J-A05010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

AMIN HALL

                            Appellant                No. 834 EDA 2014


             Appeal from the Judgment of Sentence July 15, 2010
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0903091-2005


BEFORE: GANTMAN, P.J., SHOGAN, J., and ALLEN, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED MARCH 09, 2015

        Appellant, Amin Hall, appeals nunc pro tunc from the judgment of

sentence entered in the Philadelphia County Court of Common Pleas,

following his revocation of probation. We affirm.

        The relevant facts and procedural history of this case are as follows.

On December 2, 2005, following a bench trial, the court convicted Appellant

of possession of a controlled substance with the intent to deliver (“PWID”).1

The court sentenced Appellant on July 19, 2006, to one (1) to two (2) years’

imprisonment, plus two (2) years’ probation.        Appellant committed new

crimes while on probation, resulting in convictions for persons not to possess

firearms and possession of a controlled substance; the court sentenced
____________________________________________


1
    35 P.S. § 780-113(a)(30).
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Appellant on September 16, 2009, to an aggregate term of five (5) to ten

(10) years’ imprisonment for these new offenses.

        On July 15, 2010, the court held a revocation of probation (“VOP”)

hearing with respect to Appellant’s underlying PWID conviction.              Based on

Appellant’s new convictions, the court revoked Appellant’s probation and

resentenced him to two (2) to four (4) years’ imprisonment, consecutive to

Appellant’s five (5) to ten (10) year sentence for the new crimes.              At the

conclusion of the VOP hearing, counsel (“VOP counsel”) agreed on the record

to    file   post-sentence    motions     and    a   direct   appeal   for   Appellant.

Nevertheless, counsel filed nothing.

        On August 1, 2011, Appellant filed a pro se document titled “Motion to

Modify and Reduce Sentence Nunc Pro Tunc,” asking the court to consider

running his PWID sentence concurrent to his persons not to possess firearms

and possession of a controlled substance sentences, based on Appellant’s

need to care for his children. The court properly treated Appellant’s motion

as a petition under the Post Conviction Relief Act (“PCRA”). 2               The court

appointed counsel (“PCRA counsel”) on February 13, 2012, who filed an

amended PCRA petition on May 10, 2012.                   In the amended petition,

Appellant sought reinstatement of both his post-sentence and his direct

appeal rights nunc pro tunc, based on VOP counsel’s failure to file post-

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2
    42 Pa.C.S.A. §§ 9541-9546.



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sentence motions and a direct appeal as requested.           The Commonwealth

filed a motion to dismiss on June 14, 2013, agreeing only to reinstatement

of Appellant’s direct appeal rights nunc pro tunc, but opposing Appellant’s

request for reinstatement of post-sentence rights nunc pro tunc.             On

December 13, 2013, the court granted reinstatement of Appellant’s direct

appeal rights nunc pro tunc.3 Appellant timely filed a nunc pro tunc notice of

appeal on Monday, January 13, 2014. On May 8, 2014, the court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).             Appellant timely filed a Rule 1925(b)

statement on May 16, 2014.

       Appellant raises one issue for our review:

          IS APPELLANT ENTITLED TO [A] NEW SENTENC[ING]
          HEARING?

(Appellant’s Brief at 2).

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3
  The court did not expressly rule on Appellant’s request for reinstatement of
post-sentence rights nunc pro tunc. The December 13, 2013 docket entry
states: “Order GRANTING motion for Appeal rights to be reinstated Nunc Pro
Tunc[.]” There is also a March 21, 2014 docket entry, which contains the
court’s signature, stating: “Order Granting Reinstatement of Appellate Rights
Nunc Pro Tunc to Superior Court.” The certified record does not contain
separate December 13, 2013 or March 21, 2014 orders. Additionally, the
trial court opinion indicates in its recitation of the procedural history of the
case that the parties agreed to reinstatement of Appellant’s appeal rights
nunc pro tunc, but the court does not mention any decision regarding
reinstatement of Appellant’s post-sentence rights nunc pro tunc. Based on
this record, we infer the court’s reinstatement of only Appellant’s direct
appeal rights nunc pro tunc effectively denied Appellant’s request for
reinstatement of post-sentence rights nunc pro tunc.



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       When reviewing the outcome of a revocation proceeding, this Court is

limited to determining the validity of the proceeding, the legality of the

judgment of sentence imposed, and the discretionary aspects of sentencing.

Commonwealth v. Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013)

(en banc) (explaining that, notwithstanding prior decisions which stated our

scope of review in revocation proceedings is limited to validity of

proceedings and legality of sentence, we unequivocally hold that this Court’s

scope of review on appeal from revocation sentencing also includes

discretionary sentencing challenges).

