J-S41030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 SHAN CHRISTOPHER HAYNES-ALI            :
                                        :
                     Appellant          :   No. 1813 MDA 2018

       Appeal from the Judgment of Sentence Entered June 19, 2018
     In the Court of Common Pleas of Berks County Criminal Division at
                      No(s): CP-06-CR-0004485-2007

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 SHAN CHRISTOPHER HAYNES-ALI            :
                                        :
                     Appellant          :   No. 1814 MDA 2018

       Appeal from the Judgment of Sentence Entered June 19, 2018
     In the Court of Common Pleas of Berks County Criminal Division at
                      No(s): CP-06-CR-0005930-2015


BEFORE:    LAZARUS, J., MURRAY, J., and STRASSBURGER*, J.

MEMORANDUM BY MURRAY, J.:                        FILED AUGUST 06, 2019

      Shan Christopher Haynes-Ali (Appellant) appeals nunc pro tunc from the

judgment of sentence imposed following revocation of his probation. Upon

review, we affirm.

      The trial court recounted the factual and procedural background as

follows:



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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              On January 5, 2009, [Appellant] pleaded guilty to (among
        other charges), one count of conspiracy to commit unlawful
        restraint in criminal action number CP-06-CR-0004485-2007. He
        was sentenced to probation for a period of three years following
        the expiration of the sentence imposed under additional counts in
        that action. On August 28, 2017, [Appellant] pleaded guilty to
        one count of possession of a controlled substance in criminal
        action number CP-06-CR-0005930-2015 and was sentenced to
        probation for a period of twenty-three months, effective that date.
        [Appellant] was still subject to the orders of probation in both
        actions when, on August 31, 2017, he was arrested and charged
        with various counts related to possession with intent to deliver a
        controlled substance (CP-06-CR-5109-2017).

               On June 1, 2018, [Appellant] pleaded guilty in criminal
        action 5109-2017 to one count of possession with intent to deliver
        a controlled substance. The same day, the Honorable Eleni
        Dimitriou Geishauser (Bucks County) sentenced [Appellant] to
        confinement for a period of 3½ to 10 years, with 274 days’ credit
        for time served. Thereafter, a Gagnon II1 proceeding was
        initiated in each of the above-captioned dockets by a written
        request for revocation filed with the clerk of courts. A hearing was
        held before the undersigned on June 18, 2018. [Appellant] was
        present and represented by counsel, and he admitted that he
        violated the terms of his probation. Thereafter, the court revoked
        [Appellant’s] probation in criminal actions 4485-2007 and 5930-
        2015, and sentenced him as follows: in criminal action 5930-2015,
        confinement for a period of 18-36 months to commence at the
        expiration of the sentence imposed in criminal action 5109-2017;
        in criminal action 4485-2007, confinement for a period of 12-24
        months to be concurrent with the sentence imposed at criminal
        action 5930-2015. Thus, in effect the court revoked [Appellant’s]
        probation and sentenced him to confinement for an aggregate
        period of 18-36 months commencing September 1, 2027. . . .

                On June 22, 2018, [Appellant], by and through his attorney,
        filed timely motions to modify his sentences following revocation;
        however, the court did not decide either of [Appellant’s] motions
        to modify his sentences within thirty days of the sentences.
        Accordingly, as of July 19, 2018, the court was divested of


____________________________________________


1   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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       jurisdiction to enter an order deciding these motions. See 42
       Pa.C.S. § 5505[.] . . . The motions, therefore, remain undecided.

               Although [Appellant’s] motions to modify were timely filed,
       the filing of a motion to modify sentence following revocation does
       not toll the 30-day appeal period.            Pa.R.Crim.P. 708(E).
       [Appellant] did not file a direct appeal within this period.
       However, on October [15],2 2018, [Appellant] filed a petition
       under the Post Conviction Relief Act, 42 Pa.C.S.[A.] § 9541, et
       seq., claiming ineffective assistance of counsel for failing to file a
       timely appeal despite [Appellant’s] express direction to do so. The
       Commonwealth did not challenge the petition. The court granted
       [Appellant’s] petition and restored his right to file a direct appeal
       within thirty days on October 23, 2018.

Trial Court Opinion, 2/26/19, at 1-3 (footnotes and some citations omitted).

       Following the trial court’s reinstatement of Appellant’s direct appeal

rights, Appellant filed two separate notices of appeal nunc pro tunc at each

trial docket.3      Both Appellant and the trial court have complied with

Pennsylvania Rule of Appellate Procedure 1925.              Upon application by

Appellant, this Court consolidated the two appeals on May 29, 2019.

       On appeal, Appellant raises three claims challenging the discretionary

aspects of his sentence. See Appellant’s Brief at 5. We address these claims

together.
____________________________________________


2While Appellant’s PCRA petition is time-stamped as being filed with the trial
court on both October 15, 2018 and October 23, 2018, the trial court’s docket
entries at both cases reflect a filing date of October 15, 2018. See Appellant’s
PCRA petition, 10/15/18, at 1; Trial Court Docket 4485-2007, at 22; Trial
Court Docket 5930-2015, at 10.

