J-S61011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MAURICE BUSSEY

                            Appellant                No. 2428 EDA 2016


             Appeal from the Judgment of Sentence June 27, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001781-2014,
              CP-51-CR-0002751-2011, CP-51-CR-0009409-2015


BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED OCTOBER 02, 2017

        Maurice Bussey appeals from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, following his guilty plea to

possession with intent to deliver (PWID) and conspiracy.     We vacate and

remand.

        In 2011, Bussey pled guilty to PWID and conspiracy, and the court

sentenced him to 6 to 24 months’ imprisonment, followed by three years’

probation. In 2014, while on probation, Bussey was again arrested for PWID

and related charges.         The court sentenced him to 11½ to 23 months’

imprisonment, followed by 4 years’ probation.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       On July 9, 2015, while on probation, Bussey was arrested again for

PWID and conspiracy. Bussey pled guilty, and on June 27, 2016, the court

sentenced him to three to six years’ imprisonment, followed by ten years’

probation for the 2015 charges, as well as a concurrent term of eight years’

probation for the 2011 and 2014 cases. Bussey filed a post-sentence motion

on July 7, 2016 and a notice of appeal on July 27, 2016. The court did not

dispose of Bussey’s post-sentence motion, however, and it was denied by

operation of law on November 7, 2016.1

       On    appeal,     Bussey     raises     the   following   claims,   challenging

discretionary aspects of sentencing:

       Did not the sentencing court err as a matter of law, abuse its
       discretion, and violate general sentencing principles when,
       following a sentence on an open guilty plea and a revocation of
       parole and probation hearing, the court imposed a sentence of
       three to six years followed by [ten] years’ probation, where the
____________________________________________


1
  Pursuant to Pa.R.Crim.P. 720(B)(3)(a), “the judge shall decide the post-
sentence motion . . . within 120 days of the filing of the motion. If the judge
fails to decide the motion within 120 days, or to grant an extension as
provided in paragraph (B)(3)(b), the motion shall be deemed denied by
operation of law.”     Here, Bussey prematurely filed his notice of appeal.
However, on November 7, 2016, the post-sentence motion was denied by
operation of law and, thus, the judgment of sentence became final for
purposes of appeal. See Pa.R.Crim.P. 720(B)(3)(a), (c). Further, “[a]
notice of appeal filed after the announcement of a determination but before
the entry of an appealable order shall be treated as filed after such
entry and on the day thereof.” Pa.R.A.P. 905(a)(5) (emphasis added).
“In response to an extensive history of appeals that were quashed because
of the premature filing of the notice of appeal, the last sentence of Pa.R.A.P.
905(a) was drafted to create a legal fiction that treats the premature appeal
as being filed after the entry of the appealable order.” Pa.R.Crim.P. 720,
cmt., Miscellaneous.



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      court did not engage in individualized sentencing, did not
      demonstrate any familiarity with [Bussey’s] background save for
      the cases in front of the court, did not consult any pre-sentence
      reports, and failed to adequately consider [Bussey’s]
      rehabilitative needs, and was not such a sentence a violation of
      [Bussey’s] right to due process under the Pennsylvania and
      United States Constitutions?

Appellant’s Brief, at 3.

      Challenges to the discretionary aspects of sentencing do not entitle an

appellant to appellate review as of right. Prior to reaching the merits of a

discretionary sentencing issue:

      [W]e conduct a four part analysis to determine: (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. 1410 [now Rule 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). Objections to the discretionary aspects of a sentence are
      generally waived if they are not raised at the sentencing hearing
      or raised in a motion to modify the sentence imposed at that
      hearing. Additionally, an appellant must invoke the appellate
      court’s jurisdiction by including in his brief a separate concise
      statement demonstrating that there is a substantial question as
      to the appropriateness of the sentence under the Sentencing
      Code. Pa.R.A.P. 2119(f). The requirement that an appellant
      separately set forth the reasons relied upon for allowance of
      appeal furthers the purpose evident in the Sentencing Code as a
      whole of limiting any challenges to the trial court’s evaluation of
      the multitude of factors impinging on the sentencing decision to
      exceptional cases. The determination of what constitutes a
      substantial question must be evaluated on a case-by-case basis.
      A substantial question exists only when the appellant advances a
      colorable argument that the sentencing judge’s actions were
      either: (1) inconsistent with a specific provision of the
      Sentencing Code; or (2) contrary to the fundamental norms
      which underlie the sentencing process.


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Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa. Super. 2005)

(internal quotation marks and citations omitted).

       Bussey has complied with these requirements, although he did not

specifically claim in his post-sentence motion that the court did not state on

the record its reasons for the sentencing it imposed.         The trial court,

however, acknowledges as much in its Rule 1925(b) opinion, stating “this

[c]ourt concedes that it erred in failing to state the reasons for its sentence

on the record, and that the case[] should be remanded for re-sentencing.”

Trial Court Opinion, 1/17/17, at 2.2

       After our review, we agree with the Honorable Rayford A. Means’

assessment. Accordingly, we vacate the judgment of sentence and remand

for resentencing.

       Vacated and remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2017




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2
  We also note that we are unable to locate a transcript of a sentencing
proceeding.



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