J-S45027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

SHAWN SAVAGE

                            Appellant                No. 1892 EDA 2013


          Appeal from the Judgment of Sentence of August 24, 2010
            In the Court of Common Pleas of Philadelphia County
           Criminal Division at Nos.:  CP-51-CR-0001391-2008
                                       CP-51-CR-0008647-2007
                                        MC-51-CR-0057415-2007


BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                           FILED AUGUST 26, 2014

       Shawn Savage appeals his August 24, 2010 judgment of sentence.

We affirm.

       The sentencing court1 summarized the relevant factual and procedural

history of this case as follows:

       On June 5, 2009, Shawn Savage knowingly and voluntarily
       entered into three negotiated guilty pleas for three separate
       instances of retail theft  each graded as felonies of the third
              1
       degree. [Savage] received the negotiated sentences of [six to
       twenty-three] months, plus two years [of] reporting probation,
       on each count, to run concurrent[ly].
____________________________________________


*
       Former Justice specially assigned to the Superior Court.
1
       Because Savage challenges only aspects of his sentence, we refer
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           1
                    18 Pa.C.S. § 3929.

     [Savage] was paroled in June 2010. A mere six days after
     being paroled[, Savage] was arrested again in Bucks County for
     retail theft [after] stealing $1,500 worth of goods. During this
     arrest, [Savage] engaged in a physical altercation with police.2
     [Savage] was convicted of this retail theft, resisting arrest, two
     counts of simple assault, and possession of an instrument of
     crime and sentenced to a period of incarceration. This conviction
     put [Savage] in direct violation of his sentence by [the
     sentencing court]. He was also cited for technical violations [of
     his parole,] including absconding from probation.
           2
                 This was not the first time [Savage] was
           convicted of assaulting a police officer. While being
           arrested for possession of heroin and cocaine,
           [Savage] punched an officer in the mouth (CP-51-
           CR-0512851-1999).

     A violation of probation hearing was held on August 13, 2010.
     Despite serious misgivings, [the sentencing court] gave
     [Savage] another chance to rehabilitate himself on the street,
     and resentenced [Savage] to seven years [of] reporting
     probation on each felony, to run concurrent[ly]. Strict conditions
     were imposed on [Savage], including the condition that [Savage]
     report to his probation officer within [forty-eight] hours of his
     release and immediately report to his drug treatment program.

     [Savage] again immediately violated his probation when he
     was paroled by failing to report to his probation officer or his
     drug treatment program.       A second violation of probation
     hearing was held on August 24, 2010, during which [the
                                             reporting probation and
     resentenced [Savage] to [one and a half to three] years [of]
     incarceration on each felony count, with two of the sentences
     running consecutive[ly] and the third running concurrent[ly].

     After the second violation hearing and resentencing[, Savage]
     did not file a direct appeal. Nearly a year later, on June 29,
     2011, [Savage] filed a pro se petition pursuant to the Post-
     Conviction [] Relief Act, 42 Pa.C.S. § 9541 et seq. PCRA counsel
     was appointed and on Nov[ember] 2, 2012, counsel filed an
     amended PCRA petition. The amended petition asserted that
     trial counsel was ineffective for failing to file a direct appeal of

     request   to    do   so.    Thereafter,   [Savage]   requested   the

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      reinstatement of his right to file a direct appeal nunc pro tunc,
      which this court granted on June 12, 2013.3
             3
                   The Commonwealth did an investigation into,

             counsel     failed   to   file    a    direct   appeal   despite



                                                                -2 (citations omitted or

modified, minor modifications to capitalization, emphasis in original).

      On July 9, 2013, Savage filed a timely notice of appeal. On July 17,

2013, the sentencing court ordered Savage to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On August 2,

2013, Savage timely complied with the

January 3, 2014, the sentencing court filed an opinion pursuant to Pa.R.A.P.

1925(a).

      Savage presents two issues for our review:

      1. Whether the [sentencing] court abused its discretion in
         sentencing [Savage] to a harsh and excessive sentence as

           sentence?

      2. Whether the [sentencing] court abused its discretion by



Brief for Savage at 8.

      In his first issue, Savage argues that his sentence was harsh and



rehabilitative needs as is required by 42 Pa.C.S. § 9721(b). Brief for Savage

at 15-



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discretionary aspects of his sentence.       Commonwealth v. Walker, 666

A.2d 301, 307 (Pa. Super. 1995).



whether   Savage   properly    has   preserved    this   issue   for   our   review.

