J-S88042-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

                                          :   IN THE SUPERIOR COURT OF
COMMONWEALTH OF PENNSYLVANIA,             :         PENNSYLVANIA
                                          :
              Appellee                    :
                                          :
     v.                                   :
                                          :
BRANDON LANG,                             :
                                          :
              Appellant                   :       No. 2548 EDA 2014

          Appeal from the Judgment of Sentence August 7, 2014
             in the Court of Common Pleas of Philadelphia County
            Criminal Division, at No(s): CP-51-CR-0013616-2012

BEFORE:      OLSON, RANSOM, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                   FILED FEBRUARY 07, 2017

     Brandon Lang (Appellant) appeals from the judgment of sentence of

two to five years of incarceration entered following the revocation of his

probation.   We vacate Appellant’s judgment of sentence and remand this

case for resentencing.

     In February 2014, Appellant entered a negotiated guilty plea to counts

of receiving stolen property and unauthorized use of automobiles and other

vehicles, and received respective concurrent sentences of five and two years

of county probation. The trial court explained:

     [A]t the time of imposition of the negotiated period of probation,
     all parties acknowledged that the computed [] sentencing
     guidelines calculated the lead offense with an offense gravity
     score of “5” and that [Appellant’s] prior record score [was] 1.
     Thus, the recommended range of sentence was incarceration of
     a length between one and twelve months with a possible

*Retired Senior Judge assigned to the Superior Court.
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      deviation of three months. [Appellant’s] criminal record included
      multiple misdemeanor convictions for theft from motor vehicles
      as well as an illegal narcotics possession and a summary
      conviction for contempt of court. [Appellant] had violated the
      terms of his previously imposed periods of probation or parole
      for those offenses.    Th[e trial c]ourt was also aware that
      [Appellant] had previously failed to appear as scheduled for
      court on multiple occasions. Given all of the circumstances and
      facts of the underlying charges, the negotiated sentence of
      another period of probations was generously below the
      recommended guidelines.

             As a minimal condition of [Appellant’s] supervision
      probation, [Appellant] had been directed by th[e trial c]ourt to
      report to his assigned probation officer, obtain a G.E.D., and pay
      restitution to the owner of the stolen automobile in the amount
      of $700.00 for the damages he had caused and pay mandatory
      court fines and costs throughout the period of probation. Upon
      entry of the guilty plea, [Appellant] waived his right to have any
      presentence investigative report completed. At the time of
      sentencing, [Appellant] was given credit for the county time he
      previously served while awaiting trial.

Sentencing Court Opinion, 2/5/2016, at 2 (unnecessary capitalization

omitted).

      Appellant reported to his probation officer upon his release from

custody, but thereafter failed to report or attend the ordered G.E.D. classes.

Consequently, a bench warrant was issued on May 20, 2014.

      On August 7, 2014, after sufficient basis for revocation of
      [Appellant’s] parole and probation was presented, all parties
      agreed to proceed immediately to sentencing without any
      request for any presentence investigation evaluations. Although
      presentence reports were not formally waived, th[e trial c]ourt
      deemed it waived from the prior waiver and the insistence of the
      parties to proceed immediately to sentencing following the
      revocation.




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             After hearing argument, th[e trial c]ourt sentenced
      [Appellant] to a [] state term of minimum confinement of two to
      five years, and directed [Appellant] to pay the remaining court
      costs and fees, and pay owed amount of restitution. [Appellant]
      was given credit for any time served.          Th[e trial c]ourt
      specifically recommended and directed that [Appellant] be
      eligible for the early release opportunity afforded in the state
      boot camp program. If accepted into the boot camp program,
      [Appellant] would have been released after a mere six months of
      confinement. …

             On August 11, 2014, [Appellant] filed a request for
      reconsideration of sentence. This was denied without hearing on
      August 15, 2014. On September 4, 2014, a notice of appeal was
      filed on behalf of [Appellant]. On September 16, 2014 this Court
      directed [Appellant] to file a 1925(b) statement. The statement
      was timely filed on October 3, 2014….

Id. at 3-4 (citations and unnecessary capitalization omitted).            The

sentencing court eventually filed its Rule 1925(a) opinion, offering therein

reasons for the sentence imposed, on February 5, 2016, and this case is now

ripe for our review.

      Appellant presents this Court with a multi-faceted challenge to the

discretionary aspects of his sentence, including the claim that the sentencing

court failed to place on the record the reasons for the sentence imposed.1

Appellant’s Brief at 4.

