J-S46022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HAKEEM DURAN                               :
                                               :
                       Appellant               :   No. 1772 EDA 2017

            Appeal from the Judgment of Sentence January 20, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0001180-2014


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY SHOGAN, J.:                              FILED AUGUST 28, 2018

        Appellant, Hakeem Duran, appeals from the judgment of sentence

entered following the revocation of his probation. We affirm.

        We summarize the procedural history of this case as follows.     In an

information filed on February 10, 2014, Appellant was charged with possession

of a controlled substance with intent to deliver (“PWID”) and simple

possession of a controlled substance.1 On November 7, 2014, pursuant to a

negotiated agreement, Appellant pled guilty to the charge of PWID and the

charge of simple possession was nol prossed. Also on that date, the trial court

imposed the agreed-upon sentence of three to twenty-three months of




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1   35 P.S. § 780-113(a)(3) and (a)(16), respectively.
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incarceration, to be followed by three years of probation. Appellant was given

credit for time served and immediately paroled.

      On April 7, 2016, Appellant was arrested on charges of stalking and

related crimes, and he was convicted and sentenced on April 29, 2016. On

May 27, 2016, the trial court found Appellant to be in technical and direct

violation of his probation. On January 20, 2017, the trial court resentenced

Appellant to serve a term of incarceration of twenty to sixty months and a

consecutive term of probation of two years. Appellant filed a timely post-

sentence motion, which the trial court denied on April 18, 2017.

      On May 16, 2017, Appellant filed a motion seeking permission to take a

direct appeal nunc pro tunc. The trial court granted the motion on May 19,

2017, specifically giving Appellant leave to file an appeal within thirty days.

This appeal followed. Both Appellant and the trial court have complied with

Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

            1. Was not the lower court’s imposition of a twenty (20) to
      sixty month (60) sentence of incarceration for violations of
      probation an abuse of discretion where the court violated the
      requirements of 42 Pa.C.S. §9721(b) of the Sentencing Code
      where the court failed to give individualized consideration to
      [A]ppellant’s personal history, rehabilitative needs or background,
      and without explaining how, as a matter of law, this sentence was
      the least stringent one adequate to protect the community and to
      serve the rehabilitative needs of [A]ppellant?

           2. Did not the trial court err and abuse its discretion by
      sentencing [Appellant] to an excessive period of incarceration?

Appellant’s Brief at 4.

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      Each of Appellant’s issues challenges the discretionary aspects of the

sentence imposed following the revocation of his probation. In an appeal from

a sentence imposed after the court has revoked probation, we can review “the

validity of the revocation proceedings, the legality of the sentence imposed

following revocation, and any challenge to the discretionary aspects of the

sentence imposed.”     Commonwealth v. Wright, 116 A.3d 133, 136 (Pa.

Super. 2015).    Further, as we have long held, 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. Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).

      We are also mindful that “[t]he right to appeal a discretionary aspect of

sentence is not absolute.” Commonwealth v. Martin, 727 A.2d 1136, 1143

(Pa. Super. 1999). 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).

      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.

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            [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 (Pa. Super.

2006)).

      Pennsylvania Rule of Appellate Procedure 302(a) provides that “issues

not raised in the lower court are waived and cannot be raised for the first time

on appeal.” Pa.R.A.P. 302(a). Objections to the discretionary aspects of a

sentence are generally waived if they are not raised at the sentencing hearing

or in a motion to modify the sentence imposed. Moury, 992 A.2d at 170

(citing Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003)).

      In Commonwealth v. Reeves, 778 A.2d 691 (Pa. Super. 2001), we

reaffirmed the principle articulated in Commonwealth v. Jarvis, 663 A.2d

790 (Pa. Super. 1995), wherein this Court observed that, although

Pa.R.Crim.P. 1410 (presently Rule 720) characterizes post-sentence motions

as optional, the rule expressly provides that only issues raised in the trial court

will be deemed preserved for appellate review. Applying this principle, the

Reeves Court held that an objection to a discretionary aspect of a sentence

is waived if not raised in a post-sentence motion or during the sentencing

proceedings.

