J-S71030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

ERIC PAYNE

                            Appellant                 No. 2427 EDA 2015


               Appeal from the Judgment of Sentence July 7, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0608701-2006


BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J. *

MEMORANDUM BY PANELLA, J.                         FILED FEBRUARY 08, 2017

        Appellant, Eric Payne, appeals from the judgment of sentence entered

on July 7, 2015, in the Court of Common Pleas of Philadelphia County,

following revocation of his probation. Payne contends that his sentence

should be vacated due to the revocation court’s abuse of discretion in

fashioning it. No relief is due.

        The relevant facts and procedural history are as follows. On May 28,

2008, Payne pleaded nolo contendere to arson1 and received a sentence of

time served to 23 months’ imprisonment, followed by 4 years’ probation.

Prior to the end of his probationary term, Payne was arrested and charged

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3301(c)(1).
J-S71030-16



with burglary, aggravated assault and related offenses. Following a jury trial,

Payne was convicted of burglary, aggravated assault, possessing an

instrument of crime, recklessly endangering another person, and criminal

mischief. Payne was sentenced on these convictions to a term of 2 to 4

years’ imprisonment followed by 4 years’ probation.

       Payne’s convictions triggered a probation violation hearing for his

underlying arson charge. On July 7, 2015, the revocation court determined

that Payne had directly violated his probation by receiving new convictions,

stemming from his break-in of his brother’s home and beating his brother

with a shovel. The trial court re-sentenced Payne to a term of 2 to 4 years’

imprisonment for this violation. The revocation court ran this sentence

consecutively to his sentence for burglary and aggravated assault, resulting

in an aggregate term of incarceration of 4 to 8 years.

       Payne filed a timely post-sentence motion requesting modification of

his sentence, citing only the harshness of the consecutive nature of the

sentence. The trial court held a hearing on the post-sentence motion. At the

hearing, it became clear that the trial court was going to grant Payne’s

reconsideration motion, but increase the severity of his sentence. The trial

court gave Payne the opportunity to withdraw his post-sentence motion and

leave his sentence as is. See N.T., Post-Sentence Motion Hearing,2

____________________________________________


2
  Obtaining this transcript was not an easy task. The lengths we had to go
through to procure it are detailed in the two orders we issued to the lower
(Footnote Continued Next Page)


                                           -2-
J-S71030-16



11/16/15, at 33 (“What’s your request, sir? Now you can request to

withdraw the petition. You can request whatever you like.”) Payne

responded, “I’ll withdraw.” Id. Payne’s counsel indicated that the trial court

provided “the biggest telegraph I’ve ever seen.” Id. The trial court again

asked Payne if he wanted to withdraw his motion. See id., at 34. And Payne

stated, “We withdraw.” Id.

      This timely appeal followed.

      Payne challenges the discretionary aspects of his sentence in this

appeal. See Appellant’s Brief, at 5. “[I]ssues 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. Shugars, 895 A.2d 1270, 1273-1274 (Pa.

Super. 2006) (citation omitted). Here, Payne did not present the claim at

sentencing and, as noted, he voluntarily withdrew his post-sentence motion.

Accordingly, his discretionary aspects claim is waived.

      In any event, even if Payne preserved the claim he would not be

entitled to relief. We will briefly explain why.


                       _______________________
(Footnote Continued)

court, the Honorable Frank Palumbo. See Order, filed 12/20/16; Order, filed
1/12/17. We finally received the transcript on January 25, 2017. The trial
court’s failure to timely comply with our original order needlessly delayed
the resolution of this appeal. Such behavior is simply unacceptable.




                                            -3-
J-S71030-16



       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). “[T]his Court’s 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).

       The claim Payne advances in his Rule 2119(f) statement3 is that the

revocation court’s sentence of 2 to 4 years’ imprisonment constitutes an

abuse of discretion because it was imposed consecutively to an unrelated

____________________________________________


3
  Outside of his Rule 2119(f) statement, Payne alleges that the trial court
erred in fashioning several other aspects of the discretionary nature of his
sentence including: (1) the trial court’s decision to base Payne’s sentence
solely on Payne’s prior acts and lack of remorse; (2) the trial court’s
impermissible reliance on prior bad acts; and (3) the trial court’s failure to
take into account Payne’s background and ability for rehabilitation. See
Appellant’s Brief, at 5-6. However, in order to find a substantial question we
may only look to an appellant’s Rule 2119(f) statement. See
Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013) (“[W]e
cannot look beyond the statement of questions presented and the prefatory
2119(f) statement to determine whether a substantial question exists.”);
Commonwealth v. Jones, 629 A.2d 133, 138 (Pa. Super. 1993) (appellate
court may not look elsewhere in brief to find substantial question; claim
must be set out in a separate Rule 2119(f) statement). Thus, we would not
have considered any of these claims.



                                           -4-
J-S71030-16



sentence and without regard to the factors articulated in 42 Pa.C.S.A. §

9721(b). Ordinarily, this claim raises a substantial question for our review.

See Commonwealth v. Caldwell, 117 A.3d 763, (Pa. Super. 2015) (“This

Court has also held that an excessive sentence claim—in conjunction with an

assertion that the court failed to consider mitigating factors—raises a

substantial   question.”)   (internal   citation   marks   omitted).   See   also

Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015);

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014). But in

his post-sentence motion, Payne only objected to the harshness of the

consecutive nature of the sentence. He lodged no objection to the fact, nor

even mentioned, that the revocation court failed to consider the factors

articulated in § 9721(b). Thus, shorn of the § 9721(b) claim, which is not

preserved for our review, see Shugars, 895 A.2d at 1273-1274, we are left

with a statement that the revocation court imposed an excessive sentence

based solely on its consecutive nature. Such a claim would not even raise a

substantial question for our review.

      “Although Pennsylvania’s system stands for individualized sentencing,

the court is not required to impose the ‘minimum possible’ confinement.”

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (citation

omitted). The sentencing court “has the discretion to impose sentences

consecutively or concurrently and, ordinarily, a challenge to this exercise of

discretion does not raise a substantial question.” Id. (citation omitted); see

also 42 Pa.C.S.A. § 9721(a); Commonwealth v. Hoag, 665 A.2d 1212,

                                        -5-
J-S71030-16



1214 (Pa. Super. 1995) (stating that an appellant is not entitled to a

“volume discount” for his crimes by having all sentences run concurrently).

“The imposition of consecutive, rather than concurrent, sentences may raise

a substantial question in only the most extreme circumstances, such as

where the aggregate sentence is unduly harsh, considering the nature of the

crimes and the length of imprisonment.” Moury, 992 A.2d at 171-72

(citation omitted).

      Payne   would   not   have   convinced   us   that   such   an   “extreme

circumstance” is present here. The revocation court acted within its

discretion in imposing the sentence upon revocation consecutively to his

sentence for his new convictions. Payne’s sentences result from his actions

in relation to two different victims. To run these sentences concurrently

would allow Payne a “volume discount” for his crimes. See Hoag, 665 A.2d

at 1214.

      Given the serious nature of Payne’s charges, the fact that he

committed these crimes on people he knew, and his lack of remorse for his

actions, we would have found no abuse of discretion with the revocation

court’s conclusion that an aggregate sentence of 4 to 8 years’ imprisonment

is reasonable and not excessive. Accordingly, Payne’s sole challenge to the

discretionary aspects of his sentence would not have raised a substantial

question for our review.

      Judgment of sentence affirmed.




                                    -6-
J-S71030-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/8/2017




                          -7-
