Com. v. Garulle, N. ( 2015 )

J-A22014-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NICHOLAS JAMES GARULLE
Appellant No. 99 MDA 2014
Appeal from the Judgment of Sentence December 19, 2013
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0000779-2012
BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED MARCH 27, 2015
Appellant, Nicholas James Garulle, appeals from the judgment of
sentence entered after the trial court revoked his probation. Garulle
contends that the trial court abused its discretion by imposing an excessive
sentence. After careful review, we affirm.
On November 14, 2012, Garulle pled guilty to receiving stolen
property. Pursuant to the negotiated plea agreement, the trial court
sentence Garulle to 23 months of probation. Slightly over a year later, the
Commonwealth moved to revoke Garulle’s probation, alleging, among other
things, that Garulle had removed his electronic monitor and had been found
in possession of heroin.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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After a hearing on the Commonwealth’s motion, the trial court revoked
Garulle’s probation and entertained testimony on an appropriate sentence.
At the conclusion of this testimony, the trial court sentenced Garulle to a
term of imprisonment of 24 months to 60 months. This timely appeal
followed.
On appeal, Garulle argues that the sentence imposed by the trial court
was excessive. On appeal from a judgment of sentence following the
revocation of probation
[o]ur review is limited to determining 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. Fish, 752 A.2d 921, 923 (Pa. Super. 2000). This scope
of review encompasses a review of the discretionary aspects of the sentence
imposed after revocation. See Commonwealth v. Cartrette, 83 A.3d
1030, 1042 (Pa. Super. 2013) (en banc).
“Revocation of a probation sentence is a matter committed to the
sound discretion of the trial court and that court's decision will not be
disturbed on appeal in the absence of an error of law or an abuse of
discretion.” Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa. Super.
2008) (citation omitted). A court may revoke an order of probation upon
proof of the violation of specified conditions of the probation. See
Commonwealth v. Infante, 888 A.2d 783, 791 (Pa. 2005). “A probation
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violation is established whenever it is shown that the conduct of the
probationer indicates the probation has proven to have been an ineffective
vehicle to accomplish rehabilitation and not sufficient to deter against future
antisocial conduct.” Id., at 791. Technical violations are sufficient to trigger
revocation. See Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super.
2000).
As noted above, Garulle contends that the sentence imposed by the
trial court is excessive. Garulle concedes that this claim raises a challenge
to the discretionary aspects of the sentence imposed. See Commonwealth
v. Hornaman, 920 A.2d 1282, 1284 (Pa. Super. 2007).
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted). When challenging the discretionary aspects
of the sentence imposed, an appellant must present a substantial question
as to the inappropriateness of the sentence. See Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be
met before we will review this challenge on its merits.” McAfee, 849 A.2d
at 274. “First, an appellant must set forth in his brief a concise statement of
the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence.” Id.-3-
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“Second, the appellant must show that there is a substantial question
that the sentence imposed is not appropriate under the Sentencing Code.”
Id. That is, “the sentence violates either a specific provision of the
sentencing scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process.” Tirado, 870 A.2d at
365. We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists. See id. “Our inquiry must focus on
the reasons for which the appeal is sought, in contrast to the facts
underlying the appeal, which are necessary only to decide the appeal on the
merits.” Id.In the present case, Garulle’s appellate brief contains the requisite
Rule 2119(f) concise statement, and, as such, is in technical compliance with
the requirements to challenge the discretionary aspects of his sentence.
Garulle argues in his Rule 2119(f) statement that the sentence imposed by
the trial court “goes against the rehabilitative nature of the Sentencing
Code[.]” Appellant’s Brief at 6. Even assuming that this statement
constitutes a substantial question, we conclude that Garulle is due no relief.
Garulle testified that before he was arrested for the probation
violations, he was “trying to turn myself into a mental hospital because I
have a problem.” N.T., revocation hearing, 12/19/13, at 34. This problem
caused him to cut off his electronic monitor in an attempt to commit suicide.
See id., at 33. The trial court explained its decision to impose a state
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sentence on Garulle as follows: “Right now there’s only one feasible
disposition for Mr. Garulle, and he’s out of control; and the only way to
impose that control is to get him into a facility where he can have the proper
treatment.” Id., at 52. Thus, the trial court indicated that a primary
purpose of the sentence imposed was the rehabilitation of Garulle. Garulle’s
contention that the sentence disregarded his rehabilitative needs is therefore
unsupported by the record. Garulle’s sole issue on appeal merits no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2015
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