J-S74021-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
JAMAINE JONES,                           :
                                         :
                 Appellant               : No. 345 EDA 2014

        Appeal from the Judgment of Sentence November 15, 2013,
               Court of Common Pleas, Philadelphia County,
            Criminal Division at No. CP-51-CR-0000183-2009

BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED DECEMBER 18, 2014

     Jamaine Jones (“Jones”) appeals from the judgment of sentence

entered following the revocation of his probation. We affirm.

     The trial court summarized the relevant factual history as follows:

           On October 6, 2009, [Jones] entered an open guilty
           plea to the charge of [p]ossession [w]ith [i]ntent to
           [d]istribute in front of the Honorable Denis P. Cohen,
           Judge of the Court of Common Pleas. [Jones] was
           subsequently sentenced to six [] to twenty-three []
           months [of] incarceration, followed by three [] years
           of probation. On October 3, 2011, [Jones] was
           arrested for possession of firearms. On September
           10[,] 2013, a jury convicted [Jones] of [p]ersons not
           to [p]osses, [u]se, [m]anufacture, [c]ontrol, [s]ell or
           [t]ransfer [f]irearms before the Honorable Genece
           Brinkley, Judge of the Court of Common Pleas. On
           November 12, 2013, Judge Brinkley sentenced
           [Jones] to five [] to ten [] years [of] incarceration.
           On December 20, 2013, [Jones] appeared before
           [the Honorable Judge Cohen] for a violation of
           probation (VOP) hearing, at which [the trial court]
           revoked [Jones’] original probation and sentenced



*Retired Senior Judge assigned to the Superior Court.
J-S74021-14


            [him] to two [] to four [] years [of] incarceration
            consecutive to the sentence imposed by Judge
            Brinkley.

                  On December 31, 2013, the Defender’s
            Association of Philadelphia filed a post-sentence
            [m]otion to [v]acate and [r]econsider [s]entence
            [n]unc [p]ro [t]unc on behalf of [Jones]. On January
            17, 2014, [Jones] filed a [n]otice of [a]ppeal. On
            January 23, 2014, [the trial court] issued a 1925(b)
            [o]rder.   On February 11, 2014, [Jones] filed a
            [s]tatement of [m]atters [c]omplained [of] [o]n
            [a]ppeal, as well as a [m]otion for an [e]xtension of
            [t]ime, as the relevant [n]otes of [t]estimony had
            not been completed. On March 25, 2014, [the trial
            court] issued an [a]mended 1925(b) order. On
            March 26, 2014, [Jones] filed a supplemental
            [s]tatement of [m]atters.

Trial Court Opinion, 6/30/14, at 1-2.

      Jones presents one issue for our review:

            Did not the [trial] court abuse its discretion and
            impose a manifestly excessive and unreasonable
            sentence following a revocation of probation hearing,
            by imposing a sentence of [two] to [four] years [of]
            incarceration to run consecutively to another
            sentence of [five] to [ten] years [of] incarceration
            where it was [] Jones’ first violation, the lower court
            failed to properly consider the sentencing factors,
            and a sentence of consecutive total confinement far
            surpassed what is required to protect the public and
            is well beyond what is necessary to foster [Jones’]
            rehabilitation?

Jones’ Brief at 4.




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      With   this   claim,   Jones   challenges   discretionary   aspects   of   his

sentence.1   “Challenges to the discretionary aspects of sentencing do not

entitle an appellant to review as of right.”      Commonwealth v. Allen, 24

A.3d 1058, 1064 (Pa. Super. 2011) (citation omitted).

             An appellant challenging the discretionary aspects of
             his sentence must invoke this Court’s jurisdiction by
             satisfying a four-part test: (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. Evans, 901 A.2d
             528, 533 (Pa. Super. 2006).

Id.

