J-A12005-14

                            2014 PA Super 187

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellee         :
                                        :
           v.                           :
                                        :
KEITH HARDY,                            :
                                        :
                       Appellant        :     No. 1098 EDA 2013


                Appeal from the Order Entered April 3, 2013,
           In the Court of Common Pleas of Philadelphia County,
         Municipal Court Division, at No. MC-51-CR-0041747-2010.


BEFORE: SHOGAN, STABILE and PLATT*, JJ.

OPINION BY SHOGAN, J.:                            FILED AUGUST 29, 2014



petition for writ of certiorari. Upon review, we vacate and remand.

     On June 18, 2012, Appellant pled guilty to one count of retail theft on

each of two docket numbers:        MC-51-CR-0041747-2010 and MC-51-CR-

0053427-2011.    He was sentenced to one year of reporting probation on

each charge, the sentences to run concurrently.

     On January 16, 2013, Appellant pled guilty to theft by unlawful taking.



revoked and he was sentenced to three to twelve months of incarceration on

each conviction, to run consecutively, for an aggregate sentence of six to

twenty-four months.



__________________
*Retired Senior Judge assigned to the Superior Court.
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      The trial court summarized the subsequent procedural history of this

case as follows:

            Appellant, Keith Hardy, appealed the Philadelphia Municipal
                                     e imposed on January 16, 2013,
      following a revocation of probation. He filed a petition for writ of
      certiorari with [the court of common pleas], seeking review of
      whether the lower court erred at the probation violation hearing
      on the grounds that his right to allocution was denied. A hearing
      was held before [the court of common pleas] on April 3, 2013.
      After hearing oral argument, [the court of common pleas] denied
      the petition . . . This was the sole issue raised before [the court
      of common pleas] at the April 3, 2013 hearing.

            Mr. Hardy filed a timely appeal on April 11, 2013. He
      timely filed a . . . Statement of Matters complained of on Appeal,
      pursuant to [Pa.R.A.P.] 1925(b) on April 29, 2013.

Trial Court Opinion, 7/18/13, at 1.

      Appellant presents the following issues for our review:

            1.   Did not the lower court err when it failed to afford
      Mr. Hardy the fundamental right to speak on his own behalf prior
      to the imposition of sentence?

            2.    Did not the lower court err as a matter of law,
      violate general sentencing principles and abuse its discretion by
      imposing a manifestly excessive state sentence for two retail
      theft convictions during a violation of probation hearing where

      record which consisted exclusively of minor thefts or his
      rehabilitative needs and therefore imposed a sentence that was
      grossly disproportionate to the crimes and alleged violation,

      rehabilitation and far surpassed what was required to protect the
      public?




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was appealed, and thus, only one judgment is properly before this Court for




the two underlying retail theft convictions, specifically the conviction at

docket   number       MC-51-CR-0041747-2010.       Id.     Accordingly,   the

Commonwealth maintains that the judgment of sentence in the other

matter, at docket number MC-51-CR-0053427-2011, is not properly at issue

in this appeal. Id.

                                       of appeal found within the certified

record reveals that it lists only docket number MC-51-CR-0041747-2010.

Notice of Appeal, 4/10/13, at 1. We therefore lack jurisdiction to review the

sentence imposed at docket number MC-51-CR-0053427-2011.                  See

Commonwealth v. Garwood, 466 A.2d 1086, 1087 (Pa. Super. 1983)

(explaining that, because a bill of information was not included in the notice

of appeal, no appeal had been filed from the judgment of sentence imposed

at that number, and this Court had no jurisdiction to grant relief at that

number); see also Commonwealth v. Keys, 460 A.2d 253, 254-255 (Pa.

Super. 1983) (where the relevant bills of information were not listed on the

notice of appeal, appellants could not amend their notices of appeal after the




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J-A12005-14



time for filing the appeal had expired, and as a result, this Court quashed

the appeals); see also Commonwealth v. Tuck, 469 A.2d 644, 646, n.1

(Pa. Super. 1983) (limiting consideration of claim on appeal to only that bill

of information listed in the notice of appeal).   Thus, we shall proceed by



the judgment of sentence at docket number MC-51-CR-0041747-2010.