       Appellant argues the court failed to state sufficient reasons for

imposition of the revocation sentence on the record, aside from mentioning

that the court wanted Appellant to stay out of trouble. Appellant claims the

court’s   failure   to   explain    its   sentencing   rationale   contravenes   the

requirements of Pa.R.Crim.P. 708.4             Appellant emphasizes that the court

lacked the benefit of a pre-sentence investigation (“PSI”) report when

fashioning the revocation sentence.               Appellant maintains the court’s

imposition of the revocation sentence consecutive to his firearms and simple

possession sentences was harsh and unreasonable, where the court was
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4
  Appellant relies on Rule 708(C)(2), which at the time of Appellant’s VOP
hearing required the court to state on the record the reasons for the
sentence imposed at a revocation/sentencing proceeding. See Pa.R.Crim.P.
708(C)(2) (effective July 1, 2002). The current version of the Rule contains
this same language at subsection (D)(2). See Pa.R.Crim.P. 708(D)(2)
(amended March 15, 2013; effective May 1, 2013).



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unaware of the circumstances of Appellant’s new offenses. Appellant insists

the court ignored the factors set forth at 42 Pa.C.S.A. § 9721(b), which

require the court to consider the protection of the public, gravity of the

offense as it relates to the impact on the life of the victim and on the

community, and Appellant’s rehabilitative needs.    Appellant complains the

court did not consider Appellant’s age, background, family history, and

rehabilitative needs.   Appellant concludes the court’s revocation sentence

was manifestly excessive, an abuse of discretion, and unreasonable, and this

Court must vacate the sentence and remand for a new sentencing hearing.

As presented, Appellant’s issue challenges the discretionary aspects of his

sentence. See Cartrette, supra (explaining claim sentencing court failed to

follow Section 9721(b) factors pertains to discretionary sentencing matters);

Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013), appeal denied,

621 Pa. 682, 76 A.3d 538 (2013) (stating claim sentence is harsh and

unreasonable     challenges    discretionary   aspects    of    sentencing);

Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595 (Pa.Super. 2010)

(explaining challenge to imposition of consecutive sentences implicates

discretionary aspects of sentencing); Commonwealth v. Twitty, 876 A.2d

433 (Pa.Super. 2005), appeal denied, 586 Pa. 749, 892 A.2d 823 (2005)

(stating claim sentencing court failed to state adequate reasons on record

for sentence presents challenge to discretionary aspects of sentencing);

Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal


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denied, 544 Pa. 653, 676 A.2d 1195 (1996) (explaining allegation court

ignored mitigating factors challenges discretionary aspects of sentencing).

Generally, objections to the discretionary aspects of a sentence are waived if

they are not raised at the sentencing hearing or in a timely filed post-

sentence motion. Griffin, supra at 935-36. See also Pa.R.Crim.P. 708(D)

(effective July 1, 2002) (stating motion to modify sentence imposed after

revocation shall be filed within 10 days of date of imposition).5

       Where the court reinstates direct appeal rights nunc pro tunc, the

appellant is not automatically entitled to reinstatement of his post-sentence

rights nunc pro tunc as well. Commonwealth v. Liston, 602 Pa. 10, 977

A.2d 1089 (2009). Nevertheless, a PCRA court can reinstate a defendant’s

post-sentence rights nunc pro tunc if the defendant successfully pleads and

proves he was deprived of the right to file and litigate post-sentence motions

as a result of ineffective assistance of counsel. Id. at 20 n.9, 977 A.2d at

1095 n.9.        Compare Commonwealth v. Fransen, 986 A.2d 154

(Pa.Super. 2009) (holding PCRA petitioner who obtains reinstatement of

direct appeal rights nunc pro tunc is not entitled to reinstatement of post-

sentence rights nunc pro tunc if he did not request that relief with PCRA

court, and if court did not hold evidentiary hearing on that issue; appellant’s

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5
  The current version of the Rule contains this same language at subsection
(E). See Pa.R.Crim.P. 708(E) (amended March 15, 2013; effective May 1,
2013).