      Jones filed a timely notice of appeal, raised this claim in his post-

sentence motion,2 and included a statement pursuant to Pa.R.A.P. 2119(f) in



1
  We note that in 2013, an en banc panel of this Court “unequivocally h[e]ld
that this 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).
2
  Jones filed his post-sentence motion one day late. The Commonwealth
urges us to find this issue waived because Jones’ post-sentence motion was
untimely. The trial court also recognized the untimeliness of the post-
sentence motion, but addressed the merits of this issue in its Rule 1925(a)
opinion. See Trial Court Opinion, 6/30/14, at 3-4. Because the trial court
addressed this issue on its merits, we decline to find it waived. See
Commonwealth v. Garcia, 661 A.2d 1388, 1392 (Pa. Super. 1995)
(declining to find waiver “where the defendant raises the issue post-trial in a
procedurally defective manner and the trial court chooses to overlook the


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his brief. Accordingly, we consider whether he has presented a substantial

question that his sentence is not appropriate under the Sentencing Code.

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.      Commonwealth v. Glass, 50 A.3d

720, 727 (Pa. Super. 2012).

            A substantial question exists where an appellant
            advances a colorable argument that the trial court's
            actions were inconsistent with a specific provision of
            the sentencing code, or contrary to the fundamental
            norms underlying the sentencing process. In
            determining whether a substantial question exists,
            our inquiry must focus on the reasons for which the
            appeal is sought in contrast to the facts underlying
            the appeal, which are necessary only to decide the
            appeal on the merits.

Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012)

(internal citations omitted).   Furthermore, this Court may not look beyond

the content of the 2119(f) statement to determine whether the appellant has

raised a substantial question. Id.

      In his Rule 2119(f) statement, Jones contends that the trial court

erred by imposing his sentence without considering the factors set forth in

42 Pa.C.S.A. § 9721(b). Jones’ Brief at 8. This claim raises a substantial

question.   See Commonwealth v. Dodge, 77 A.3d 1263, 1272 n.8 (Pa.



defect and address the issue on its merits”); see also Commonwealth v.
Santiago, 822 A.2d 716, 723 (Pa. Super. 2003) (declining to find waiver of
issue Commonwealth failed to raise during suppression hearing and
belatedly raised in a motion to reconsider suppression ruling where trial
court addressed issue on its merits in Rule 1925(a) opinion).


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Super. 2013) (holding that claim the sentencing court failed to consider 42

Pa.C.S.A. § 9721 factors presents a substantial question).

     Jones also states that his sentence is “manifestly excessive” because it

was ordered to run consecutively to the sentence imposed on his new

charges. Id. at 9. However, in his Rule 2119(f) statement, Jones does no

more than make the bald assertion that his sentence is excessive for this

reason.   See id.   Such a bald statement is not sufficient to invoke our

review. Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013),

reargument denied (Nov. 21, 2013), appeal denied, 91 A.3d 161 (Pa. 2014)

(holding that a bald claim of excessiveness due to the consecutive nature of

sentences does not raise a substantial question).3 Thus, we do not consider

this aspect of Jones’ argument.

     Our standard of review for sentencing claims 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. An abuse of discretion is more than just
           an error in judgment and, on appeal, the trial court
           will not be found to have abused its discretion unless


3
  We note that such a claim can, under certain circumstances, present a
substantial question. See Commonwealth v. Austin, 66 A.3d 798, 808
(Pa. Super. 2013) (“[T]he 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[.]”). In
his Pa.R.A.P. 2119(f) statement, Jones does not allege how his incarceration
is unduly harsh in light of the nature of the crimes and the overall length of
the term of imprisonment. He states only that the consecutive sentence is
“disproportionate to the totality of [his] circumstances.” Jones’ Brief at 9.


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            the record discloses that the judgment exercised was
            manifestly unreasonable, or the result of partiality,
            prejudice, bias, or ill-will. More specifically, 42
            Pa.C.S.A. § 9721(b) offers the following guidance to
            the trial court's sentencing determination: “[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). Thus, under 42 Pa.C.S.A. § 9721(b), a
            sentencing court must formulate a sentence
            individualized to that particular case and that
            particular defendant.

Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013) (internal

citations omitted). Furthermore,

            in all cases where the court resentences an offender
            following revocation of probation ... the court shall
            make as a part of the record, and disclose in open
            court at the time of sentencing, a statement of the
            reason or reasons for the sentence imposed and
            failure to comply with these provisions shall be
            grounds for vacating the sentence or resentence and
            resentencing the defendant. A trial court need not
            undertake a lengthy discourse for its reasons for
            imposing a sentence or specifically reference the
            statute in question, but the record as a whole must
            reflect the sentencing court's consideration of the
            facts of the crime and character of the offender.

