J-S48029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 WILLIAM WARD                             :
                                          :
                    Appellant             :   No. 2284 EDA 2017

           Appeal from the Judgment of Sentence June 12, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0013019-2008


BEFORE:    DUBOW, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY MURRAY, J.:                      FILED SEPTEMBER 05, 2018

      William Ward (Appellant) appeals from the judgment of sentence

imposed following the revocation of his probation. Upon review, we affirm.

      The trial court summarized the factual and procedural background as

follows:

            On December 14, 2009, [Appellant] entered into an open
      guilty plea to ethnic intimidation, graded as a felony of the first
      degree, and conspiracy to commit aggravated assault, graded as
      a felony of the second degree. A presentence sentence report was
      ordered and sentencing was deferred several times until February
      7, 2011.

            [The trial court] sentenced [Appellant] to 11½ to 23 months
      county incarceration, plus five years reporting probation on both
      counts to run concurrent. In addition, this sentence was to run
      concurrent with the sentence [Appellant] was serving for Judge
      Bronson, with credit for time served. As conditions of sentence,
      [the trial court] ordered [Appellant] to complete anger
      management treatment, undergo random urinalysis, obtain a
      GED, complete job training, seek and maintain employment, stay
      out of trouble with the law, stay away from the complainant and

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     his wife, and pay mandatory court costs and supervision fees at a
     rate of $40 per month. No appeal was filed.

           While serving probation, [Appellant] was arrested on April
     29, 2016 and charged with possession of a controlled substance
     with intent to deliver (PWID) and conspiracy. [Appellant] was
     sentenced on that case on May 22, 2017 by Judge McCaffery to
     1½ to 3 years state incarceration, plus 4 years reporting
     probation.

            A violation of probation hearing was held on June 12, 2017
     . . . . [The trial court] read and incorporated the report of the
     Probation Department, dated 5/25/2017, into the record. The
     [c]ourt noted that at the time of arrest, [Appellant] was employed
     but had not paid court costs or completed vocational training or
     anger management treatment, which was necessitated by the
     nature of the ethnic intimidation. Defense Counsel stated he
     believed that [Appellant] was doing well on probation prior to the
     new arrest, requested the [c]ourt “take everything into
     consideration” and impose a sentence concurrent with the new
     sentence imposed by Judge McCaffery.

           The Commonwealth then elaborated on facts of the new
     conviction that formed the basis for this direct violation. The
     underlying offense was possession with intent to deliver $16,000
     worth of narcotics. The Commonwealth argued that the amount
     of drugs indicated that this was neither a part time job nor
     supplemental income for [Appellant]. [The] Commonwealth also
     argued that the amount of drugs suggested that [Appellant] did
     not enter this activity recently and that [Appellant] was carrying
     out this activity regularly while on [the c]ourt’s probation. The
     Commonwealth recommended the [c]ourt punish the ethnic
     intimidation more harshly than the PWID due to the higher rate of
     victimization. As a result, the Commonwealth recommended a
     sentence of 2 to 4 years’ incarceration plus five years of probation.

            This [c]ourt asked [Appellant] to recall that when he pled
     guilty, the maximum possible sentence was 30 years in jail. The
     [c]ourt noted that [Appellant] served two years, so there were 28
     years remaining for which [Appellant] could be sentenced.
     [Appellant] responded that he knew he made a mistake and that
     he lost dearly with family and kids. He stated he hoped the [c]ourt
     would not sentence him to 28 years. [Appellant] did not express
     remorse for any of his actions.

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             This [c]ourt found [Appellant] in both direct and technical
      violation of probation.     This [c]ourt revoked probation and
      imposed a new sentence of five to ten years in state prison on the
      ethnic intimidation charge, plus five years reporting probation to
      run consecutive to parole. This sentence was to run consecutive
      to Judge McCaffery’s sentence. On the conspiracy to commit
      aggravated assault charge, the [c]ourt imposed a new sentence
      of five years reporting probation, which would run concurrent to
      the probation for ethnic intimidation.      As conditions of the
      sentence, [Appellant] was ordered to complete anger
      management treatment, job training, parenting classes, undergo
      random urinalysis, and pay $40 a month in costs, finds, and
      supervision fees.

