Commonwealth v. Ahearn,

670 A.2d 133, 135 (Pa. 1996), and distinguishing Commonwealth v. Brown,

469 A.2d 1371 (Pa. 1983) (regarding charges acquitted by a jury)). The court

further noted that the continuing nature of Walker’s antisocial behavior further

suggested that he was likely to commit future offenses unless confined. VOP

The court also found that Walker was not amenable to supervision. Id.

6. The court observed that the purpose of a VOP hearing is to "determine

whether probation remains rehabilitative and continues to deter future

antisocial conduct." Commonwealth v. Holder, 805 A.2d 499, 504 (Pa.

2002). At his VOP hearing, the court told Walker that his prior probation

sentence was an opportunity for him. However, instead of taking advantage

of it, Walker failed to make any positive rehabilitative efforts and

demonstrated a clear pattern of antisocial conduct. See N.T., 4/26/24, at

24-25. In particular, the court found that Walker’s actions by absconding were

flagrant and demonstrated his inability to reform and lack of remorse.

Consequently, the court found that probation was not a viable means to

rehabilitate Walker and deter antisocial behavior. VOP Court Opinion, 7/8/24,

Lastly, the court indicated that a sentence of total confinement was

necessary to "vindicate the authority" of the court given appellant's willful

non-compliance with probation, rules, and court orders. In particular, the

court noted the flagrant nature of Walker’s actions by absconding. Id. Walker

blatantly disregarded the terms of his probation almost immediately after he

was sentenced. This continued for almost 4 months. A sentence of

imprisonment for a defendant who absconded is essential to vindicate the

court’s authority. Commonwealth v. Ortega, 995 A.2d 879, 884 (Pa. Super.

Therefore, the court’s sentence of total confinement was appropriate.

Additionally, the length of Walker’s sentence was not unreasonable.5

Here, the standard range, minimum sentence was 3 to 14 months’

incarceration, plus or minus 3 months. The court’s minimum sentence of 18

months was one month outside the aggravated range. However, as the VOP

court indicated, the maximum sentence for criminal trespass, a second-degree

felony, is 5 to 10 years’ incarceration. See 18 Pa.C.S.A. § 1103(2). Walker’s

sentence of 1½ to 3 years was well below the sentence the court originally

Further, we acknowledge that the Legislature adopted new limitations

for probation violation sentences based on technical violations. 42 Pa.C.S.A.

§ 9771(c). However, as Walker recognizes, these rules were not in effect at

the time of his VOP sentencing and, therefore, do not apply to him. Moreover,

this change in the law does not persuade us that Walker’s sentence was

A review of the VOP sentencing transcript reveals that the VOP court

considered the factors under section 9771(c), discussed above, and the

5 For a technical violation resulting in the revocation of an order of probation,

the resentencing guidelines shall be the same as the initial sentencing guidelines, pursuant to 204 Pa. Code Chapter 303 (relating to sentencing guidelines, 7th edition), with consideration given to any service of the original sentence.” 204 Pa. Code § 307.3.

general principles of sentencing in fashioning Walker’s sentence. Specifically,

it considered the circumstances of this case, the information provided by the

supervising probation officer; arguments of the Commonwealth and defense

counsel, and, significantly, Walker’s rehabilitative and treatment needs.

Walker’s conduct while on probation weighed heavily in determining Walker’s

sentence as did the court’s desire to ensure that Walker received the help he

Commonwealth v. Cottle, 426 A.2d 598, 602 (Pa. 1981), his state sentence

for technical violations of his probation, should likewise be vacated. Although

Walker acknowledges that he absconded, he argues that he took substantial

steps toward rehabilitation which warrants a lesser sentence. We disagree.

In Parlante, this Court found that the trial court abused its discretion

where it imposed a lengthy sentence based on a number of technical

violations. There, the trial court based its revocation sentence solely on the

likelihood that the defendant would violate probation again without

considering that her few crimes were not violent among other important

factors. While this Court agreed that the defendant should serve some prison

time for her violations, we concluded 4 to 8 years was excessive. Id. at 930-

confinement based solely on Cottle’s failure to report. Despite his failure to

report, Cottle took significant steps to rehabilitate himself which was the goal.

