J-S03018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

GREGORY T. SAVAGE, JR.

                            Appellant                   No. 616 WDA 2016


         Appeal from the Judgment of Sentence dated January 12, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0014978-2010


BEFORE: OLSON, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.:                                FILED APRIL 13, 2017

        Appellant, Gregory T. Savage, Jr., appeals from a sentence imposed by

the Court of Common Pleas of Allegheny County after he violated his

probation by possessing a controlled substance with an intent to distribute it

— a crime for which he was convicted in Armstrong County. He contends

that his revocation sentence of two to five years’ imprisonment was

excessive and unreasonable because the trial court (1) was biased against

him, and (2) failed to consider factors mandated by the Sentencing Code.

We affirm.

        We state the facts as set forth by the trial court:

              On May 16, 2011, Appellant . . . pled guilty to one count of
        Delivery of Cocaine, one count of Possession of a Controlled
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S03018-17


       Substance with Intent to Deliver (“PWID”) and one count of
       Possession of a Controlled Substance, all after [a] prior
       conviction. This Court sentenced Appellant on the Delivery count
       to 15 to 30 months incarceration with 3 years of consecutive
       probation. On January 12, 2016, [t]his Court found Appellant to
       be a convicted violator of his conditions of probation and
       resentenced him to [a] period of incarceration of [2] to [5]
       years.

Trial Ct. Op., 8/23/16, at 1.1           The trial court denied Appellant’s post-

sentence motion, and Appellant appealed. Id.

       Appellant raises the following issue:

       Was the two to five-year sentence of incarceration imposed
       manifestly excessive, unreasonable, and an abuse of discretion
       where the sentence was imposed out of personal frustration,
       bias, and ill-will towards [Appellant], rather than in
       contemplation of [Appellant’s] rehabilitative needs and his
       nature and characteristics?

Appellant’s Brief at 4.

       “[A] challenge to the discretionary aspects of a sentence is not

appealable as of right.”      Commonwealth v. Colon, 102 A.3d 1033, 1042

(Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015).             Before we



____________________________________________


1
  Appellant also was sentenced by the Armstrong County court to two to five
years’ incarceration for his PWID conviction there. As noted, it was that
crime that resulted in the instant revocation sentence of two to five years’
incarceration. Because the revocation sentence was made consecutive to
the Armstrong County sentence, the trial court’s opinion accurately noted
that Appellant effectively received an “aggregate” sentence of four to ten
years’ imprisonment.      See Trial Ct. Op., 8/23/16, at 2.      See also
Commonwealth’s Brief at 4 n.2.




                                           -2-
J-S03018-17


exercise jurisdiction to reach the merits of Appellant’s claim, we must

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.

Id. at 1042-43. Only if the appeal satisfies each of these four requirements

may we proceed to decide the substantive merits of Appellant’s claim. Id.

at 1043. Our review of the record discloses that Appellant has met the first

three of these requirements, and we therefore turn to whether he has raised

a substantial question regarding his sentence.

     “A defendant presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d at 1263, 1268 (Pa. Super. 2013)

(quotation marks and citation omitted).          “[A] defendant may raise a

substantial question where he receives consecutive sentences within the

guideline ranges if the case involves circumstances where the application of

the guidelines would be clearly unreasonable, resulting in an excessive

sentence; however, a bald claim of excessiveness due to the consecutive

nature of a sentence will not raise a substantial question.” Id. at 1270. In

the case at hand, we conclude Appellant has stated a substantial question,




                                    -3-
J-S03018-17



except to the extent he baldly challenges the consecutive nature of his

sentence. See Colon, 102 A.3d at 1042-43; Dodge, 77 A.3d at 1270.

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

Supreme Court set forth the following regarding revocation sentences:

           [C]ontrary 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.” 42 Pa.C.S. § 9721.
     See Commonwealth v. Reaves, 592 Pa. 134, 150, 923 A.2d
     1119, 1129 (2007) (citing 204 Pa.Code. § 303.1(b) (Sentencing
     Guidelines do not apply to sentences imposed as result of
     revocation of probation)).

