J-S20017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                    v.

MEREDITH SEDDON,

                          Appellant                 No. 761 WDA 2014


        Appeal from the Judgment of Sentence Entered April 8, 2014
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0013880-2005


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED MAY 21, 2015

      Appellant, Meredith Seddon, appeals from the judgment of sentence

entered on April 8, 2014, following the revocation of his probation at CP-02-

CR-0013880-2005.          After careful review, we vacate and remand for

resentencing.

      The trial court set forth the relevant facts and procedural history of

this matter as follows:

            [Appellant] has appealed from the judgment of sentence
      entered on April 8, 2014 following the third revocation of
      [Appellant’s] probation. A review of the record reveals that
      [Appellant] has failed to present any meritorious issues on
      appeal and, therefore, the judgment of sentence must be
      affirmed.

            [Appellant] was charged [at docket number CP-02-CR-
      0013880-2005] with Rape, Involuntary Deviate Sexual
      Intercourse and Sexual Assault following an incident which
      occurred with his wife’s mentally challenged 20-year old niece.
      He appeared before this Court on June 27, 2006 and, pursuant
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     to a plea agreement, pled guilty to Sexual Assault (the other
     charges were withdrawn) and was immediately sentenced to a
     term of imprisonment of two (2) to four (4) years, with a
     concurrent term of probation of five (5) years. No Post-Sentence
     Motions were filed and no direct appeal was taken.

           [Appellant] next appeared before this Court on June 20,
     2011. At that time, he pled guilty to two other informations (CC
     201103100 relating to the Failure to Register and CC
     2011013967 relating to Receiving Stolen Property and DUI). At
     that hearing, this Court also revoked [Appellant’s] probation at
     [CC 0013880-2005,] the above-captioned information and
     imposed a term of imprisonment of six (6) to 12 months, with an
     additional term of probation of three (3) years. Again, no Post-
     Sentence Motions were filed and no direct appeal was taken.

           On October 2, 2012, [Appellant] again appeared before
     this Court for a probation violation hearing resulting from
     another new conviction at CC 201206453, relating to the Failure
     to Register under Megan’s Law. At that hearing, this Court
     revoked [Appellant’s] probation [at CC 0013880-2005] and
     imposed a new term of probation of three (3) years consecutive
     to the sentence at CC 201206453. Again, no Post-Sentence
     Motions were filed and no direct appeal was taken.

            On April 8, 2014, [Appellant] again appeared before this
     Court for a probation revocation hearing, this time resulting from
     three (3) new convictions at CC 201308922 (relating to DUI and
     other charges) and CCs 201315081 and CC 201309009 (both
     relating to Flight to Avoid Apprehension and Conspiracy). This
     Court revoked [Appellant’s] probation [in the instant case at CP-
     02-CR-0013880-2005] and imposed a term of imprisonment of
     three (3) to six (6) years. Timely Post-Sentence Motions were
     filed and were denied on April 19, 2014. This appeal followed.

Trial Court Opinion, 12/3/14, at 1-2 (footnotes omitted).

     On appeal, Appellant raises the following issue for this Court’s

consideration:

     Was the sentence imposed manifestly excessive, unreasonable,
     and an abuse of discretion where the court failed to consider the
     rehabilitative needs of [Appellant], failed to order a presentence



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        report, and focused on erroneous and improper factors in
        fashioning a sentence?

Appellant’s Brief at 4 (full capitalization omitted).

        Appellant’s claim challenges the discretionary aspects of his sentence.

An appellant seeking to appeal the discretionary aspects of a probation-

revocation sentence has no absolute right to do so but, rather, must petition

this Court for permission to do so. Commonwealth v. Kalichak, 943 A.2d

285, 289 (Pa. Super. 2008); 42 Pa.C.S. § 9781(b).        However, before this

Court may review the merits of a challenge to the discretionary aspects of a

sentence, we must engage in a four-pronged analysis:

        [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).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).                 See

also Pa.R.Crim.P. 708, cmt. (discussing proper preservation of issues

challenging discretionary aspects of a sentence imposed following a

revocation hearing).

        We note that Appellant has met the first three parts of the four-prong

test:   Appellant timely filed an appeal; Appellant preserved the issue in a

post-sentence motion; and Appellant included a statement pursuant to




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Pa.R.A.P. 2119(f) in his brief. Thus, we next assess whether Appellant has

raised a substantial question.

      A determination as to whether a substantial question exists is made on

a case-by-case basis. Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super.

2000). 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.”         Id. at

912–913.

      In his Rule 2119(f) statement, Appellant argues that the trial court

imposed an excessive sentence relying on improper factors, which included

the mistaken belief that Appellant possessed a firearm and was involved in a

high speed chase during one of the new crimes that resulted in his probation

revocation. Appellant’s Brief at 11. We conclude that Appellant has raised a

substantial question.   See Commonwealth v. P.L.S., 894 A.2d 120, 127

(Pa. Super. 2006) (holding that a claim that the sentencing court considered

impermissible factors raises a substantial question).