Because this had been accomplished and there was no basis for a sentence of

total confinement, incarceration would be more punitive than rehabilitative.

Thus, our Supreme Court vacated Cottle’s sentence. Cottle, 426 A.2d at 602.

Based upon our review, the instant case does not warrant the type of

relief afforded in Parlante and Cottle. As discussed above, the VOP court

imposed a revocation sentence well below the maximum for multiple

technical violations of his probation, as well as being arrested while on

probation for new offenses like that of the underlying offense in this case.

Furthermore, as the trial court found, Walker has not taken substantial steps

towards his own rehabilitation. Thus, Walker’s sentence was not “a manifestly

unreasonable amount of time” as the sentence was in Parlante. Additionally,

there were several reasons, supported by the record, why the VOP court

imposed a sentence of total incarceration, unlike the circumstances in Cottle.

In sum, we conclude that the trial court did not abuse it discretion in

imposing Walker’s VOP sentence as his sentence was not manifestly excessive

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AUSTIN WALKER : : Appellant : No. 1456 EDA 2024

Appeal from the Judgment of Sentence Entered April 26, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002234-2023

Austin Walker appeals from the judgment of sentence imposed following

revocation of his probation for technical violations. He challenges the

discretionary aspects of his new sentence. Upon review, we affirm.

The relevant factual and procedural history follows. On the night of

January 16, 2023, Walker, while intoxicated, broke into his wife’s home in

Philadelphia by kicking in the back door. He entered her home. When police

arrived and attempted to take him into custody, he resisted, attempted to

punch the officers, and disregarded their commands. He was arrested and

On July 19, 2023, Walker entered a negotiated guilty plea for criminal

trespass.1 The trial court sentenced him to 3 years’ probation. The court also

1 18 Pa.C.S.A. § 3503(a)(1)(ii). The remaining charges were dismissed. J-S47019-24

imposed the following probation conditions: a stay away order against his

wife; supervision by the domestic violence unit of the probation department,

which required that Walker attend batterer’s intervention treatment; a mental

health evaluation; and a drug and alcohol assessment. A protection from

abuse (“PFA”) order was entered against Walker, which coincided with his

Following his sentence, Walker reported to probation on August 15,

2023. At that time, he tested positive for cocaine. He was to report again on

The probation department attempted several times to contact Walker

but was unable to reach him. Consequently, on October 17, 2023, a warrant

was issued. Walker was picked up on December 4, 2023, when he was

arrested for another domestic violence incident which included contempt of

the PFA, terroristic threats, stalking, simple assault, and resisting arrest.

Subsequently, the probation department sought to revoke his probation

for technical violations.2 In addition to failing to report and absconding,

Walker failed to attend the batterer’s intervention treatment and obtain other

required assessments. As a result, the probation department sought

revocation of Walker’s probation and imposition of a sentence of incarceration.

2 Originally, the request to revoke Walker’s probation included charges for a

violation of the PFA order and new criminal charges. However, those charges were dismissed and the matter proceeded solely based on his technical violations.

On April 26, 2024, the court held a violation of probation (“VOP”)

hearing and found that Walker violated his probation which warranted a

sentence of total confinement. That same day, the VOP court resentenced

Walker to 1½ to 3 years’ incarceration and ordered drug treatment. Walker

filed a post-sentence motion, which the court did not decide.

Walker filed this timely appeal.3 He and the trial court complied with

Did the [VOP] court abuse its discretion in sentencing [] Walker to one-and-one-half to three years' incarceration for a first, technical violation of his probation where such an extended period of total confinement was manifestly excessive under the circumstances?

Walker challenges the discretionary aspects of his VOP sentence. A

challenge to the discretionary aspects of a sentence, following probation

revocation, does not entitle an appellant to review as of right; rather, the

appellant must petition this Court for permission to appeal. See

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008). Before

3 The VOP court claimed that the appeal was premature since it had not yet

decided Walker’s post-sentence motion. Trial Court Opinion, 7/8/24, at 2 n.2. However, as Walker noted, the filing of a post-sentence motion does not toll the appeal period for a probation revocation sentence. Pa.R.Crim.P 708(E). Accordingly, Walker had to file his appeal within 30 days of his sentencing or risk it be quashed as untimely.

reaching the merits of a discretionary sentencing issue, we must conduct a

(1) whether the appeal is timely; (2) whether [a]ppellant preserved his issue; (3) whether [a]pellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence [in accordance with 2119(f)]; 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. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014)

(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013).

