J-S42010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANDRE PACE,

                            Appellant                 No. 932 WDA 2015


              Appeal from the Judgment of Sentence May 14, 2015
               In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s): CP-02-CR-0012497-2013, CP-02-CR-0012502-
                                      2013


BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED SEPTEMBER 28, 2016

        Appellant, Andre Pace, appeals from the judgment of sentence entered

on May 14, 2015, following revocation of his probation. After careful review,

we vacate and remand.

        The trial court summarized the procedural history of this case as

follows:

        [Appellant] was charged with one (1) count of Simple Assault at
        [two informations]. He appeared before [the court of common
        pleas] on February 5, 2014 and, pursuant to a plea agreement
        with the Commonwealth, pled guilty to both charges and was
        immediately sentenced to a term of probation of two (2) years.
        No Post-Sentence Motions were filed and no direct appeal was
        taken.


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*
    Former Justice specially assigned to the Superior Court.
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             On May 14, 2015, [Appellant] appeared before [the court
       of common pleas] for a probation violation hearing.         Upon
       finding that [Appellant] had been convicted of a new offense and
       also had a number of technical violations, [the court of common
       pleas] revoked [Appellant’s] probation and imposed two (2)
       consecutive terms of imprisonment of one (1) to three (3) years.
       A timely Motion to Reconsider Sentence was filed and was
       denied on May 18, 2015. This timely appeal followed.

Trial Court Opinion, 1/14/16, at 2 (internal footnote omitted).

       Appellant presents the following issue for our review:

       Did the trial court fail to adequately consider and apply all of the
       relevant sentencing criteria under 42 Pa.C.S.A. § 9721(b)
       (sentencing generally) and 42 Pa.C.S.A. § 9725 (total
       confinement) when it failed to order a pre-sentence investigative
       report or give reasons for its omission, and the hearing did not
       serve as an adequate substitute?

Appellant’s Brief at 6 (full capitalization omitted).

       Appellant’s claim relates to the discretionary aspects of his probation

revocation sentence.       We note that “[t]he right to appellate review of the

discretionary aspects of a sentence is not absolute.”      Commonwealth v.

Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014). Rather, where an appellant

challenges the discretionary aspects of a sentence, the appeal should be

considered a petition for allowance of appeal. Commonwealth v. W.H.M.,

932 A.2d 155, 163 (Pa. Super. 2007).1



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1
  Challenges to the discretionary aspects of an appellant’s sentence in an
appeal following a revocation of probation are permitted. Commonwealth
v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013).



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      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

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

                  [W]e 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. [708]; (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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006)). The determination of whether there is a substantial question

is made on a case-by-case basis, and this Court will grant the appeal 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.   Commonwealth v. Sierra, 752 A.2d 910, 912–

913 (Pa. Super. 2000).

      Herein, Appellant brought a timely appeal, and he included in his

appellate brief the necessary separate concise statement of the reasons

relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f).     In his

Pa.R.A.P. 2119(f) statement, Appellant argues that he has raised three


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substantial questions:    1) the trial court did not adequately consider

“relevant sentencing criteria, including the protection of the public, the

gravity of the underlying offense and the rehabilitative needs of the

Appellant,” as 42 Pa.C.S. § 9721(b) requires; 2) the trial court did not order

a pre-sentence investigation report (“PSI”) or compensate for its absence

and thereby failed to consider Appellant’s character and background; and 3)

the trial court relied on an improper factor–unrelated cases–in enhancing the

punishment in this case. Appellant’s Brief at 15-16.

      In his post-sentence motion, however, Appellant made the following

claims:

           5. The Court failed to realize the rehabilitative needs of
      [Appellant].

            6. The Court failed to take [Appellant’s] age into account.

            7.    The Court failed to realize [Appellant] did not get
      arrested on another domestic case.

            8.    The Court failed to realize [Appellant] did complete
      the Batterers’ Intervention Program.

Motion to Reconsider Sentence, 5/15/15, at 2.

      As this Court has explained:     “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.” Commonwealth v. Kittrell, 19 A.3d 532, 538 (Pa. Super. 2011).

