Com. v. Cottrell, H. (memorandum)
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J-S70009-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. HERBERT COTTRELL Appellant No. 3245 EDA 2012 Appeal from the Judgment of Sentence October 24, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007017-2009; CP-51-CR-0008301-2009; CP-51-CR-0408251-2005 BEFORE: GANTMAN, J., OLSON, J., and WECHT, J. MEMORANDUM BY GANTMAN, J.: FILED DECEMBER 10, 2013 Appellant, Herbert Cottrell, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following revocation of his probation. We affirm. In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. Appellant raises the following issues for our review: WAS NOT THE EVIDENCE INSUFFICIENT AS A MATTER OF LAW TO ESTABLISH A TECHNICAL VIOLATION OF PROBATION, WHERE[,] AT THE TIME OF HIS VIOLATION HEARING, APPELLANT HAD BEEN OUT OF CUSTODY FOR ONLY SIX MONTHS, AND DURING THAT TIME PERIOD HE HAD COMPLIED WITH DRUG TREATMENT, WAS ATTENDING GED CLASSES, HAD OBTAINED A FORKLIFT OPERATOR CERTIFICATE, AND THE COMMONWEALTH J-S70009-13 FAILED TO PRESENT ANY EVIDENCE THAT HE HAD FAILED TO COMPLY WITH ANY OF HIS PROBATIONARY CONDITIONS? DID NOT THE [TRIAL] COURT ERR AS A MATTER OF LAW IN SENTENCING APPELLANT TO A MANIFESTLY EXCESSIVE SENTENCE OF 2 TO 4 [YEARS ] INCARCERATION FOR A TECHNICAL VIOLATION OF PROBATION[,] WHERE APPELLANT HAD NOT BEEN CONVICTED OF ANY NEW CRIME, THE RECORD DID NOT DEMONSTRATE ANY LIKELIHOOD THAT APPELLANT WOULD COMMIT A NEW CRIME IF NOT INCARCERATED, INCARCERATION WAS NOT ESSENTIAL TO VINDICATE THE AUTHORITY OF THE COURT, AND THE SENTENCE IMPOSED FAR SURPASSED WHAT WAS REQUIRED TO PROTECT THE PUBLIC OR FOSTER APPELLANT S REHABILITATION? (Appellant s Brief at 3). When reviewing the outcome of a revocation hearing, this Court is limited to determining the validity of the proceeding and the legality of the judgment of sentence imposed. 1021 (Pa.Super. 2005). Commonwealth v. Heilman, 876 A.2d Notwithstanding the stated scope of review suggesting only the legality of a sentence is reviewable, an appellant may also challenge the discretionary aspects of a sentence imposed following revocation. Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super. 2000). See also Commonwealth v. Cappellini, 690 A.2d 1220 (Pa.Super. 1997) (addressing discretionary aspects of sentence imposed following revocation of probation). After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Genece E. Brinkley, we conclude Appellant s issues merit no relief. -2- The trial court J-S70009-13 opinion comprehensively discusses and properly disposes of the questions presented. (See Trial Court Opinion, dated April 18, 2013, at 5-12) (finding: (1) Appellant failed to earn his GED, failed to seek and maintain employment, failed to stay drug free, and failed to stay out of trouble since his first appearance before court in 2005; Appellant s failure to accomplish terms and conditions of his sentence over past seven years indicates inability to reform; probation was, therefore, not effective means to rehabilitate Appellant; Commonwealth established Appellant was in violation of probation/parole by preponderance of evidence; (2) Appellant properly raised and preserved his sentencing issues for appellate review; sentence was within statutory limits and was reasonable exercise of court s discretion in light of Appellant s criminal history, failure to comply with probation and house arrest, failure to get his GED, failure to find job, and failure to make sincere effort to rehabilitate himself while serving court s sentence; court properly considered factors pursuant to 42 Pa.C.S.A. ยง 9721 (protection of public, gravity of offense in relation to impact on victim and community, and defendant s rehabilitative needs); given Appellant s dreadful history on supervision, incarceration was appropriate means to vindicate court s authority). The record supports the trial court s decision; therefore, we see no reason to disturb it. Accordingly, we affirm on the basis of the trial court s opinion. Judgment of sentence affirmed. -3- J-S70009-13 *JUDGE OLSON CONCURS IN THE RESULT. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/10/2013 -4-
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