Here, Walker satisfied the first three requirements under Colon.

Accordingly, we must determine whether he raised a substantial question.

In his Rule 2119(f) statement, Walker claims that the trial court abused

its discretion by imposing an excessive sentence of total confinement following

revocation of probation for a first violation based solely on technical violations.

He further maintains that the court did not consider his rehabilitative needs

The imposition of a sentence of total confinement after revocation of

probation for a technical violation, and not a new criminal offense, implicates

the “fundamental norms which underlie the sentencing process” and therefore

raises a substantial question. Commonwealth v. Crump, 995 A.2d 1280,

1282 (Pa. Super. 2010); Commonwealth v. Malovich, 903 A.2d 1247, 1252

(Pa. Super. 2006) (claim that probation revocation sentence was excessive

considering its underlying technical violations can present a question that this

Court should review). Additionally, “an excessive sentence claim—in

conjunction with an assertion that the court failed to consider mitigating

factors [or rehabilitative needs]—raises a substantial question.”

Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en

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. 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.

In determining whether a sentence is manifestly excessive, the appellate court must give great weight to the sentencing court's discretion, as he or she is in the best position to measure factors such as the nature of the crime, the defendant's character, and the defendant's display of remorse, defiance, or indifference.

Upon revoking probation, a sentencing court may choose from any of the sentencing options that existed at the time of the original sentencing, including incarceration. [U]pon 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.

Colon, 102 A.3d at 1044 (quotations and citations omitted). A sentence

should not be disturbed where it is evident the court was aware of the

appropriate sentencing considerations and weighed them in a meaningful

fashion. Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000).

Additionally, where probation has been revoked, a sentence of total

(2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or

(3) such a sentence is essential to vindicate the authority of the court.

42 Pa.C.S.A. § 9771(c).4 In all cases where the trial court resentences an

offender following revocation of probation, the trial court must place its

reasons for the sentence on the record. 42 Pa.C.S.A. § 9721(b);

Commonwealth v. Cartrette, 83 A.3d 1030, 1040–41 (Pa. Super. 2013). “A

trial 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.” Crump, 995 A.2d at 1282–1283.

This Court has held that, “[t]echnical violations can support revocation

and a sentence of incarceration when such violations are flagrant and indicate

[a resistance] to reform.” Commonwealth v. Carver, 923 A.2d 495, 498

(Pa. Super. 2007). “[A] trial court does not necessarily abuse its discretion in

imposing a seemingly harsher post-revocation sentence where the defendant

4 The law was amended effective June 11, 2024, which renders these criteria

inapplicable. However, because Walker’s VOP hearing occurred prior to the amendment’s effective date, we apply this version of the statute.

received a lenient sentence and then failed to adhere to the conditions

imposed on him.” Commonwealth v. Pasture, 107 A.3d 21, 28 (Pa. 2014).

However, we have rejected lengthy incarceration sentences imposed

solely based upon technical violations of probation on grounds of

unreasonableness. Commonwealth v. Williams, 69 A.3d 735 (Pa. Super.

2013); Commonwealth v. Parlante, 823 A.2d 927 (Pa. Super. 2003). Given

this Court's highly deferential standard of review, such relief should be

afforded only in rare cases. Commonwealth v. Walls, 926 A.2d 957, 964

In his sole issue, Walker claims that the VOP court abused its discretion

when it imposed an excessive sentence of confinement. According to Walker,

although a sentence of incarceration may have been warranted, the VOP court

should not have sentenced him to a “substantial” state prison sentence for a

first violation. Specifically, Walker argues that his violations were only

technical and that he took substantial steps on his own toward his

rehabilitation by maintaining employment, attending job training classes, and

undertaking drug treatment. Walker’s Brief at 9, 13. He maintains that our

courts have vacated excessive state sentences based on only technical

violations. Additionally, Walker argues that, if his hearing occurred six weeks

later, his sentence would have been capped at fourteen days’ incarceration

under 42 Pa.C.S.A. section 9771(c), which now limits a probation revocation

sentence of total confinement for technical violations. Walker maintains that

this is persuasive authority demonstrating that his sentence is excessive. Id.

at 7, 13-14. According to Walker, this Court should vacate his sentence. Id.