      In his first issue, Appellant claims that the trial court erred in

concluding that Appellant had waived his claim regarding his right to



claim when he raised it in his post-

                                 he filed within ten days of the imposition of

sentence. Id. Furthermore, Appellant maintains that the trial court erred in

failing to inform him that he had a right to make a statement on his own

behalf, and by failing to allow him to make a statement pursuant to

Pa.R.Crim.P. 704 and 708. Id.

error mandates reversal and remand for re-sentencing. Id. at 20.

      In Commonwealth v. Jacobs, 900 A.2d 368, 372 (Pa. Super. 2006)

(en banc), the panel explained that in order to preserve a claim of error

pertaining to the right of allocution, the defendant must raise the claim

before the trial court at the time of sentencing or in a post-sentence motion,

or suffer waiver of the claim on appeal. Id. In the case at bar, review of




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the record reflects that Appellant filed a timely post-sentence motion, titled



that he was not provided his right of allocution.       Petition to Vacate and

Reconsider Sentence, 1/18/13, at 1.1 Thus, we are constrained to conclude

that the trial court erred in holding that Appellant waived this issue.



holding in Jacobs, that a defendant may preserve an allocution claim either

at a sentencing hearing or in a timely post-sentence motion, is dicta

                                                            Jacobs, this Court

granted en banc consideration on the specific issue of whether a denial of

allocution creates a non-waivable challenge to the legality of the sentence.

Jacobs, 900 A.2d at 372. In order to determine the waiver issue, the Court

by necessity had to address how the claim could be preserved. As such, the

holding that a claim could be preserved only at a sentencing hearing or in a

post-sentence motion was essential to its determination of whether the

assertion of denial of allocution was non-waivable and, accordingly, is not

dicta.   Therefore, the holding in Jacobs

allocution claim is not waived because it was raised with the trial court in a



1

challenge by the defendant c

The trial court made no reference to the assertion regarding the denial of the
                                           -sentence motion.


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J-A12005-14



timely post-sentence motion.      Thus, we must consider the merits of



     The general right to allocution is set forth in Pa.R.Crim.P. 704(C)(1),

which provides:

           At the time of sentencing, the judge shall afford the
     defendant the opportunity to make a statement in his or her
     behalf and shall afford counsel for both parties the opportunity
     to present information and argument relative to sentencing.

P.R.Crim.P. 704(C)(1).    Additionally, Pa.R.Crim.P. 708(D)(1), pertaining to

sentencing procedures following revocation of probation, provides:

           At the time of sentencing, the judge shall afford the
     defendant the opportunity to make a statement in his or her
     behalf and shall afford counsel for both parties the opportunity
     to present information and argument relative to sentencing.

Pa.R.Crim.P. 708(D)(1).    Similarly, the Sentencing Code, at 42 Pa.C.S.A.

§ 9752   Sentencing proceeding generally      requires that the sentencing



Pa.C.S.A. § 9752(a)(2).



address the court prior to sentencing, and thereby plead for mercy, is of

paramount importance and has rejected the proposition that a defendant

must show prejudice because of the denial of the right. Commonwealth v.

Thomas, 553 A.2d 918, 919 (Pa. 1989).         As the Thomas Court stated:

                                     right of allocution might have on the




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subjective process of sentencing can never be known with such certainty



Id. The Court interpreted then-Rule 1405, now renumbered at Rule 704,2 as

requiring the sentencing court to inform the defendant of his right to speak

prior to sentencing, and where the trial court erroneously fails to so inform

the defendant of the right, a resentencing hearing is required. Id.; see also

Commonwealth v. Hague

failure to afford a criminal defendant the right to address the court prior to



        In the present case, the record reveals that Appellant was not

afforded, nor made aware of, the opportunity for allocution as is mandated



sentence is vacated and this case is remanded for resentencing with specific

instructions to the trial court to afford Appellant the opportunity to speak on

his own behalf if he so chooses.

        Because we remand for a new sentencing hearing, we need not



afforded the opportunity for allocution.




2
    See Note to Pa.R.Crim.P. 704.


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J-A12005-14



      Judgment of sentence vacated.       Matter remanded for resentencing.

Jurisdiction relinquished.

      PLATT, J., files a Concurring Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/29/2014




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