             [Appellant filed an unsuccessful motion for reconsideration
      of his sentence on June 22, 2017.] On July 12, 2017, [Appellant]
      filed a Notice of Appeal to the Superior Court. On August 2, 2017,
      upon receipt of the notes of testimony, this [c]ourt ordered
      appellate counsel to file a Concise Statement of Errors pursuant
      to Pa.R.A.P. 1925(b). Appellate counsel did so on August 24,
      2017.

Trial Court Opinion, 9/22/17, at 1-4.

      On appeal, Appellant presents two questions for our review:

      1. Was not the [trial] court’s imposition of a five (5) to ten (10)
         year sentence of incarceration for violations of probation an
         abuse of discretion where the court violated the requirements
         of 42 Pa.C.S.[A]. § 9721(b) of the Sentencing Code where the
         court failed to give individualized consideration to [A]ppellant’s
         personal history, rehabilitative needs or background, and
         without explaining how, as a matter of law, this sentence was
         the least stringent one adequate to protect the community and
         to serve the rehabilitative needs of the [A]ppellant?

      2. Did not the trial court err and abuse its discretion by sentencing
         [Appellant] to an excessive period of incarceration?

Appellant’s Brief at 4.

      These issues challenge the discretionary aspects of Appellant’s

sentence.   “The right to appellate review of the discretionary aspects of a


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sentence is not absolute, and must be considered a petition for permission to

appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super.

2014), appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a

four-part test to invoke this Court’s jurisdiction when challenging the

discretionary aspects of a sentence.” Id. We conduct this four-part test to

determine whether:

     (1) the appellant preserved the issue either by raising it at the
     time of sentencing or in a post[-]sentence motion; (2) the
     appellant filed a timely notice of appeal; (3) the appellant set forth
     a concise statement of reasons relied upon for the allowance of
     his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
     raises a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a

substantial question when he sets forth a plausible argument that the

sentence violates a provision of the sentencing code or is contrary to the

fundamental norms of the sentencing process.” Commonwealth v. Dodge,

77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),

appeal denied, 91 A.3d 161 (Pa. 2014).

     Here, Appellant has complied with the first three prongs of the

discretionary aspect test to invoke our jurisdiction.     We thus proceed to

determine whether he has raised a substantial question. Appellant argues in

his 2119(f) statement that the sentence imposed by the trial court was

“manifestly unreasonable and excessive.” Appellant’s Brief at 10. A claim



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that a sentence is manifestly excessive such that it constitutes too severe a

punishment     raises   a   substantial    question     for     our   review.     See

Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011).

       Our scope of review in an appeal of a sentence imposed after probation

revocation is limited to the validity of the revocation proceedings and the

legality of the sentence imposed following revocation. Commonwealth v.

Infante, 888 A.2d 783, 790 (Pa. 2005). “Revocation of a probation sentence

is a matter committed to the sound discretion of the trial court and that court’s

decision will not be disturbed on appeal in the absence of an error of law or

an abuse of discretion.” Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa.

Super. 2008) (citation omitted). Upon sentencing following a 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. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001).

However, a re-sentence may not exceed the statutory limits of the sentence,

including allowable deductions for time served. See id.

       Although Appellant argues that the sentence imposed by the trial court

following revocation of probation was excessive, he notably does not argue

that the sentence imposed by the court was beyond the maximum. Nor does

the record support such an assertion. It is well settled that the sentencing

guidelines do not apply to sentences imposed as a result of probation or parole

revocations.   Commonwealth v. Ware, 737 A.2d 251, 255 (Pa. Super.


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1999), appeal denied, 747 A.2d 900 (Pa. 1999).1 Here, the trial court did

not exceed the statutory maximum when it resentenced Appellant to five to

ten years’ imprisonment for ethnic intimidation following the revocation of his

probation.     Therefore, we find no abuse of discretion in the trial court’s

sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/5/18




____________________________________________


1 204 Pa.Code § 303.1(b) states: “The sentencing guidelines do not apply to
sentences imposed as a result of the following: . . . revocation of probation,
intermediate punishment or parole.”

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