Here, the VOP court found that Walker violated multiple conditions of

his probation. As a result, the court sentenced him to 1½ to 3 years’

incarceration. In imposing a sentence of total confinement, the VOP court

explained that it was warranted for several reasons. First, the court found

that Walker was likely to commit another crime. The court noted that Walker’s

positive drug screen for cocaine indicated that he had possessed an illegal

substance. VOP Court Opinion, 7/8/24, at 5-6. Possession of a controlled

substance while on probation shows that a defendant is likely to commit

Further, Walker violated the PFA order and the court’s stay away order,

while on probation; both orders pertained to his wife. Although Walker’s

charge for violating the PFA was dismissed, his refusal to comply with these

orders shows that he is likely to commit another crime. Additionally, Walker

was arrested on new criminal charges while on probation, although they were

dismissed. Nonetheless, where a probationer is arrested and receives new

charges that are nolle prossed, a VOP court can and should consider the

totality of this evidence, particularly the factual allegations in support thereof,

before imposing a sentence of total confinement. Commonwealth v. Banks,

198 A.3d 391, 403 (Pa. Super. 2018) (quoting Commonwealth v. Ahearn,

670 A.2d 133, 135 (Pa. 1996), and distinguishing Commonwealth v. Brown,

469 A.2d 1371 (Pa. 1983) (regarding charges acquitted by a jury)). The court

further noted that the continuing nature of Walker’s antisocial behavior further

suggested that he was likely to commit future offenses unless confined. VOP

The court also found that Walker was not amenable to supervision. Id.

6. The court observed that the purpose of a VOP hearing is to "determine

whether probation remains rehabilitative and continues to deter future

antisocial conduct." Commonwealth v. Holder, 805 A.2d 499, 504 (Pa.

2002). At his VOP hearing, the court told Walker that his prior probation

sentence was an opportunity for him. However, instead of taking advantage

of it, Walker failed to make any positive rehabilitative efforts and

demonstrated a clear pattern of antisocial conduct. See N.T., 4/26/24, at

24-25. In particular, the court found that Walker’s actions by absconding were

flagrant and demonstrated his inability to reform and lack of remorse.

Consequently, the court found that probation was not a viable means to

rehabilitate Walker and deter antisocial behavior. VOP Court Opinion, 7/8/24,

Lastly, the court indicated that a sentence of total confinement was

necessary to "vindicate the authority" of the court given appellant's willful

non-compliance with probation, rules, and court orders. In particular, the

court noted the flagrant nature of Walker’s actions by absconding. Id. Walker

blatantly disregarded the terms of his probation almost immediately after he

was sentenced. This continued for almost 4 months. A sentence of

imprisonment for a defendant who absconded is essential to vindicate the

court’s authority. Commonwealth v. Ortega, 995 A.2d 879, 884 (Pa. Super.

Therefore, the court’s sentence of total confinement was appropriate.

Additionally, the length of Walker’s sentence was not unreasonable.5

Here, the standard range, minimum sentence was 3 to 14 months’

incarceration, plus or minus 3 months. The court’s minimum sentence of 18

months was one month outside the aggravated range. However, as the VOP

court indicated, the maximum sentence for criminal trespass, a second-degree

felony, is 5 to 10 years’ incarceration. See 18 Pa.C.S.A. § 1103(2). Walker’s

sentence of 1½ to 3 years was well below the sentence the court originally

Further, we acknowledge that the Legislature adopted new limitations

for probation violation sentences based on technical violations. 42 Pa.C.S.A.

