J-S06018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

HARLEE CAMPBELL

                            Appellant                     No. 93 EDA 2014


           Appeal from the Judgment of Sentence December 19, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009816-2010


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                              FILED MARCH 31, 2015

        Harlee Campbell appeals from the judgment of sentence imposed in

the Court of Common Pleas of Philadelphia County after a violation of

probation hearing before the Honorable Rayford A. Means.                 Upon careful

review, we affirm.

        The trial court set forth the facts of this matter as follows:

        On May 12, 2010, [Campbell] was arrested and charged with
        possession with intent to deliver [(“PWID”)], engaging in
        criminal conspiracy to manufacture, deliver, or possess with
        intent to manufacture or deliver, and intentional possession of a
        controlled substance by a person not registered. The intentional
        possession of a controlled substance by a person not registered
        charge was nolle prossed. [Campbell] entered into a negotiated
        guilty plea on the remaining two charges. On September 27,

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S06018-15


      2010, this [c]ourt sentenced [Campbell] to nine (9) to twenty
      three (23) months[’] confinement plus one (1) year probation.

      On October 23, 2011, [Campbell] was arrested and charged with
      aggravated assault, conspiracy to commit aggravated assault,
      possession of a prohibited firearm, firearm not to be carried
      without a license, carrying firearms in public in Philadelphia,
      possession of [an] instrument of a crime with [intent], simple
      assault, and recklessly endangering another person. [Campbell]
      entered into a negotiated guilty plea on the aggravated assault
      charges. The remaining charges were nolle prossed. On May
      31, 2013, [Campbell] was sentenced to six (6) to thirteen (13)
      years[’] confinement plus five (5) years[’] probation.

      On December 19, 2013, [Campbell] appeared before this [c]ourt
      via a video hearing. This [c]ourt found that [Campbell’s] arrest
      and subsequent guilty plea for aggravated assault directly
      violated his probation for the 2010 charges.       This [c]ourt
      revoked [Campbell’s] probation on the 2010 charges and
      sentenced [Campbell] to four (4) to eight (8) years[’]
      confinement on the 2010 possession with intent to deliver
      charge and a consecutive four (4) to eight (8) years[’]
      confinement on the 2010 engaging in criminal conspiracy
      charge. In total, this [c]ourt sentenced [Campbell] to eight (8)
      to sixteen (16) years[’] confinement to be served consecutively
      to the sentence imposed in May 2013 on the aggravated assault
      charge.

Trial Court Opinion, 5/19/14, at 1-2.

      On December 23, 2013, while still represented by counsel, Campbell

filed a pro se notice of appeal to this Court. There is no indication on the

docket that the clerk of courts forwarded a copy of Campbell’s notice of

appeal to his counsel pursuant to Pa.R.Crim.P. 576(A)(4). On December 30,

2013, counsel, apparently unaware of Campbell’s pro se filing, filed a motion

to vacate and reconsider Campbell’s VOP sentence. By order docketed on

January 24, 2014, the court granted a hearing on the motion. On February

4, 2014, the VOP court ordered Campbell to file a concise statement of

                                    -2-
J-S06018-15



errors complained of on appeal, with which Campbell’s counsel complied on

February 24, 2014.      After counsel failed to appear at the reconsideration

hearing, the court denied the motion on April 25, 2014.

       Prior to considering the merits of Campbell’s appeal, we must address

the Commonwealth’s contention that this appeal should be quashed.              The

Commonwealth contends that, by filing a pro se notice of appeal while he

was still represented by counsel, Campbell violated the prohibition against

hybrid representation and, thus, his notice of appeal was a legal nullity.

Brief of Appellee, at 5; Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa.

Super. 1993).      Our Supreme Court addressed a similar scenario in

Commonwealth v. Cooper, 27 A.3d 994 (Pa. 2011). There, the appellant

was resentenced at a VOP hearing and, although represented by counsel,

filed a pro se notice of appeal with this Court days later.             Counsel

subsequently filed a timely post-sentence motion, which the trial court

denied on its merits.    Counsel then filed a notice of appeal to this Court.