Commonwealth v. Colon, 2014 WL 5408189 at *9 (Pa. Super. Oct. 24,

2014) (internal citations omitted).

      Jones argues that the trial court failed to give “individualized

consideration to [his] circumstances or rehabilitative needs.” Jones’ Brief at

17-18.   We disagree.   The trial court made the following statement when

imposing Jones’ sentence:


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               The [c]ourt takes into account the history of
          the case before us, everything that everyone said,
          what you said, what both counsel said, what the
          probation officer said.

                The [c]ourt takes into account the whole
          history of this matter before this [c]ourt. I have
          notes in my file to refresh my recollection that since
          the district attorney … is not the district attorney
          back on October 6th, 2011 when you entered the
          plea and since counsel here was not the counsel on
          October 6th, they probably don’t have anything in
          their file [sic] about it, but I have all sorts of
          markings on my file.

                 First of all, this was an open guilty plea on
          October the 6th. And the district attorney was asking
          at that time for a sentence not too far different than
          what [the district attorney] is asking for now, a
          difference of a year both ways, except that [the prior
          district attorney] was asking for probation and [the
          present district attorney] is – if you remember, she
          asked for sentence of [one] to [three] years state
          incarceration and [four] years [sic] probation, and
          she asked that to run consecutive [sic] to any
          sentence.

                What the [c]ourt did is the [c]ourt said – the
          [c]ourt was giving you a big break. And given that
          you already had a big hit before, the [c]ourt gave
          you a big break, and the [c]ourt imposed a sentence
          of [six] to [twenty-three] months concurrent
          followed by [three] years [of] probation. So that
          was a big break the [c]ourt gave you at the time … .

                So I did not give you - I know you were
          supervised with the sentence of [five] to [ten] that
          you had started serving in 1999 when you were
          convicted of the aggravated assault, so I gave you a
          break. But I also made a note that I gave you a big
          break at sentencing. And I made a note that if you
          violate, then you’re going to have to pay the
          consequence for violating. They already gave you



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            the big break. Now is not the time to give you any
            more breaks. You got your break from me before.

                  Now it’s time you have to take responsibility
            for your conduct. And committing the offense you
            committed under this [c]ourt’s probation is a very
            serious offense.

                  So the [c]ourt is considering everything the
            [c]ourt has said, the need to protect the community,
            rehabilitative needs, and the impact of the violation
            of the community – the [c]ourt will – you’re currently
            on the [c]ourt’s probation, the [c]ourt will revoke
            probation because of the direct violation; and the
            [c]ourt is more focused on the direct violation than
            the technical, without having the state parole officer
            here, you’ve raised some issues, I’m not going to
            make a decision based upon you not reporting but on
            the direct violation.

                  So the [c]ourt is revoking probation.     And the
            [c]ourt will impose a sentence of [two]       to [four]
            years state incarceration, and this           will run
            consecutive [sic] to the sentence that         you are
            currently serving.

N.T., 12/20/13, at 9-12.

      From these comments, we discern that the trial court imposed a highly

individualized sentence. The trial court presided over Jones’ open guilty plea

and, at that time, gave Jones a light sentence in consideration of the other

lengthy sentence he was serving. The trial court found that the nature of

the conviction that spawned Jones’ direct probation violation – persons not

to possess firearms – was a serious offense, thus considering the need to

protect the public.   The probation officer testified that while on probation,

Jones was under the supervision of the Anti-Violence High Risk Unit because



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he was a high-risk offender. Id. at 4. Moreover, the trial court appears to

have determined that Jones is not amenable to rehabilitation, as it gave due

consideration to the fact that Jones squandered the “break” the trial court

had previously given him. We therefore find no merit to Jones’ claim.

         The trial court’s statements at the time of sentencing “reflect [its]

consideration of the facts of the crime and character of the offender[,]”

Colon, 2014 WL 5408189 at *9, as well as the statutory factors contained in

42 Pa.C.S.A § 9721(b), and so we find no abuse of discretion by the trial

court.

         Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/18/2014




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