§ 9771(c). However, as Walker recognizes, these rules were not in effect at

the time of his VOP sentencing and, therefore, do not apply to him. Moreover,

this change in the law does not persuade us that Walker’s sentence was

A review of the VOP sentencing transcript reveals that the VOP court

considered the factors under section 9771(c), discussed above, and the

5 For a technical violation resulting in the revocation of an order of probation,

the resentencing guidelines shall be the same as the initial sentencing guidelines, pursuant to 204 Pa. Code Chapter 303 (relating to sentencing guidelines, 7th edition), with consideration given to any service of the original sentence.” 204 Pa. Code § 307.3.

general principles of sentencing in fashioning Walker’s sentence. Specifically,

it considered the circumstances of this case, the information provided by the

supervising probation officer; arguments of the Commonwealth and defense

counsel, and, significantly, Walker’s rehabilitative and treatment needs.

Walker’s conduct while on probation weighed heavily in determining Walker’s

sentence as did the court’s desire to ensure that Walker received the help he

Commonwealth v. Cottle, 426 A.2d 598, 602 (Pa. 1981), his state sentence

for technical violations of his probation, should likewise be vacated. Although

Walker acknowledges that he absconded, he argues that he took substantial

steps toward rehabilitation which warrants a lesser sentence. We disagree.

In Parlante, this Court found that the trial court abused its discretion

where it imposed a lengthy sentence based on a number of technical

violations. There, the trial court based its revocation sentence solely on the

likelihood that the defendant would violate probation again without

considering that her few crimes were not violent among other important

factors. While this Court agreed that the defendant should serve some prison

time for her violations, we concluded 4 to 8 years was excessive. Id. at 930-

confinement based solely on Cottle’s failure to report. Despite his failure to

report, Cottle took significant steps to rehabilitate himself which was the goal.

Because this had been accomplished and there was no basis for a sentence of

total confinement, incarceration would be more punitive than rehabilitative.

Thus, our Supreme Court vacated Cottle’s sentence. Cottle, 426 A.2d at 602.

Based upon our review, the instant case does not warrant the type of

relief afforded in Parlante and Cottle. As discussed above, the VOP court

imposed a revocation sentence well below the maximum for multiple

technical violations of his probation, as well as being arrested while on

probation for new offenses like that of the underlying offense in this case.

Furthermore, as the trial court found, Walker has not taken substantial steps

towards his own rehabilitation. Thus, Walker’s sentence was not “a manifestly

unreasonable amount of time” as the sentence was in Parlante. Additionally,

there were several reasons, supported by the record, why the VOP court

imposed a sentence of total incarceration, unlike the circumstances in Cottle.

In sum, we conclude that the trial court did not abuse it discretion in

imposing Walker’s VOP sentence as his sentence was not manifestly excessive

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AUSTIN WALKER : : Appellant : No. 1456 EDA 2024

Appeal from the Judgment of Sentence Entered April 26, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002234-2023

Austin Walker appeals from the judgment of sentence imposed following

revocation of his probation for technical violations. He challenges the

discretionary aspects of his new sentence. Upon review, we affirm.

The relevant factual and procedural history follows. On the night of

January 16, 2023, Walker, while intoxicated, broke into his wife’s home in

Philadelphia by kicking in the back door. He entered her home. When police

arrived and attempted to take him into custody, he resisted, attempted to

punch the officers, and disregarded their commands. He was arrested and

On July 19, 2023, Walker entered a negotiated guilty plea for criminal

trespass.1 The trial court sentenced him to 3 years’ probation. The court also

1 18 Pa.C.S.A. § 3503(a)(1)(ii). The remaining charges were dismissed. J-S47019-24

imposed the following probation conditions: a stay away order against his

wife; supervision by the domestic violence unit of the probation department,

which required that Walker attend batterer’s intervention treatment; a mental

health evaluation; and a drug and alcohol assessment. A protection from

abuse (“PFA”) order was entered against Walker, which coincided with his

Following his sentence, Walker reported to probation on August 15,

2023. At that time, he tested positive for cocaine. He was to report again on

The probation department attempted several times to contact Walker

but was unable to reach him. Consequently, on October 17, 2023, a warrant

was issued. Walker was picked up on December 4, 2023, when he was

arrested for another domestic violence incident which included contempt of

the PFA, terroristic threats, stalking, simple assault, and resisting arrest.

