Com. v. Wilson, W. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
WILLIAM DURALL WILSON :
:
Appellant : No. 2154 EDA 2019
Appeal from the Judgment of Sentence Entered June 25, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0007375-2011
BEFORE: SHOGAN, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 15, 2020
Appellant William Durall Wilson appeals from the judgment of sentence
imposed for his third violation of probation (VOP). Appellant challenges the
trial court’s denial of his request for a continuance and the discretionary
aspects of his sentence. We affirm.
The trial court summarized the history of this matter as follows:
[At Docket No. CP-46-CR-0006125-2017, Appellant] was arrested
and found guilty of murder in the third degree, conspiracy,
aggravated assault, person not to possess firearms, and
misdemeanor charges, after a jury trial commencing on April 16,
2018, bringing him in violation of probation [in the instant case,
at Docket No. CP-46-CR-0007375-2011] for a third time.[1] On
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1 Appellant originally pled guilty to three counts of robbery and one count of
conspiracy in 2012. Each charge carried a maximum penalty of twenty years’
incarceration. At the Commonwealth’s request, the trial court sentenced
Appellant to eleven and a half to twenty-three months’ incarceration followed
by three years’ probation. Appellant subsequently violated his probation two
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October 25, 2018, [Appellant] received a total sentence of thirty-
five to seventy years [for the April 2018 conviction]. [Appellant,
who was represented by Aaron Kostyk, Esq. from the Public
Defender’s Office (prior counsel),] appeared before [the trial
c]ourt on December 27, 2018 and knowingly, intelligently, and
voluntarily waived his Gagnon I[2] [hearing] and stipulated to
being in violation of his probation due to the April 2018
conviction.[3] The parties agreed to defer sentencing until a later
date, so that the defense could have more time to review the trial
transcript [from the 2018 conviction], the [pre-sentence
investigation report (PSI)], and the [probation and parole
intervention (PPI) evaluation]. In April 2019, [Appellant]
requested a continuance of sentencing, which th[e trial] court
granted in an order dated April 10, 2019, rescheduling the matter
for no earlier than sixty days from the date of the order.[4]
On June 25, 2019,[5] [Appellant] appeared before [the trial c]ourt
for a [VOP] sentencing hearing[, represented by John E. Kravitz,
Esq. from the Public Defender’s Office (VOP counsel)]. At the start
of the hearing, [VOP counsel] stated that he did not receive a copy
of the Commonwealth’s sentencing memorandum from the
October 2018 sentencing or the PSI until twenty minutes prior to
the hearing. The Commonwealth stated on the record that it
____________________________________________
separate times before the instant VOP matter, which resulted in additional
sentences of three years’ probation in 2014 and a time-served incarceration
sentence with one year of consecutive probation in 2016.
2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
3 During the stipulation colloquy, Appellant confirmed that it was his “intention
to have the [PSI and PPI from the murder case] entered in a sentencing
hearing [for the VOP matter] down the road . . . as opposed to having a new
PSI done.” N.T. VOP Hr’g, 12/27/18, at 8. The record confirms that the
Commonwealth provided the PSI to defense counsel at the hearing. See id.
at 5.
4 Prior counsel requested a continuance in April 2019 because he had not yet
received the trial transcript from Appellant’s 2018 trial.
5 The record reflects that the trial court originally scheduled the VOP
sentencing hearing for June 18, 2019, but subsequently vacated that order
and rescheduled the hearing for June 25, 2019. See Trial Ct. Order, 6/12/19;
see also Trial Ct. Order, 6/13/19.
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provided a copy of the PSI to the Public Defender’s Office [during
one of the hearings] in December of 2018 or April of 2019.
Trial Ct. Op., 9/19/19, at 1-2.
VOP counsel explained that Appellant’s case was assigned to him
because Appellant’s prior counsel recently left the Public Defender’s Office.
N.T. VOP Sentencing Hr’g, 6/25/19, at 6. VOP counsel stated that, because
the matter had only been continued for one week, “there was not much time
to get a chance to review. And it was basically assigned at the last minute.”
