J-S60015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

JOHN DIAZ,

                          Appellant                   No. 3436 EDA 2014


        Appeal from the Judgment of Sentence Entered October 14, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006571-2010


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED NOVEMBER 05, 2015

        Appellant, John Diaz, appeals from the judgment of sentence of an

aggregate term of 8 to 16 years’ imprisonment, imposed after the court

revoked his term of probation based on new convictions in an unrelated

case.     Appellant challenges the legality of his post-revocation sentence,

alleging that the trial court failed to consider time served for the original

sentence.     He also challenges discretionary aspects of his sentence.      We

affirm.

        The procedural history of this case was summarized by the trial court

in its Pa.R.A.P. 1925(a) opinion as follows:

              After a waiver trial before this [c]ourt on October 4, 2010,
        [Appellant] was found guilty of Possession With Intent To Deliver
        Cocaine (PWID), 35 P.S. § 780-113(a)(30); Conspiracy to
        Deliver Cocaine, 18 Pa.C.S. § 903; and Knowingly or
        Intentionally Possessing a Controlled Substance by an
        Unregistered Person, 35 P.S. § 780-113(a)(16). This [c]ourt
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     found [Appellant] not guilty on the charges of: Possession of a
     Firearm by a Prohibited Person, 18 Pa.C.S. § 6105(a)(1);
     Carrying a Firearm Without a License, 18 Pa.C.S. § 6106(a)(1);
     and Possession of an Instrument of Crime, 18 Pa.C.S. § 907(1).
     After finding [Appellant] guilty of the above charges, this [c]ourt
     ordered a Presentence Investigation Report (PSI Report).

           On December 12, 2010, after reviewing the PSI Report,
     this [c]ourt sentenced [Appellant] to 3-6 years[’] confinement
     followed by 3 years of reporting probation for PWID; and 109
     months reporting probation, consecutive to the 3-6 year
     confinement, for Conspiracy to Deliver Cocaine. [Appellant] was
     credited with time served.

            On March 3, 2013, [Appellant] was arrested and later pled
     guilty in the Schuylkill County Court of Common Pleas on April
     23, 2014 to two (2) counts of Aggravated Assault, 18 Pa.C.S. §
     2702(a)(4) and one (1) count of Possession of a Firearm by a
     Prohibited Person[,] 18 Pa.C.S. §6106(a)(1). [Appellant] was
     sentenced by the Honorable John E. Domalakes to a total of 4-8
     years of confinement. These new crimes constituted a direct
     violation of this [c]ourt’s probation.

           On August 12, 2014, following a Violation of Probation
     (VOP) hearing, this [c]ourt revoked [Appellant’s] probation due
     to the direct violation that occurred in Schuylkill County and
     ordered a PSI Report. On October 14, 1014, after reviewing the
     new PSI Report, this court sentenced [Appellant] to 3-6 years[’]
     confinement followed by 3 years of reporting probation on the
     PWID charge, and 5-10 years of confinement for the Conspiracy
     charge.

           A notice of appeal was filed by [Appellant] on November
     12, 2014. On November 21, 2014, this [c]ourt issued an order
     pursuant to Pa.R.A.P. 1925(b), directing [Appellant] to file a
     Statement of Errors Complained of on Appeal (1925(b)
     Statement) by December 12, 2014. On December 18, 2014,
     [Appellant] filed a Motion for Extension of Time. On December
     30, 2014[,] this [c]ourt granted a seventeen day extension,
     allowing [Appellant] until January 16, 2015 to file a 1925(b)
     Statement.      On February 20, 2015, [Appellant] filed a
     “Statement of Matters to Be Raised on Appeal.”

Trial Court Opinion (TCO), 3/11/15, 1-3.



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      Appellant states the following sole issue in his Statement of Questions

Involved for our review: “Was the sentence imposed on Appellant an illegal

sentence because [the court] failed to consider the time served for the

original sentence?” Appellant’s Brief at 7. While his Statement of Questions

only references the legality of the sentence, Appellant’s arguments also

pertain to the discretionary aspects of his sentence.

