J-S12009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    ROBERT O. BURKE                            :
                                               :   No. 889 MDA 2017
                       Appellant               :

              Appeal from the Judgment of Sentence May 1, 2017
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0003214-2013,
              CP-36-CR-0004099-2015, CP-36-CR-0004976-2010


BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                                  FILED MAY 04, 2018

        Robert O. Burke (“Burke”) appeals from the judgment of sentence

entered in the Court of Common Pleas of Lancaster County, alleging that the

trial court abused its discretion when it sentenced him to one to two years’

incarceration, to be served consecutively to unexpired balances for parole and

probation violations. We affirm.

        The procedural history of the case is as follows:

        On May 26, 2016, [Burke] was incarcerated for the following
        convictions: on Docket Number 4976-2010 (original sentence
        date November 21, 2013), Theft From a Motor Vehicle,[1] on
        Docket Number 3214-2013 (original sentence date November, 21,
        2013), Manufacture, Delivery, or Possession With Intent to
____________________________________________


1   18 Pa.C.S.A. § 3934(a).
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        Manufacture or Deliver,[2] and Criminal Use of a Communication
        Facility;[3] and on Docket Number 4099-2015 (original sentence
        date April 18, 2016), Simple Assault.[4] On June 23, 2016,
        [Burke] was charged on Docket Number 4148-2016 and bail was
        set. On September 14, 2016, [Burke] appeared . . . for a
        parole/probation violation hearing (“PPV Hearing”) and was found
        to be in violation of his parole on Docket Numbers 4976-2010 and
        3214-2013 and his probation on Docket Number 4099-2015.
        Sentencing was deferred pending the resolution of [Burke’s] new
        charges.

        On March 6, 2017, [Burke] pled guilty . . . on Docket Number
        4148-2016 and received a sentence of time served to twenty-
        three months’ incarceration, plus one year of concurrent
        probation. Sentencing was deferred on Docket Numbers 4976-
        2010, 3214-2013 and 4099-2015 to allow the Office of Probation
        and Parole to conduct a Pre-Sentence Investigation (“PSI”) report
        for [Burke’s] parole and probation violations.

        On May 1, 2017, a sentencing hearing was held and the court
        sentenced [Burke] to the unexpired balance for the parole
        violations on Docket Numbers 4976-2010 and 3214-2013, while
        imposing a sentence of one to two years’ incarceration for the
        probation violation on Docket Number 4099-2015.        Docket
        Number 4976-2010 was made to run consecutive to Docket
        Number 4148-2016, while Docket Number 3214-2013 was made
        concurrent with Docket Number 4976-2010 and consecutive to
        4148-2016, while Docket number 3214-2013 was made
        concurrent with Docket Number 4976-2010 and consecutive to
        4148-2016. The sentence imposed on Docket Number 4099-2015
        was made consecutive to the sentences imposed on Docket
        Numbers 4976-2010 and 3214-2013, resulting in an aggregate
        sentence of not less than 1302 nor more than 1667 days’
        incarceration on [Burke’s] violations.


____________________________________________


2   35 P.S. § 780-113(a)(30).

3   18 Pa.C.S.A. § 7512(a).

4   18 Pa.C.S.A. § 2701(a)(1).



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Trial Court Opinion, 9/26/17, at 1-2 (some footnotes omitted).

       On May 11, 2017, Burke filed a timely motion to modify sentence

pursuant to Pa.R.Crim.P. 708. Burke filed a notice of appeal to this Court from

his judgment of sentence on May 31, 2017.5 The trial court denied Burke’s

motion to modify sentence on June 12, 2017, noting his direct appeal to the

Superior Court.      On June 12, 2017, the trial court also entered an order

directing Burke to file a concise statement of errors complained of on appeal

pursuant to Pa.R.C.P. 1925(b).

       Burke raises one issue for our review:

       Was the [t]rial [c]ourt’s sentence of one to two years’
       incarceration in a state correctional institution on Docket No.
       4099-2015 consecutive to the unexpired balance on Docket Nos.
       4976-2010 (totaling 455 days) and 3214-2013 (totaling 482 days)
       manifestly excessive and clearly unreasonable under the
       circumstances?

Brief of Appellant, at 5.

       Burke challenges the discretionary aspects of his sentence. Before this

Court can address such a challenge, Burke must comply with the following

four-part test:

       (1) Whether appellant has filed a timely notice of appeal, see
       Pa.R.A.P. 902 and 903; (2) whether the issue was properly
       preserved at the sentencing or in a motion to reconsider and
       modify sentence, see Pa.R.Crim.P 720; (3) whether appellant’s
____________________________________________


5  Burke filed his appeal to this Court before the trial court issued its denial of
his motion to modify sentence. However, the notice of appeal, though
premature, is considered timely. See Pa.R.A.P 905(a)(5) (notice of appeal
filed after announcement of determination but before entry of appealable
order shall be treated as filed after such entry and on day thereof).

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     brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
     is a substantial question that the sentence appealed from is not
     appropriate under the Sentencing Code.

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011).

     Instantly, Burke filed a timely notice of appeal and preserved his issues

in a motion to modify sentence. Additionally, Burke’s brief includes a concise

statement of reasons relied on for allowance of appeal with respect to the

discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f). See Brief

of Appellant, at 11. Accordingly, we must now determine whether Burke’s

claim to the discretionary aspect of his sentence presents a substantial

question.

