J-S12027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ROBERT LEDBETTER,

                            Appellant               No. 980 EDA 2015


            Appeal from the Judgment of Sentence of August 7, 2012
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001505-2010


BEFORE: MUNDY, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                           FILED MARCH 02, 2016

        Appellant, Robert Ledbetter, appeals from the judgment of sentence

entered on August 7, 2012, as made final by the denial of his post-sentence

motion on December 14, 2012. We affirm.

        The factual background and procedural history of his case are as

follows. On June 12, 2006, Appellant pled guilty to indecent assault without

consent.1     As a collateral consequence of that conviction, Appellant was

required to register as a sex offender. On June 2, 2009, Appellant failed to

register as required by statute.



____________________________________________


1
    18 Pa.C.S.A. § 3126(a)(1).




*Retired Senior Judge assigned to the Superior Court.
J-S12027-16


        On February 22, 2010, Appellant was charged via criminal information

with failure to register as a sex offender,2 failure to verify address or be

photographed as required,3 and failure to provide accurate registration

information.4 On June 2, 2010, Appellant pled nolo contendre to failure to

verify address or be photographed as required and was immediately

sentenced to three years’ probation.             On May 19, 2011, Appellant was

charged, in Delaware County, with 18 counts of possession of a firearm by a

prohibited person.5       On September 23, 2011, those charges were nolle

prossed because Appellant was charged with possession of a firearm by a

convicted felon6 in the United States District Court for the Eastern District of

Pennsylvania. See United States v. Ledbetter, 11-cr-504 (E.D. Pa.). On

November 28, 2011, Appellant pled guilty in federal court to possession of a

firearm by a convicted felon and was eventually sentenced to 46 months’

imprisonment.




____________________________________________


2
    18 Pa.C.S.A. § 4915(a)(1).
3
    18 Pa.C.S.A. § 4915(a)(2).
4
    18 Pa.C.S.A. § 4915(a)(3).
5
    18 Pa.C.S.A. § 6105.
6
    18 U.S.C. § 922(g)(1).




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        Based upon these charges, the Commonwealth sought revocation of

Appellant’s probation. On August 7, 2012, a Gagnon II7 hearing was held.

At that hearing, the trial court found Appellant in direct violation of the

terms of his probation, revoked his probation, and sentenced him to two to

four years’ imprisonment.          On August 16, 2012, Appellant filed a post-

sentence motion.        On December 14, 2012, that motion was denied via

operation of law. On April 6, 2013, Appellant filed a petition pursuant to the

Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.         Counsel

was appointed and, on April 6, 2015, the PCRA court granted the petition

and reinstated Appellant’s direct appeal rights nunc pro tunc.      This appeal

followed.8

        Appellant presents one issue for our review:

        Is the [A]ppellant entitled to a new sentence hearing because
        the sentence imposed by the trial court was unreasonable?

Appellant’s Brief at 2.

        In his lone issue, Appellant argues that his sentence is excessive. This

issue challenges the discretionary aspects of Appellant’s sentence.        See

Commonwealth v. Haynes, 125 A.3d 800, 806 (Pa. Super. 2015).                We
____________________________________________


7
    See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
8
  On April 13, 2015, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(a). On April 22, 2015, Appellant filed his concise statement.
On July 16, 2015, the trial court issued its Rule 1925(a) opinion. Appellant’s
lone issue on appeal was included in his concise statement.



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note that “[s]entencing 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), appeal denied, 85 A.3d 481 (Pa. 2014) (citation

omitted).

       Since Appellant was sentenced following the revocation of probation,

the sentencing guidelines do not apply to Appellant’s sentence.           204 Pa.

Code § 303.1(b); Commonwealth v. Williams, 69 A.3d 735, 741 (Pa.

Super. 2013), appeal denied, 83 A.3d 415 (Pa. 2014).9               Nevertheless,

Appellant may challenge the discretionary aspects of his revocation

sentence.     See Commonwealth v. Cartrette, 83 A.3d 1030, 1033-1042

(Pa. Super. 2013) (en banc).          In sentencing Appellant, the trial court was

required to “consider the general principles and standards of the Sentencing

Code.” Commonwealth 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).

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9
  Our General Assembly required that sentencing guidelines be promulgated
for probation revocation proceedings. See 42 Pa.C.S.A. § 2154.4. The
Pennsylvania Commission on Sentencing, however, has not yet complied
with this mandate.



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     Pursuant to statute, 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

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”). Appellant filed a timely notice of appeal and the issue

was properly preserved in a post-sentence motion.      Appellant’s brief also

includes a statement pursuant to Pennsylvania Rule of Appellate Procedure




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2119(f).10    Thus, we turn to whether the appeal presents a substantial

question.

       “In order to establish a substantial question, the appellant must show

actions by the trial court inconsistent with the Sentencing Code or contrary

to   the     fundamental        norms     underlying   the       sentencing   process.”

Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014)

(citation omitted). “The determination of whether a particular case raises a

substantial    question    is   to   be   evaluated    on    a   case-by-case   basis.”

Commonwealth v. Seagraves, 103 A.3d 839, 841 (Pa. Super. 2014),

appeal denied, 116 A.3d 604 (Pa. 2015) (citation omitted).

