J-S88008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

IMANUEL Y. FORBES,

                            Appellant                       No. 3024 EDA 2015


          Appeal from the Judgment of Sentence of September 4, 2015
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005264-2011


BEFORE: OLSON, RANSOM AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                                  FILED JANUARY 25, 2017

        Appellant   appeals    from     the    judgment    of   sentence   entered   on

September 4, 2015 in the Court of Common Pleas of Philadelphia County.

We affirm.

        Briefly stated, the relevant factual and procedural history in this case

is as follows. On July 25, 2011, Appellant entered a negotiated guilty plea to

possession with intent to deliver (PWID) and driving under the influence

(DUI).1    Thereafter, the court sentenced Appellant to 11½ to 23 months’

incarceration followed by two years’ probation for PWID.               Appellant also

received a concurrent sentence of 72 hours to six months’ incarceration for

DUI.      On April 30, 2014, while still serving his probationary sentence,

____________________________________________


1
    35 P.S. § 780-113(a)(30) and 75 Pa.C.S.A. § 3802(a)(1), respectively.



*Retired Senior Judge assigned to the Superior Court
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Appellant was found guilty in Delaware County of burglary, robbery, and

conspiracy.2      He received an aggregate sentence of 13 to 26 years’

incarceration for those offenses.

        In response, the trial court in this case convened a violation of

probation (VOP) hearing on September 4, 2015.          At the conclusion of the

VOP hearing, the court revoked Appellant’s probation and sentenced him to

four to eight years’ incarceration to run consecutively to the Delaware

County sentence. Appellant filed a timely motion to reconsider his sentence,

but the trial court never ruled on the motion. This timely appeal followed.3

        Appellant raises a single question for our review:

        Was the sentence imposed by the [trial] court after probation
        was revoked manifestly excessive in light of the fact that the
        sentencing court made literally no effort at all to comply with the
        Sentencing Code?

Appellant’s Brief at 4.

        In his brief, Appellant contends that the trial court abused its

discretion in imposing a manifestly excessive sentence without considering

the factors identified in 42 Pa.C.S.A. § 9721(b). Appellant also argues that

the court did not impose an individualized sentence, failed to offer adequate

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2
  There is some indication in the record that Appellant committed PWID in
Delaware County approximately two months before committing the robbery
and burglary. See N.T. VOP Hearing, 9/4/15, at 5 (stating that Appellant
received a two- to four-year sentence for a Delaware County PWID offense).
3
    Both Appellant and the trial court have complied with Pa.R.A.P. 1925.



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reasons for its sentence, and abused its discretion in failing to state why it

did not order a pre-sentence investigation report pursuant to Pa.R.Crim.P.

702. These claims do not challenge the revocation of Appellant’s probation

or the imposition of a sentence of total confinement.     Rather, Appellant’s

claims challenge the discretionary aspects of his sentence. Commonwealth

v. Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010), appeal denied, 25 A.3d

328 (Pa. 2011).

      “Sentencing is a matter vested in the sound discretion of the

sentencing judge, and a sentence will not be disturbed on appeal absent a

manifest abuse of discretion.” Commonwealth v. Clarke, 70 A.3d 1281,

1287 (Pa. Super. 2013) (citation omitted). Appellant does not have an

automatic right to appeal the discretionary aspects of his sentence. See 42

Pa.C.S.A. § 9781(b).     Instead, Appellant must petition this Court for

permission to appeal the discretionary aspects of his sentence. Id.

      As this Court has explained:

      To reach the merits of a discretionary sentencing issue, we
      conduct a four-part analysis to determine:           (1) whether
      appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903;
      (2) whether the issue was properly preserved at sentencing or in
      a motion to reconsider and modify sentence, 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).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007); see also

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008) (“when



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a court revokes probation and imposes a new sentence, a criminal defendant

needs to preserve challenges to the discretionary aspects of that sentence

either by objecting during the revocation sentencing or by filing a

post-sentence motion”).         In this case, Appellant filed a timely notice of

appeal and properly preserved his claims in a post-sentence motion.