Challenges to the discretionary aspects of a sentence generally are waived if

they are not raised at the sentencing hearing or in a post-sentence motion

to modify the sentence.       Commonwealth v. Shugars, 895 A.2d 1270,

1273-74 (Pa. Super. 2006) (citation omitted). The sentencing transcript in

this case reflects that Savage did not raise a challenge to the discretionary

aspects of his sentence in open court after the sentencing court announced

its sentence. Notes of Testimony of Violation of Probation Hearing, Volume 2

                                     -12.

     Because Savage did not raise his first issue at his violation of

probation hearing after his sentence was imposed, we turn our attention to

whether he properly preserved this issue in a post-sentence motion. As a

general matter, when resolving an appellate issue, we are limited to

considering only the materials that are contained in the certified record.

Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006) (citation

omitted). The appellant bears the burden to ensure that the certified record



                                            Id.

document which is not part of the officially certified record is deemed non-

existent a deficiency which cannot be remedied merely by including copies

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                                                                         Id. at 6

(citations omitted). In the absence of an adequate certified record, there is

                                           uested relief can be granted. Id. at

7.

        In his brief, Savage indicates that he filed a motion to vacate and

reconsider his sentence on September 3, 2010, and he states that this

motion was denied by operation of law. Brief for Savage at 11. Additionally,

on September 28, 2010, the Alternative Sentencing Unit of the Defender

Association of Philadelphia sent a letter to Savage indicating both that they



behalf, and that the motion had been denied by operation of law. Letter to

Savage, 9/28/2010.        However, the docket does not reflect that such a

motion ever was filed or that such a motion ever was denied by operation of

law.    Furthermore, the certified record does not contain an order or other

indication that such a motion ever was denied by operation of law.

        If an appellant fails to raise a challenge to the discretionary aspects of

his sentence at the sentencing hearing, he must raise it in a post-sentence

motion in order to preserve it.        Shugars, supra.      Where, as here, an

appellant alleges that a post-sentence motion has been filed, then that

                                                             Preston, 904 A.2d

at 7.    Instantly, Savage bears the burden of ensuring that the certified

record is complete.     Id.                         -sentence motion is neither

                                                                                 -

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J-S45027-14



sentence motion is deemed non-existent for purposes of this appeal. Id. at

6.   Because the certified record is incomplete, Savage has not met his

burden and there is no basis upon which relief can be granted.      Id. at 7.

Consequently, Savage did not properly preserve his first issue.     Shugars,

supra. For the foregoing reasons, we are constrained to find

first issue before this Court is waived. Id.

      In his second issue, Savage argues that the sentencing court abused



                                                            be in violation of




the interests of society in preventing future criminal conduct by [Savage]

against the poss                                                          Id.



his revocation sentence.   Commonwealth v. Ortega, 995 A.2d 879, 886

(Pa. Super. 2010).

                                        al following a sentence imposed after

probation revocation is limited to the validity of the revocation proceedings

                                                                  Id. at 883-

                                                                  enever it is

shown that the conduct of the probationer indicates [that] the probation has

proven to have been an ineffective vehicle to accomplish rehabilitation and

                                                            Commonwealth

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v. Infante, 888

                                                                Ortega, 995

A.2d at 886 (citation omitted).

      The question before this Court is whether the evidence admitted at

                                  hearing established, by a preponderance of

the evidence, that probation had proven ineffective at rehabilitating Savage

and deterring him from antisocial behavior. Id. In addressing this question,

                                                              tion officer that

Savage, in violation of a condition of his probation, did not report to his

probation officer within forty-eight hours of his release. N.T. V.O.P. 2 at 1-



antisocial behavior and failed past attempts at rehabilitation when it

addressed Savage at his violation of probation hearing:

      As an adult, [you have] [twenty-four] arrests, [eleven]
      convictions, [seventeen] probation and parole violations, eight
      willful [failure to appear warrants], eight aliases, seven phony
      dates of birth
         seven phony Social Security numbers. Apparently, [you are]
      a harden[ed] career criminal . . . . So [the Commonwealth
      believes] that your likelihood of recidivism [is] high and I have
      no choice at this time but to revoke your probation on each of


      issues . . . on my [conscience] out there causing more crimes,
      being . . . a danger to the public.

Id. at 7-




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violation of probation hearing was sufficient to support the revocation

sentence imposed by the sentencing court. Ortega, 995 A.2d at 886.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2014




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