J-S30025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    CHARLES E. LUCAS

                             Appellant               No. 1659 WDA 2017


             Appeal from the PCRA Order entered October 18, 2017
               In the Court of Common Pleas of Jefferson County
               Criminal Division at No.: CP-33-CR-0000053-2006


BEFORE: BENDER, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 21, 2018

        Appellant Charles E. Lucas appeals from the October 18, 2017 order of

the Court of Common Pleas of Jefferson County, which denied his request for

collateral relief pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-56. Upon review, we affirm.

        The facts and procedural history of this case are undisputed.       As

recounted by a prior panel of this Court on direct appeal:

        On February 15, 2006, Appellant pled guilty to four counts of
        burglary [(18 Pa.C.S.A. § 3502(a))] for incidents involving four
        different victims. [Count 1 was graded as a first-degree felony;
        counts 2, 3, and 4 were graded as second-degree felonies.]
        Thereafter, on July 10, 2006, Appellant was sentenced to 6 to 12
        months’ imprisonment for the first-degree felony burglary count,
        and three concurrent sentences of [9] years’ probation on each of
        the second-degree burglary counts.


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*   Retired Senior Judge assigned to the Superior Court.
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              On February 20, 2008, following new charges in Clarion
       County, Appellant’s probation was revoked on the three second-
       degree felony burglary charges and Appellant was resentenced to
       an aggregate of [1] to [2] years’ incarceration, followed by [5]
       years’ probation.     On February 3, 2015, Jefferson County
       probation and parole filed a detainer based on information that
       Appellant was again in violation of his probation/parole.       A
       Gagnon I[FN1] hearing was held on February 17, 2015, at which
       the trial court ordered Appellant remain incarcerated pending the
       outcome of the new charges on the two counts of misdemeanor
       theft in Clarion County.
              On June 17, 2015, a Gagnon II hearing was held and the
       trial court took judicial notice of Appellant’s guilty plea to the
       Clarion County charges. On July 1, 2015, the trial court revoked
       Appellant’s probation on all three second-degree felony charges,
       and resentenced Appellant to three consecutive sentences of [5]
       to [10] years’ imprisonment, for an aggregate sentence of 15 to
       30 years’ imprisonment. On July 6, 2015, Appellant made a
       motion for credit for time served, and on July 13, 2015, the trial
       court amended its July 1, 2015 order to reflect Appellant’s credit
       for 887 days of time served. [Said order was amended a second
       time on September 1, 2015 to reflect the amount of time served
       as 890 days, not 887 days. The order stated that “[a]ll other
       terms and conditions of t[he trial c]ourt’s Order of July 13, 2015,
       shall remain in full forced [sic] and effect.” Trial Court Order,
       9/1/15.] On July 15, 2015, Appellant filed a motion to reconsider
       his sentence asserting the trial court’s sentence was excessive.
       The trial court denied Appellant’s motion the same day. On July
       30, 2015, Appellant filed a timely notice of appeal.

Commonwealth v. Lucas, No. 1254 WDA 2015, unpublished memorandum,

at 1-3 (Pa. Super. Filed June 2, 2016) (some footnotes omitted).

       On appeal, Appellant raised a single issue: “Whether the trial court

abused its discretion when it revoked Appellant’s probation and re-sentenced

him to serve a sentence of incarceration in the State Correctional Institution

aggregating to a minimum of fifteen (15) years to a maximum of thirty (30)

years for [his] violations of probation/parole.” Id. at 3 (citation omitted). In

support of his sentencing claim, Appellant asserted in his Pa.R.A.P. 2119(f)
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1 Gagnon v. Scarpelli, 411 U.S. 778 (1973) (setting forth the procedural
requirements for probation and parole revocations).

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statement that “the sentence was manifestly unreasonable in that it was

excessive and constitutes too severe a punishment under the circumstances

of the case and the probation violation, and that the [trial c]ourt’s reasons for

the sentence did not justify the severity.” Id. at 5 (citation omitted).