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claim that he was entitled to file post-sentence motions and to have benefit

of evidentiary hearing warranted no relief where appellant did not plead or

prove in PCRA petition that he was deprived of right to file post-sentence

motions).6

       Instantly, the court revoked Appellant’s probation and resentenced

him for the PWID conviction on July 15, 2010.          At the conclusion of the

hearing, VOP counsel agreed on the record to file post-sentence motions and

a direct appeal as Appellant requested, but counsel failed to do so.          On

August 1, 2011, Appellant filed a pro se motion to modify and reduce

sentence nunc pro tunc, raising a challenge to the discretionary aspects of

sentencing.      The court properly treated Appellant’s motion as a PCRA

petition and appointed PCRA counsel, who subsequently filed an amended

PCRA petition seeking reinstatement of both post-sentence and direct appeal

rights nunc pro tunc.        In the petition, Appellant specifically pled that he
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6
  We recognize this Court’s decision in Commonwealth v. Corley, 31 A.3d
293 (Pa.Super. 2011), in which this Court declined to find waiver of a
defendant’s discretionary aspects of sentencing challenge because the
defendant was denied counsel entirely throughout the post-sentence and
direct appeal process based on counsel’s withdrawal at sentencing, and the
court denied the defendant’s request to file post-sentence motions nunc pro
tunc. Corley dealt with the complete denial of counsel, rather than the
ineffectiveness of counsel. See id. at 297 (distinguishing Liston and
Fransen as applicable to claims of ineffective assistance of counsel; where
appellant was denied counsel entirely throughout post-sentence and direct
appeal period when he was constitutionally entitled to counsel,
reinstatement of appellate rights nunc pro tunc was not based on ineffective
assistance of counsel; it was based on complete denial of counsel, so
rationale underlying Liston and Fransen is inapplicable).



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requested VOP counsel to file post-sentence motions and a direct appeal at

the conclusion of the VOP hearing; VOP counsel agreed to do so but took no

action. Additionally, Appellant again raised a challenge to the discretionary

aspects of sentencing. The Commonwealth responded to the PCRA petition

with a     motion to      dismiss, in which the      Commonwealth agreed to

reinstatement of Appellant’s direct appeal rights nunc pro tunc but opposed

Appellant’s request for reinstatement of post-sentence rights nunc pro tunc.7

On December 13, 2013, the court granted reinstatement of Appellant’s direct

appeal rights nunc pro tunc.8           On Monday, January 13, 2014, Appellant

timely filed a nunc pro tunc notice of appeal.

       Consistent with Liston and Fransen, Appellant pled in his amended

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7
   The Commonwealth argued that a defendant seeking reinstatement of
post-sentence rights nunc pro tunc must prove prejudice (which the
Commonwealth interpreted as meaning, but for VOP counsel’s failure to
timely object, the court would have imposed a different sentence). (See
Commonwealth’s Motion to Dismiss, filed 6/14/13, at 3.) In support of this
proposition, the Commonwealth cites a passage in Liston. Nevertheless,
the quoted portion of Liston appears in the Liston Court’s recitation of the
Commonwealth’s argument—not the Court’s actual analysis. Further, Liston
expressly stated that a PCRA court is not prohibited from reinstating a
defendant’s right to file post-sentence motions nunc pro tunc if the
defendant successfully pleads and proves he was deprived of the right to
file and litigate post-sentence motions as a result of ineffective
assistance of counsel. Liston, supra at 20 n.9, 977 A.2d at 1095 n.9.
Notably, Liston mentioned no requirement that a defendant also plead and
prove the court would have granted sentencing relief had counsel timely
objected. See id.
8
  The court’s ruling effectively denied Appellant’s request for reinstatement
of post-sentence rights nunc pro tunc.



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PCRA petition that VOP counsel was ineffective for failing to file a requested

post-sentence motion and a requested notice of appeal.              See Liston,

supra; Fransen, supra.           Appellant also asked the court for a hearing, in

the event the court required more evidence to decide Appellant’s petition.

Notwithstanding Appellant’s request, the court declined to hold a hearing

and granted reinstatement of Appellant’s direct appeal rights nunc pro tunc.

Per Fransen, remand for an evidentiary hearing might be an appropriate

remedy in this situation to afford the appellant an opportunity to offer proof

that counsel failed to file post-sentence motions as requested.              See

Fransen, supra.

       Under the circumstances of this case, however, VOP counsel agreed on

the record at the conclusion of the VOP hearing to file post-sentence motions

and a direct appeal on Appellant’s behalf. (See N.T. VOP Hearing, 7/15/10,

at 9-10.)    But for VOP counsel’s failure, Appellant would have filed post-

sentence motions, which is the prejudice Liston anticipated.9 See Liston,

supra.      Further, the court’s Rule 1925(a) opinion addressed Appellant’s

discretionary aspects of sentencing claim.         Thus, the court has already
____________________________________________


9
  Appellant consistently raised a challenge to the discretionary aspects of
sentencing throughout these proceedings.           Issues related to the
discretionary aspects of sentencing had to be raised at sentencing or in a
post-sentence motion. See Griffin, supra. Appellant asked for restoration
of his right to file post-sentence motions nunc pro tunc.         Therefore,
restoration of Appellant’s direct appeal rights nunc pro tunc without
restoration of Appellant’s post-sentence rights nunc pro tunc, as requested,
was essentially an empty gesture.



