Com. v. Englert, J.

J-S07015-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES JOSEPH ENGLERT,
Appellant No. 982 MDA 2014
Appeal from the Judgment of Sentence May 27, 2014
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0000680-2010
BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 11, 2015
Appellant, James Englert, appeals from the judgment of sentence of 18
to 36 months’ incarceration. Appellant challenges the discretionary aspects
of his sentence. After careful review, we affirm.
Appellant entered a plea of guilty to criminal trespass, criminal
mischief, and theft by unlawful taking on January 5, 2011. On April 20,
2011, Appellant was sentenced to two consecutive terms of 23 months’
probation.
Appellant was subsequently arrested in 2013 on new charges.
Consequently, on May 27, 2014, the court held a probation revocation
hearing. Following the hearing, Appellant’s probation sentence was revoked,
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and the court imposed a new sentence of 18 to 36 months’ incarceration.1
Appellant filed a timely notice of appeal, as well as a timely concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant now presents the following question for our review:
[I.] Whether the sentence imposed was excessive to the degree
that it amounted to an abuse of discretion?
Appellant’s brief at 4.
Initially, we note that there is “no absolute right to appellate review of
the discretionary aspects of a sentence.” Commonwealth v. Mouzon, 812
A.2d 617, 621 (Pa. 2002). An appellant must present a “substantial
question” to this Court for review by submission of a statement as required
by Pa.R.A.P. 2119(f). See id. Rule 2119(f) states that an appellant must
include in his brief “a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of the
sentence.” Pa.R.A.P. 2119(f).
[T]he Rule 2119(f) statement must specify where the sentence
falls in relation to the sentencing guidelines and what particular
provision of the Code is violated (e.g., the sentence is outside
the guidelines and the court did not offer any reasons either on
the record or in writing, or double-counted factors already
considered). Similarly, the Rule 2119(f) statement must specify
what fundamental norm the sentence violates and the manner in
which it violates that norm (e.g., the sentence is unreasonable
or the result of prejudice because it is 500 percent greater than
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1
It appears that the trial court revoked Appellant’s second term of
probation, and Appellant’s first term of probation concluded without having
been revoked prior to the hearing.
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the extreme end of the aggravated range). If the Rule 2119(f)
statement meets these requirements, we can decide whether a
substantial question exists.
Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000).
“Generally, ‘in order to establish a substantial question, [an] appellant must
show actions by the sentencing court inconsistent with the Sentencing Code
or contrary to the fundamental norms underlying the sentencing process.’”
Commonwealth v. Sims, 728 A.2d 357, 359 (Pa. Super. 1999) (quoting
Commonwealth v. Gaddis, 639 A.2d 462, 469 (Pa. Super. 1994)).
Turning to Appellant’s Rule 2119(f) statement, we note that Appellant
does not identify what particular provision of the Sentencing Code is
violated. Instead, he merely alleges, “The lengthy sentence imposed by the
Trial Court goes against the rehabilitative nature of the Sentencing Code, as
Appellant was denied the opportunity to participate in supervision at the
county level.”2 Appellant’s brief at 6. As Appellant’s Rule 2119(f) statement
does not meet the requirements laid out in Goggins, supra, we conclude
that Appellant has failed to raise a substantial question.
Even if Appellant had raised a substantial question in his brief, he
would not be due relief as his argument is without merit. Appellant
stipulated at his revocation hearing that he had violated the terms of his
probation by unlawfully possessing, and using, controlled substances. His
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2
To the extent that Appellant claims the court abused its discretion in failing
to adequately consider mitigating factors, or in imposing an excessive
sentence, such claims do not raise a substantial question. See
Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa. Super. 1997);
Commonwealth v. Titus, 816 A.2d 251, 255-256 (Pa. Super. 2003).
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probation officer testified that, following Appellant’s arrest on new charges,
Appellant’s urine had tested positive for methamphetamines and marijuana.
N.T., 5/27/14, at 14. Moreover, the probation officer testified that Appellant
had not reported as directed. During the 2½ years Appellant was under
supervision, he had only reported 4 times. Id. at 15. He did not pay court
costs while under supervision. Id. at 14. He had previously submitted a
diluted urine sample. Id. at 13. Moreover, he had not reported during the
last 8 months of his supervision prior to the probation revocation hearing.
Id. at 15. Appellant testified that he was addicted to methamphetamines.
Id. at 9. He also testified that he had never attempted to seek rehabilitation
for his substance abuse problem. Id. at 9. The trial court acknowledged
this testimony, and noted that Appellant’s continued use of controlled
substances needed to be addressed. Id. at 18. The revocation court found
that more restrictive supervision was necessary because Appellant had
demonstrably failed to address his substance abuse problem while he was
under less restrictive supervision. Id. at 19. As such, we would conclude
that the trial court did not abuse its discretion in imposing Appellant’s
sentence of 18 to 36 months’ incarceration.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2015
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