Subsequently, the probation department sought to revoke his probation

for technical violations.2 In addition to failing to report and absconding,

Walker failed to attend the batterer’s intervention treatment and obtain other

required assessments. As a result, the probation department sought

revocation of Walker’s probation and imposition of a sentence of incarceration.

2 Originally, the request to revoke Walker’s probation included charges for a

violation of the PFA order and new criminal charges. However, those charges were dismissed and the matter proceeded solely based on his technical violations.

On April 26, 2024, the court held a violation of probation (“VOP”)

hearing and found that Walker violated his probation which warranted a

sentence of total confinement. That same day, the VOP court resentenced

Walker to 1½ to 3 years’ incarceration and ordered drug treatment. Walker

filed a post-sentence motion, which the court did not decide.

Walker filed this timely appeal.3 He and the trial court complied with

Did the [VOP] court abuse its discretion in sentencing [] Walker to one-and-one-half to three years' incarceration for a first, technical violation of his probation where such an extended period of total confinement was manifestly excessive under the circumstances?

Walker challenges the discretionary aspects of his VOP sentence. A

challenge to the discretionary aspects of a sentence, following probation

revocation, does not entitle an appellant to review as of right; rather, the

appellant must petition this Court for permission to appeal. See

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008). Before

3 The VOP court claimed that the appeal was premature since it had not yet

decided Walker’s post-sentence motion. Trial Court Opinion, 7/8/24, at 2 n.2. However, as Walker noted, the filing of a post-sentence motion does not toll the appeal period for a probation revocation sentence. Pa.R.Crim.P 708(E). Accordingly, Walker had to file his appeal within 30 days of his sentencing or risk it be quashed as untimely.

reaching the merits of a discretionary sentencing issue, we must conduct a

(1) whether the appeal is timely; (2) whether [a]ppellant preserved his issue; (3) whether [a]pellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence [in accordance with 2119(f)]; 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. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014)

(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013).

Here, Walker satisfied the first three requirements under Colon.

Accordingly, we must determine whether he raised a substantial question.

In his Rule 2119(f) statement, Walker claims that the trial court abused

its discretion by imposing an excessive sentence of total confinement following

revocation of probation for a first violation based solely on technical violations.

He further maintains that the court did not consider his rehabilitative needs

The imposition of a sentence of total confinement after revocation of

probation for a technical violation, and not a new criminal offense, implicates

the “fundamental norms which underlie the sentencing process” and therefore

raises a substantial question. Commonwealth v. Crump, 995 A.2d 1280,

1282 (Pa. Super. 2010); Commonwealth v. Malovich, 903 A.2d 1247, 1252

(Pa. Super. 2006) (claim that probation revocation sentence was excessive

considering its underlying technical violations can present a question that this

Court should review). Additionally, “an excessive sentence claim—in

conjunction with an assertion that the court failed to consider mitigating

factors [or rehabilitative needs]—raises a substantial question.”

Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en

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. 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.

In determining whether a sentence is manifestly excessive, the appellate court must give great weight to the sentencing court's discretion, as he or she is in the best position to measure factors such as the nature of the crime, the defendant's character, and the defendant's display of remorse, defiance, or indifference.

Upon revoking probation, a sentencing court may choose from any of the sentencing options that existed at the time of the original sentencing, including incarceration. [U]pon 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.

Colon, 102 A.3d at 1044 (quotations and citations omitted). A sentence

should not be disturbed where it is evident the court was aware of the

appropriate sentencing considerations and weighed them in a meaningful

fashion. Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000).

Additionally, where probation has been revoked, a sentence of total

(2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or

(3) such a sentence is essential to vindicate the authority of the court.

42 Pa.C.S.A. § 9771(c).4 In all cases where the trial court resentences an

offender following revocation of probation, the trial court must place its

reasons for the sentence on the record. 42 Pa.C.S.A. § 9721(b);

Commonwealth v. Cartrette, 83 A.3d 1030, 1040–41 (Pa. Super. 2013). “A

trial 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.” Crump, 995 A.2d at 1282–1283.

