J-S66042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    TROY VINCENT JACKSON,

                             Appellant                No. 721 WDA 2017


              Appeal from the Judgment of Sentence April 25, 2017
               in the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0008775-2011


BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 19, 2017

        Appellant, Troy Vincent Jackson, appeals from the judgment of sentence

imposed following revocation of his probation. We affirm.

        The trial court aptly set forth the relevant background of this case as

follows:
               [Appellant] was charged with a Violation of the Uniform
        Firearms Act: Persons Not to Possess Firearms, Simple Assault,
        and Recklessly Endangering Another Person.[1] He appeared
        before this court on March 6, 2013 and entered a general plea of
        guilty to all charges. On May 30, 2013, he again appeared before
        this court and was sentenced to intermediate punishment for a
        term of nine (9) months and a term of probation of three (3)
        years. No post-sentence motions were filed and no direct appeal
        was taken.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 6105(a)(1), 2701(a)(1), and 2705, respectively.
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             On September 15, 2015, [Appellant] appeared before this
       court for a probation violation hearing, having been convicted of
       another offense.[2]      At that hearing, this court revoked
       [Appellant’s] probation and imposed a term of imprisonment of
       four (4) to 10 years.[3] Post-sentence motions were filed and
       were denied on September 2[9], 2015. Initially, no direct appeal
       was taken, but [Appellant’s] appellate rights were reinstated nunc
       pro tunc and the direct appeal proceeded.            However, by
       Memorandum Opinion dated January 3, 2017, the Superior Court
       remanded the case for a resentencing hearing to enable this court
       to make a determination as to whether [Appellant] was RRRI
       (Recidivism Risk Reduction Initiative Act) eligible.         [(See
       Commonwealth v. Jackson, 160 A.3d 243 (Pa. Super. 2017))
       (unpublished memorandum)].

             The [prescribed] resentencing hearing was held on April 25,
       2017, at which time this court determined and stated for the
       record that [Appellant] was not RRRI eligible. It then reimposed
       sentence of four (4) to 10 years, with credit for time served.
       Timely post-sentence motions were filed and were denied on May
       10, 2017. This [timely] appeal followed.

(Trial Court Opinion, 6/29/17, at 1-2) (footnotes and some capitalization

omitted).4

       Appellant raises the following questions for our review:

       I. In re-sentencing [Appellant] (again) to 4-10 years’ state
       incarceration, whether the trial court abused its discretion by
       relying on incorrect facts and misinformation?


____________________________________________


2 Specifically, Appellant pleaded guilty to one count of possession of a
controlled substance and a summary traffic offense.

3 The court had the benefit of two pre-sentence investigation (PSI) reports.
(See N.T. Probation Violation Hearing, 9/15/15, at 2).

4 Appellant filed a timely, court-ordered concise statement of errors
complained of on appeal on June 7, 2017. The trial court entered an opinion
on June 29, 2017. See Pa.R.A.P. 1925.

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      II. In re-sentencing [Appellant] (again) to 4-10 years’ state
      incarceration, whether the trial court abused its discretion when
      the requirements of 42 Pa.C.S.A. § 9721(b) were not met?

(Appellant’s Brief, at 5).

      “Initially, we note that, 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) (citation

omitted).   In this case, both of Appellant’s issues on appeal challenge the

discretionary aspects of his sentence.

             Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. Rather, Appellant must
      first meet his burden of satisfying the following four elements
      before we will review the discretionary aspect of a sentence:

            (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.[ ] § 9781(b).

Commonwealth v. Johnson-Daniels, 167 A.3d 17, 27 (Pa. Super. 2017)

(case citations and quotation marks omitted).

      Here, Appellant met the first three elements by filing a timely notice of

appeal, properly preserving the issues in his post-sentence motion, and

including a Rule 2119(f) statement in his brief. Because Appellant’s claims



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that the trial court relied on incorrect facts and misinformation in re-

sentencing him, and that it failed to consider relevant sentencing criteria as

required by 42 Pa.C.S.A. § 9721(b), each present a substantial question, we

will review them on the merits. See Commonwealth v. McAfee, 849 A.2d

270, 274 (Pa. Super. 2004), appeal denied, 860 A.2d 122 (Pa. 2004) (stating

appellant’s claim that trial court relied on incorrect factual assertions in

imposing sentence asserts substantial question); see also Commonwealth

v. Derry, 150 A.3d 987, 995, 999 (Pa. Super. 2016) (holding sentencing

court’s failure to consider Section 9721(b) factors presents substantial

question for review of discretionary aspects of sentence imposed for violation

of probation). Our standard of review is as follows:

             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. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Johnson-Daniels, supra at 28 (citation omitted).

