J-S31008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                       v.

MONTAEYA WHITE

                            Appellant                No. 807 WDA 2016


             Appeal from the Judgment of Sentence May 11, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0010006-2014


BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                               FILED JUNE 9, 2017

        Appellant, Montaeya White, appeals from the judgment of sentence

entered on May 11, 2016, following the revocation of her probation in the

Court of Common Pleas of Allegheny County. White contends that we should

vacate her sentence due to the revocation court’s abuse of discretion in

fashioning it. After careful review, we vacate White’s sentence and remand

for resentencing.

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

On December 16, 2014, White pleaded guilty to misdemeanor counts of

retail theft and tamper with/fabricate physical evidence.1 The court


____________________________________________


1
    18 Pa.C.S.A. §§ 3929(a)(1) and 4910(1), respectively.
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sentenced White to three years of probation.2 While White was still serving

her probationary term, she garnered an attributable conviction for theft of

services.

       White’s conviction triggered a probation violation hearing for her

underlying charges. On May 11, 2016, the revocation court determined that

White had violated her probation by receiving new charges. That same day,

the court resentenced White to a period of 2 to 4 years’ incarceration. White

filed a timely post-sentence motion to reconsider, which the revocation court

denied. This timely appeal follows.

       On appeal, White raises a single question for our review:

       DID THE TRIAL COURT FAIL TO ADEQUATELY CONSIDER AND
       APPLY ALL OF THE RELEVANT SENTENCING CRITERIA,
       INCLUDING [] WHITE’S CHARACTER AND REHABILITATIVE
       NEEDS, THE GRAVITY OF THE OFFENSE/VIOLATION AND THE
       PROTECTION OF THE PUBLIC AS REQUIRED UNDER 42
       P[a].C.S.A. § 9721(b)…[?]

Appellant’s Brief, at 4.

       This claim challenges the discretionary aspects of White’s sentence.

Initially, we note that our “scope of review in an appeal from a revocation

sentencing includes discretionary sentencing challenges.” Commonwealth

v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc).


____________________________________________


2
 As a condition of her probation, the revocation court ordered restitution of
$1,250 and required White to enroll in a GED program and obtain
employment.



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      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted).

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test:

      [We] conduct a four-part analysis to determine: (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
      sentencing or in a motion to reconsider and modify sentence,
      see Pa.R.Crim.P. [720]; (3) whether appellant’s 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, 42. Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

      Here, White fulfilled the first two requirements by filing a timely post-

sentence motion for reconsideration and a timely appeal. However, due to

the disparity between the claims in her post-sentence motion to reconsider

and her appellant brief, we must determine which of the challenges to the

discretionary aspects of her sentence have been preserved for our review.

      A defendant can only preserve a claim to the discretionary aspects of a

court’s sentence if she notes a specific objection at the sentencing hearing or

in a post-sentence motion to modify. See id. White did not object to any

aspects of her sentence at the probation revocation hearing. Thus, to

preserve her challenges to the discretionary aspect of her sentence, she was


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required to note her specific challenges to the revocation court’s discretion in

a post-trial motion to reconsider.

       White filed a motion to reconsider through which she alleged that her

sentence was excessive due to the revocation court’s failure to “consider

[her] rehabilitative needs prior to imposing sentence.” Motion to Reconsider

Sentence, 5/17/16, at ¶ 4. However, in her appellate brief, White conflates

this claim by asserting that the revocation court failed to apply the relevant

sentencing criteria under 42 Pa.C.S.A. § 9721(b), “including [] White’s

character and rehabilitative needs, the gravity of the offense/violation and

the protection of the public.” Appellant’s Brief, at 4. Because White failed to

raise challenges to the revocation court’s consideration of the gravity of the

offense/violation, White’s character, and the protection of the public in her

post-sentence motion, she has waived these specific challenges to the

discretionary aspects of her sentence. See Moury, 992 A.2d at 170.

       Addressing the next factor in the four-factor test, we find that White’s

appellate brief contains the requisite Rule 2119(f) concise statement. We

must    now   determine    whether   White’s   remaining    challenge   to   the

discretionary aspects of her sentence raises a substantial question.

       “A substantial question will be found where an appellate advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the Sentencing Code or is contrary to the fundamental

norms which underlie the sentencing process.” Commonwealth v. Zirkle,

107 A.3d 127, 132 (Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa.

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2015) (citation omitted). We examine an appellant’s Rule 2119(f) statement

to determine whether a substantial question exists. See Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Our inquiry must focus on

the reasons for which the appeal is sought, in contrast to the facts

underlying the appeal, which are necessary only to decide the appeal on the

merits.” Id. (citation omitted). See also Pa.R.A.P. 2119(f).

      As discussed further below, at sentencing following the probation

revocation, the court must consider not only the pertinent factors at 42

Pa.C.S.A. § 9721(b), but also at § 9771(c). See, e.g., Commonwealth v.

Derry, 150 A.3d 987, 994 (Pa. Super. 2016). Thus, White’s allegation that

her sentence is excessive due to the revocation court’s failure to consider

relevant sentencing criteria raises a substantial question for our review. See

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)

(en banc) (“[A]rguments that the sentencing court failed to consider the

factors proffered in 42 Pa.C.S. § 9721 does present a substantial question

whereas a statement that the court failed to consider facts of record, though

necessarily encompassing the factors of § 9721 has been rejected.”) As

such, we will address White’s claim on its merits.