This Court has held that, “[t]echnical violations can support revocation

and a sentence of incarceration when such violations are flagrant and indicate

[a resistance] to reform.” Commonwealth v. Carver, 923 A.2d 495, 498

(Pa. Super. 2007). “[A] trial court does not necessarily abuse its discretion in

imposing a seemingly harsher post-revocation sentence where the defendant

4 The law was amended effective June 11, 2024, which renders these criteria

inapplicable. However, because Walker’s VOP hearing occurred prior to the amendment’s effective date, we apply this version of the statute.

received a lenient sentence and then failed to adhere to the conditions

imposed on him.” Commonwealth v. Pasture, 107 A.3d 21, 28 (Pa. 2014).

However, we have rejected lengthy incarceration sentences imposed

solely based upon technical violations of probation on grounds of

unreasonableness. Commonwealth v. Williams, 69 A.3d 735 (Pa. Super.

2013); Commonwealth v. Parlante, 823 A.2d 927 (Pa. Super. 2003). Given

this Court's highly deferential standard of review, such relief should be

afforded only in rare cases. Commonwealth v. Walls, 926 A.2d 957, 964

In his sole issue, Walker claims that the VOP court abused its discretion

when it imposed an excessive sentence of confinement. According to Walker,

although a sentence of incarceration may have been warranted, the VOP court

should not have sentenced him to a “substantial” state prison sentence for a

first violation. Specifically, Walker argues that his violations were only

technical and that he took substantial steps on his own toward his

rehabilitation by maintaining employment, attending job training classes, and

undertaking drug treatment. Walker’s Brief at 9, 13. He maintains that our

courts have vacated excessive state sentences based on only technical

violations. Additionally, Walker argues that, if his hearing occurred six weeks

later, his sentence would have been capped at fourteen days’ incarceration

under 42 Pa.C.S.A. section 9771(c), which now limits a probation revocation

sentence of total confinement for technical violations. Walker maintains that

this is persuasive authority demonstrating that his sentence is excessive. Id.

at 7, 13-14. According to Walker, this Court should vacate his sentence. Id.

Here, the VOP court found that Walker violated multiple conditions of

his probation. As a result, the court sentenced him to 1½ to 3 years’

incarceration. In imposing a sentence of total confinement, the VOP court

explained that it was warranted for several reasons. First, the court found

that Walker was likely to commit another crime. The court noted that Walker’s

positive drug screen for cocaine indicated that he had possessed an illegal

substance. VOP Court Opinion, 7/8/24, at 5-6. Possession of a controlled

substance while on probation shows that a defendant is likely to commit

Further, Walker violated the PFA order and the court’s stay away order,

while on probation; both orders pertained to his wife. Although Walker’s

charge for violating the PFA was dismissed, his refusal to comply with these

orders shows that he is likely to commit another crime. Additionally, Walker

was arrested on new criminal charges while on probation, although they were

dismissed. Nonetheless, where a probationer is arrested and receives new

charges that are nolle prossed, a VOP court can and should consider the

totality of this evidence, particularly the factual allegations in support thereof,

before imposing a sentence of total confinement. Commonwealth v. Banks,

198 A.3d 391, 403 (Pa. Super. 2018) (quoting Commonwealth v. Ahearn,

670 A.2d 133, 135 (Pa. 1996), and distinguishing Commonwealth v. Brown,

469 A.2d 1371 (Pa. 1983) (regarding charges acquitted by a jury)). The court

further noted that the continuing nature of Walker’s antisocial behavior further

suggested that he was likely to commit future offenses unless confined. VOP

The court also found that Walker was not amenable to supervision. Id.

6. The court observed that the purpose of a VOP hearing is to "determine

whether probation remains rehabilitative and continues to deter future

antisocial conduct." Commonwealth v. Holder, 805 A.2d 499, 504 (Pa.

2002). At his VOP hearing, the court told Walker that his prior probation

sentence was an opportunity for him. However, instead of taking advantage

of it, Walker failed to make any positive rehabilitative efforts and

demonstrated a clear pattern of antisocial conduct. See N.T., 4/26/24, at

24-25. In particular, the court found that Walker’s actions by absconding were

flagrant and demonstrated his inability to reform and lack of remorse.

