J-S02023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

KEYYI HILLIAM

                         Appellant                    No. 21 EDA 2015


        Appeal from the Judgment of Sentence November 24, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-1109351-1999


BEFORE: SHOGAN, J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.:                      FILED FEBRUARY 02, 2016

      Keyyi Hilliam appeals from the judgment of sentence imposed by the

Court of Common Pleas of Philadelphia County following revocation of his

probation. Upon careful review, we affirm.

      The trial court set forth the factual and procedural history of this case

as follows:

      [Hilliam] pled guilty before the Honorable Eugene Maier, to
      attempted rape and indecent assault, for which he originally
      received a sentence of eleven and one-half to twenty-three
      months’ incarceration followed by eight years’ probation. After a
      violation hearing on July 31, 2002, Judge Maier found [Hilliam]
      in violation, revoked parole, and sentenced him to a new period
      of eleven and one-half to twenty-three months’ incarceration
      followed by eight years of probation. After a second violation
      hearing on August 25, 2005, Judge Maier revoked probation and
      sentenced [Hilliam] to four to eight years of state incarceration
      followed by twelve years of probation. In the interim, [Hilliam’s]
      supervision was transferred to this court. On March 20, 2011,
      [Hilliam] was arrested on charges including burglary and
      indecent exposure. After a bench trial, the Honorable William
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      Mazzola found [Hilliam] guilty of burglary, indecent exposure,
      and simple assault, and sentenced [Hilliam] on April 19, 2013 to
      ten to twenty years’ incarceration. Meanwhile, on May 9, 2012,
      [Hilliam] was arrested for aggravated assault and related
      charges relating to an incident wherein [Hilliam] threw a punch
      at a corrections officer. [Hilliam] eventually pled guilty before
      this court to the charges of simple assault and recklessly
      endangering another person, and received a negotiated sentence
      of two years’ probation on August 7, 2014.

      Following a violation hearing held on the same day, this court
      determined that [Hilliam] had directly violated his probation and
      deferred sentence to November 24, 2014. On that date, this
      court sentenced [Hilliam] to a period of five to ten years’
      incarceration followed by two years’ probation, consecutive to
      Judge Mazzola’s sentence.

Trial Court Opinion, 2/5/15, at 1-2 (citations omitted).

      Hilliam filed a motion for reconsideration, which the court denied on

December 4, 2015. This timely appeal followed, in which Hilliam raises the

following issue for our review:

      Was not the sentence imposed by the lower court following a
      finding [Hilliam] violated his probation, consisting of a term of
      incarceration of 5 to 10 years followed by a term of probation of
      2 years, manifestly excessive, unreasonable, contrary to the
      fundamental norms which underlie the sentencing process and
      lacking the necessary quality of individualized sentencing, where
      the lower court failed to adequately examine and investigate
      [Hilliam’s] background, character and rehabilitative needs, failed
      to state sufficiently adequate reasons for imposing the new
      sentence and failed to order or consider a pre-sentence report
      and failed to place its reasons for dispensing with such a report
      on the record?

Appellant’s Brief, at 3.

      Section 9771 of the Sentencing Code, 42 Pa.C.S. § 9771, which

governs modification or revocation of probation orders, provides:




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        (a)     General Rule. –     The court may at any time
                terminate continued supervision or lessen or increase
                the conditions upon which an order of probation has
                been imposed.

        (b)     Revocation. –        The court may revoke an order
                of probation upon proof of the violation of specified
                conditions of the probation. Upon revocation the
                sentencing alternatives available to the court shall be
                the same as were available at the time of initial
                sentencing, due consideration being given to the
                time spent serving the order of probation.

        (c)     Limitation on sentence of total confinement. –
                The court shall not impose a sentence of total
                confinement upon revocation unless it finds that:

                (1)   the defendant has been convicted of another
                      crime; or
                (2)   the conduct of the defendant indicates that it is
                      likely that he will commit another crime if he is
                      not imprisoned; or
                (3)   such a sentence is essential to vindicate the
                      authority of the court.

