J-S16035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LLOYD CHARLES STEVENS,

                            Appellant                 No. 1208 WDA 2016


              Appeal from the Judgment of Sentence July 14, 2016
               in the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0017063-2014


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

MEMORANDUM BY PLATT, J.:                             FILED MARCH 31, 2017

        Appellant, Lloyd Charles Stevens, appeals from the judgment of

sentence imposed on July 14, 2016, following revocation of his probation.

Specifically, he challenges the discretionary aspects of his sentence.       We

affirm.

        We take the factual and procedural history in this matter from our

review of the certified record and the trial court’s November 9, 2016 opinion.

              [Appellant] was charged with burglary, terroristic threats
        and criminal mischief[1] in relation to an incident which occurred
        at his ex-girlfriend’s residence in Crawford Village. He appeared
        before [the trial court] on July 6, 2015, and, pursuant to a plea
        agreement with the Commonwealth, [pleaded] guilty to one (1)

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3502(a)(1), 2706(a)(1), and 3304(a)(2), respectively.
J-S16035-17


        count of criminal trespass[2] and was immediately sentenced to a
        term of probation of one (1) year with the special condition of
        completion of the batterer’s intervention program. No post-
        sentence motions were filed and no direct appeal was taken.

              On July 14, 2016, [Appellant] appeared before [the trial
        court] for a probation violation hearing. At the conclusion of the
        hearing and upon finding that [Appellant] had been convicted of
        another offense while on probation, his probation was revoked
        and he was sentenced to a term of imprisonment of [not less
        than eleven and one-half, nor more than twenty-three] months.
        Timely post-sentence motions were filed and were denied on
        August [15], 2016. This [timely] appeal followed.3

(Trial Court Opinion, 11/09/16, at 1-2) (unnecessary capitalization and some

footnotes omitted).

        Appellant raises one issue on appeal.

        1.    Did the [trial] court abuse its discretion in sentencing
              [Appellant] to a manifestly excessive and unreasonable
              sentence of [eleven and one-half] to [twenty-three]
              months [of] incarceration following probation revocation?

(Appellant’s Brief, at 8) (most capitalization omitted).

        Appellant’s issue challenges the discretionary aspects of his sentence.

This Court has concluded that a challenge to a discretionary sentencing

matter after revocation proceedings is within the scope of its review. See

Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006),

appeal denied, 906 A.2d 1196 (Pa. 2006).

____________________________________________


2
    18 Pa.C.S.A. § 3503(a)(1).
3
 Appellant filed a concise statement of errors complained of on appeal on
October 7, 2016. The trial court entered its opinion on November 9, 2016.
See Pa.R.A.P. 1925.



                                           -2-
J-S16035-17


     Such a challenge to the discretionary aspects of a sentence is
     not appealable as of right. Rather, Appellant must petition for
     allowance of appeal pursuant to 42 Pa.C.S.A. § 9781.
     Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super.
     2004).

              Before we reach the merits of this [issue], we must
        engage in a four part analysis to determine: (1) whether
        the appeal is timely; (2) whether Appellant preserved his
        issue; (3) whether Appellant’s brief includes a concise
        statement of the reasons relied upon for allowance of
        appeal with respect to the discretionary aspects of
        sentence; and (4) whether the concise statement raises a
        substantial question that the sentence is appropriate under
        the sentencing code.      The third and fourth of these
        requirements arise because . . . [Appellant] must petition
        this Court, in his concise statement of reasons, to grant
        consideration of his appeal on the grounds that there is a
        substantial question. Finally, if the appeal satisfies each of
        these four requirements, we will then proceed to decide
        the substantive merits of the case.

     Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super.
     2013)[, appeal denied, 77 A.3d 1258 (Pa. 2013)] (citations
     omitted); see also Commonwealth v. Kalichak, 943 A.2d
     285, 289 (Pa. Super. 2008) (“[W]hen a court revokes probation
     and imposes a new sentence, a criminal defendant needs to
     preserve challenges to the discretionary aspects of that new
     sentence either by objecting during the revocation sentencing or
     by filing a post-sentence motion.”) [(citation omitted)].

Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014),

appeal denied, 109 A.3d 678 (Pa. 2015).

     Here, Appellant has properly preserved his issue by filing a post-

sentence motion for reconsideration of sentence, which the trial court

denied, and a timely appeal.     Appellant’s brief contains a Rule 2119(f)

concise statement of reasons.     (See Appellant’s Brief, at 9-10).      In it,

Appellant argues “the sentencing court failed to take into account that he


                                    -3-
J-S16035-17



accepted responsibility for his actions, he has rehabilitative needs and he

has health issues.” (Id. at 10). “[A] claim that the sentencing court failed

to consider or accord proper weight to a specific sentencing factor does not

raise a substantial question.”   Commonwealth v. Berry, 785 A.2d 994,

996 (Pa. Super. 2001) (citation omitted). However, Appellant later argues

that the sentence imposed after revocation of his probation is higher than

the aggravated range for his original offense and is manifestly excessive.