     Whether a challenge to a sentence amounts to a substantial question is

determined on a case-by-case basis. A substantial question exists only when

the appellant advances a plausible argument that the sentencing judge’s

actions were either inconsistent with a specific provision of the Sentencing

Code or were contrary to the fundamental norms which underlie the

sentencing process. Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super.

2011).

     When imposing a sentence, the sentencing court must follow the general

principles 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).


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       A court’s exercise of discretion in imposing sentences consecutively does

not    ordinarily     raise   a   substantial   question.     Commonwealth         v.

Mastromarino, 2 A.3d 581 (Pa. Super. 2010). However, 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. Commonwealth v. Dodge, 77 A.3d 1263 (Pa. Super. 2013).

       Additionally,

       [i]n determining whether a substantial question exists, this court
       does not examine the merits of whether the sentence is actually
       excessive.    Rather, we look to whether the appellant has
       forwarded a plausible argument that the sentence, when it is
       within the guideline ranges, is clearly unreasonable.
       Concomitantly, the substantial question determination does not
       require the court to decide the merits of whether the sentence is
       clearly unreasonable.

Id. at 1270.

       Based on the above, Burke’s claim that his consecutive sentences are

manifestly excessive, together with his claim that the court failed to consider

mitigating     circumstances,       presents    a   substantial   question.      See

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (challenge

to imposition of consecutive sentences, in addition to claim that court failed

to    consider      mitigating    circumstances,    raised   substantial   question).

Accordingly, we will address the merits of his claim.

       When imposing sentence, the trial court is granted broad discretion, as

it is in the best position to determine the proper penalty for a particular offense

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based upon an evaluation of the individual circumstances before it.

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2017).               An abuse of

discretion is shown when the appellant establishes, by reference to the record,

that the sentencing court ignored or misapplied the law, exercised its

judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a

manifestly unreasonable decision. Raven, 97 A.3d at 1253.

      Pursuant to section 9721 of the Sentencing Code, the sentencing court

is to consider the following when imposing a sentence of incarceration:

      (b) General standards.--In selecting from the alternatives set
      forth in subsection (a), 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.
      The court shall also consider any guidelines for sentencing and
      resentencing adopted by the Pennsylvania Commission on
      Sentencing

42 Pa.C.S.A. § 9721(b).

      Section 9771 of the Sentencing Code governs the imposition of sentence

following revocation of probation, in relevant part, as follows:

      (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.—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


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         (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.A. § 9771.

      Moreover,

      [s]ection 9721, which governs sentencing generally, provides that
      in all cases where the court resentences an offender following
      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.
      Failure to comply with these provisions shall be grounds for
      vacating the sentence or resentence and resentencing the
      defendant. Additionally, this Court has noted that the reasons
      stated for a sentence imposed should reflect the sentencing
      court’s consideration of the criteria of the Sentencing Code, 42
      Pa.C.S.A. § 9701 et seq., the circumstances of the offense, and
      the character of the offender.

Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 185 (Pa. Super. 2016)

(internal citations, quotation marks and ellipses omitted).

      Here, Burke asserts that the sentencing court failed to consider

mitigating circumstances, such as Burke’s abstinence from drug use during

his period of supervision, the nature of his parole and probation violations, his

rehabilitative needs, and his borderline intellectual functioning. Burke further

asserts that the court placed undue emphasis on his prior periods of

supervision and certain misconducts he received while incarcerated between

June and July 2016.    Burke claims that,

      [h]ad the court properly considered these mitigating factors . . .,
      a less punitive county sentence with work release eligibility or a
      time served sentence would have been an appropriate sentence.


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      This would greatly enhance [Burke’s] likelihood for successfully
      rehabilitating all facets of his life upon release by encouraging
      [him] to continue with his sobriety while working and providing
      for his two children.

Brief of Appellant, at 22. Burke is entitled to no relief.

      We begin by noting that the sentencing court was in possession of a PSI

report. Where a PSI report exists, we presume that the sentencing judge was

aware of relevant information regarding the defendant’s character and

weighed those considerations, along with mitigating statutory factors.

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). At sentencing, the

court heard an extensive statement from the mother of Burke’s two young

daughters, who spoke positively of Burke’s parenting skills and of the efforts

he has made to turn his life around. The court also considered the nature of

Burke’s offenses, his county prison misconduct, and the fact that the instant

violation was Burke’s fourth. Thus, the court clearly considered mitigating

circumstances in fashioning its sentence.

      Nonetheless, after reviewing Burke’s entire history, the court ultimately

concluded that Burke’s failure to comply with supervision, both inside and out

of prison, revealed a lack of respect for authority and, more broadly, for the

criminal justice system as a whole. As such, the court determined that Burke

required a “strongly structured environment with real consequences and real

serious programming that directs [him] to understand, there is accountability

and consequence to every decision [he makes].” N.T. Resentencing, 6/5/17,




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at 19. Thus, the court imposed a sentence to be served in a state correctional

facility, where Burke could avail himself of needed programming.

      In light of the foregoing, we cannot conclude that the sentencing court

abused its discretion in imposing consecutive sentences of incarceration,

where Burke’s prior conduct has demonstrated that he is either unwilling or

unable to successfully refrain from criminal behavior while on supervision, and

has failed to take advantage of prior opportunities for criminal rehabilitation.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2018




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