Id. at 7. Further, VOP counsel explained that Appellant was incarcerated at
SCI Frackville, so “[t]here has been no chance to speak to him” about his
sentencing hearing. Id. VOP counsel also stated that he had not yet reviewed
the PSI because, “frankly, [he] could not believe” that the case would proceed
with sentencing as scheduled. Id. He also asserted that the Commonwealth’s
recommendation of nine to eighteen years’ imprisonment “consecutive to a
35-year sentence[,] under these conditions[,] is outrageous.” Id. Ultimately,
VOP counsel requested a continuance, but noted that although he explained
the “entire situation” to Appellant, Appellant still wanted to proceed with
sentencing that day. Id. at 8.
In response, the trial court stated:
[G]iven the fact you’ve indicated you haven’t had a chance to
review the PSI, I’m going to recess for ten minutes. I want you
to read the PSI. I’ve read it in a period of about five minutes, the
relevant portions. The rest of it is going to be argument. We’re
going to proceed today.
I will register your request for a continuance. This case has been
scheduled two or three times. The [Public] Defender’s Office was
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given the PSI in advance of today, should have read it, should
have been aware, should have even attempted to talk to
[Appellant] even though he is in Frackville. This case has been
waiting.
We’re going to proceed today. And I’ll entertain the sentencing
argument.
So I’m going to recess for ten minutes. You read the documents.
And I’ll be back. And we’ll proceed.
Id. at 10-11.
After the trial court reconvened the sentencing hearing, the trial court
conducted a colloquy to confirm that Appellant understood his rights and
wished to move forward with sentencing via video conference. Id. at 13-17.
Appellant stated that he did not want to delay the hearing because his
daughter was ill and an additional continuance would likely mean that he could
not “check up on” her for at least a month. Id. at 14. Appellant also
explained, “I understand my lawyer is going to do the best that he can do. I
understand that he doesn’t know anything about my case and my situation.”
Id. However, Appellant indicated that he would like an opportunity to address
these points during allocution. Id. at 15.
Thereafter, the exchange continued as follows:
THE COURT: [VOP counsel] has in front of him the
presentence investigation report that I’ve
allowed him some time to read, although not a
lot, but that happens. This was the presentence
investigation report that was provided to Judge
Branca at the time of your sentencing on the
murder case, third degree.
[Appellant]: Yes, sir.
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THE COURT: You’ve already been sentenced on that. So this
is just the Gagnon or the probation violation.
And I am going to sentence you separately on
that today. You have to understand that the
Commonwealth is asking for a consecutive
sentence. Do you understand that?
[Appellant]: Yes, sir.
THE COURT: All right. And I will make a decision as to what
the sentence will be. That’s my purview. You
understand that?
[Appellant]: Yes, sir.
THE COURT: I have also looked at the PSI. I have also looked
at their motion that they presented to Judge
Branca regarding the memorandum in advance
of sentence where they requested for life
without parole. And you did not get life without
parole, but you got a significant sentence. I
understand that. Okay?
[Appellant]: Yes, sir.
THE COURT: Knowing -- knowing all of that and in
consideration of your daughter’s situation and -
- not withstanding your daughter’s situation,
you would have a right to come down here and
face the [c]ourt in person but you’re saying,
nevertheless, that you want to go forward
today; is that correct?
[Appellant]: Yes. I don’t want to keep this -- keep this going.
I just want to get it done today if I can.
THE COURT: Okay. All right. Then let’s proceed to
sentencing.
Id. at 15-16.
Following Appellant’s allocution and argument from both the
Commonwealth and VOP counsel, the trial court stated:
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What I’m reading from the [Gagnon] summary here is that,
“[Appellant] was the driver of the vehicle in Norristown with three
other males and observed the victims walking. He retrieved two
firearms, provided them to Isaiah Freeman, who committed the
shooting. Freeman took the cover -- took cover behind the
building away from the victims to approach. He then fled the
scene in [Appellant’s] vehicle. The vehicle was provided by
[Appellant].”
[Appellant] provided what is deemed to be the opportunity, the
weapons, and transportation to flee the scene. A death of a 16-
year-older occurred. You can’t bring back a life. That can’t
happen.