      The prior panel of this Court concluded, based on its review of

Appellant’s Rule 2119(f) statement, that he failed to present a substantial

question. Id. at 6. The panel reasoned that Appellant presented only a bald

assertion that his sentence was excessive and that such assertion did not raise

a substantial question. Id. (citation omitted). The panel also noted that even

if Appellant had raised a substantial question, he still would not have been

entitled to relief. Id. at 6 n.5. Appellant failed to develop an argument or

cite any legal authority in support of his contention that his probation

revocation sentence should have been based on the severity of any new

convictions, rather than the severity of the convictions underlying the revoked

sentences. Id. (citations omitted). Accordingly, on June 2, 2016, the prior

panel affirmed Appellant’s judgment of sentence.

      Appellant did not file a petition for allowance of appeal with our Supreme

Court.   On June 1, 2017, Appellant pro se filed a PCRA petition, asserting

claims for ineffective assistance of counsel.      The PCRA court appointed

counsel, who filed an amended PCRA petition, wherein he specifically

challenged the effectiveness of Appellant’s direct appeal counsel and sought

reinstatement of Appellant’s direct appeal rights nunc pro tunc to re-assert his

challenge to the discretionary aspects of sentence. Following an evidentiary

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hearing, the PCRA court denied Appellant’s PCRA petition on October 18, 2017.

Appellant appealed to this Court. The PCRA court directed Appellant to file a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Appellant

complied, raising the following issue:

       [I.] The [PCRA] court erred in denying [Appellant’s PCRA] petition.
       The [PCRA] court erred in failing to reinstate [Appellant’s] direct
       appeal rights nunc pro tunc where his prior counsel failed to take
       the necessary steps in briefing [Appellant’s] case to [this Court]
       to ensure that [this Court], at docket No. 1254 WDA 2015, would
       consider the one argument [Appellant] sought to advance on
       appeal, i.e., counsel failed to present a reviewable claim and failed
       to develop an argument or cite to any authority in his appellate
       brief.   That one argument being the trial court abused its
       discretion when it revoked [Appellant’s] probation and re-
       sentenced him to serve an aggregate sentence of incarceration of
       fifteen (15) to thirty (30) years.

Rule 1925(b) Statement, 11/17/17. In response, the PCRA court issued a

Pa.R.A.P. 1925(a) opinion, adopting its October 18, 2017 opinion supporting

the denial of Appellant’s PCRA petition.

       On appeal,2 Appellant repeats the same issue for our review.3 At the

core, Appellant claims that his direct appeal counsel was ineffective for failing

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2“In PCRA proceedings, an appellate court’s scope of review is limited by the
PCRA’s parameters; since most PCRA appeals involve mixed questions of fact
and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009) (citation omitted).
3  Appellant has waived his argument in reliance upon Commonwealth v.
Franklin, 823 A.2d 906 (Pa. Super. 2003), appeal denied, 858 A.2d 108
(Pa. 2004), that his direct appeal counsel was per se ineffective, because
Appellant failed to advance it in the PCRA court. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.”).



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to advance properly the argument that his sentence of 15 to 30 years’

imprisonment was excessive given the nature of the new offenses (two counts

of misdemeanor theft) based on which his underlying probation was revoked.4

Appellant’s Brief at 14.

       Thus, Appellant’s sole claim before us involves ineffective assistance of

counsel. A PCRA petitioner is entitled to relief if he pleads and proves that

prior counsel rendered ineffective assistance of counsel.           42 Pa.C.S.A.

§ 9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner

must plead and prove by a preponderance of the evidence that (1) the

underlying legal claim has arguable merit; (2) counsel had no reasonable basis

for acting or failing to act; and (3) the petitioner suffered resulting prejudice.”

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015)

(en banc). “A petitioner must prove all three factors of the “Pierce[5] test,”

or the claim fails.” Id. Put differently, “[t]he burden of proving ineffectiveness

rests with Appellant.” Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa.