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examined the issue Appellant wanted to raise in the post-sentence motions

nunc pro tunc. For these reasons, remand is unnecessary, and we decline to

find waiver of Appellant’s challenge to the discretionary aspects of his

sentence.      Therefore, we proceed with our merits-based analysis of

Appellant’s sentencing issue.10

        When appealing the discretionary aspects of a sentence, 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.    Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);

Pa.R.A.P. 2119(f). This Court must evaluate what constitutes a substantial

question on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825

(Pa.Super. 2007).       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.” Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000).

        A claim of excessiveness can raise a substantial question as to the

appropriateness of a sentence under the Sentencing Code, even if the
____________________________________________


10
   We reject the Commonwealth’s argument that Appellant waived his
sentencing challenge for failure to file post-sentence motions, particularly
where the Commonwealth opposed reinstatement of Appellant’s post-
sentence rights nunc pro tunc.



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sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at

624. Bald allegations of excessiveness, however, do not raise a substantial

question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather,

a substantial question exists “only where the appellant’s Rule 2119(f)

statement sufficiently articulates the manner in which the sentence violates

either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

process….”    Id.    See, e.g., Cartrette, supra (indicating claim that

revocation court ignored appropriate sentencing factors set forth in Section

9721(b) raises substantial question); Commonwealth v. Malovich, 903

A.2d 1247 (Pa.Super. 2006) (holding defendant’s claims that sentencing

court did not state on record any reasons for sentence, imposed sentence of

total confinement without discussing necessary factors, and imposed

sentence excessive and disproportionate to underlying technical probation

violations raised substantial questions warranting appellate review).           An

allegation that the sentencing court failed to consider a specific mitigating

factor,   however,   does   not   necessarily   raise   a   substantial   question.

Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001) (holding claim

that sentencing court ignored appellant’s rehabilitative needs failed to raise

substantial question).

      To the extent Appellant complains the sentencing court did not

adequately consider specific mitigating factors, such as his age, background,


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family history, and rehabilitative needs, this allegation does not raise a

substantial question.   See id.     Likewise, Appellant’s bald allegation of

manifest excessiveness and unreasonableness does not warrant our review.

See Mouzon, supra.        Additionally, Appellant’s challenge to the court’s

imposition of consecutive sentences does not raise a substantial question.

See Commonwealth v. Marts, 889 A.2d 608 (Pa.Super. 2005) (explaining

sentencing court has discretion to impose its sentences concurrently or

consecutively to other sentences imposed at same time or to sentences

already imposed; any challenge to exercise of this discretion ordinarily

does not raise substantial question).   Nevertheless, Appellant’s claims that

the court failed to state adequate reasons on the record for its sentence and

ignored the factors set forth at Section 9721(b) do raise substantial

questions which warrant review. See Cartrette, supra; Malovich, supra.

      “In general, the imposition of sentence following the revocation of

probation is vested within the sound discretion of the trial court, which,

absent an abuse of that discretion, will not be disturbed on appeal.”

Commonwealth v. Hoover, 909 A.2d 321 (Pa.Super. 2006). Following the

revocation of probation, the court may impose a sentence of total

confinement if any of the following conditions exist: the defendant has been

convicted of another crime; the conduct of the defendant indicates it is likely

he will commit another crime if he is not imprisoned; or, such a sentence is

essential to vindicate the authority of the court.   42 Pa.C.S.A. § 9771(c).


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The Sentencing Guidelines do not apply to sentences imposed following a

revocation of probation. Commonwealth v. Ferguson, 893 A.2d 735, 739

(Pa.Super. 2006), appeal denied, 588 Pa. 788, 906 A.2d 1196 (2006).

“[U]pon sentencing following a 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. Coolbaugh,

770 A.2d 788, 792 (Pa.Super. 2001).

      Pursuant to Section 9721(b), “the court shall follow the general

principle 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.A. § 9721(b).   “[T]he

court shall make as 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.”    Id.   Nevertheless, “[a] sentencing court need not undertake a

lengthy     discourse   for   its   reasons    for   imposing   a   sentence….”