      Our standard of review in cases involving the challenges to the

discretionary aspects of a sentence is well settled. We have explained that:

         [t]he 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. An abuse of discretion is more than
         an error in judgment—a sentencing court has not abused
         its discretion unless the record discloses that the judgment

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       exercised was manifestly unreasonable, or the result of
       partiality, prejudice, bias or ill-will.

     Commonwealth v. Simmons, 56 A.3d 1280, 1283–84 (Pa.
     Super. 2012).

             In determining whether a sentence is manifestly
       excessive, the appellate court must give great weight to
       the sentencing court’s discretion, as he or she is in the
       best position to measure factors such as the nature of the
       crime, the defendant’s character, and the defendant’s
       display of remorse, defiance, or indifference.

     Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super.
     2003).

           Upon revoking probation, a sentencing court may choose
     from any of the sentencing options that existed at the time of
     the original sentencing, including incarceration. 42 Pa.C.S.A. §
     9771(b). “[U]pon 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. Infante, 63 A.3d 358, 365 (Pa. Super.
     2013) (internal quotation marks and citations omitted).
     However, 42 Pa.C.S.A. § 9771(c) provides that once probation
     has been revoked, a sentence of total confinement may only be
     imposed if any of the following conditions exist:

       (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.A. § 9771(c).

Commonwealth v. Colon, 102 A.3d 1033, 1043-1044 (Pa. Super. 2014).




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       In the case at bar, the notes of testimony from Appellant’s Gagnon II

hearing,1 which are reproduced below, reveal the trial court’s mistake:

       THE COURT: Well, although I will say at the onset that I
       appreciate [Justice Related Services (“JRS”)] and the work that
       they do, I do not think that [Appellant] is an appropriate
       candidate. They’ve been supervising you for eight years, and
       really you’ve not done very much right. The original charge was
       a rape charge which was reduced. You were a convicted violator
       for failure to register for Megan’s Law, which I think is a very
       serious offense under the circumstances. You’re also a convicted
       violator for being in a high speed chase with a gun. You’re
       also a convicted violator for being arrested for assault, although
       I believe those charges may have been withdrawn. On June 22,
       again you were arrested for failure to register.

             You’ve been given a number of opportunities to seek
       rehabilitation, and you have failed to do so. This Court thinks
       that you are a habitual criminal, and your combination of
       violence, guns and sexual assault leads this Court to believe
       that you are a danger.

            At Count 3, I order you to pay the costs, to undergo a
       term of three to six years effective today. You have the right to
       appeal the decision of this Court within 30 days, the right to
       have a lawyer, I would appoint one to represent you free of
       charge.

       [Counsel for Appellant] MR. KUSTRA: Your Honor, I’d ask the
       Court to reconsider that sentence and perhaps order a pre-
       sentence report. He - -

       THE COURT: Tell me what you’ve done right.

       [Appellant]: I try. I really try.

       THE COURT: You’re trying, but you’re not trying. You did a
       high speed chase. That’s just running from the cops. You
       had a gun.


____________________________________________


1
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).



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     [Appellant]: It wasn’t a high speed chase. I wasn’t involved
     in a high speed chase. I wasn’t carrying a gun. I don’t
     know where you’re getting the information of all of that
     at. There was no - -

     THE COURT: I could be wrong. Let me double check.

     [Appellant]: There was no gun involved. I don’t carry weapons.
     And I wasn’t involved in a high speed chase. I’m a father who,
     yeah, I got a drinking problem, and I had some mental health
     issues.

     THE COURT: I think you are right. I see no gun charge. Do
     you see a gun charge?

     [Office of Probation] MS. LYNN: No, Your Honor.

     THE COURT: I’m sorry.

     MS. LYNN: The one flight to avoid apprehension. The case
     ending in 9009, the details of the police report, the short
     summary that’s in here, I mean, there was obviously a car
     involved. He took Alicia Diamond’s truck to avoid apprehension,
     and in the other case it was a situation of him hiding in a hotel
     bathroom. There was a car involved in the second - -

     [Appellant]: I borrowed my girlfriend’s car to go see my lawyer.
     That’s where - -

     THE COURT: That’s not against the law? Okay Bernie, I’m done.

     (At this juncture, the above-entitled matter was concluded.)

N.T., 4/8/14, at 5-7 (emphases added).

     As illustrated in the quoted text above, the trial court admitted that it

relied on incorrect facts to support the sentence it imposed.       However,

despite this admitted mistake, the trial court did not address the error and

provided no other reasons for its sentence.

     After review, we agree with Appellant’s claim of sentencing court error.

The trial court clearly relied, at least in part, on improper, if not non-



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existent,   factors   when   it   fashioned   Appellant’s   sentence.   As   such

consideration was improper, we are constrained to vacate and remand for

resentencing at which time the trial court shall place on the record its

reasons for the sentence imposed.

      Judgment of sentence vacated.           Case remanded with instructions.

Jurisdiction relinquished.

      Judge Wecht joins the Memorandum.

      P.J.E. Ford Elliott Notes Dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/2015




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