Consequently, the court found that probation was not a viable means to

rehabilitate Walker and deter antisocial behavior. VOP Court Opinion, 7/8/24,

Lastly, the court indicated that a sentence of total confinement was

necessary to "vindicate the authority" of the court given appellant's willful

non-compliance with probation, rules, and court orders. In particular, the

court noted the flagrant nature of Walker’s actions by absconding. Id. Walker

blatantly disregarded the terms of his probation almost immediately after he

was sentenced. This continued for almost 4 months. A sentence of

imprisonment for a defendant who absconded is essential to vindicate the

court’s authority. Commonwealth v. Ortega, 995 A.2d 879, 884 (Pa. Super.

Therefore, the court’s sentence of total confinement was appropriate.

Additionally, the length of Walker’s sentence was not unreasonable.5

Here, the standard range, minimum sentence was 3 to 14 months’

incarceration, plus or minus 3 months. The court’s minimum sentence of 18

months was one month outside the aggravated range. However, as the VOP

court indicated, the maximum sentence for criminal trespass, a second-degree

felony, is 5 to 10 years’ incarceration. See 18 Pa.C.S.A. § 1103(2). Walker’s

sentence of 1½ to 3 years was well below the sentence the court originally

Further, we acknowledge that the Legislature adopted new limitations

for probation violation sentences based on technical violations. 42 Pa.C.S.A.

§ 9771(c). However, as Walker recognizes, these rules were not in effect at

the time of his VOP sentencing and, therefore, do not apply to him. Moreover,

this change in the law does not persuade us that Walker’s sentence was

A review of the VOP sentencing transcript reveals that the VOP court

considered the factors under section 9771(c), discussed above, and the

5 For a technical violation resulting in the revocation of an order of probation,

the resentencing guidelines shall be the same as the initial sentencing guidelines, pursuant to 204 Pa. Code Chapter 303 (relating to sentencing guidelines, 7th edition), with consideration given to any service of the original sentence.” 204 Pa. Code § 307.3.

general principles of sentencing in fashioning Walker’s sentence. Specifically,

it considered the circumstances of this case, the information provided by the

supervising probation officer; arguments of the Commonwealth and defense

counsel, and, significantly, Walker’s rehabilitative and treatment needs.

Walker’s conduct while on probation weighed heavily in determining Walker’s

sentence as did the court’s desire to ensure that Walker received the help he

Commonwealth v. Cottle, 426 A.2d 598, 602 (Pa. 1981), his state sentence

for technical violations of his probation, should likewise be vacated. Although

Walker acknowledges that he absconded, he argues that he took substantial

steps toward rehabilitation which warrants a lesser sentence. We disagree.

In Parlante, this Court found that the trial court abused its discretion

where it imposed a lengthy sentence based on a number of technical

violations. There, the trial court based its revocation sentence solely on the

likelihood that the defendant would violate probation again without

considering that her few crimes were not violent among other important

factors. While this Court agreed that the defendant should serve some prison

time for her violations, we concluded 4 to 8 years was excessive. Id. at 930-

confinement based solely on Cottle’s failure to report. Despite his failure to

report, Cottle took significant steps to rehabilitate himself which was the goal.

Because this had been accomplished and there was no basis for a sentence of

total confinement, incarceration would be more punitive than rehabilitative.

Thus, our Supreme Court vacated Cottle’s sentence. Cottle, 426 A.2d at 602.

Based upon our review, the instant case does not warrant the type of

relief afforded in Parlante and Cottle. As discussed above, the VOP court

imposed a revocation sentence well below the maximum for multiple

technical violations of his probation, as well as being arrested while on

probation for new offenses like that of the underlying offense in this case.

Furthermore, as the trial court found, Walker has not taken substantial steps

towards his own rehabilitation. Thus, Walker’s sentence was not “a manifestly

unreasonable amount of time” as the sentence was in Parlante. Additionally,

there were several reasons, supported by the record, why the VOP court

imposed a sentence of total incarceration, unlike the circumstances in Cottle.

In sum, we conclude that the trial court did not abuse it discretion in

imposing Walker’s VOP sentence as his sentence was not manifestly excessive

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