3  Appellant has complied with our Supreme Court’s holding in
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) by filing separate
notices of appeal at each docket, “where a single order resolves issues arising
on more than one docket.” Id. at 971.


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      Appellant alleges that the trial court imposed an excessive sentence,

failed to consider the Sentencing Guidelines and the factors delineated in 42

Pa.C.S.A. § 9721(b), and failed to make a contemporaneous statement on the

record explaining the reasons for the sentence. Id.

      We note our standard of review:

      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.
      An abuse of discretion is more than an error in judgment — a
      sentencing court has not abused its discretion unless the record
      discloses that the judgment exercised was manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Simmons, 56 A.3d 1280, 1283-84 (Pa. Super. 2012)

(citations omitted).     “Also, upon 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.”          Id. at

1286-87 (citation omitted).

      Further, “[t]he right to appellate review of the discretionary aspects of

a sentence is not absolute, and must be considered a petition for permission

to appeal.”   Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa.

Super. 2014). “An appellant must satisfy a four-part test to invoke this Court’s

jurisdiction when challenging the discretionary aspects of a sentence.” Id.

We conduct this four-part test to determine whether:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of


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      appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
      a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted). “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 1263, 1268 (Pa. Super. 2013) (citations

omitted).

      Appellant has complied with the first three prongs of this test by raising

his discretionary sentencing claims in timely post-sentence motions, filing

timely notices of appeal, and including in his brief a Rule 2119(f) concise

statement. See Appellant’s Brief at 12-13. Therefore, we examine whether

Appellant presents a substantial question.

      Appellant argues that the trial court “abused its discretion where it

imposed a sentence without consideration of the sentencing guidelines and

without expressing adequate reasons to justify the imposition of such a

sentence.”     Appellant’s Brief at 5 (unnecessary capitalization omitted).

Specifically, Appellant avers that the court imposed an excessive sentence by

failing to consider “whether the sentence was consistent with the protection

of the public, the gravity of the offenses and the Appellant’s rehabilitative

needs[.]”    Id.; see 42 Pa.C.S.A. § 9721(b) (sentencing court shall follow

general principle that sentence imposed should call for confinement that is

consistent with the protection of the public, gravity of the offense as it relates


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to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant). We have held that such a challenge

presents a substantial question for our review.       See Commonwealth v.

Derry, 150 A.3d 987, 994-95 (Pa. Super. 2016) (claim that a VOP sentencing

court failed to consider the factors under 42 Pa.C.S.A. § 9721(b) raises a

substantial question).

      Appellant also argues that the trial court “failed to make a statement on

the record of the specific reasons for the sentence imposed.” Appellant’s Brief

at 5. This claim also raises a substantial question. See Commonwealth v.

Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011) (“An allegation that a judge

failed to offer specific reasons for a sentence does raise a substantial

question.”) (citations omitted).     Accordingly, we turn to the merits of

Appellant’s arguments, recognizing:

      Upon revoking probation, a sentencing court may choose from any
      of the sentencing options that existed at the time of the original
      sentencing, including incarceration.        42 Pa.C.S. § 9771(b).
      However, the imposition of total confinement upon revocation
      requires a finding that either “(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).

Commonwealth v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015) (footnote

omitted).

      Further:

      In selecting from the alternatives set forth in subsection (a), the
      court shall follow the general principle that the sentence imposed

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      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. . . . In every case in which
      the court imposes a sentence for a felony or misdemeanor . . . 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.

42 Pa.C.S.A. § 9721(b). We have explained:

      The [trial] court is not required to parrot the       words of the
      Sentencing Code, stating every factor that must      be considered
      under Section 9721(b). However, the record as        a whole must
      reflect due consideration by the court of            the statutory
      considerations enunciated in that section.

Commonwealth v. Coulverson, 34 A.3d 135, 145-46 (Pa. Super. 2011)

(citations omitted).

      This Court has held, “[w]hen a sentencing court has reviewed a pre[-

]sentence investigation report, we presume that the court properly considered

and weighed all relevant factors in fashioning the defendant’s sentence.”

Baker, 72 A.3d at 663 (citing Commonwealth v. Fowler, 893 A.2d 758, 767

(Pa. Super. 2006)). Additionally:

      [i]n imposing sentence, the trial court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. The trial court should refer to the defendant’s prior
      criminal record, age, personal characteristics, and potential for
      rehabilitation. However, where the sentencing judge had the
      benefit of a presentence investigation report, it will be presumed
      that he or she was aware of the relevant information regarding
      the defendant’s character and weighed those considerations along
      with mitigating statutory factors. Additionally, the sentencing
      court must state its reasons for the sentence on the record. 42
      Pa.C.S.A. § 9721(b). The sentencing judge can satisfy the
      requirement that reasons for imposing sentence be placed
      on the record by indicating that he or she has been


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     informed by the pre-sentencing report; thus               properly
     considering and weighing all relevant factors.