(See Appellant’s Brief, at 17). Although not specifically contained within the

2119(f) statement, we find that Appellant is not only arguing that the court

failed to consider certain factors, but also that such failure resulted in a

manifestly excessive sentence, which is above the aggravated guideline

range. See Commonwealth v. Anderson, 830 A.2d 1013, 1017–18 (Pa.

Super. 2003) (considering sentencing challenges although not contained

within Rule 2119(f) statement).     “A claim that a sentence is manifestly

excessive such that it constitutes too severe a punishment raises a

substantial question.”   Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa.

Super. 2011) (citation omitted). Thus, Appellant has presented a substantial

question and we will proceed to the merits of his claim.

      Our standard of review of an appeal from a sentence imposed

following the revocation of probation is well-settled:      “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




                                    -4-
J-S16035-17



of an error of law or an abuse of discretion.” Colon, supra at 1041 (citation

omitted).

      In his issue, Appellant claims that his sentence was manifestly

excessive. (See Appellant’s Brief, at 14-17). Specifically, he claims that the

court did not consider his rehabilitative needs, health, or acceptance of

responsibility when sentencing him, thus resulting in imposition of an

unreasonable sentence. (See id.). We disagree.

            Upon revoking probation, a sentencing court may choose
      from any of the sentencing options that existed at the time of
      the original sentencing, including incarceration. 42 Pa.C.S.A. §
      9771(b). “[U]pon revocation [of probation] . . . the trial court is
      limited only by the maximum sentence that it could have
      imposed originally at the time of the probationary sentence.”
      Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super.
      2013) (internal quotation marks and citations omitted). . . .

Colon, supra at 1044. “A sentencing court need not undertake a lengthy

discourse for its reasons for imposing a sentence or specifically reference the

statute in question, but the record as a whole must reflect the sentencing

court’s consideration of the facts of the crime and character of the offender.”

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010), appeal

denied, 13 A.3d 475 (Pa. 2010) (citation omitted).      We observe that “our

sentencing guidelines are not required to be consulted” when sentencing

upon revocation. Commonwealth v. Cartrette, 83 A.3d 1030, 1040 (Pa.

Super. 2013) (citing 204 Pa. Code. § 303.1(b)).

      Here, a review of the probation violation hearing and sentencing

transcript reflects that the trial court engaged in a discussion of the facts


                                     -5-
J-S16035-17



and history of Appellant’s case.           The Commonwealth established that

Appellant pleaded guilty to criminal trespass (his original conviction), and

admitted that he approached the victim (previously his paramour) at her

home, started a verbal altercation, and then entered her home without

permission.   (See N.T. Plea and Sentencing Hearing, 7/06/15, at 4).           The

record reveals that Appellant violated his probation when he was convicted

of a new charge.        (See N.T. Probation Violation Hearing, 7/14/16, at 3).

The trial court heard testimony from the probation officer who explained that

Appellant’s supervision had been poor, that he had never attended batterers

intervention classes (a requirement of his probation), and that he failed to

appear for a domestic violence review hearing. (See id. at 2-3; N.T. Plea

and Sentencing Hearing, at 5).

        Moreover, we note that the maximum sentence that the court could

have     imposed   at     Appellant’s   initial   sentencing   was   seven   years’

incarceration. (See N.T. Plea and Sentencing Hearing, at 3). Therefore, the

sentence, imposed upon revocation, of not less than eleven and one-half nor

more than twenty-three months of incarceration, is well within the maximum

sentence that could have been imposed.              See 42 Pa.C.S.A. § 9771(b);

Colon, supra at 1044.

        Thus, we conclude that the record reflects the court’s reasons for

Appellant’s sentence and its consideration of the circumstances of the

offense, Appellant’s background, and his character. See Crump, supra at

1283.    The record also reflects that the sentence imposed was within the

                                        -6-
J-S16035-17



maximum sentence that could have been imposed originally.       See Colon,

supra at 1044. Accordingly, the court did not err or abuse its discretion in

this regard. See id. at 1041. Appellant’s issue lacks merit.

     Judgment of sentence affirmed.

     Judge Ransom joins the Memorandum.

     Judge Moulton concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/31/2017




                                    -7-