           Upon revoking probation, “the sentencing alternatives
     available to the court shall be the same as were available at the
     time of initial sentencing, due consideration being given to the
     time spent serving the order of probation.”         42 Pa.C.S. §
     9771(b).     Thus, upon revoking probation, the trial court is
     limited only by the maximum sentence that it could have
     imposed originally at the time of the probationary sentence,
     although once probation has been revoked, the court shall not
     impose a sentence of total confinement unless it finds that:

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

        (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).

           Moreover, 42 Pa.C.S. § 9721(b) specifies that in every
     case following the 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.” See also Pa.R.Crim.P. 708(C)(2) (indicating


                                     -4-
J-S03018-17


       at the time of sentence following the revocation of probation,
       “the judge shall state on the record the reasons for the sentence
       imposed.”).

              However, following revocation, a sentencing court need not
       undertake a lengthy discourse for its reasons for imposing a
       sentence or specifically reference the statutes in question.
       Simply put, 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. The rationale for this is obvious. When
       sentencing is a consequence of the revocation of probation, the
       trial judge is already fully informed as to the facts and
       circumstances of both the crime and the nature of the defendant
       ....

Pasture, 107 A.3d at 27-28 (brackets and footnote omitted).

       After a careful review of the record, the parties’ briefs, and the trial

court’s decision, we affirm on the basis of the decision of the Honorable Jill

E. Rangos.       See Trial Ct. Op. at 5-6 (holding Appellant’s subsequent

conviction for PWID while on probation, his absconding from police, and his

background as a drug dealer justified revocation sentence of incarceration).2

Accordingly, we affirm the judgment of sentence. The parties are instructed

to include a copy of the trial court’s August 23, 2016 opinion to any filing

referencing this decision.

       Judgment of sentence affirmed.



____________________________________________


2
  We do not adopt the trial court’s statement that it imposed a sentence of
four to ten years’ incarceration. For the reasons noted in footnote 1 of this
memorandum, that statement is imprecise and potentially confusing. The
sentence imposed by the trial court was two to five years’ incarceration.



                                           -5-
J-S03018-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2017




                          -6-
                                                                                                 Circulated 03/31/2017 04:09 PM
                                                                 1-0PINION




             IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

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             COMMONWEALTH OF PENNSYLVANIA                         CRIMINAL DIVLS,ION,.,                     ..
                                                                                                             -. .
                        v.                                        CC No. 201014978

             GREGORY SAVAGE


             Appeal of:
                                                                  OPINION


             GREGORYSAVAGE,
                                                                  Honorable     Jill E.   Ranges
                        Appellant                                 Room 533
                                                                  436 Grant Street
                                                                  Pittsburgh, PA 15219

                                                                   Copies to:

                                                                   Stephanie Noel
                                                                   Office of the Public Defender
                                                                   400 County Office Building
                                                                   542 Forbes A venue
                                                                   Pittsburgh, PA 15219-2904

                                                                   Michael Streily
                                                                   Office of the District Attorney
                                                                   401 County Courthouse
                                 ,;                                436 Grant St.
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    IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA


    COMMONWEALTH          OF PENNSYLVANIA                 CRIMINAL DIVISION

          v.                                              CC No. 201014978

    GREGORY SAVAGE


    Appeal of:

    GREGORY SAVAGE
        Appellant
                                               OPINION

RANGOS,J.                                                                        August 23, 2016


          On May 16, 2011, Appellant, Gregory Savage, pled guilty to one count of Delivery of Cocaine,

one count of Possession of a Controlled Substance with Intent to Deliver ("PWID") and one count

of Possession of a Controlled Substance, all after prior conviction.    This Court sentenced Appellant

on the Delivery count to 15 to 30 months incarceration with 3 years of consecutive probation.         On

January 12, 2016, This Court found Appellant to be a convicted violator of his conditions of probation

and resentenced him to an aggregate period of incarceration of 4 to 10 years.           Appellant's Post

Sentence Motion was denied on February 11, 2016. Appellant filed a Notice of Appeal on April 29,

20161 and a Concise Statement of Errors Complained Of on May 20, 2016.