            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.


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Commonwealth v. Simmons, 56 A.3d 1280, 1283-1284 (Pa. Super. 2012)

(citation omitted).

      “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.”

42 Pa.C.S.A. § 9771(b). And the revocation court may impose a sentence of

total confinement upon revocation if “the defendant has been convicted of

another crime[.]” Id., at (c)(1). “[T]he trial court is limited only by the

maximum sentence that it could have imposed originally at the time of the

probationary sentence.” Commonwealth v. Infante, 63 A.3d 358, 365 (Pa.

Super. 2013) (citation omitted).

      In addition, 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 [and] [f]ailure to comply with these provisions
      shall be grounds for vacating the sentence or resentence and
      resentencing the defendant. 42 Pa.C.S. § 9721(b). A trial court
      need not undertake a lengthy discourse for its reasons for
      imposing a sentence or specifically reference the statute in
      question, but the record as a whole must reflect the sentencing
      court’s consideration of the facts of the crime and character of
      the offender.

Commonwealth v. Colon, 102 A.3d 1033, 1044 (Pa. Super. 2014), appeal

denied, 109 A.3d 678 (Pa. 2015) (case citations and quotation marks

omitted) (emphasis added). See also 12 West’s Pa. Prac., Law of Probation

& Parole § 16:7 (3d ed.)



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      We carefully reviewed the transcript from the revocation proceeding.

Our review reveals that although the revocation court was familiar with

White’s history (the court presided over White’s initial guilty plea) and that

her conviction correctly stood as a basis for total confinement, the court

failed to sufficiently explain the reasons for imposing the sentence of 2 to 4

years’ imprisonment. The only statement the court made following the

imposition of sentence was that “[White] just doesn’t get the idea. She’s

been here for stealing people’s stuff too many times.” N.T., Revocation

Hearing, 5/11/16, at 10.

      While the revocation court is not required to undertake a lengthy

discourse prior to imposing sentence, this statement is far too vague to

evaluate whether the court adequately considered any of the criteria set

forth in the Sentencing Code. See Colon, 102 A.3d at 1044. Further, there

is no indication on the record that the revocation court consulted a prior

presentence investigation report. See Commonwealth v. Walls, 926 A.2d

957, 967 n.7 (Pa. 2007) (“[W]here pre-sentence reports exist, we shall

continue to presume that the sentencing judge was aware of the relevant

information   regarding    the   defendant's   character   and   weighed   those

considerations along with mitigating statutory factors.”)

      In its Rule 1925(a) statement, the revocation court noted that it was

not required to consider White’s rehabilitative needs pursuant to § 9721(b)




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in resentencing her following the probation violation. See Revocation Court

Opinion, 10/24/16, at 4. That is simply not true.

      In the very case relied upon by the revocation court to justify its

position, our Supreme Court noted that “42 Pa.C.S. § 9721(b) specifies that

in every case following the 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.’”

Commonwealth v. Pasture, 107 A.3d 21, 28 (Pa. 2014) (additionally

citing Pa.R.Crim.P. 708(C)(2) (indicating at the time of sentencing following

the revocation of probation the sitting judge must state on the record the

reasons for the sentence imposed)). While the revocation court is correct in

observing that Pasture states the revocation court is not “cabined by 42

Pa.C.S. § 9721(b),” 107 A.3d at 27, we have since interpreted this

statement to indicate that the revocation court must not only consider the

factors set forth at 42 Pa.C.S.A. § 9721(b), but also the factors found at 42

Pa.C.S.A. § 9771(c), which are unique to resentencing after probation

revocation.

      A panel of this Court explained the meaning of the “cabined” language

as follows:

      Thus, we read “the revocation court is not cabined by Section
      9721(b)’s requirement,” Pasture, 107 A.3d at 27 (emphasis
      added), to be synonymous with, ‘the revocation court is not
      confined or restrained solely by Section 9721(b) factors.’
      Instead, at a VOP sentencing hearing, additional factors and
      concerns are in play. The statute governing the modification or

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      revocation of an order of probation discusses these additional
      concerns [i.e., 42 Pa.C.S.A. § 9771(c)].

Derry, 150 A.3d at 993-994. The panel concluded, “a VOP sentencing court

must consider those factors [i.e., 42 Pa.C.S.A. § 9721(b)], but must also

consider factors set forth in Section 9771(c), which are unique to VOP

sentences.” Id., at 995 (internal case citation omitted).

      The revocation court’s sole justification regarding White’s rehabilitative

needs challenge relied upon the incorrect premise that it was not required to

evaluate the factors under § 9721(b). With no indication on the record that

the revocation court consulted a prior presentence report, considered factors

specified in the Sentencing Code, or considered either the character or

circumstances of the offense for which the court imposed sentence, we are

constrained     to   vacate   the   judgment   of   sentence   and   remand   for

resentencing.

      Judgment of sentence vacated. Case remanded for proceedings

consistent with this memorandum. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2017

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