      Similarly, Pa.R.Crim.P. 708 provides that a motion to modify sentence

must be filed within ten days of the imposition of sentence following the



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revocation of probation.      Pa.R.Crim.P. 708(D).       As the comment to

Pa.R.Crim.P. 708 explains:

      Issues properly preserved at the sentencing proceeding need not,
      but may, be raised again in a motion to modify sentence in order
      to preserve them for appeal. In deciding whether to move to
      modify sentence, counsel must carefully consider whether the
      record created at the sentencing proceeding is adequate for
      appellate review of the issues, or the issues may be waived.

Pa.R.Crim.P. 708 cmt.     Thus, an objection to a discretionary aspect of a

sentence is waived if not raised in a post-sentence motion or during the

sentencing proceedings. See Commonwealth v. Parker, 847 A.2d 745 (Pa.

Super. 2004) (holding challenge to discretionary aspect of sentence was

waived because appellant did not object at sentencing hearing or file post-

sentence motion); Commonwealth v. Petaccio, 764 A.2d 582 (Pa. Super.

2000) (same).

      Herein, the first requirement of the four-part test is met because

Appellant brought a timely appeal following the reinstatement of his direct

appeal rights. However, our review of the record reflects that Appellant did

not meet the second requirement because he did not raise the instant

challenges to the discretionary aspects of his sentence in a post-sentence

motion or at the time of sentencing. Specifically, in his post-sentence motion,

Appellant sought only the trial court’s reconsideration of the mitigating factors




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set forth in the motion.2 Motion to Modify Sentence, 1/29/17, at 3. Because

this is the only issue raised in the post-sentence motion, this is the only claim

preserved for our review. However, Appellant has abandoned this claim on

appeal.

       Appellant now presents other theories to support his claim that the trial

court abused its discretion in fashioning Appellant’s sentence.       Appellant’s

Brief at 8-10. Specifically, Appellant argues “By imposing a sentence of total


____________________________________________


2In his post-sentence motion, Appellant presented the following argument in
an effort to achieve reconsideration of his sentence:

       8. While on parole, [Appellant] was enrolled at the RISE program.
       [Appellant] obtained work through a TEMP Agency until he was
       able to secure full time employment at World Class solutions.

       9. [Appellant] was diagnosed with Schizophrenia which causes
       him to suffer from hallucinations. He is a lifelong resident of the
       city and county of Philadelphia. Prior to his direct violation,
       [Appellant] has no violation convictions. He is a high school
       graduate and he had completed a semester of college. He has
       positive ties to the community as a volunteer little [sic] basketball
       coach. He still has the support of his family who has [sic] written
       letters in support of [Appellant]. (See Exhibit D-1). If given the
       opportunity, [Appellant’s] family would like to address the [c]ourt.
       Both counsel and [Appellant’s] family understand that [the trial
       court] must consider the safety of the community before imposing
       a sentence.        However, [Appellant] requests that you
       reconsider the mitigating factors addressed in this motion.

       10. [Appellant] requests that his sentence be vacated pending a
       hearing on this motion.

Post-Sentence Motion, 1/29/17, at 2-3 (emphasis added).




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confinement of twenty to sixty months solely because [A]ppellant violated his

drug offense probation, the lower court violated the express requirements of

the Sentencing Code, 42 Pa.C.S.A. §9721(b),3 as it did not 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.”          Id. at 8.   In addition, Appellant

contends that “[t]he court failed to explain how as a matter of law the

sentence was the least stringent one adequate to protect the community and

to serve the rehabilitative needs of the appellant, and as such was manifestly

unreasonable and excessive.” Id. To the extent that Appellant presents other

issues attempting to raise challenges to the discretionary aspect of

sentencing, such claims are waived due to Appellant’s failure to present them

at the time of sentencing or in his post-sentence motion.            See Reeves.

Accordingly, these challenges to the discretionary aspects of sentence are not

preserved for review.

       Judgment of sentence affirmed.




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3 We note that the factors to be considered under 42 Pa.C.S. § 9721(b) include
the protection of the public, gravity of offense in relation to impact on victim
and community, and rehabilitative needs of the defendant.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/18




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