2005).

       We begin with our analysis of the first prong, i.e., arguable merit. It is

well-settled that “[t]he right to appeal a discretionary aspect of sentence is

not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super.


____________________________________________


4Appellant does not contest that he directly violated the terms of his probation
or that a sentence of total confinement is inappropriate.

5   Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).


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2011). Rather, where an appellant challenges the discretionary aspects of a

sentence, the appeal should be considered as a petition for allowance of

appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).

As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

       An appellant challenging the discretionary aspects of his sentence
       must invoke this Court’s jurisdiction by satisfying a four-part test:
          [W]e conduct a four-part analysis to determine: (1) whether
          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. [708];[6] (3) whether
          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. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).     “Where the sentencing court had the benefit of a presentence

investigation (‘PSI’), we can assume the sentencing court ‘was aware of

relevant information regarding the defendant’s character and weighed those

considerations along with mitigating statutory factors.’” Moury, 992 A.2d at

171.      While it is uncontested that Appellant satisfied the first three

requirements on his direct appeal, we assume for purposes of this PCRA

appeal that he likewise raises a substantial question in satisfaction of the

fourth requirement.


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6 “A motion to modify a sentence imposed after a revocation shall be filed
within 10 days of the date of imposition. The filing of a motion to modify
sentence will not toll the 30-day appeal period.” Pa.R.Crim.P. 708(E).

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      When reviewing a challenge to the trial court’s discretion, our standard

of review is as follows:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. An abuse of discretion is
      more than just an error in judgment and, on appeal, the trial court
      will not be found to have abused its discretion unless the record
      discloses that the judgment exercised was manifestly
      unreasonable, or the result of partiality, prejudice, bias, or ill-will.

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) (quoting

Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002)),

appeal denied, 64 A.3d 630 (Pa. 2013); see Commonwealth v. Simmons,

56 A.3d 1280, 1283-84 (Pa. Super. 2012) (noting that the imposition of

sentence following a revocation is vested within the sound discretion of the

trial court), aff’d, 91 A.3d 102 (Pa. 2014). Moreover, it is settled that when

a defendant’s sentence of probation is revoked, “the sentencing alternatives

available to the court shall be the same as were available at the time of initial

sentencing, due consideration being given to the time spent serving the order

of probation.” 42 Pa.C.S.A. § 9771(b). Following revocation of probation, a

trial court may impose upon a defendant a sentence of total confinement only

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). “A sentencing court need not undertake a lengthy

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


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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), appeal

denied, 13 A.3d 475 (Pa. 2010).         Simply put, since the defendant has

previously appeared before the sentencing court, the stated reasons for a

revocation sentence need not be as elaborate as that which is required at

initial sentencing. The rationale for this is obvious. When sentencing is a

consequence of the revocation of probation, the trial judge is already fully

informed as to the facts and circumstances of both the crime and the nature

of the defendant, particularly where, as here, the trial judge had the benefit

of a PSI during the initial sentencing proceedings. See Commonwealth v.

Walls, 926 A.2d 957, 967 n.7 (Pa. 2007) (“Where [PSI] exist[s], we shall

continue to presume that the sentencing judge was aware of the relevant

information   regarding   the   defendant’s   character   and   weighed       those

considerations along with mitigating statutory factors.”). Our Supreme Court

has explained:

      [A] trial court does not necessarily abuse its discretion in imposing
      a seemingly harsher post-revocation sentence where the
      defendant received a lenient sentence and then failed to adhere
      to the conditions imposed on him. In point of fact, where the
      revocation sentence was adequately considered and sufficiently
      explained on the record by the revocation judge, in light of the
      judge’s experience with the defendant and awareness of the
      circumstances of the probation violation, under the appropriate
      deferential standard of review, the sentence, if within the
      statutory bounds, is peculiarly within the judge’s discretion.