      In his first issue, Appellant argues that the trial court relied on incorrect

information regarding his criminal history in resentencing him.              (See

Appellant’s Brief, at 29-33).     Specifically, Appellant avers that the court

mistakenly believed that he was convicted of other crimes (robbery and

possession with intent to deliver a controlled substance) relatively recently

(five years ago), when, contrary to the court’s belief, he was convicted of


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these crimes many years ago, in 1992 and 2003. (See id. at 29-31). This

issue does not merit relief.

      This Court has stated, “[i]f a sentencing court considers improper factors

in imposing sentence upon a defendant, although the sentence thereby

imposed is not rendered illegal, the court has committed an abuse of

discretion.” McAfee, supra at 274 (citation omitted).

            . . . [T]he discretion of a sentencing judge is not
            unfettered; a defendant has the right to minimal
            safeguards to ensure that the sentencing court does
            not rely on factually erroneous information, and any
            sentence predicated on such false assumptions is
            inimicable [sic] to the concept of due process. . . .

      See [] [Commonwealth] v. Karash, 452 A.2d [528,] 528
      (citations omitted) (“[T]he court violates the defendant’s right to
      due process if, in deciding upon the sentence, it considers
      unreliable information or information affecting the court’s
      impartiality, or information that it is otherwise unfair to hold
      against the defendant.”).

Commonwealth v. Rhodes, 990 A.2d 732, 746 (Pa. Super. 2009), appeal

denied, 14 A.3d 827 (Pa. 2010) (some citations and footnote omitted).

      Instantly, our review of the resentencing proceeding indicates that the

trial court did not rely on misinformation and incorrect facts in sentencing

Appellant. (See N.T. Resentencing, 4/25/17, at 2-15). Although the court

briefly misspoke regarding the timeframe of Appellant’s prior offenses, it did

not attribute to him offenses that he did not commit, and a review of the guilty

plea transcript reflects that the court was well-aware of the correct timeframe.

(See id. at 10; see also N.T. Guilty Plea, 3/06/13, at 3). In fact, the court’s



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misstatement at the resentencing hearing was apparently so minor that it

went unnoticed, and no one corrected it at that time. (See N.T. Resentencing,

at 10). Viewing the proceedings as a whole, we discern no abuse of discretion

by the trial court, despite its inaccurate reference to the timing of Appellant’s

past offenses. See Johnson-Daniels, supra at 28. Accordingly, Appellant’s

first issue merits no relief.

      Appellant next claims that the trial court failed to consider the criteria

set forth in Section 9721(b) of the Sentencing Code in resentencing him. (See

Appellant’s Brief, at 34-42).   Appellant maintains that the court wholesale

ignored the many things he had accomplished following his September 2015

violation hearing, mitigating evidence which demonstrated that he was

rehabilitated and deserved a lesser sentence. (See id. at 34, 40, 42). This

issue merits no relief.

      Section 9721(b) requires the court to apply the following general

principles: “[T]he 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). “The court is

not required to parrot the words of the Sentencing Code, stating every factor

that must be considered under Section 9721(b), [however,] the record as a

whole must reflect due consideration by the court of the statutory

considerations at the time of sentencing.” Johnson-Daniels, supra at 26

(citation and internal quotation marks omitted).

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      In addition, we note that “[w]here [a PSI] exist[s], we [ ] presume that

the [trial court] was aware of relevant information regarding the defendant’s

character and weighed those considerations along with mitigating statutory

factors.” Commonwealth v. Bonner, 135 A.3d 592, 605 (Pa. Super. 2016),

appeal denied, 145 A.3d 161 (Pa. 2016) (citation omitted).

      Here, a review of the resentencing proceeding indicates that defense

counsel detailed for the court Appellant’s efforts to improve his circumstances,

including completing a prison class, working at the prison library, and

engaging in good behavior while incarcerated. (See N.T. Resentencing, at 4-

5). Appellant’s mother spoke to his good character, his three children, and

his strong family and community support, and she asked for leniency. (See

id. at 6-8). Appellant expressed remorse for violating his probation and his

dedication to improving his life for himself and his family. (See id. at 11-12).

Before imposing sentence, the trial court indicated that it had considered all

of the evidence before it and acknowledged that Appellant has taken some

positive steps. (See id. at 8-9, 13-14). However, the court concluded that

incarceration for the specified time was necessary because Appellant had

continued the path he had chosen, despite the court’s previous grant of

leniency. (See id. at 13).

      After reviewing the transcript of Appellant’s resentencing hearing, we

find no support for his assertion that the trial court disregarded the section

9721 factors. Further, as noted, the court had the benefit of two pre-sentence

investigation reports. (See N.T. Probation Violation Hearing, 9/15/15, at 2).

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Thus, we presume that it was aware of and properly considered all mitigating

evidence in formulating its sentence. See Bonner, supra at 605. We discern

no abuse of discretion in the court’s sentencing decision, and conclude

Appellant’s second issue lacks merit. See Johnson-Daniels, supra at 28.

Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2017




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