J-S71041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EDWARD LYNN                                :
                                               :
                       Appellant               :   No. 1299 EDA 2018

           Appeal from the Judgment of Sentence September 23, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0006884-2007


BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                          FILED DECEMBER 11, 2018

       Appellant Edward Lynn appeals from the judgment of sentence entered

following his violation of probation. Appellant asserts that the trial court failed

to state its reasons for imposing the sentence on the record. The trial court

and the Commonwealth agree that Appellant is entitled to a re-sentencing

hearing. We vacate the judgment of sentence and remand for re-sentencing.

       The trial court summarized the relevant background of this matter as

follows:

       With respect to CP-51-CR-0006884-2007, on March 20, 2008,
       [Appellant] pled guilty to Aggravated Assault, Firearms Not to be
       Carried Without a License, and Simple Possession.[1] He was
       sentenced to eighteen to thirty six months of confinement for
____________________________________________


1 18 Pa.C.S. § 2702, 18 Pa.C.S. § 6106, and 35 P.S. § 780-113(a)(16),
respectively.
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        Aggravated Assault and five years of probation for the firearms
        charge. No further penalty was given for Simple Possession.

        On March 12, 2013, [Appellant] appeared before th[e c]ourt on
        CP-51-CR-0013620-2012 (not at issue in this appeal) and pled
        guilty to Possession of a Firearm Prohibited[2] and Firearms Not to
        be Carried Without a License. Th[e c]ourt sentenced [Appellant]
        to eleven and one half to twenty three months of confinement
        followed by five years of probation for Possession of a Firearm
        Prohibited and five years of probation for Firearms not to be
        Carried Without a License. On that same day, th[e c]ourt found
        [Appellant] to be in violation of its probation on CP-51-CR-
        0006884-2007, revoked probation, and imposed a sentence of
        eighteen to thirty six months of confinement for Aggravated
        Assault and eight years of probation for Firearms Not to be Carried
        Without a License.

        On May 26, 2014, while on th[e c]ourt’s probation, [Appellant]
        was arrested for Aggravated Assault and related charges. On
        September 23, 2016, [Appellant] appeared before th[e c]ourt to
        enter into a negotiated guilty plea to the 2014 charges and
        proceed with a Violation of Probation hearing on his older cases.
        At that time, [Appellant] indicated that he was not in fact guilty of
        the 2014 charges, and as such th[e c]ourt did not accept the
        negotiated plea. Th[e c]ourt then proceeded with a Daisey
        Kates[3] hearing, and found [Appellant] to be in violation of its
        probation on his 2007 and 2012 dockets. On CP-51-CR-0006884-
        2007, th[e c]ourt revoked probation and sentenced [Appellant] to
        three and one half to seven years of confinement for [Firearms
        Not to be Carried Without a License] with no further penalty for
        Aggravated Assault. . . .         [Appellant filed a motion for
        reconsideration of the VOP sentence on September 30, 2016, and]
        subsequently filed a Notice of Appeal to the Superior Court of
        Pennsylvania, which was quashed as untimely on May 2, 2017
        (547 EDA 2017). On April 7, 2017, [Appellant] filed a pro se
        petition under the Post Conviction Relief Act (“PCRA”). On June
        30, 2017, PCRA counsel filed an Amended PCRA petition. On
        September 11, 2017, th[e c]ourt granted [Appellant’s] PCRA
        petition and reinstated his appellate rights. . . . [Appellant] did
____________________________________________


2   18 Pa.C.S. § 6105.

3   Commonwealth v. Kates, 305 A.2d 701 (Pa. 1973).


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      not file a Notice of Appeal to the Superior Court for docket CP-51-
      CR-0006884-2007, the instant matter, until November 15, 2017,
      more than sixty days after [Appellant’s] appellate rights were
      reinstated. As such, the Superior Court quashed the appeal as
      untimely on February 5, 2017 (3719 EDA 2017).

      [Appellant] subsequently filed a PCRA petition with th[e c]ourt.
      Th[e c]ourt approved [Appellant’s] petition and reinstated his
      appellate rights nunc pro tunc on April 16, 2018. [Appellant] filed
      a timely Notice of Appeal to the Superior Court on April 26, 2018.

Trial Ct. Op., 5/29/18, at 1-3.

      The trial court did not order Appellant to file a concise statement of

errors complained of on appeal under Pa.R.A.P. 1925(b), and Appellant did

not file one. The trial court filed a Pa.R.A.P. 1925(a) opinion.

      On appeal, Appellant raises the following question:

      Did the trial court abuse its discretion when it sentenced
      [Appellant] to an aggregate sentence of 3½ to 7 years[’]
      incarceration, during which proceeding the sentencing court did
      not follow the dictates of 42 Pa.C.S. § 9721(b), which requires the
      court to at least consider the particular circumstances of the
      offense and the character of the defendant?

Appellant’s Brief at 4.

      According to Appellant, “the record is silent as to whether the court fully

considered the factors under 42 Pa.C.S. § 9721(b).”        Id. at 9.   Appellant

argues that since the trial court “failed to adequately state reasons on the

record on how the imposed sentence would serve the purposes defined in 42

Pa.C.S. § 9721(b), the sentencing court’s imposition of a manifestly

unreasonable sentence was an abuse of discretion.” Id. at 7.

      Appellant’s issue implicates the discretionary aspects of sentencing.

      [C]hallenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. An appellant challenging

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      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. [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.A. § 9781(b).

Commonwealth v. Derry, 150 A.3d 987, 991 (Pa. Super. 2016) (citations

omitted).

      As to the requirement that a substantial question be raised, this Court

has explained that a substantial question “exists only when an appellant

advances a colorable argument that the sentencing judge’s actions were either

inconsistent with a specific provision of the Sentencing Code or contrary to

the fundamental norms underlying the sentencing process.” Commonwealth

v. Bynum-Hamilton, 135 A.3d 179, 184 (Pa. Super. 2016) (citation

omitted).

      Here, Appellant’s appeal was timely, he preserved his issue in a motion

for reconsideration of sentence, and his brief contains a concise statement of

the reasons relied upon for allowance of appeal. Additionally, Appellant raises

a substantial question, since we have previously held that an appellant

“raise[s] a substantial question for our review by asserting that the trial court

failed to state adequate reasons on the record for [the a]ppellant’s sentence.”

Commonwealth v. Flowers, 149 A.3d 867, 871 (Pa. Super. 2016) (citation

omitted).

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      We note that

      the requirement that a trial court explain its sentence [arises]
      under Section 9721 and corresponding Criminal Rule 708 [and]
      has two components. First, the court must state its reasons on
      the record at the time the sentence is imposed.

                                      ***

      Second, although [a] sentencing court need not undertake a
      lengthy discourse for its reasons for imposing a sentence, . . . the
      record as a whole must reflect the sentencing court’s
      consideration of the facts of the crime and character of the
      offender.

Id. at 875-76 (internal quotation marks and citations omitted).

      In the instant matter, it is undisputed that the trial court did not include

its reasons on the record for the sentence it imposed. The trial court indicated

in its opinion pursuant to Pa.R.A.P. 1925(a) that “it committed reversible error

when it failed to state its reasons for the sentence imposed on the record[.]”

Trial Ct. Op., 5/29/18, at 3. We agree with the trial court and remand this

matter for resentencing. See Flowers, 149 A.3d at 877.

      Judgment of sentence vacated.         Case remanded for re-sentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/18



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