      When we consider an appeal from a sentence imposed following the

revocation of probation, our standard of review is well settled:

      Sentencing is a matter vested within the discretion of the trial
      court and will not be disturbed absent a manifest abuse of
      discretion. An abuse of discretion requires the trial court to have
      acted with manifest unreasonableness, or partiality, prejudice,
      bias, or ill-will, or such lack of support so as to be clearly
      erroneous. It is also now accepted that in an appeal following
      the revocation of probation, it is within our scope of review to
      consider challenges to both the legality of the final sentence and
      the discretionary aspects of an appellant’s sentence.

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010)

(citations omitted).

      To the extent that Appellant raises issues regarding the discretionary

aspects of his sentence, we note the following:

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right.            An appellant
      challenging the discretionary aspects of his sentence must
      invoke this Court’s jurisdiction by satisfying a four-part test:

         We 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. 720; (3) whether
         appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and

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           (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 in a motion to modify the sentence imposed.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations

and internal quotations omitted).

     Here, Appellant argues that his sentence is manifestly excessive and

that the trial court failed to consider certain environmental factors, his

rehabilitative needs, and the severity of his previous crimes.     Appellant’s

Brief at 12.    However, Appellant failed to raise these objections at the

sentencing hearing, nor did he file a motion to reconsider and modify

sentence.    Therefore, as the Commonwealth suggests, the discretionary

aspects of sentencing claims are waived.           See Commonwealth v.

Hartman, 908 A.2d 316, 319 (Pa. Super. 2006) (finding the appellant’s

discretionary aspect of sentencing claim waived where he failed to raise it

during sentencing proceedings or in timely post-sentence motion).

     The Commonwealth further asserts that this Court cannot consider

Appellant’s discretionary sentence claims, as he failed to include a separate

concise statement of the reasons relied upon for allowance of appeal with

respect to the discretionary aspects of his sentence, pursuant to Pa.R.A.P.

2119(f).       We   agree   with   the   Commonwealth.   As   we    stated   in

Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2013), “if




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[A]ppellant fails to comply with Pa.R.A.P. 2119(f) and the Commonwealth

objects, the issue is waived for purposes of review.”

      Despite this fatal flaw in Appellant’s brief and Appellant’s failure to

properly preserve these claims before the trial court, we are further

precluded from reviewing these claims because Appellant failed to raise a

substantial question to meet the fourth requirement of the four-part test

outlined above. As we explained in Moury:

      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.

Moury, 992 A.2d at 170 (citations and internal quotations omitted).

      Appellant contends that his sentence was excessive where “there were

no violent or potentially violent offenses included in this specific matter.”

Appellant’s Brief at 11. Appellant also alleges that the trial court failed to

“consider environmental facts which when discovered could [have] serve[d]

to assist in the rehabilitation of the offender,” and notes that he was

exposed to drugs at a young age and had very little education. Id. at 12.

      “[A] bald assertion that Appellant’s sentence was excessive, devoid of

supporting legal authority…does not present a substantial question,” and

therefore, is not reviewable by this Court. Commonwealth v. Fisher, 47

A.3d 155, 159 (Pa. Super. 2012).         Moreover, “this Court has held on

numerous occasions that a claim of inadequate consideration of mitigating

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factors   does   not   raise   a   substantial   question   for   our   review.”

Commonwealth v. DiSalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (internal

citation omitted). See also Commonwealth v. Griffin, 65 A.3d 932, 936

(Pa. Super. 2013) (finding that defendant’s claim that his sentence failed to

take into account his rehabilitative needs did not raise a substantial

question); Commonwealth v. Cannon, 954 A.2d 1222, 1228-29 (Pa.

Super. 2008) (concluding that a claim that trial court failed to consider the

defendant’s rehabilitative needs, age, and educational background did not

present a substantial question).

      We now address Appellant’s remaining claim that his sentence is illegal

because the court failed to give credit for time served on the original

sentence.   As this Court has previously stated:     “The issue of whether a

sentence is illegal is a question of law; therefore our task is to determine

whether the trial court erred as a matter of law and, in doing so, our scope

of review is plenary.” Commonwealth v. Maxwell, 932 A.2d 941, 942 (Pa.

Super. 2007) (internal citation omitted).

      Specifically, Appellant asserts that he served a total of approximately

thirty (30) months on his original sentence, and that the trial court never

gave any consideration to this time served when imposing his sentence after

the revocation of his probation. Appellant’s Brief at 12. In support of his

claim, Appellant references Section 9760 of the Sentencing Code, which

provides, in relevant part, as follows:




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     (1)   Credit against the maximum term and any minimum term
           shall be given to the defendant for all time spent in
           custody as a result of the criminal charge for which a
           prison sentence is imposed or as a result of the conduct on
           which such a charge is based. Credit shall include credit
           for time spent in custody prior to trial, during trial, pending
           sentence, and pending the resolution of an appeal.