Commonwealth v. Pasture, 107 A.3d 21, 28-29 (Pa. 2014) (citations

omitted).   Moreover, the Sentencing Guidelines do not apply to sentences

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imposed following a revocation of probation.          See Commonwealth v.

Ferguson, 893 A.2d 735 (Pa. Super. 2006), appeal denied, 906 A.2d 1196

(2006). “[U]pon sentencing 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.”7 Commonwealth v. Coolbaugh,

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

       Instantly, the learned trial court remarked at the July 1, 2015 hearing:

       Well, I reviewed the presentence [investigation report].            I
       reviewed it several times, considered your age, your background,
       and your prior record and everything contained in the presentence
       and everything necessary for sentencing. The reason I reviewed
       it several times was that [Mr. Paul Ruffner, Adult and Probation
       Department, is] not known for recommending, actually, the
       sentence consecutive.         So most important to note in his
       presentence is the other significant information; and it shows not
       only as it did in the other part of the case that you maxed out the
       last time you were sentenced to state prison but you used drugs
       fairly heavily in the state prison, that you were abusing Suboxone,
       that you refused to take advantage of drug and alcohol inpatient
       and that you have 11 felony convictions. You’ve been in drug
       court. You’ve been offered boot camp before and never taken
       those significant steps and continued to commit crimes against
       people to satisfy your drug habit. So the fact you committed new
       charges calls for a sentence of total incarceration. The fact that
       you have all of those other significant information just to vindicate
       the authority of the Court and the fact that it shows you’re not a
       likely candidate to be rehabilitated, I think the recommendation is
       appropriate on its face. I am going to accept it. At each count, 2
       through 4, I’m going to revoke your probation and sentence you
       to no less than 5 nor more than 10 years one consecutive to the
       other and consecutive to Clarion County, for a total of 15 to 30
       years consecutive to the Clarion County sentence.

N.T. Sentencing, 7/1/15, at 2-4 (sic).


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7Appellant’s sentence of 15 to 30 months’ imprisonment for three counts of
second-degree felony burglary does not fall outside of the statutory maximum.
See 18 Pa.C.S.A. § 1103(2) (sentence for a second-degree felony may not
exceed 10 years); see also 18 Pa.C.S.A. § 106(b)(3).

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       Here, based upon our review of the record, the trial court’s findings as

set forth above, and our standard of review, we conclude that the trial court

did not abuse its discretion in sentencing Appellant to 15 to 30 years’

imprisonment following the revocation of his probation. The new sentence of

15 to 30 years was not manifestly excessive. The trial court initially sentenced

Appellant to 9 years’ probation for his three underlying second-degree felony

burglary convictions, each of which carries a statutory maximum sentence of

10 years’ imprisonment.          However, as detailed above, despite countless

opportunities by the trial court for Appellant to remain on probation, he

continued to violate repeatedly the terms of his probation. As a result, we

agree with the trial court that the instant sentence of 15 to 30 years is

appropriate and necessary to, inter alia, vindicate the authority of the trial

court consistent with Section 9771(c). Finally, the trial court here had at its

disposal Appellant’s PSI and was aware fully of all circumstances, whether

aggravating or mitigating, pertaining to Appellant.8 We, therefore, conclude

that Appellant is unable to establish the first Pierce prong, i.e., arguable



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8 Appellant’s argument that the trial court should have based the sentence of
15 to 30 years in prison following the revocation of probation on the severity
of the new convictions (two counts of theft) rather than the three underlying
second-degree felony burglary convictions is waived. Appellant fails to cite
any meaningful legal authority for this proposition. See Pa.R.A.P. 2119(a)-
(b). At any rate, as explained above, the trial court considered not only the
new convictions, but also Appellant’s general history of felony convictions
since at least 2006, repeated probation violations, and drug abuse, among
other things, in fashioning the sentence of 15 to 30 years’ incarceration.

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merit. Accordingly, the PCRA court did not err in concluding that Appellant

failed to establish that his direct appeal counsel was ineffective.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2018




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