Because Appellant failed to raise his issues regarding the lack of a PSI report

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or the sentencing court’s reliance on an unrelated case in resentencing

Appellant, either at sentencing or in his post-sentence motion, those issues

are waived.        Thus, Appellant has preserved only his claim that the

sentencing court failed to properly consider the relevant sentencing criteria

required by 42 Pa.C.S. § 9721(b).

      We next determine whether Appellant raises a substantial question

requiring us to review the discretionary aspects of the sentence imposed by

the trial court.      The trial court’s failure to offer specific reasons for the

sentence that comport with the considerations required in section 9721(b)

raises a substantial question.      Commonwealth v. Coulverson, 34 A.3d

135, 143 (Pa. Super. 2011). Because Appellant has presented a substantial

question, we proceed with our analysis.

      The imposition of sentence following the revocation of probation is

vested within the sound discretion of the probation revocation court, which,

absent an abuse of that discretion, will not be disturbed on appeal. Sierra,

752 A.2d at 913.        On review, we determine the validity of the probation

revocation proceedings and the authority of the probation revocation court

to consider the same sentencing alternatives that it had at the time of the

initial sentencing.     42 Pa.C.S. § 9771(b); Commonwealth v.MacGregor,

912 A.2d 315, 317 (Pa. Super. 2006). When imposing a sentence of total

confinement after a probation revocation, the sentencing court must




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consider the factors set forth in Sections 9771(c)2 and 9721(b) of the

Sentencing Code. Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa.

Super. 2006).

       While parts of § 9721(b) do not govern revocation proceedings,
       as our sentencing guidelines are not required to be consulted in
       such instances, see 204 Pa.Code. § 303.1(b), other provisions of
       that section do apply. For example, the sentencing court must
       “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.” 42 Pa.C.S. § 9721(b). In
       addition, in all cases where the court “resentences an offender
       following revocation of probation, county intermediate
       punishment or State intermediate punishment or resentences
       following remand, 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.” Id. Failure
       to comply with these provisions “shall be grounds for vacating

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2
  The following limitations apply when a sentence of total confinement is
being considered following revocation 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

              (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).



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       the sentence or resentence and resentencing the defendant.”
       Id.

Cartrette, 83 A.3d at 1040-1041. Following the revocation of probation, a

probation revocation court need not undertake a lengthy discourse for its

reasons for imposing a sentence of total confinement, but the record as a

whole must reflect the probation revocation court’s consideration of the facts

of the crime and character of the offender. Commonwealth v. Crump, 995

A.2d 1280, 1283 (Pa. Super. 2010).

       Following careful review of the scant five-page probation violation

sentencing transcript, we find that the court failed to demonstrate that it

sufficiently considered the criteria enunciated in 42 Pa.C.S. § 9721(b) in

imposing Appellant’s sentence. The court failed to discuss in any detail the

need for protecting the public, the impact the crime had on the community

and the victim, and the character and rehabilitative needs of Appellant. It is

undisputed that the judge did not consult a PSI.3      Furthermore, the trial

court failed to adequately articulate on the record the reasons for revoking

Appellant’s probation and imposing the aforementioned sentence.

       As a result, without sufficient information regarding the factors

outlined in 42 Pa.C.S. § 9721(b), we are unable to determine whether the
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3
 “Our Supreme Court has determined that where the trial court is informed
by a pre-sentence report, it is presumed that the court is aware of all
appropriate sentencing factors and considerations, and that where the court
has been so informed, its discretion should not be disturbed.”
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009).



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sentence imposed upon Appellant after revocation of his probation 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 [Appellant].”   42 Pa.C.S. § 9721(b).    Thus, we are

constrained to remand the matter to the trial court for a revocation hearing

and resentencing that is consistent with the requirements of 42 Pa.C.S. §

9721(b).    See Commonwealth v. Ferguson, 893 A.2d 735, 740 (Pa.

Super. 2006) (trial court’s failure to explain how sentence imposed following

probation revocation met Appellant’s rehabilitative needs, as required under

42 Pa.C.S. § 9721(b), resulted in this Court’s vacation of Appellant’s

sentence and remand for resentencing).

      Judgment of sentence vacated.        Case remanded for resentencing.

Jurisdiction relinquished.

      Justice Fitzgerald joins the Memorandum.

      Judge Ott files a Dissenting Statement.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/28/2016




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