42 Pa.C.S. § 9771.

     Hilliam challenges the discretionary aspects of his sentence. When the

discretionary aspects of a sentence are questioned, an appeal is not

guaranteed as of right.    Commonwealth v. Moore, 617 A.2d 8, 11 (Pa.

Super. 1992).


     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

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      appealed from is not appropriate under the Sentencing Code, 42
      Pa.C.S. § 9781(b).

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011) (citation

omitted).

      Here, Hilliam filed a timely notice of appeal, and has preserved his

claim by raising it in a motion for reconsideration of sentence. In his brief

he has included a statement pursuant to Pa.R.A.P. 2119(f). Accordingly, we

must determine whether Hilliam has raised a substantial question.

      Judicial review of the discretionary aspects of a sentence is granted

only upon a showing that there is a substantial question that the sentence

was inappropriate and contrary to the fundamental norms underlying the

Sentencing Code.      Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.

1987). A substantial question exists “only when the appellant advances a

colorable argument that the sentencing judge’s actions were either: (1)

inconsistent with a specific provision in the Sentencing Code; or (2) contrary

to   the    fundamental   norms   which   underlie   the   sentencing   process.”

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999) (en

banc).

      This Court has held that a challenge to an unduly excessive sentence

together with a claim that the court failed to consider an appellant’s

rehabilitative needs upon fashioning its sentence raises a substantial

question.    Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super.

2015) (en banc)..    Accordingly, we will address Hilliam’s claims, which he

summarizes as follows:

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      In the instant matter, the lower court did not order a pre-
      sentence investigation report and did not state on the record
      why it dispensed with the report even though it sentenced the
      defendant to a term of incarceration of 5 to 10 years. More to
      the point, the lower court made little effort to ascertain any
      “information regarding the circumstances of the offense and the
      character of the defendant sufficient to assist the judge in
      determining sentence.” Pa.R.Crim.P. 702(A)(3).

Appellant’s Brief, at 16.

      Hilliam further asserts that the trial court focused on the protection of

the public without considering “the rehabilitative needs of the defendant.”

42 Pa.C.S. § 9721(b).

      The imposition of sentence following revocation of probation is vested

within the sound discretion of the trial court, which, absent abuse of that

discretion, will not be disturbed on appeal. Commonwealth v. Sierra, 752

A.2d. 910, 914 (Pa. Super. 2000). In a revocation of probation proceeding,

“a sentencing court need not undertake a lengthy discourse for its reasons

for imposing a sentence or specifically reference the statutes in question.”

Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014).              Moreover, a

revocation court is under no obligation to order a presentence report for a

defendant who has already undergone formal sentencing and consideration

of all relevant information regarding his crime, character and background.

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

      The record indicates that the court considered Hilliam’s character as

well as the nature of his crime. He is a three-time probation violator, who




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committed two sexually violent offenses against strangers, and an assault on

a correctional officer while on probation.

      The court noted Hilliam’s mental health issues before the sentencing,

and allowed him to seek psychiatric evaluation, which Hilliam declined. The

court heard testimony from his parole agent concerning Hilliam’s inability to

function in society.   Hilliam addressed the court with respect to his family

life, drug problems and mental illness. He asked the court to send him back

to the mental health unit where he was incarcerated because he felt more

comfortable there.      N.T. Hearing, 8/7/14, at 13-14; N.T. Sentencing,

11/24/14, at 13-14; 16-18, 23-35.

      Section 9721(b) of the Sentencing Code provides, “[i]n every case in

which the court . . . resentences an offender following revocation of

probation . . . the court shall make a part of the record, and disclose in open

court at the time of sentencing, a statement for the reason or reasons for

the sentence imposed.”       42 Pa.C.S. § 9721(b).       Here, the court noted

Hilliam’s lack of remorse, his failure to rehabilitate himself, his lack of control

and his inability to stay out of trouble. N.T. Sentencing, 11/24/14, at 21-24.

      Hilliam has failed to establish that the court abused its discretion in

imposing a sentence of five to ten years’ incarceration plus two years’

probation. Accordingly, we affirm the judgment of sentence.

      Judgement of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2016




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