Fowler, 893 A.2d at 767-68 (citing Commonwealth v. Boyer, 856 A.2d 149,

154 (Pa. Super. 2004)) (citations omitted) (emphasis added).

     Instantly, Appellant admitted to violating both his probationary

sentences by being convicted of committing another crime.          See N.T.,

6/19/18, at 2-3. Before re-sentencing Appellant, the trial court stated:

           You know, [Appellant] is not the only person raised by their
     grandparents. I get that all the time. I feel bad about the fact
     your mother passed away and you lost people in your life. A lot
     of people are raised by their grandparents. And your grandmother
     who stood up here seems like a very nice lady.

                                *     *     *

           What’s disturbing to me, I sometimes go out of my way and
     then it just comes back to bite me. Didn’t take advantage of the
     fact I could have just incarcerated him and he would have lost
     everything then.
                               *     *     *

            I have heard a lot of things this afternoon. I am taking a
     lot of things into consideration. I reviewed your P.S.I. I have []
     knowledge about your history. I listened to your family members.
     I have appreciated the fact they all came in here this afternoon.
     And it does not make a difference in the sentence, but it does
     make a difference to me. But it still makes a difference. Okay.
     Whatever level, it makes a difference.

          In any event here’s what I am going to do. On the 2015
     docket   I’m  going   to   go   with   the   Commonwealth’s
     recommendation. I’m going to run the other one concurrent.

           There has to be some ramifications. I can’t keep saying that
     and nothing happens. I gave him electronic monitor. I remember
     needing to raise the family and needing the money and etc., etc.
     And I did, I mean I bent over backwards a year ago. There has
     to be some consequence for all of that.


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           I can’t just let people come in here and constantly walk all
     over us and then think that nothing is going to happen. I can’t
     imagine there is anything that you can say to me that would
     change my mind. . . . I’m still not giving you the total of what
     [the Commonwealth] wants. And part of my consideration is the
     fact that the ’07 docket was about to expire in relatively short
     order and the fact that it’s not a felony, it’s a misdemeanor. So
     I’m going to run that at the same time as the drug case.

            You are not doing anything additional even though you are
     in violation of the ’07 matter. If I don’t do that there’s absolutely
     nothing I would have done as a result of your violations. There
     would have been no consequence.

N.T., 6/19/18, at 17, 20, 23-24.

     The trial court further commented:

           In the instant matter, the sentences were based on the facts
     of the violations and the circumstances of [Appellant]. Prior to
     imposing [Appellant’s] standard range sentence of incarceration
     in criminal action 5930-201[5] and a concurrent standard range
     sentence of incarceration in criminal action 4485-2007, the court
     considered all relevant sentencing factors as well as the
     sentencing guidelines and a pre-sentence investigation report.
     [Appellant’s] sentence at criminal action 5930-201[5] for
     possession of a controlled-substance is 18-36 months, in part,
     because the minimum term is within the standard range guideline
     based on the offense gravity score (3) and [Appellant’s] prior
     record score . . .

     As both sentences were within the standard range and [the]
     sentence at criminal action 4485-2007 was made concurrent to
     criminal action 5930-2015, to succeed on his claim that the
     sentence is “manifestly excessive,” [Appellant] has to show that
     “the case involves circumstances where the application of the
     guidelines would be clearly unreasonable[.]”      42 Pa.C.S. §
     9781(c)(2). His Statement is void of any facts to support his
     claim.

          At this point, [Appellant] has exhausted his rehabilitative
     opportunities and his history demonstrates he is simply not
     amenable to further community supervision. He will continue to

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      be a significant risk to the community if he is not incarcerated.
      Therefore, a sentence was imposed to protect the community from
      [Appellant’s] criminal behavior, as well as to protect [Appellant]
      from his own self-destructive behavior. Ultimately, this Court
      determined that incarceration is necessary and is clearly
      warranted in this case. . . .

            At the time of sentencing in this case, the undersigned judge
      stated on the record the reasons for revoking [Appellant’s]
      probation and for imposing sentences of confinement, and also
      acknowledged having [Appellant’s] PSI report. Accordingly, the
      court satisfied the requirement of placing the reasons on the
      record.

Trial Court Opinion, 2/26/19, at 6-8 (footnotes and citations omitted).

      We discern no abuse of discretion. The trial court reviewed Appellant’s

pre-sentence investigation report, commented at length regarding Appellant’s

upbringing and personal history, and recognized statements from Appellant’s

family members; however, the court emphasized that incarceration was

warranted to vindicate the court’s authority. See N.T., 6/19/18, at 17, 23-

24. Also, while Appellant argues that he received a “manifestly excessive”

sentence, the trial court opted to impose Appellant’s sentences at each docket

concurrently. Id. at 23 (“[P]art of my consideration is the fact that the ’07

docket was about to expire in relatively short order and the fact that it’s not

a felony, it’s a misdemeanor. So I’m going to run that at the same time as

the drug case. You are not doing anything additional even though you are in

violation of the ’07 matter.”).




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     In sum, the record does not support Appellant’s sentencing claims.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/6/2019




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