Com. v. Simpkins, E.

J-S54008-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ERIC GRANT SIMPKINS
Appellant No. 311 MDA 2014
Appeal from the Judgment of Sentence January 17, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001985-2010
BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.
MEMORANDUM BY LAZARUS, J. FILED AUGUST 28, 2014
Eric Grant Simpkins appeals from the judgment of sentence imposed in
the Court of Common Pleas of Lancaster County after he was resentenced
subsequent to a finding that he had violated the terms of his intermediate
Simpkins was serving a five-year IP sentence after he plead guilty
before the Honorable James P. Cullen to two counts of driving under the
1
when he was again charged with multiple
counts of DUI and related offenses stemming from two separate incidents.
Simpkins subsequently pled guilty to the new charges and was sentenced to
____________________________________________
1
75 Pa.C.S.A. § 3802(a)(1) (general impairment) and (c) (highest rate of
alcohol).
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On November 27, 2013, Judge Cullen held a revocation hearing and
determined that Simpkins had violated the terms of his IP due to the new
charges as well as a positive test for marijuana. A pre-sentence
resentenced Simpkins
modification of sentence was denied and this timely appeal followed, in
which Simpkins challenges the discretionary aspects of his sentence.
Where the discretionary aspects of a sentence are challenged, an
appellant is not guaranteed an appeal as of right. Rather, two requirements
must be met before we will review such a claim on its merits:
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. Second, the
appellant must show that there is a substantial question that the
sentence imposed is not appropriate under the Sentencing Code.
The determination of whether a particular issue raises a
substantial question is to be evaluated on a case-by-case basis.
In order to establish a substantial question, the appellant must
show actions by the trial court inconsistent with the Sentencing
Code or contrary to the fundamental norms underlying the
sentencing process.
Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006)
(citation omitted).
Here, Simpkins has included in his brief a statement of reasons
pursuant to Pa.R.A.P. 2119(f), in which he asserts that the trial court abused
its discretion in resentencing by violating the provisions of 42 Pa.C.S.A. §
9771 and failing to take into consideration the non-violent nature of
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treatment for alcoholism and PTSD. Brief of Appellant, at 10.
Section 9771(c) provides that a court may only impose a sentence of
total confinement upon revocation if it finds that:
(1) the defendant has been convicted of another crime;
(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.A. § 9771(c).
Here, Simpkins baldly alleges a violation of section 9771, but does not,
in either his Rule 2119 statement or the body of his brief, specify how the
court violated the requirements of the section. However, Simpkins concedes
that he pled guilty to additional DUI charges while serving his IP sentence.
This conviction satisfies section 9771(c)(1) and, accordingly, this claim is
patently meritless.
Simpkins also argues that the court failed to consider the non-violent
nature of his offenses and his need for dual-
Court has held on numerous occasions that a claim of inadequate
consideration of mitigating factors does not raise a substantial question for
Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super.
2013). Thus, the non-
relief. However
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need for mental health treatment and substance abuse rehabilitation does
raise a substantial question. Commonwealth v. Riggs, 63 A.3d 780, 786
(Pa. Super. 2012) (failure to consider relevant sentencing criteria, including
protection of public, gravity of underlying offense and rehabilitative needs of
appellant as required under 42 Pa.C.S.A § 9721(b), raises substantial
question). Accordingly, we may review the merits of this claim.
We begin by noting that Judge Cullen was in possession of, and
reviewed, a PSI report. Where a sentencing judge had the benefit of a PSI
report, it is presumed that he was aware of the relevant information
rations along
with mitigating statutory factors. Commonwealth v. Devers, 546 A.2d 12
(Pa. 1988).
Moreover, the sentencing transcript reveals that Judge Cullen
thoroughly explained, on the record, all the factors he considered in arriving
alcohol dependence and PTSD diagnosis as follows:
were ten years old. . . . You began using alcohol when you were
13. Apparently your aunt and uncle drank at home. . . . [Y]ou
were allowed to drink as well as long as you stayed home. You
were drinking daily at the time of your incarceration at Lancaster
had brief exposure to cocaine. You were in a drug and alcohol
program in 2000 and at the Lancaster Freedom Center in 2010
which you completed. . . . I also reviewed the psychiatric
evaluation which was done in December 2013. That diagnoses
you with major depressive disorder, post-traumatic stress
disorder and chronic alcohol dependence. There are treatment
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ems from which
you suffer and your mental health condition; however, that does
not justify your putting other members of the community at risk.
This is a repeated course of conduct over an extended period of
time. You have had ample opportunity to get the help you need
and for whatever reason, you have not done it.
N.T. Resentencing, 1/17/14, at 12-16.
in crafting his sentence, he also specifically referenced the treatment options
available in the State Correctional System and strongly urged Simpkins to
take advantage of the available programming. Id. at 16-18.
not consider his rehabilitative needs in fashioning his sentence is without
merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2014
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