                          MATTERS COMPLAINED               OF ON APPEAL

         Appellant asserts that the Court erred in imposing a sentence of confinement for a period of

4 to 10 years as it was manifestly excessive, unreasonable and an abuse of discretion, as well as contrary




1
 Appellant filed both the Post-Sentence Motion and the Notice of Appeal late and this Court
accepted them nun» pro tune.

                                                    2
 to   the Sentencing Code and the fundamental norms underlying the sentencing process.           Appellant

alleges that this Court failed to consider Appellant's personal character, background and rehabilitative

needs in sentencing him consecutively to a sentence in another county.             (Statement of Matters

Complained of on Appeal, p. 3-4).



                                             DISCUSSION

          Appellant challenges the validity of his resentencing following a violation of probation under

42 Pa.C.S. § 9771, which states:

          § 9771. Modification or revocation of order of probation

          (a) General rule.--The court may at any time terminate continued supervision or
              lessen or increase the conditions upon which an order of probation has been
              imposed.

          (b) Revocation.-The court may revoke an order of probation upon proof of the
              violation of specified conditions of the probation. Upon revocation the
              sentencing alternatives available to the court shall be the same as were available at
              the time of initial sentencing, due consideration being given to the time spent
              serving the order of probation.

         (c) Limitation on sentence of total confinement.s-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
                (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.

         (d) Hearing required.s-There shall be no revocation or increase of conditions of
         sentence under this section except after a hearing at which the court shall consider the
         record of the sentencing proceeding together with evidence of the conduct of the
         defendant while on probation. Probation may be eliminated or the term decreased
         without a hearing.

42 Pa.C.S. § 9771.

         Appellant alleges this Court failed to consider statutory sentencing factors, which is a challenge

to the discretionary aspects of his sentence. Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa.Super.

2012). "[T[here is no absolute right to appeal when challenging the discretionary aspect of a sentence."
                                                     3
Commonwealth v. Crump1 995 A.2d 1280, 1282 (Pa.Super.2010); 42 Pa.C.S. § 9781(b). An "[a)ppeal is

permitted only after this Court determines that there is a substantial question that the sentence was

not appropriate under the sentencing code." Cmmp, at 1282.              The determination of whether a

particular issue constitutes a "substantial question" can only be evaluated on a case by case basis.

Commonwealth v. House, 537 A.2d 361, 364 (Pa.Super. 1988). It is appropriate to allow an appeal "where

an appellant advances a colorable argument that the trial judge's actions were: (1) inconsistent with a

specific provision of the sentencing code; or (2) contrary to the fundamental norms which underlie

the sentencing process." Commomvealth v. Losch, 535 A.2d 115, 119-120 n. 7 (Pa.Super. 1987).

        An allegation that a sentencing court "failed to consider" or "did not adequately
        consider" certain factors does not raise a substantial question that the sentence was
        inappropriate. Commonwealth v. McKiel 427 Pa.Super. 561, 629 A.2d 1012 (1993);
        Commonwealth u. Williams1 386 Pa.Super. 322, 562 A.2d 1385 (1989) (en bane). Such a
        challenge goes to the weight accorded the evidence and will not be considered absent
        extraordinary circumstances. McKie!, 427 Pa.Super. at 564, 629 A.2d at 1013.

Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super. 1995). Therefore, Appellant's allegation of error,

that this Court failed to adequately apply all of the required sentencing factors, does not raise a

substantial question for appellate review. Moreover, a bald claim of excessiveness due to the

consecutive nature of a sentence will not raise a substantial question. See Commonwealth v. Moury1 992

A.2d 162, 171-172 (Pa.Super.2010). However, in an abundance of caution, will address the merits of

Appellant's claim.