Now I have to juxtapose that to the fact that this [Appellant] at
least on page ten of the PSI and I’m -- I’m certain that Judge
Branca has taken into consideration the offense-gravity score and
the request for life without parole in him giving an aggregate
sentence of 35 to 70, a pretty significant sentence, but on page
ten of the PSI, on the positive end of the ledger, in addition to the
age of [Appellant], he has two children.
It indicates a familial history of substance abuse and a familial
history of criminal activity. I think it was his dad who also had
committed crimes. That is not an excuse to commit crimes back
to back.
What I’m troubled with in this case because I’m only handling the
probation violation -- is that on my watch, [Appellant], it was only
one year and five months and 17 days before the murder case
happened after out of prison.
So that means you didn’t -- whatever you learned in the [s]tate
sentence, you didn’t learn good enough. And the previous
offenses happened one year, four months, and two days before
violating your supervision; prior to that, 189 days before
reoffending in September of 2011. I have to take that into
consideration in the totality of what I should give you as a
sentence. I have a right I have the discretion to give you a
concurrent sentence. I also have the discretion of maxing you
out. And I have to ask myself, is there any gleam of hope for you
at the age that you would get out, because you’re not guaranteed
to get out after age 68 very possibly under the 35 to 70. And I
know this would do well closer to your max based on the gravity
of the offense. I’m factoring all that in. But factoring all those
factors in and the fact that I think that you have committed crimes
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that place not only Norristown and the public in danger but
potentially other places in danger where you come into contact I
do know there is a reconciliation factor in sentencing and a
restorative factor. I speak out on this in the community, that
people who have committed crimes have a right and obligation to
change their ways.
And, so, I’m factoring that in as well, that taking of a life could
change your life around, but it won’t bring back the life of the
person who died. So all those factors being in place, I’m prepared
to give a sentence on this matter.
Id. at 30-33.
The trial court sentenced Appellant to a term of five to ten years’
imprisonment, to be served consecutive to Appellant’s sentence in the 2018
case. Id. at 33. On July 2, 2019, Appellant filed a timely post-sentence
motion seeking reconsideration of his sentence, which the trial court denied.
Appellant timely filed a notice of appeal and a court-ordered Pa.R.A.P.
1925(b) statement. The trial court issued a Rule 1925(a) opinion addressing
Appellant’s claims.
On appeal, Appellant raises the following issues for review:
1. Did the [trial] court abuse its discretion by denying [appointed
counsel’s] request for a continuance where: (a) the request
was not a tactic to unnecessarily delay the proceeding and, (b)
[appointed counsel] was unprepared because he was recently
assigned to the case after staffing changes; he had not
received the Commonwealth’s sentencing memorandum in
advance; he had not met with [Appellant]; he had reason to
believe a conflict of interest existed; and [Appellant] faced the
possibility of a de facto life sentence on a probation violation?
2. Did the sentencing court abuse its discretion by failing to
consider [Appellant’s] rehabilitative needs and imposing a
consecutive sentence that resulted in a de facto life sentence
for a probation violation?
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Appellant’s Brief at viii.
In his first issue, Appellant argues that the trial court abused its
discretion by denying his request to continue the VOP sentencing hearing. Id.
at 15. Appellant contends that VOP counsel “had no time to prepare” for
sentencing, as counsel had been “assigned to [Appellant’s] case ‘at the last
minute’” and was unable to review Appellant’s PSI report or the
Commonwealth’s sentencing memorandum from the 2018 case. Id. at 17-
18; 20. Appellant also argues that there were “extreme consequences at
stake,” given the length of Appellant’s sentence for the 2018 conviction and
the Commonwealth’s intention to seek “a consecutive sentence of nine to
eighteen years because [the trial court in the 2018 case] had rejected [the
Commonwealth’s] request for a life sentence.” Id. at 22. Appellant contends
that VOP counsel made the continuance request in good faith, but that the
trial court improperly “looked to Appellant to override his counsel’s request for
a continuance.” Id. at 27. As a result, Appellant concludes that trial counsel
was precluded from any “meaningful opportunity to examine the PSI and
sentencing memorandum.” Id. at 28.
