Com. v. Shank, A. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDY E. SHANK, :
:
Appellant : No. 293 MDA 2018
Appeal from the Judgment of Sentence January 16, 2018
in the Court of Common Pleas of Dauphin County,
Criminal Division at No(s): CP-22-CR-0001522-2013
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 25, 2018
Andy E. Shank (“Shank”) appeals from the judgment of sentence
imposed following the revocation of his probation. We affirm.
On May 16, 2014, Shank was sentenced to 60 months of probation after
pleading guilty to possession with intent to deliver a controlled substance and
driving while operating privilege suspended or revoked.1 As terms of his
sentence, Shank had to complete drug and alcohol evaluation and treatment,
submit to drug testing, and abide by a curfew between 11:00 p.m. and 7:00
a.m. for the first twelve months of probation. In January 2017, Shank was
stopped by the police in Harrisburg. Shank refused to identify himself or roll
down the vehicle windows, and was very derogatory toward the officers.
Ultimately, the police found a scale with drug residue, plastic baggies with
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1 35 P.S. § 780-113(a)(3); 75 Pa.C.S.A. § 1543(a).
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drug residue, and .22 caliber bullets in Shank’s vehicle. Following this
incident, Shank was charged and entered a guilty plea to various crimes.
Dauphin County Probation then filed a revocation hearing request related to
his May 16, 2014 probation sentence.
A revocation hearing was held on January 16, 2018, wherein Shank
contested the violations of Rule 11 and Rule 13 of the terms of his probation.2
The trial court found Shank to be in violation of his probation and sentenced
him to 24-48 months in prison, with 8 months credit for time served and RRRI
eligibility at 18 months. Shank filed a Petition to Modify the Sentence, which
was denied. Shank filed a timely Notice of Appeal, followed by a court-ordered
Pa.R.A.P. 1925(b) Concise Statement.
On appeal, Shank raises the following issue:
The imposition of a probation violation sentence of 2 to 4 years
incarceration for violating probation[] was clearly unreasonable,
so manifestly excessive as to constitute an abuse of discretion,
and inconsistent with the protection of the public, the gravity of
the offenses, and [Shank’s] rehabilitative needs.
Brief for Appellant at 5.
Shank challenges the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant challenging
the discretionary aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:
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2Rule 11 stated that Shank may not possess, use or have any contraband.
Rule 13 stated that Shank must participate in 100 hours of community service;
Shank had not completed this requirement.
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[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. [720]; (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).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (internal
citations omitted).
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. A substantial
question exists only when the appellant advances a colorable
argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the
sentencing process.
Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa. Super. 2005) (internal
citations, quotations, and emphasis omitted).
Shank filed a timely Notice of Appeal, and preserved the challenge to
the sentence in the Petition to Modify Sentence. Next, Shank’s brief includes
a Pa.R.A.P. 2119(f) Statement. Additionally, Shank’s claim that the trial court
imposed an excessive prison sentence without considering the details of his
probation violations and certain mitigating factors raises a substantial
question. See Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super.
2000) (stating that a substantial question is presented when a probation
revocation sentence of total confinement is imposed as a result of a technical
violation of probation); see also Commonwealth v. Caldwell, 117 A.3d
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763, 770 (Pa. Super. 2015) (en banc) (stating that “an excessive sentence
claim—in conjunction with an assertion that the court failed to consider
mitigating factors—raises a substantial question.”) (citations omitted). Thus,
we will address Shank’s sentencing claims.
Shank argues that the sentence was manifestly excessive and
constitutes an abuse of discretion because it was not consistent with the
protection of the public, the gravity of the offense, or Shank’s rehabilitative
needs. Brief for Appellant at 13. Shank contends that he was not charged
with a violent crime, but rather a drug-related offense. Id. at 17; see also
id. (claiming that all of his violations were minor in nature). Shank asserts
that his violations did not warrant a state prison term. Id. at 16-17. Shank
also points out he was employed; he had health problems; he obtained a GED;
and he has a daughter. Id. at 17. Shank claims that his rehabilitative needs
would be better served in the community, and thus his sentence should be
vacated. Id.
The imposition of sentence following the revocation of probation is
vested within the sound discretion of the probation revocation court, which,
absent an abuse of that discretion, will not be disturbed on appeal. Sierra,
752 A.2d at 913. Upon review, we determine the validity of the probation
revocation proceedings and the authority of the sentencing court to consider
the same sentencing alternatives that it had at the time of the initial
sentencing. 42 Pa.C.S.A. § 9771(b); Commonwealth v. Gheen, 688 A.2d
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1206, 1207-08 (Pa. Super. 1997). When imposing a sentence of total
confinement after a probation revocation, the sentencing court must consider
the factors set forth in sections 9771(c) and 9721(b) of the Sentencing Code.
Ferguson, 893 A.2d at 739; see also 42 Pa.C.S.A. § 9721(b) (providing that
when determining an appropriate sentence, the court must consider the
protection of the public, the gravity of the offense in relation to the impact on
the victim and the community, and the rehabilitative needs of the defendant).
Following revocation of probation, a sentencing court need not undertake a
lengthy discourse for its reasons for imposing a sentence of total confinement,
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).
Here, the trial court took into account Shank’s numerous probation
violations, as well as the new crimes that Shank had committed. See N.T.,
1/16/18, at 3 (wherein Shank’s probation officer testified that Shank had
numerous curfew violations, violations of drug rules, and failed to complete
community service hours); see also Trial Court Opinion, 2/22/18, at 3-4
(noting that Shank failed to make regular payments on his over $4,000.00
balance). The trial court additionally considered the probation officer’s
recommendation and Shank’s rehabilitative potential, and determined that
Shank “is likely to commit another crime if not imprisoned[,] and the sentence
imposed is essential to vindicate the authority of the court.” Trial Court
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Opinion, 2/22/18, at 4; see also N.T., 1/16/18, at 2-3 (wherein police officer
testimony established that Shank was very derogatory to officers and wouldn’t
cooperate when he was instructed to roll down his window and step outside
of the vehicle).
Thus, we conclude that the trial court did not abuse its discretion in
imposing a sentence of total confinement, which we conclude is not excessive.
See Sierra, 752 A.2d at 915 (holding that the sentencing court’s imposition
of a prison sentence following a probation violation was not an abuse of
discretion, since the sentence was based upon the judge’s in-depth knowledge
of the individual, a finding that probation was not effective in rehabilitating
the defendant, and that a further prison term was appropriate); see also
Commonwealth v. Cappellini, 690 A.2d 1220, 1226-28 (Pa. Super. 1997)
(holding that the trial court did not abuse its discretion in revoking defendant’s
probation and imposing a sentence of total confinement where he violated the
conditions of his probation requiring him to participate in drug and alcohol
treatment and testing, and to refrain from contact with drug offenders, which
evidenced his inability to reform).
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2018
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