This   Court   administratively   quashed   counsel’s   notice   of   appeal    as

duplicative; the merits panel ultimately quashed Cooper’s pro se appeal as

“premature” and a “nullity.”      Id. at 997.   On allowance of appeal, the

Supreme Court reversed, holding that, “[t]he proper way to view the pro se

appeal, after the counseled appeal was dismissed, is as a premature appeal

that was perfected upon the trial court’s proper consideration and denial of

the counseled post-sentence motions.”       Id. at 1007.   Likewise, here, we

conclude that Campbell’s pro se filing was perfected upon the trial court’s

                                     -3-
J-S06018-15



denial of his post-sentence motion for reconsideration and, accordingly, we

will consider the appeal on its merits.

      We now turn to Campbell’s sole appellate claim. Campbell argues his

violation sentence was grossly excessive, unreasonable, and the result of an

abuse of discretion by the court because it was his first probation violation

and it was run consecutively to a thirteen year sentence already being

served.     This is a challenge to the discretionary aspects of Campbell’s

sentence.

      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 (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.

      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.




                                      -4-
J-S06018-15



Commonwealth v. Griffin, 65 A.3d 932, 935-36 (Pa. Super. 2013)

(citations and quotations omitted).

      Here, Campbell preserved his sentencing claim through a post-

sentence motion for reconsideration of sentence. He filed a timely notice of

appeal and included in his brief a statement pursuant to Pa.R.A.P. 2119(f).

In his Rule 2119(f) statement, Campbell first claims that the trial court

imposed a manifestly excessive sentence without sufficiently considering all

the factors set forth in 42 Pa.C.S.A. § 9721(b).          This claim raises a

substantial question. Commonwealth v. Riggs, 63 A.3d 780 (Pa. Super.

2012) (averment that court failed to consider relevant sentencing criteria,

including protection of public, gravity of underlying offense and rehabilitative

needs of defendant raised substantial question). Campbell also claims that

the sentence was disproportionate to the conduct at issue and not justified

by sufficient reasons.    A claim that imposition of consecutive sentences is

disproportionate to the crimes committed, in combination with allegations

that a sentencing court did not consider the nature of the offenses or provide

adequate reasons for its sentence, has been found to raise a substantial

question. Commonwealth v. Dodge, 77 A.3d 1263, 1271-72 (Pa. Super.

2013). Accordingly, we will review the merits of these claims.

      Campbell claims that his sentence was grossly disproportionate to the

gravity of the offense, the need for protection of the public, and his own

rehabilitative needs.    Campbell asserts that the VOP court conducted an

“abbreviated hearing” and considered only the “fact of a direct violation.”

                                      -5-
J-S06018-15



Brief of Appellant, at 16. In support of his argument, Campbell relies upon

Commonwealth v. Parlante, 823 A.2d 927 (Pa. Super. 2003), in which the

defendant was sentenced to four to eight years’ incarceration after violating

her probation six times.     Upon review of the record, we find that the trial

court did not abuse its discretion in resentencing Campbell.

         Upon a finding that a defendant has violated probation, the sentencing

alternatives available to the court are the same as were available at the time

of initial sentencing.    See 42 Pa.C.S.A. § 9721(b).       Here, Campbell was

resentenced for PWID and conspiracy to commit PWID.               The statutory

maximum penalty for both crimes is ten years’ imprisonment. See 35 P.S. §

780-113(f)(1.1). Upon resentencing, Campbell received sentences of four to

eight years’ imprisonment on each charge, a range well within the statutory

limit.

         Our Supreme Court recently stated the following with regard to the

deference to be accorded sentencing courts on VOP resentencing:

         Simply stated, the sentencing court sentences flesh-and-blood
         defendants and the nuances of sentencing decisions are difficult
         to gauge from the cold transcript used upon appellate review.
         Moreover, the sentencing court enjoys an institutional advantage
         to appellate review, bringing to its decisions an expertise,
         experience, and judgment that should not be lightly disturbed.