Appellant contends that the trial court’s decision “ran afoul of judicial
efficiency,” as it “all but guaranteed the use of additional future court
resources,” including a direct appeal or a PCRA petition. Id. Therefore,
Appellant concludes that the trial court’s “decision to barrel through
proceedings under these circumstances thus not only prejudiced [Appellant],
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but ultimately failed to serve the ostensible goal of judicial economy.” Id. at
21.
The Commonwealth responds that the trial court properly exercised its
discretion by “balancing the burden of another continuance on the parties and
the court[] against counsel’s need for more time to prepare for the sentencing
hearing.” Commonwealth’s Brief at 7. The Commonwealth asserts that the
trial court provided VOP counsel with time to review Appellant’s PSI report
and VOP counsel never indicated that “ten minutes was not enough time.” Id.
Further, the Commonwealth argues that “[i]t is apparent that the trial court
determined that counsel’s review of the Commonwealth’s sentencing
memorandum for the [2018] case would be inconsequential and therefore not
worthy of any further delay.” Id. at 7. The Commonwealth concludes that
the trial court “anticipated that it would not make any difference and gave
[Appellant] a far lighter sentence than what the Commonwealth sought. While
another judge may well have reached a different conclusion on the
continuance request, [Appellant] fails to articulate a clear abuse of discretion.”
Id. at 9.
We review a trial court’s grant or denial of a continuance for an abuse
of discretion. Commonwealth v. Brooks, 104 A.3d 466, 469 (Pa. 2014).
As our Supreme Court has explained:
Appellate review of a trial court’s continuance decision is
deferential. The grant or denial of a motion for a continuance is
within the sound discretion of the trial court and will be reversed
only upon a showing of an abuse of discretion. As we have
consistently stated, an abuse of discretion is not merely an error
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of judgment. Rather, discretion is abused when the law is
overridden or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-will,
as shown by the evidence or the record.
Id. (citation omitted and some formatting altered).
Further, this Court has stated that
the trial court exceeds the bounds of its discretion when it denies
a continuance on the basis of an unreasonable and arbitrary
insistence upon expeditiousness in the face of a justifiable request
for delay. Accordingly, we must examine the reasons presented
to the trial court for requesting the continuance, as well as the
trial court’s reasons for denying the request.
Commonwealth v. Norton, 144 A.3d 139, 143 (Pa. Super. 2016) (citations
omitted and some formatting altered).
Here, the trial court addressed Appellant’s request for a continuance as
follows:
[I]t cannot be said that the grounds for the requested continuance
“did not previously exist or were previously unknown.” This was
not a case in which [VOP] counsel had no opportunity to read the
PSI or sentencing memorandum until the date of sentencing on
June 25, 2019, or at least become familiar with the facts contained
in these documents. The Commonwealth stated on the record
that the PSI was provided as early as December 2018 or April
2019, giving [Appellant] at least from these dates to prepare for
the sentencing hearing. The sentencing memorandum from the
hearing with the Honorable Judge Branca merely detailed previous
dates and sentences from [Appellant’s] file, all of which defense
counsel should have known, given that the sentencing hearing at
issue was deferred twice for the benefit of ensuring that defense
counsel had adequate time to prepare. That counsel for
[Appellant] changed in the months between the Commonwealth
providing documents and the fate of the hearing does not change
the fact that [Appellant] had ample time to prepare and is not a
reason for this court to grant a continuance.
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Further, neither the “surrounding facts nor nature” of the case
were “so intricate or involved” as to mandate a continuance for
defense counsel to require additional time to prepare. The
information contained in the Commonwealth’s sentencing
memorandum from the October 2018 sentencing should have
already been known to [VOP] counsel from review of [Appellant’s]
file, and even if it was not, this court granted a recess for
[Appellant’s] counsel to read through the brief documents before
continuing. This court also notes that it was not an abuse of
discretion or in violation of the “interests of justice” to deny the
continuance request, as [Appellant] himself wished to proceed on
the day of sentencing, as stated on the record by both [Appellant]
and [Appellant’s] counsel. Thus, [Appellant’s] claim that the
denial of the continuance was an abuse of the court’s discretion
lacks merit.