Appellant’s brief also contains a statement pursuant to Pa.R.A.P. 2119(f).

Thus, we turn to whether the appeal presents a substantial question.4

       As we have explained:

       The determination of whether a particular case raises a
       substantial question is to be evaluated on a case-by-case basis.
       Generally, however, in order to establish that there is a
       substantial question, the appellant must show actions by the
       sentencing court inconsistent with the Sentencing Code or
       contrary to the fundamental norms underlying the sentencing
       process.

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal

citations omitted).

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4
  The Commonwealth argues that Appellant waived his claim that the trial
court violated 42 Pa.C.S.A. § 9721(b) by not giving adequate consideration
to whether confinement was “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.” See
Commonwealth Brief at 7, n.3. The Commonwealth maintains that Appellant
failed to include this claim in a post-sentence motion and in his concise
statement pursuant to Pa.R.A.P. 1925(b). Technically, the Commonwealth is
correct in that Appellant’s submissions alleged only a violation of 42
Pa.C.S.A. § 9771(c). Upon review, we shall treat Appellant’s references to
42 Pa.C.S.A. § 9771(c), rather than 42 Pa.C.S.A. § 9721(b), as an oversight
and caution defense counsel to use greater care in future filings. In any
event, as we shall discuss, the claim is meritless.



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      In his Rule 2119(f) statement, Appellant contends that:        1) the trial

court “failed to consider and weigh all of the relevant factors set forth in 42

Pa.C.S.A. § 9721(b);” 2) the trial court failed to impose an individualized

sentence; 3) the trial court failed to place sufficient reasons for its sentence

on the record; and, 4) the trial court violated Pa.R.Crim.P. 702 by refusing

to obtain a pre-sentence investigation report without explaining the reasons

for its refusal on the record.    Appellant’s Brief at 7-8. This Court recently

reaffirmed that a defendant presents a substantial question for review where

he challenges the revocation court’s failure to consider the factors found in

§ 9721(b).    See Commonwealth v. Derry, 2016 WL 6776292, *6 (Pa.

Super. Nov. 15, 2016); see also Commonwealth v. Cartrette, 83 A.3d

1030, 1042-1043 (Pa. Super. 2013) (en banc) (in appeal from VOP

sentence, substantial question presented by claim that sentencing court did

not consider appropriate sentencing factors found in § 9721(b)). Moreover,

this Court has held that a substantial question is raised where the trial court

fails to consider a defendant’s individualized needs.       Commonwealth v.

Serrano, 2015 WL 6776287, *2 (Pa. Super. Nov. 15, 2016).              Lastly, we

have said that a sentencing court’s failure to state adequate reasons for

dispensing with a pre-sentence report raises a substantial question.         See

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

Accordingly, we now turn to the merits of Appellant's sentencing claims.

      In sentencing Appellant, the trial court was required to “consider the

general principles and standards of the Sentencing Code.” Commonwealth

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v. Russell, 460 A.2d 316, 322 (Pa. Super. 1983). Section 9721 expresses

these general principles in the following manner:

        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).     In addition, 42 Pa.C.S.A. § 9771(c) permits the

trial court to impose a sentence of total confinement in order to vindicate its

authority. 42 Pa.C.S.A. § 9771(c).

      Here, the trial court offered the following explanation for the sentence

imposed in this case:

      The facts are clear that since his original conviction, [Appellant]
      engaged in further unlawful behavior. In addition to his burglary
      case, Appellant was convicted of PWID in Delaware County. The
      fact that [Appellant] has been wholly unable to behave within
      the confines of the law, and that he committed new, increasingly
      violent offense[s] while on [probation], evidences that he is a
      danger to the community and that a period of confinement is
      necessary both to vindicate the authority of the [trial court] and
      to protect the public.

Trial Court Opinion, 91/26/16, at 3.

