J-S63025-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANTHONY PAUL MUNOZ

                            Appellant                 No. 471 MDA 2014


             Appeal from the Judgment of Sentence August 1, 2013
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0003754-2008
                                          CP-36-CR-0004581-2010
                                          CP-36-CR-0004656-2010


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                       FILED NOVEMBER 10, 2014

        Appellant, Anthony Paul Munoz, appeals from the judgment of

sentence entered August 1, 2013, in the Court of Common Pleas of

Lancaster County, following the revocation of his probation. We affirm.

        On May 18, 2012, Munoz entered guilty pleas to two counts of Delivery

of Cocaine at 4581 and 4656 of 2010, respectively, and to one count of

Possession with Intent to Deliver Cocaine at 3754 of 2008. Pursuant to a

negotiated plea agreement, Munoz was sentenced to concurrent terms of ten

years’ probation on each count.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      While serving probation, Munoz entered guilty pleas to two counts of

criminal conspiracy to deliver a controlled substance at 914 and 915 of

2013. On August 1, 2013, the trial court conducted a probation revocation

hearing for the charges imposed at 4581 and 4656 of 2010 and 3754 of

2008. After reviewing a pre-sentence investigation report, the court revoked

Munoz’s probation and resentenced him to five to ten years’ incarceration at

each count, to be served concurrently. Munoz filed a timely post-sentence

motion, which the trial court denied.

      Munoz’s privately retained counsel filed a notice of appeal and a

Petition for Leave to Withdraw. Counsel was permitted to withdraw and new

counsel was subsequently appointed.           On October 23, 2013, this Court

quashed Munoz’s appeal as untimely.            Thereafter, Munoz filed a PCRA

petition requesting reinstatement of his appellate rights nunc pro tunc,

which the PCRA court granted.           Munoz filed a new Motion to Modify

sentence, which the trial court denied.         A timely nunc pro tunc appeal

followed.

      On appeal, Munoz argues that his aggregate sentence was manifestly

excessive and grossly disproportionate to the crimes committed.            Our

standard when reviewing a sentence imposed following the revocation of

probation is as follows:

      Our review is limited to determining the validity of the probation
      revocation proceedings and the authority of the sentencing court
      to consider the same sentencing alternatives that it had at the
      time of the initial sentencing. Also, upon sentencing following
      revocation of probation, the trial court is limited only by the

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     maximum sentence that it could have imposed originally at the
     time of the probationary sentence.

Commonwealth v. Tann, 79 A.3d 1130, 1132 (Pa. Super. 2014) (citation

omitted), appeal denied, 94 A.3d 1009 (Pa. 2014).

     Munoz challenges the discretionary aspects of his sentence.             In

Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc),

an en banc panel of this Court concluded that “this Court’s scope of review in

an appeal from a revocation sentencing includes discretionary sentencing

challenges.” Id., at 1034. Therefore, Munoz’s claim is properly before us.

     A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted).

     An appellant challenging the discretionary aspects of his
     sentence must invoke this Court’s jurisdiction by satisfying a
     four-part test:

     [We] 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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

     Here, Munoz filed a timely appeal and challenged his sentence in a

post-sentence motion. Munoz’s appellate brief also contains the requisite


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Rule 2119(f) concise statement, in which he argues that the trial court’s

sentence of five to ten years’ incarceration was disproportionate to the

crimes committed, and so manifestly excessive as to constitute an abuse of

discretion. Appellant’s Brief at 14. This claim raises a substantial question

for our review.     See Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa.

Super. 2011) (claim that a sentence is manifestly excessive such that it

constitutes too severe a punishment raises a substantial question for our

review).

      Initially, we note our confusion regarding Munoz’s challenge to the

“aggregate” nature of his sentence.      The trial court sentenced Munoz to

concurrent,    rather   than   consecutive   terms   of   five   to   ten   years’

imprisonment. Although the trial court could have sentenced Munoz to serve

consecutive terms of imprisonment, it chose not to do so.             If anything,

Munoz arguably benefited from this aspect of the court’s sentencing

structure.    Simply put, we see no basis on which to challenge the court’s

imposition of concurrent sentences.

      Although Munoz claims that the trial court erred in imposing a

sentence that was inconsistent with the protection of the public, the gravity

of the offenses, and his rehabilitative needs, we note that the trial court

reviewed a pre-sentence report.     Where the trial court had the benefit of

reviewing a pre-sentence report, we must

      presume that the sentencing judge was aware of relevant
      information regarding the defendant's character and weighed
      those considerations along with mitigating statutory factors. A

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       pre-sentence report constitutes the record and speaks for itself.
       In order to dispel any lingering doubt as to our intention of
       engaging in an effort of legal purification, we state clearly that
       sentencers are under no compulsion to employ checklists or any
       extended or systematic definitions of their punishment
       procedure. Having been fully informed by the pre-sentence
       report, the sentencing court's discretion should not be disturbed.
       This is particularly true, we repeat, in those circumstances where
       it can be demonstrated that the judge had any degree of
       awareness of the sentencing considerations, and there we will
       presume also that the weighing process took place in a
       meaningful fashion. It would be foolish, indeed, to take the
       position that if a court is in possession of the facts, it will fail to
       apply them to the case at hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citing

Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988)).

As the trial court in this case did have the benefit of a pre-sentence report,

we must presume that it considered all relevant sentencing factors and did

not impose a sentence based solely on the gravity of the offenses.

       We additionally note that while Munoz argues that the sentence

imposed by the lower court following revocation 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. See Commonwealth v. Ware, 737 A.2d

251, 255 (Pa. Super. 1999).1           Here, the lower court did not exceed the
____________________________________________


1
  204 PA.CODE § 303.1(b) provides: “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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statutory maximum when it resentenced Munoz following the revocation of

his probation.   Accordingly, we discern no abuse of discretion in the

sentence imposed by the trial court.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2014




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