J-S56019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

EDWARD SCOTT CUMMINGS

                            Appellant                  No. 165 MDA 2016


           Appeal from the Judgment of Sentence December 23, 2015
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0001815-2014


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.:                          FILED AUGUST 04, 2016

        Appellant, Edward Scott Cummings, appeals from the judgment of

sentence entered following the revocation of his probation on December 23,

2015, in the Court of Common Pleas of Lancaster County. We affirm.

        The facts and procedural history of this matter are well known to the

parties, so we rely upon the trial court’s recitation of facts as set forth on

pages 1-4 of the Pa.R.A.P. 1925(a) opinion filed February 23, 2016. Briefly,

on June 20, 2014, Appellant entered a guilty plea to multiple counts of

driving under the influence and related charges. While serving probation,

Appellant was cited for disorderly conduct. Appellant additionally failed to

complete scheduled Alcohol Highway Safety Classes and drug and alcohol

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*
    Former Justice specially assigned to the Superior Court.
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evaluation/treatment in violation of the terms and conditions of his

probation. Following a violation of probation hearing on December 23, 2015,

the trial court revoked Appellant’s probation and resentenced him to six to

twelve month’s imprisonment.1 This timely appeal followed.

       Appellant raises the following issue for our review:

       Was a sentence of six to twelve months of incarceration for a
       first probation/parole violation manifestly excessive and contrary
       to the fundamental norms underlying the sentencing process?

Appellant’s Brief at 4.

       Our standard when reviewing a sentence imposed following the

revocation of probation is as follows:

       Our review is limited to determining the validity of the probation
       revocation proceedings and the authority of the sentencing court
       to consider the same sentencing alternatives that it had at the
       time of the initial sentencing. Also, upon sentencing following
       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.

Commonwealth v. Tann, 79 A.3d 1130, 1132 (Pa. Super. 2014) (citation

omitted), appeal denied, 94 A.3d 1009 (Pa. 2014).

       Appellant challenges the discretionary aspects of his sentence.      In

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

an en banc panel of this Court concluded that “this Court’s scope of review in

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1
  Appellant filed a motion for reconsideration of sentence on January 4,
2016. The revocation court did not dispose of that motion prior to the filing
of the instant appeal.



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an appeal from a revocation sentencing includes discretionary sentencing

challenges.” Id., 83 A.3d at 1034. Therefore, Appellant’s claim is properly

before us.

     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), appeal denied, 580 Pa. 695, 860 A.2d 122 (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, Appellant filed a timely appeal and challenged his sentence in a

post-sentence motion. Appellant’s brief also contains the requisite 2119(f)

concise statement, in which he contends that the sentence imposed by the

trial court was manifestly excessive for a first violation of probation.

Appellant’s Brief at 8-9.   This claim raises a substantial question for our

review. See Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011)


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(claim that a sentence is manifestly excessive such that it constitutes too

severe a punishment raises a substantial question for our review).

       While Appellant argues that the sentence imposed by the lower court

following revocation was excessive, he notably does not argue that the

sentence imposed by the court was beyond the maximum sentence

permissible for his underlying convictions. Nor does the record support such

an assertion. It is well settled that the sentencing guidelines do not apply to

sentences     imposed     as   a   result      of   probation   or   parole   revocations.

Commonwealth v. Ware, 737 A.2d 251, 255 (Pa. Super. 1999), appeal

denied, 561 Pa. 657, 747 A.2d 900 (1999).2 Here, the lower court did not

exceed the statutory maximum when it resentenced Appellant to six to

twelve month’s imprisonment following the revocation of his probation. We

further note that the trial court’s sentence of confinement was appropriate

given Appellant’s conviction of a new crime, specifically, disorderly conduct.

See 42 Pa.C.S.A. § 9771(c) (imposition of a sentence of total confinement

after revocation of probation shall not be imposed unless, inter alia,

defendant has been convicted of another crime). Accordingly, we discern no

abuse of discretion in the sentence imposed by the trial court.

       Judgment of sentence affirmed.
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2
  204 PA.CODE § 303.1(b) provides: “The sentencing guidelines do not apply
to sentences imposed as a result of the following: . . . revocation of
probation, intermediate punishment or parole.”




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/4/2016




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