      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the
      following four factors:


1
  Because we determine that resentencing is necessary based upon this
aspect of Appellant’s claim, we need not address his remaining arguments.
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            (1) whether appellant has filed a timely notice of
            appeal, see Pa.R.A.P. 902 and 903; (2) whether the
            issue was properly preserved at sentencing or in a
            motion to reconsider and modify sentence, see
            Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
            fatal defect, Pa.R.A.P. 2119(f); and (4) whether
            there is a substantial question that the sentence
            appealed from is not appropriate under the
            Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

      Here, Appellant timely filed a notice of appeal after filing a motion to

modify sentence which included the claim at issue, and his brief contains a

statement pursuant to Pa.R.A.P. 2119(f).        We thus consider whether

Appellant has presented a substantial question for our review.

      This Court has held that an allegation that the sentencing court failed

to offer a contemporaneous statement on the record of the reasons for the

sentence imposed raises a substantial question.         Commonwealth v.

Johnson, 541 A.2d 332, 341 n.4 (Pa. Super. 1988). Accordingly, we review

the merits of Appellant’s claim.

      Regarding prison sentences imposed following the revocation of

probation, the Sentencing Code provides as follows:

      The court shall not impose a sentence of total confinement upon
      revocation unless it finds that:

            (1) the defendant has been convicted of another
            crime; or




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           (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. § 9771(c).    Further, “[i]n every case in which the court …

resentences an offender following revocation of probation, … the court shall

make as a part of the record, and disclose in open court at the time of

sentencing, a statement of the reason or reasons for the sentence

imposed.” 42 Pa. C. S. § 9721(b) (emphasis added).

     “Such a statement is mandatory.”         Johnson, 541 A.2d at 340.

Offering the reasons at a later time, such as in ruling upon a motion for

reconsideration of sentence or in authoring a Rule 1925(a) opinion, does not

cure noncompliance with subsection 9721(b). See, e.g., Commonwealth

v. Holmes, 500 A.2d 890, 891 (Pa. Super. 1985); Commonwealth v.

Giles, 449 A.2d 641, 642 (Pa. Super. 1982).

     Here, the transcript of the sentencing hearing reveals that the

sentencing court detailed the history of the case, N.T., 8/7/2014, at 4-6;

Appellant’s counsel explained Appellant’s reasons for failing to comply with

the terms of probation and requested that the sentencing court “give him

either a short jail sentence with parole or allow him to have another period

of probation,” id. at 6-8; and the Commonwealth recommended “a short jail




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sentence,” id. at 8. After Appellant briefly exercised his right to allocution,

id. at 9, the sentencing transcript reads as follows:

            THE COURT:        Okay.

            All right.

            Sir, you may stand. This [c]ourt finds that you violated
      the period of probation presented to you on February 7th.

            I resentence you [on] the receiving stolen property, 2-to-5
      years’ state incarceration. You are Boot Camp [eli]gible.

            [APPELLANT’S COUNSEL]: Your            Honor,   would    you
      consider a county sentence?

            THE COURT:        No.

            [APPELLANT’S COUNSEL]: He’s never been in jail.

            THE COURT:        No.

           As to the unauthorized use, I’m suspending your sentence.
      A condition of your parole is the payment of $700.00 restitution
      and any mandatory fines and cost.

            You may advise him.

Id. at 9-10.   Appellant’s counsel then explained Appellant’s post-sentence

rights, and the hearing concluded. Id. at 10-11.

      The record thus confirms Appellant’s contention that the sentencing

court failed to state on the record any reasons for its sentence, let alone

findings required under 42 Pa.C.S. § 9771(c) for imposition of a period of

total confinement following revocation of probation.    Accordingly, we must

vacate Appellant’s sentence and remand for resentencing.            See, e.g.,



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Commonwealth v. Riggins, 377 A.2d 140, 151 (Pa. 1977) (vacating

sentence and remanding “to afford the trial court an opportunity to

resentence appellant and to include a statement of reasons for the sentence

imposed”); Commonwealth v. Harris, 457 A.2d 572, 574 (Pa. Super.

1983) (vacating sentence and remanding for resentencing where “[a]lthough

the judge did later write an opinion in which he discussed the sentence and

his reasons for imposing it, … the sentencing transcript indicates that he did

not disclose those reasons at the time of sentencing”).

      Judgment of sentence vacated.       Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 2/7/2017




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