     (2)   Credit against the maximum term and any minimum term
           shall be given to the defendant for all time spent in
           custody under a prior sentence if he is later reprosecuted
           and resentenced for the same offense or for another
           offense based on the same act or acts. This shall include
           credit in accordance with paragraph (1) of this section for
           all time spent in custody as a result of both the original
           charge and any subsequent charge for the same offense or
           for another offense based on the same act or acts.

42 Pa.C.S. § 9760(1), (2).

     As we explained in Crump, “while the language of Section 9760 does

not discuss an illegal sentence or the situation where a person receives a

new sentence as a result of a probation violation, our case law analyzing the

statute has outlined the necessary considerations we must make in

determining whether a sentence is illegal.” Crump, 995 A.2d at 1284.

     Our statutory and case law are clear. Subsequent to revocation
     of probation, the sentencing court has available to it all the
     options permissible at the time of initial sentencing, giving due
     consideration “to the time spent serving the order of probation.”
     42 Pa.C.S. § 9771(b). As long as the new sentence imposed
     does not exceed the statutory maximum when factoring in the
     incarcerated time already served, the sentence is not illegal.
     Additionally, the sentencing court cannot give a new split
     sentence where the period of incarceration and period of
     probation exceed the statutory maximum.

Id. at 1285 (internal citations omitted).   Moreover, we have held that “a

defendant is not entitled to credit for time served following revocation of



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probation if the new sentence of incarceration does not reach the statutory

maximum.” Id. (emphasis added).

     In the case at bar, the trial court provided the following detailed

explanation of the sentence it imposed on Appellant:

     In this case, [Appellant] was found guilty of PWID and
     Conspiracy. The maximum period of incarceration for PWID,
     involving 6.3 grams of cocaine, is 5-10 years. 35 P.S. § 780-
     113(f)(1.1). However, because this was [Appellant’s] second
     PWID conviction[,] the maximum penalty is doubled. 35 P.S. §
     780-115(a). Therefore, at the time of sentencing[,] this [c]ourt
     could have sentenced [Appellant] to 10-20 years[’] incarceration
     for PWID.

           The maximum period of incarceration for Conspiracy to
     Deliver Cocaine is 5-10 years. After [Appellant’s] waiver trial
     before this [c]ourt, [Appellant] was sentenced to 109 months of
     reporting probation and no incarceration for Conspiracy.
     Therefore, this [c]ourt’s sentence of 5-10 years[’] for Conspiracy
     after revoking [Appellant’s] probation is a legal sentence that
     does not exceed the statutory maximum since [Appellant]
     served no time in prison for his original Conspiracy sentence.

           On the PWID charge, [Appellant] was originally sentenced
     to 3-6 years of confinement[,] followed by 3 years of reporting
     probation. [Appellant ] was sentenced on December 10, 2010
     and was released on March 12, 2012, meaning [Appellant]
     served one year, three months and two days on the original
     sentence. After revoking [Appellant’s] probation, this [C]ourt
     had the ability to choose from any sentencing option existing at
     the time of the original sentencing. This [c]ourt’s sentence was
     limited only by the statutory maximum for a second PWID
     offense involving 6.3 grams of cocaine, which is 10-20 years.

           This court imposed a VOP sentence of 3-6 years of
     confinement followed by 3 years of reporting probation. That
     maximum prison sentence of 6 years, in addition to the amount
     of time served by [Appellant] on the original sentence—1 year, 3
     months[,] and 2 days—does not exceed, or even approach, the
     statutory maximum of 10-20 years of incarceration. Because
     the combination of the VOP sentence and time served on the


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      original sentence does not exceed the statutory maximum, credit
      for time served was not required. Therefore, the sentence
      imposed by this court upon revocation of [Appellant’s] probation
      is a legal sentence.

TCO at 4-5.

      Based on our review of the record, Appellant’s sentence does not come

close to reaching the statutory maximum and, therefore, Appellant was not

entitled to credit for time served. Appellant’s claim regarding the legality of

his sentence is without merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/2015




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