J-S07009-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

EUGENE WILLIAM KANE, JR.,

                          Appellant                  No. 1112 MDA 2015


             Appeal from the Judgment of Sentence May 26, 2015
              In the Court of Common Pleas of Schuylkill County
                          Criminal Division at No(s):
                           CP-54-CR-0000260-2013
                           CP-54-CR-0001145-2013
                           CP-54-CR-0001395-2012
                           CP-54-CR-0001396-2012


BEFORE: BOWES, OTT, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                         FILED FEBRUARY 16, 2016

       Eugene William Kane appeals from the judgment of sentence of thirty-

three to sixty-six months imprisonment that was imposed after the trial

court revoked his sentence of State Intermediate Punishment. We affirm.

       The four actions at issue on appeal involved drug offenses, including

multiple counts of possession of a controlled substance with intent to deliver

(“PWID”), delivery of a controlled substance, and possession of a controlled

substance.    All the crimes occurred in Pottsville, Pennsylvania.   Appellant

was charged at criminal action number 1396 of 2012 after he sold marijuana


*
    Former Justice specially assigned to the Superior Court.
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to a confidential informant on August 12, 2012, pursuant to a controlled buy

procedure. During his August 16, 2012 arrest for that drug sale, Appellant

admitted that he was selling marijuana to make money and showed police

marijuana that he had for sale, which resulted in the charges at criminal

action number 1395 of 2012.

        Criminal action number 260 of 2013 arose after Appellant sold $200

worth of marijuana to an undercover state trooper and offered to sell him a

substance called “piff”1 for $400 an ounce.      Affidavit of Probable Cause at

260 of 2013, 1/7/13, at 2. The offenses charged at criminal action number

1145 of 2013 were based on the following events. Probation officers were

searching a residence at 308 South Second Street, Pottsville, where

Appellant lived with an unidentified person who was on probation.           In

Appellant’s bedroom, the probation officers discovered a bag containing 12.8

grams of marijuana, a small amount of synthetic marijuana, drug-trafficking

paraphernalia, a device used to consume marijuana, and $320. Pottsville

police were summoned to the residence, and, after he was administered

Miranda warnings, Appellant admitted that the items in question belonged

to him and that he planned on consuming some of the marijuana and selling

the remainder.


____________________________________________


1
    Piff is a potent form of marijuana.



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J-S07009-16



      On August 16, 2013, Appellant pled guilty at all four cases in exchange

for a sentence of State Intermediate Punishment.            That sentence was

revoked on May 26, 2015, after Appellant admitted to violating his sentence

of State Intermediate Punishment and being expelled from the State

Intermediate Punishment Program.           The revocation court imposed a

sentence of thirty-three to sixty-six months imprisonment, which was a

standard range sentence that was imposed consecutively at each action

number on offenses that did not merge for sentencing purposes.            In this

appeal, Appellant raises this averment: “Whether the sentence imposed by

the   court   of   common   pleas   was   excessive   and    harsh    under   the

circumstances of the case?” Appellant’s brief at 7.

      This claim relates to the discretionary aspects of the sentence

imposed, which is reviewable by this Court in the revocation setting.

Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc).

As we have observed, “There is no absolute right to appeal when challenging

the discretionary aspect of a sentence.” Id. at 1042 (citation omitted). Of

significance herein is that “issues challenging the discretionary aspects of a

sentence must be raised in a post-sentence motion or by presenting the

claim to the trial court during the sentencing proceedings.          Absent such

efforts, an objection to a discretionary aspect of a sentence is waived.” Id.

(citation omitted).   See also Commonwealth v. Rhoades, 8 A.3d 912,

915-16 (Pa.Super. 2010) (citations omitted) (“Issues challenging the

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discretionary aspects of a sentence must be raised in a post-sentence

motion or by presenting the claim to the trial court during the sentencing

proceedings. Absent such efforts, an objection to a discretionary aspect of a

sentence is waived.”).    Our review of the certified record reveals that

Appellant neither filed a post-sentence motion nor objected at the revocation

proceeding that the sentence was harsh and excessive.        Accordingly, the

present contention is waived.

      Additionally, it is well established that a defendant can invoke this

Court’s jurisdiction so as to permit review of a discretionary-aspects

averment only if the defendant raises the existence of a substantial question

that his sentence is inappropriate under the Sentencing Code.      Cartrette,

supra; accord Commonwealth v. Swope, 123 A.3d 333 (Pa.Super.

2015). 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.” Swope,

supra at 338 (citation omitted).

      Herein, the sentence was within the standard range.         Appellant’s

complaint is premised upon the fact that the court employed a consecutive

sentencing paradigm. However, “A court's exercise of discretion in imposing

a sentence concurrently or consecutively does not ordinarily raise a

substantial question.” Id. at 339 (citation omitted). To the contrary, “the

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imposition of consecutive rather than concurrent sentences will present a

substantial question in only ‘the most extreme circumstances, such as where

the aggregate sentence is unduly harsh, considering the nature of the crimes

and the length of imprisonment.’” Id. (partially quoting Commonwealth v.

Lamonda, 52 A.3d 365, 372 (Pa.Super. 2012)).

      In this case, Appellant was engaged in drug trafficking over a

significant period.   There were multiple charges of PWID, delivery, and

possession at issue in this case.   Appellant was offered the opportunity to

participate in the State Intermediate Punishment Program, but was

discharged following non-compliance. Given the nature of the crimes and in

light of the fact that Appellant’s minimum sentence is less than three years

in jail, we cannot say that this sentence presents one of those extreme

circumstances where a substantial question is raised.       Accordingly, we

affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/16/2016




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