Com. v. Ford, C. (memorandum)

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J-S37043-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. CHRISTIAN LEE FORD, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2233 MDA 2013 Appeal from the Judgment of Sentence entered on September 23, 2013 in the Court of Common Pleas of Lancaster County, Criminal Division, No(s): CP-36-CR-0001598-2011; CP-36-CR-0001891-2009; CP-36-CR-0002458-2009; CP-36-CR-0003103-2012; CP-36-CR-0003847-2009 BEFORE: LAZARUS, STABILE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED JUNE 30, 2014 imposed after a finding of several parole/probation violations. We affirm. The trial court set forth the relevant underlying factual and procedural history in its Opinion, which we adopt for the purpose of this appeal. See Trial Court Opinion, 2/19/14, at 1-4.1 1 On docket 2458imposed the maximum unexpired balance of his sentence. The trial court ion and imposed one-year probation terms at Counts 2 and 3, to be served consecutively to Count 1, but concurrently to each other. On docket 3103imposed the unexpired balance of his sentence. On docket 1891-2009, the probation and sentenced him to 6 to 12 months in prison. On docket 15982011, the trial court revoked F months in prison, to be served concurrently with Count 2 of docket 1891- J-S37043-14 On appeal, Ford raises the following questions for review: I. Whether there was sufficient evidence to sustain a parole violation where the court relied on hearsay testimony? II. Did the court impose an unreasonable sentence which contravenes the policy underlying the Sentencing Code where the sentence is manifestly unreasonable, focuses solely on the seriousness of the offense without considering any mitigating factors, is not an individualized sentence and appears to be the result of partiality, prejudice, bias, or ill will? Brief for Appellant at 5. In his first claim, Ford challenges only the portions of his sentence relating to parole, and contends that the evidence was insufficient to support 2 the trial court erred in admitting the Id. at 10. Ford argues that hearsay testimony of the probation/parole officer without indicating that there was good cause for accepting the testimony. Id. Initially, we note that Ford has failed to indicate which parole violation he is challenging. See Pa.R.A.P. 2119(a) (requiring that points of argument be followed by discussion and citation of pertinent authorities). Nevertheless, we will address the merits of his claim. 2009. On docket 3847Count 1 and imposed a one-year probation term, to be served consecutive to Counts 2 and 3 on docket 2458-2009. On Count 2 on docket 3847-2009, the trial court terminated all supervision. 2 In his first claim, Ford does not challenge any of the probation revocations. -2- J-S37043-14 The Commonwealth has the burden to prove a parole violation by a preponderance of the evidence. Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008). The decision to revoke parole is subject to the discretion of the trial court. Id. even without consideration of the hearsay testimony in question, the Commonwealth presented sufficient evidence to find a parole violation. See Trial Court Opinion, 2/19/14, at 4-5. Indeed, Ford failed to complete the required drug and alcohol treatment program, and neglected to attend an appointment with his probation/parole officer. N.T., 9/23/13, at 7, 10, 1920. Thus, we agree with the sound reasoning of the trial court that the Commonwealth satisfied its burden of proof by showing, by a preponderance of the evidence, that Ford violated the terms of his parole. See Trial Court Opinion, 2/19/14, at 4-5. In his second claim, regarding his resentencing due to probation violations, Ford contends that his sentence was unreasonable under the nary aspects of sentencing.3 See Kalichak, 943 A.2d at 289-90. 3 It is well settled that revocation of parole does not involve the imposition of a new sentence; the only option after revocation is recommitment to serve the remaining time from the original sentence. Kalichak, 943 A.2d at 290. Thus, an appellant cannot argue that recommitment implicates the discretionary aspects of sentencing. Id. at 291. aspects of sentencing claim only implicates his sentences for the probation violation. -3- J-S37043-14 Before a reviewing court can consider the merits of a challenge to discretionary aspects of sentencing, the appellant must show the following: (1) that the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (2) a timely notice of appeal was filed; (3) defendant fully complied with Pa.R.A.P. 2119(f); and (4) there was a the Sentencing Code. Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008). A determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Cunningham, 805 A.2d 566, 574 (Pa. Super. 2002). In order to establish a substantial provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie Id. (citation omitted). Ford properly preserved the issue by filing a Post-Sentence Motion to Modify Sentence and by filing a timely Notice of Appeal. He also satisfied the requirements of Pa.R.A.P. 2119(f) by filing a Concise Statement of Matters Complained of on Appeal in his brief. Ford asserts that he has raised a substantial question because he did not receive a particularized sentence -4- as required by 42 Pa.C.S.A. J-S37043-14 § 9721(b).4 See Brief for Appellant at 8-9. Ford argues that during the Id. at 9. We conclude that Ford has raised a substantial question. See 42 Pa.C.S.A. § 9721(b). Generally, the trial court has discretion to impose a new sentence after revoking probation, which should not be disturbed on appeal absent an abuse of discretion. Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001). In order to establish abuse of discretion, the appellant exercised its judgment for reasons of partiality, prejudice, bias, or ill will, or Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa. Super. 2005) (citations omitted). Ford argues that when the sentencing court imposed a sentence of total confinement, the court improperly failed to consider mitigating factors, and instead focused solely on the hearsay testimony of the parole officer. Brief for Appellant at 11-12. Ford asserts that because the trial court did not delineate precisely what factors it used in making its sentencing decision, the sentence was a result of bias. Id. at 11. 4 42 Pa.C.S.A. § 9721(b) requires the sentencing co court at the time of sentencing, a statement of the reason or reasons for the -5- J-S37043-14 Here, the trial court analyzed the pertinent sentencing factors and set forth its reasons for the sentence. See Trial Court Opinion, 2/19/14, at 7-8; -compliance with see also the terms of his probation, the trial court did not abuse its discretion, and we adopt its analysis for the purposes of this appeal. See Trial Court Opinion, 2/19/14, at 7-8. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/30/2014 -6-

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