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

denied, 608 Pa. 661, 13 A.3d 475 (2010). Rather, “the record as a whole

must reflect the sentencing court’s consideration of the facts of the crime

and character of the offender.” Id. See also Commonwealth v. Devers,

519 Pa. 88, 546 A.2d 12 (1988) (explaining that when sentencing court has

benefit of PSI report, this Court can assume court was aware of relevant


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information     regarding     defendant’s       character    and     weighed     those

considerations along with mitigating factors; thus, court’s requirement to

state reasons on record for sentence imposed is satisfied where court is

informed by PSI report); Commonwealth v. Carrillo-Diaz, 64 A.3d 722

(Pa.Super.    2013)   (explaining     where     revocation   court    presided   over

defendant’s no contest plea hearing and original sentencing, as well as his

probation     revocation    hearing   and     sentencing,    court    had   sufficient

information to evaluate circumstances of offense and character of defendant

when sentencing following revocation).

      Here, the court explained its revocation sentencing rationale as

follows:

           First, a review of the record shows that the [c]ourt
           properly found [A]ppellant in direct violation of [his]
           probation by being convicted of new offenses….
           Accordingly, there are no meritorious issues to be raised
           on appeal in regard to propriety of the revocation of
           [A]ppellant’s probation.

           Second, [A]ppellant claims that the court erred in not
           ordering a presentence investigation report.     …   This
           [c]ourt did review the hearing summary and all relevant
           details of [A]ppellant’s new case in open court as well as
           the prior violation case. This [c]ourt reviewed the PARS
           report (Summary) for the new VUFA case and examined all
           of the relevant factors needed to craft an appropriate
           sentence. This [c]ourt had the benefit of having previous
           interaction with [A]ppellant in his prior case, thus
           observing him and fashioning a sentence for him in 2006.
           In the present instance, this [c]ourt conducted an open
           dialogue with [A]ppellant to enable the [c]ourt to gain
           further insight into [A]ppellant’s explanations for his
           conduct (or conduct omissions). Furthermore, the [c]ourt
           offered [A]ppellant an opportunity to speak by stating,

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         “[Appellant], is there anything you would like to say to me
         today, sir?” [A]ppellant replied “No.”

                                  *     *      *

         In the instant case, the [c]ourt took into consideration
         public protection as well as the gravity of the offense in
         deciding the length of [A]ppellant’s sentence as well as
         whether or not [A]ppellant’s sentence[s] should run
         consecutive. The facts of this case are indeed egregious
         and while the rehabilitative needs of [A]ppellant must
         always be considered, the protection of the public is the
         more viable concern in this instance.

         Having had prior contact with [A]ppellant, this [c]ourt was
         in the best position to view [A]ppellant’s character,
         displays of remorse, defiance or indifference as well as the
         overall effect and nature of the crime.

         Accordingly, in the instant case the sentence did not
         exceed the statutory maximum nor has [A]ppellant
         claimed that the sentence resulted from a bias. There was
         nothing unreasonable about the sentence. This [c]ourt
         revoked [Appellant’s] probation and sentenced him to two
         (2) to four (4) years confinement (consecutive) after a
         careful review of all relevant information.     Therefore,
         [A]ppellant’s Violation of Probation sentence is a proper
         application of judicial discretion.

         For these    reasons, [A]ppellant’s sentence      should be
         affirmed.

(Trial Court Opinion, filed July 21, 2014, at 2-5) (internal citations omitted).

We see no reason to disrupt the court’s analysis. See Hoover, supra.

      Here, the revocation court presided over Appellant’s original PWID trial

and sentencing.   At the time of the original sentencing, the court had the

benefit of a PSI report.     During the VOP hearing, the Commonwealth

provided the court with a summary of the facts underlying Appellant’s new


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convictions for persons not to possess firearms and simple possession.

Thus, the record belies Appellant’s claim that the court was unaware of the

circumstances of Appellant’s new offenses.       The Commonwealth also

informed the court that Appellant’s new firearms conviction constituted

Appellant’s second violation of the Uniform Firearms Act.        The court

explained to Appellant that the court had warned him to stay out of trouble

at his original sentencing hearing, but Appellant failed to do so. The court

also offered Appellant the opportunity to address the court, but Appellant

declined.     Consequently, the court revoked Appellant’s probation and

resentenced him to two (2) to four (4) years’ imprisonment for his PWID

conviction.    The record as a whole makes clear the revocation court

considered the facts of Appellant’s case and his character per Section

9721(b), and set forth adequate reasons to justify the VOP sentence. See

Devers, supra; Carrillo-Diaz, supra; Crump, supra. Thus, Appellant is

not entitled to relief. See Hoover, supra. Accordingly, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2015




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