Trial Ct. Op. at 4-5.
Based on our review of the record, we discern no abuse of discretion by
the trial court in denying the continuance request. See Brooks, 104 A.3d at
469. As noted by the trial court, the sentencing hearing was previously
rescheduled two times at the request of defense counsel. Although VOP
counsel requested an additional continuance on the day of sentencing,
Appellant made clear that he wished to proceed with sentencing as planned.
See N.T. VOP Sentencing Hr’g, 6/25/19, at 15-16. Further, after VOP counsel
stated that he was unfamiliar with Appellant’s case, the trial court provided
additional time to review Appellant’s PSI report, which had been furnished to
defense counsel in December of 2018. See N.T. VOP Hr’g, 12/27/18, at 5.
Under these circumstances, and given Appellant’s explicit request to proceed
with sentencing, we cannot conclude that the trial court’s decision to deny the
continuance was based on an “unreasonable and arbitrary insistence upon
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expeditiousness[.]” See Norton, 144 A.3d at 143. Therefore, Appellant is
not entitled to relief on this claim. See Brooks, 104 A.3d at 469.
In his remaining claim, Appellant challenges the discretionary aspects
of his sentence. Appellant’s Brief at 32. Appellant argues that his sentence
of five to ten years’ imprisonment was “unduly harsh and manifestly
excessive” in light of the “already lengthy sentence that [Appellant] received
for [the] conviction that gave rise to the violation. The result was a de facto
life sentence.” Id. (citing Commonwealth v. Williams, 69 A.3d 735, 738
(Pa. Super. 2013)). In support, Appellant contends that the trial court failed
to adequately consider the factors set forth in Section 9721(b), including
Appellant’s need for rehabilitation. Id. at 39. Further, Appellant argues that
the trial court was “not in the position to properly weigh mitigating factors”
because VOP counsel “informed the court that he never talked with [Appellant]
before the morning of the hearing and did not have an opportunity to review
the [PSI] or the 104-page Commonwealth’s sentencing memorandum.” Id.
Although Appellant acknowledges that the trial court had a PSI, he contends
that it was “prepared for a different matter and all in the courtroom knew that
[VOP] counsel had no opportunity to verify or object to the facts set forth
within it.” Id. at 37. Therefore, Appellant concludes that the trial court’s
sentence was an abuse of discretion.
The Commonwealth responds that Appellant waived his claim that the
trial court failed to consider mitigating factors such as Appellant’s
rehabilitative needs. Commonwealth’s Brief at 10. Further, the
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Commonwealth contends that the record belies Appellant’s claim, as the trial
court reviewed a PSI report and also thoroughly discussed the factors it
considered in fashioning Appellant’s sentence. Id. at 12. Finally, the
Commonwealth argues that “the fact that the PSI was prepared for a different
matter is irrelevant” because the instant matter “took place only eight months
later. [Appellant] fails to address or explain what key changes might have
been made to his PSI in that short time frame, and the conduct at issue in the
related matter was the very same conduct that constituted his probation
violation.” Id. at 13. Therefore, the Commonwealth concludes that Appellant
is not entitled to relief.
“[C]hallenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,
991 (Pa. Super. 2016) (citation omitted). Rather, before reaching the merits
of such claims, we must determine:
(1) whether the appeal is timely; (2) whether [the a]ppellant
preserved his issues; (3) whether [the a]ppellant’s brief includes
a concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a substantial question
that the sentence is inappropriate under the [S]entencing [C]ode.
Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citation
omitted).
“To preserve an attack on the discretionary aspects of sentence, an
appellant must raise his issues at sentencing or in a post-sentence motion.
Issues not presented to the sentencing court are waived and cannot be raised
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for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247,
1251 (Pa. Super. 2006) (citations omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Battles, 169 A.3d
1086, 1090 (Pa. Super. 2017) (citation omitted). “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. Grays, 167 A.3d
793, 816 (Pa. Super. 2017) (citation omitted).