        The standard of review with respect to sentencing is whether the sentencing court abused its

discretion. Commonwealth u: Sm.ith, 673 A.2d 893, 895 (Pa. 1996). A court will not have abused its

discretion unless "the record discloses that the judgment exercised was manifestly unreasonable, or

the result of partiality, prejudice, bias or ill-will." Id. It is not an abuse of discretion if the appellate

court may have reached a different conclusion. Grady v. Frito-Lay,Inc., 613 A.2d 1038, 1046 (Pa. 2003).

Furthermore, at resentencing the Sentencing Guidelines do not apply.



                                                     4
          [Cjontrary 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."
          42 Pa.CS.§ 9721. See Commonwealth v. Reaver, 592 Pa. 134, 150, 923 A.2d 1119, 1129
          (2007) (citing 204 Pa.Code. § 303.l(b) (Sentencing Guidelines do not apply to
          sentences imposed as result of revocation of probation)).

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

          Under 42 Pa.CS. § 9771 (c), a court may sentence a defendant to total confinement subsequent

to revocation of probation if any of the following conditions exist:             (1) the defendant has been

convicted of another crime; (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 this court. See Commonwealth v. Coolbaugh, 770 A.2d 788 (Pa.Super.2001). 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. Malovich, 903

A.2d 1247 (Pa.Super.2006). In addition, the resentencing court is giving great discretion and is bound

only by the statutory maximum.

         We emphasize a trial court does not necessarily abuse its discretion in imposing a
         seemingly harsher post-revocation sentence where the defendant received a lenient
         sentence and then failed to adhere to the conditions imposed on him. See Reaves, 592
         Pa. at 138 n. 5, 923 A.2d at 1122 n. 5. In point of fact, where the revocation sentence
         was adequately considered and sufficiently explained on the record by the revocation
         judge, in light of the judge's experience with the defendant and awareness of the
         circumstances of the probation violation, under the appropriate deferential standard
         of review, the sentence, if within the statutory bounds, is peculiarly within the judge's
         discretion.

Pasture, .r11pra, at 28-29.

         At the time of his original plea, on September 18, 2012, Appellant had a 5 Prior Record Score

("PRS") and was on State parole for a prior drug conviction. Nevertheless, this Court, sentenced

Appellant to a term of 15 to 30 months, a sentence in the mitigated range of the Sentencing Guidelines.

                                                        5
Upon revocation, this Court imposed a standard range sentence, which carries its own presumption

of reasonability.   Commonweqlth o. Walls,926 A.2d 957, 964-965 (Pa. 2007).

        Appellant violated his probation with a new conviction in Armstrong County of PWID one

pound of cocaine and PWID heroin for no further penalty. (Transcript of Probation Violation

Hearing on January 12, 2016, hereinafter V'I', at 2) He also was on run for a period of time. Id.

Appellant argued at his violation hearing that the Armstrong conviction for PWID of one pound of

cocaine and also heroin was really for personal use exclusively, yet the probation officer testified that

Appellant did not test positive for any illegal substances during the course of his supervision. (VT 7-

8) Contrary to Appellant's assertion, this Court considered Appellant's character and background and

determined that Appellant is a drug dealer who refuses to comply with the reasonable rules of society,

specifically as they pertain to the possession and selling of illegal substances. Thus, this Court did not

err in sentencing him to a period of 4 to 10 years.



                                           CONCLUSION

        For all of the above reasons, no reversible error occurred and the findings and rulings of this

Court should be AFFIRMED.



                                                BY THE COURT:




                                                      6
                                  CERTIFICATEOF SERVICE


       The undersigned hereby certifies that a true and correct copy of this OPINION was mailed

to the following individuals by first class mail, postage prepaid on the 23rd day of August 2016.




                                       Stephanie Nod
                                       Office of the Public Defender
                                       400 County Office Building
                                       542 Forbes Avenue
                                       Pittsburgh, PA 15219-2904


                                       Michael Streily
                                       Office of the District Attorney
                                       401 County Courthouse
                                       Pittsburgh, PA 15219




                                                              ·. €JL




                                                  7