       In his Rule 2119(f) statement, Appellant argues that this case presents

a substantial question because the trial court failed to consider the nature of

the underlying offense and did not state its reasons for imposing its

sentence on the record. He also argues that a sentence of total confinement

was unwarranted in this case. He further argues that the consecutive nature

of his sentence, along with the trial court’s failure to consider his

rehabilitative needs, was contrary to the fundamental norms of the

Sentencing Code. “An allegation that [the trial court] failed to offer specific

reasons for a sentence does raise a substantial question.” Commonwealth

____________________________________________


10
    Although the Commonwealth states that Appellant’s Rule 2119(f)
statement is defective, it is in fact arguing that Appellant does not raise a
substantial question.



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v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011) (internal quotation

marks, alteration, and citations omitted). As Appellant raises such a claim,

this case presents a substantial question and, thus, we consider the merits

of his discretionary aspects claim.

       Appellant    argues     that    a   sentence   of   total   confinement   was

inappropriate in this case. The Sentencing Code, however, specifically states

that a sentence of total confinement may be imposed if “the defendant has

been convicted of another crime[.]” 42 Pa.C.S.A. § 9771(c). As Appellant

was convicted of another crime, i.e., possession of a firearm by a convicted

felon, total confinement was appropriate in this case. Appellant also argues

that the trial court failed to consider the underlying offense for which he was

on probation. This argument is without merit. At the Gagnon II hearing,

the trial court heard that Appellant was required to register as a sex offender

because he was convicted of having sexual intercourse with an underage

female. See N.T., 8/7/12, at 4.11 Appellant then addressed the trial court

regarding the underlying offense, i.e., failure to verify address or be

photographed as required. Id. at 5. The trial court noted that although it

was concerned with the underlying charge, it was more concerned with

Appellant’s failure to comply with the terms of his probation. See id.


____________________________________________


11
   The notes of testimony from August 7, 2012 are incorrectly marked as
being from August 7, 2013.



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      Appellant also argues that the trial court abused its discretion by

ordering Appellant’s sentence to run consecutively to his federal sentence.

He avers that the trial court was unaware of the length of the federal

sentence. The record belies this assertion. The trial court was informed of

the length of the sentence at the Gagnon II hearing and asked a question

to clarify the length of the sentence.            Id. at 4.      The trial court then

determined that a consecutive sentence was appropriate. This is consistent

with this Court’s precedent. Commonwealth v. Swope, 123 A.3d 333, 341

(Pa. Super. 2015) (citation omitted) (“Appellant is not entitled to a volume

discount for his crimes.”); Commonwealth v. Zirkle, 107 A.3d 127, 134

(Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa. 2015).

      Appellant     contends   that    the   trial    court   failed   to    consider    his

rehabilitative needs.    The sentencing transcript, however, reflects that the

trial court engaged in a colloquy with Appellant about how he was told to

stay out of trouble while on probation. N.T., 8/7/12, at 4-5. Then, as the

trial court put it, Appellant had “gun charges of all things” brought against

him. Id. at 5. The trial court therefore determined that probation was not

succeeding     in   rehabilitating    Appellant      and   sentenced        him   to    total

confinement.

      Finally, Appellant argues that the trial court did not adequately explain

its rationale for its sentence. As this Court has noted, “although a court is

required to explain its reasons for imposing sentence, it need not specifically


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cite or include the language of the sentencing code, it must only

demonstrate that the court [] considered the factors specified in the code.”

Commonwealth v. Fish, 752 A.2d 921, 924 (Pa. Super. 2000) (internal

quotation marks and citation omitted). We conclude that the trial court in

the case sub judice satisfied this minimum requirement. Our review of the

sentencing transcript indicates that the trial court reviewed Appellant’s case

prior to the Gagnon II hearing. See N.T., 8/7/12, at 4 (offering unsolicited

that Appellant was on probation for a sexual offense).         The trial court

determined that Appellant’s possession of at least 18 firearms while both a

convicted felon and still on probation constituted a danger to the public. As

noted above, the trial court also found that such possession was a grave

violation of the terms of Appellant’s probation. Id. at 4-5. Finally, the trial

court considered Appellant’s rehabilitative needs.         It concluded that

Appellant was lying when he averred at the Gagnon II hearing that he was

unaware he could not possess a firearm. Id. at 6. It therefore determined

that a sentence of two to four years’ imprisonment was appropriate.

      We conclude that this determination was not an abuse of discretion.

Appellant committed a serious sex offense and was required to register as a

sex offender. Appellant failed to comply with his registration requirements

and made excuses for his failure.    See id. at 5 (stating that his failure to

register was a result of a miscommunication with the Pennsylvania State

Police). As a convicted felon, Appellant was aware that he could not possess


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a firearm; yet, he was found in possession of at least 18 firearms. He then

pleaded ignorance of the law at his Gagnon II hearing.           The record

supports the trial court’s conclusion that Appellant’s refusal to comply with

the collateral consequences of his convictions and his violation of the terms

of his probation warranted significant prison sentence.         Accordingly,

Appellant’s discretionary aspects claim is without merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2016




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