      Based upon the transcript of the VOP hearing and the foregoing

reasons for Appellant’s sentence, we discern no abuse of the trial court’s

discretion.   Before imposing a sentence of total confinement, it is evident

that the trial court carefully considered the need to protect the public, the

gravity of Appellant’s conduct and its potential impact on the community,

and Appellant’s rehabilitative needs.    Ultimately, the trial court concluded


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that Appellant’s continued involvement with criminal activity and his

progression toward more violent offenses showed that a more lenient

sentence would fail to ensure that Appellant received the rehabilitative

programming that he needs. The record firmly supports these assessments.

Accordingly, we see no reason to disturb the sentence imposed in this case.

        We are not persuaded by the arguments Appellant offers in support of

relief. Initially, Appellant contends that the trial court offered no explanation

for its sentence and ignored the relevant sentencing factors set forth in 42

Pa.C.S.A. § 9721(b).      Citing Commonwealth v. Parlante, 823 A.2d 927

(Pa. Super. 2003) (four to eight year confinement term manifestly excessive

where VOP court failed to consider defendant’s age, family history,

rehabilitative needs, and pre-sentence report), Appellant argues that the

court’s failure to consider Appellant’s background, mental health status, and

rehabilitative needs supports reversal of the revocation sentence.

        Although Appellant is correct that § 9721(b) directs the trial court to

consider certain factors and place the reasons for its sentence on the record,

our Supreme Court recently held that, following revocation, a sentencing

court need not undertake lengthy discourse regarding its punishment or

specifically mention the statutes in question. Commonwealth v. Pasture,

107 A.3d 21, 28 (Pa. 2014).           Here, Appellant’s direct violations, as

established by his new (and increasingly violent) offenses, were clearly the

basis    for   the   sentence   imposed    by   the   trial   court.   Under   these


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circumstances, we see no reason to withdraw the deference traditionally

owed to the sentencing court or to vacate Appellant’s revocation sentence.

      Parlante does not compel a different result.       In that case, we held

that the trial court abused its discretion in sentencing the defendant to four

to eight years’ incarceration without considering that her violations were

mostly technical and that any new crimes were non-violent. Parlante, 823

A.2d at 931.     Here, by contrast, Appellant’s violations included multiple

convictions involving violent conduct, which the trial court considered in

fixing its sentence.

      Appellant next argues that the trial court failed to impose an

individualized sentence and violated Pa.R.Crim.P. 702(A)(2)(a) in refusing,

without explanation, to order a pre-sentence report prior to Appellant’s

revocation sentencing. See Pa.R.Crim.P. 701 (“The sentencing judge shall

place on the record the reasons for dispensing with the pre-sentence

investigation report if the judge fails to order a pre-sentence report” where

“incarceration for one year or more is a possible disposition under the

applicable sentencing statutes[.]”).     Appellant argues that he is entitled to

resentencing because of this omission by the court.

      Contrary to Appellant’s assertions, this Court has provided “some

latitude in how th[e requirement in Rule 702] is fulfilled.” Commonwealth

v. Carrillo–Diaz, 64 A.3d 722, 726 (Pa. Super. 2013).             Indeed, our case

law   does    not      require   a   pre-sentence   report   in     all   instances.


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Commonwealth v. Goggins, 748 A.2d 721 (Pa. Super. 2000) (en banc).

Instead, the critical inquiry is whether the sentencing court was “[informed]

of comprehensive information to make the punishment fit not only the crime

but also the person who committed it.”      Carrillo–Diaz, 64 A.3d at 725

(quotation omitted).

      We are satisfied that the sentencing court was sufficiently aware of the

unique facts of the case to render an individually tailored punishment. The

sentencing court here demonstrated a working knowledge of Appellant's

character, background, and his response to supervisory programs.           In

addition, the trial court’s familiarity with Appellant's past criminal conduct

and the progression of his criminal behavior rendered the court sufficiently

informed such that its sentence reflected the unique nature of Appellant’s

character and his direct probation violations.   Under these circumstances,

and since Appellant presents no argument or evidence of changed

circumstances that warranted an updated report, we affirm the sentence

imposed by the trial court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/25/2017

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