Here, Appellant filed a timely notice of appeal, preserved his issue in a
post-sentence motion, and included a concise statement of the reasons relied
upon for allowance of appeal in his brief. See Derry, 150 A.3d at 991;
Malovich, 903 A.2d at 1251. Further, Appellant’s claim raises a substantial
question for our review. See Commonwealth v. Caldwell, 117 A.3d 763,
770 (Pa. Super. 2015) (stating that “an excessive sentence claim—in
conjunction with an assertion that the court failed to consider mitigating
factors—raises a substantial question.” (citation omitted)). Therefore, we will
address Appellant’s claim.
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.
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Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014).
Upon revocation of probation, “the sentencing alternatives available to
the court shall be the same as were available at the time of initial sentencing
. . . .” 42 Pa.C.S. § 9771(b). A trial court may impose a sentence of total
confinement if it finds that “(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. § 9771(c).
Pursuant to Section 9721(b)
the court shall follow the general principle that the sentence
imposed should call for total confinement that is consistent with .
. . the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant.
42 Pa.C.S. § 9721(b).
Although “[a] sentencing court need not undertake a lengthy discourse
for its reasons for imposing a sentence,” the record must reflect the
sentencing court’s consideration of the Section 9721(b) factors.
Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010).
Further, “[w]here the trial court is informed by a pre-sentence report, it is
presumed that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion
should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 1135
(Pa. Super. 2009) (citation omitted).
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Here, the trial court addressed Appellant’s sentencing claim as follows:
[Appellant] claims that the court abused its discretion by imposing
a “manifestly unreasonable” sentence that “serves no purpose
enumerated in the sentencing code.” [Appellant] points to the
fact that he, who is currently thirty-three years old, will be
between sixty-eight and one-hundred-and-eight years old before
he starts serving his probation violation as evidence that the Court
has abused its discretion. Under 42 Pa.C.S. § 9781(c), because
[Appellant] has failed to allege any of the listed errors, the
sentence should be affirmed. In addition, [Appellant’s] allegation
that the sentence was excessive in light of the [Appellant’s] age
at the time of anticipated release is meritless. This court is
presumed to be aware of [Appellant’s] age and to have weighed
that factor. All the information about [Appellant’s] family history
of substance abuse and criminal activity, [Appellant’s] status as a
father of two, the case facts, and [Appellant’s] age were
considered by this court and contributed to its decision to not
sentence [Appellant] to nine to eighteen years as requested by
the Commonwealth. The fact that this court did not consider these
factors sufficient to provide further mitigation of the sentence
below five to ten years does not make the sentence excessive,
manifestly unreasonable, or without purpose.
Further, this court’s sentence was both reasonable and with
purpose. [Appellant] influenced an eighteen-year-old to kill a
sixteen-year-old, providing the opportunity, the weapons, and the
transportation necessary for this offense to occur. This murder
took place only one year, five months, and seventeen days after
[Appellant] was released from prison and while he was still on
probation, after two previous probation violations. This court is
entitled to believe that all the evidence before it, including
[Appellant’s] repeated probation violations, the gravity of the
offenses, and the fact that a death has occurred, was not sufficient
to require a lesser sentence than that assigned. This court was in
the best position to determine the credibility of [Appellant’s]
statements, possible rehabilitation, mitigating factors, and impact
and safety of the community when fashioning a sentence. The
sentence was not the result of an abuse of discretion and therefore
provides [Appellant] no relief.
Trial Ct. Op. at 11-12.
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Based on our review of the record, we discern no abuse of discretion by
the trial court. See Colon, 102 A.3d at 1043. The record confirms that the
trial court had a PSI report which it reviewed prior to sentencing. See N.T.
VOP Sentencing Hr’g, 6/25/19, at 15-16. As such, we can presume that the
trial court considered and appropriately weighed Appellant’s rehabilitative
needs and all relevant factors in fashioning Appellant’s sentence. See
Ventura, 975 A.2d at 1135. Additionally, to the extent Appellant argues that
the trial court impermissibly relied on the PSI report from the 2018 case, he
is not entitled to relief. As noted previously, Appellant stipulated to the PSI
report prepared for his 2018 case and explicitly waived his right to an updated
report. See N.T. VOP Hr’g, 12/27/18, at 8. For these reasons, Appellant is
not entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2020
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