         The sentencing court’s institutional advantage is, perhaps, more
         pronounced in fashioning a sentence following the revocation of
         probation, which is qualitatively different than an initial
         sentencing proceeding. At initial sentencing, all of the rules and
         procedures designed to inform the court and to cabin its
         discretionary sentencing authority properly are involved and play
         a crucial role.    However, it is a different matter when a
         defendant reappears before the court for sentencing proceedings

                                       -6-
J-S06018-15


      following a violation of the mercy bestowed upon him in the form
      of a probationary sentence.       For example, in such a case,
      contrary to when an initial sentence is imposed, the Sentencing
      Guidelines do not apply, and the revocation court is not cabined
      by Section 9721(b)’s requirement that “the sentence imposed
      should call for confinement that is consistent with the protection
      of the public, the gravity of the offense as it relates to the
      impact on the life of the victim and on the community, and the
      rehabilitative needs of the defendant.”

Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014).

      Moreover, “since the defendant has previously appeared before the

sentencing court, the stated reasons for a revocation sentence need not be

as elaborate as that which is required at initial sentencing.” Pasture, 107

A.3d at 28. Finally, “there is no absolute requirement that a trial judge, who

has already given the defendant one sentencing break after having the

benefit of a full record, including a PSI, must order another PSI before

fashioning the appropriate revocation sentence.” Id.

      In its Rule 1925(a) opinion, the VOP court noted the following:

      [Campbell] was convicted of another crime while he was on
      probation. [Campbell] entered into a negotiated guilty plea on
      the charge of [a]ggravated [a]ssault on May 31, 2013. This
      conviction alone is sufficient to allow this [c]ourt to impose a
      sentence of total confinement upon revocation of probation
      under 42 Pa.C.S. § 9771(c)(1).          Furthermore, [Campbell’s]
      conduct in committing two aggravated assaults while on
      probation indicates that a sentence of total confinement is
      necessary to vindicate the authority of the court under [section
      9771(c)(3)]. [Campbell’s] behavior also indicates that it is likely
      he will commit another crime if not imprisoned. [Campbell] was
      not able to abide by the terms of his original probation, and, in
      committing another crime while on probation, acted with blatant
      disregard for this [c]ourt’s original sentence and authority. More
      importantly, his criminal activity escalated from non-violent
      drug-related activity to acts of violence during his probationary
      period, which indicates he does not respect the authority of the

                                     -7-
J-S06018-15


      [c]ourt and has no intention of ceasing criminal activity, and that
      he will continue to pose a threat to public safety if not confined.

Trial Court Opinion, 5/19/14, at 3-4.

      Campbell’s reliance on Parlante, supra, is misplaced. In that case,

this Court overturned a revocation sentence of four to eight years’

incarceration following seven probation violations.           Unlike in the instant

matter, however, four of Parlante’s violations which were technical and none

of the   substantive    violations involved violence.          Indeed, the       Court

emphasized this fact in concluding that the trial court had abused its

discretion. See id. at 930 (“The record indicates that the trial court failed to

consider . . . the fact that all of [Parlante’s] offenses were non-violent in

nature and that her last two probation violations were purely technical.”).

      Here, unlike Parlante, Campbell’s criminal behavior actually escalated

to violent, gun-related offenses while under the supervision of the trial court.

The trial court, in fashioning its sentence, concluded that a sentence of total

confinement     was    necessary   to   protect   the    public   from    Campbell’s

increasingly violent criminal behavior and to vindicate the court’s authority.

Having previously sentenced Campbell, the court was familiar with his

background and character. In addition, prior to the imposition of sentence,

Campbell was given the opportunity to inform the court about his current

circumstances    and    the   rehabilitative   efforts   he    made      since   being

incarcerated. In light of the foregoing, we cannot conclude that Campbell’s

sentence was manifestly excessive or the result of partiality, ill-will, or such



                                        -8-
J-S06018-15



lack of support so as to be clearly erroneous. Commonwealth v. Perry, 32

A.3d 232 (Pa. 2011).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/31/2015




                                 -9-
