Com. v. Carr, S. (memorandum)

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J-S34031-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. SHAWN R. CARR Appellant No. 1699 WDA 2013 Appeal from the Judgment of Sentence September 18, 2013 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000026-2009; CP-33-CR-0000125-2009; CP-33-CR-0000126-2009; CP-33-CR-0000127-2009 BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J. MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 16, 2014 Appellant, Shawn R. Carr, appeals from the judgment of sentence entered in the Jefferson County Court of Common Pleas, following revocation of his probation. We affirm. On February 17, 2010, Appellant pled guilty to four (4) counts of delivery of a controlled substance in Jefferson County.1 That same day, the Jefferson County court sentenced Appellant on each count to fourteen (14) probation, with all sentences to run concurrently. While under supervision, Appellant committed new crimes in Clarion County. ____________________________________________ 1 35 P.S. § 780-113(a)(30). On August 14, 2013, J-S34031-14 Appellant pled guilty in the Clarion County Court of Common Pleas to delivery of a controlled substance, drug delivery resulting in death, criminal use of communication, and abuse of a corpse.2 The Clarion County court The Jefferson County court held a Gagnon II revocation hearing on September 18, 2013, in which the court took judicial notic plea and sentence in Clarion County, and revoked his probation. The imprisonment on each count of delivery of a controlled substance, to run consecutively, for an agg imprisonment. The Jefferson County court also ordered the sentence to run Appellant filed a post-sentence motion for reconsideration on September 26, 2013, which the Jefferson County court denied on October 10, 2013. While still represented by counsel, Appellant filed several pro se post-sentence motions for modification and reconsideration, which the Jefferson County court denied.3 Appellant filed a timely notice of appeal on October 18, 2013. On October 22, 2013, the Jefferson County court ordered ____________________________________________ 2 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 2506(a), 7512(a), and 5510, respectively. 3 See generally Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032 (2011) (reiterating rule that court will not consider pro se filings of defendant who is represented by counsel of record). -2- J-S34031-14 Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied on November 8, 2013. Appellant raises the following issue for our review: WHETHER THE [JEFFERSON COUNTY] COURT COMMITTED AN ABUSE OF DISCRETION BY RESENTENCING [APPELLANT] TO FOUR CONSECUTIVE SENTENCES AGGREGATING TO A MINIMUM OF TWENTY (20) YEARS TO A MAXIMUM OF SIXTY (60) YEARS IN A STATE CORRECTIONAL INSTITUTION GIVEN THE CIRCUMSTANCES OF THE CASE. ( Appellant argues his aggregate revocation sentence of twenty (20) to because, as a result, he will be incarcerated for a total of twenty-eight (28) to seventy-six (76) years, where the Jefferson County revocation sentence runs consecutive to the Clarion County sentence of eight (8) to sixteen (16) y adequately addressed the factors of 42 Pa.C.S.A. § 9721(b), such as the protection of the public, the gravity of the offense, and the rehabilitative needs of Appellant. Appellant concludes this Court should vacate the revocation sentence and remand for appropriate sentencing because the Jefferson County consecutive revocation sentences are excessive, and the -3- J-S34031-14 Jefferson County court failed to state adequate reasons on the record for the severity of the revocation sentence. As presented, Appellant challenges the discretionary aspects of his revocation sentence. See Commonwealth v. Dunphy, 20 A.3d 1215 (Pa.Super. 2011) (stating claim that sentencing court failed to offer adequate reasons to support sentence challenges discretionary aspects of sentencing); Commonwealth v. Prisk, 13 A.3d 526 (Pa.Super. 2011) (stating generally allegations regarding sentencing discretionary aspects of sentencing); Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive challenges discretionary aspects of sentencing). When reviewing the outcome of a revocation proceeding, this Court is limited to determining the validity of the proceeding and the legality of the judgment of sentence imposed. 1021 (Pa.Super. 2005). Commonwealth v. Heilman, 876 A.2d Notwithstanding the stated scope of review suggesting only the legality of a sentence is reviewable, an appellant may also challenge the discretionary aspects of a sentence imposed following revocation. Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super. 2000). See also Commonwealth v. Cappellini, 690 A.2d 1220 (Pa.Super. 1997) (addressing discretionary aspects of sentence imposed following revocation of probation). -4- J-S34031-14 Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. 910 (Pa.Super. 2000). Commonwealth v. Sierra, 752 A.2d Prior to reaching the merits of a discretionary sentencing issue: [W]e 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 (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), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). When appealing the discretionary aspects of a sentence, an appellant separate concise statement demonstrating a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. relation to the sentencing guidelines and what particular provision of the code it vio Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.Super. 2004) (quoting Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super. 2000), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000)). requirement that an appellant separately set forth the reasons relied upon -5- J-S34031-14 multitude of factors impinging on the sentencing decision to exceptional Commonwealth v. Williams, 562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc). sufficiently articulates the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process, will such a statement be deemed adequate to raise a substantial question so as to permit a grant of allowance of appeal of the discretionary aspects of the sentence. See [Commonwealth v. Koehler, 558 Pa. 334, 370, 737 A.2d 225, 244 (1999)] (party must articulate why sentence raises doubts that sentence was improper under the Sentencing Code). Mouzon, supra at 435, 812 A.2d at 627. The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Anderson, 830 were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the Sierra, supra at 912-13. A claim that a sentence is manifestly excessive might raise a substantial Rule 2119(f) statement sufficiently articulates the manner in which the sentence imposed violates a specific provision of the Sentencing Code or the -6- J-S34031-14 norms underlying the sentencing process. Mouzon, supra at 435, 812 A.2d at 62 consecutive sentence, rather than a concurrent one, does not raise a substantial question. Prisk, supra sons for [a] sentence does raise a Dunphy, supra at 1222 (quoting Commonwealth v. Reynolds, 835 A.2d 720, 734 (Pa.Super. 2003)). probation is vested within the sound discretion of the trial court, which, Commonwealth v. Hoover, 909 A.2d 321, 322 (Pa.Super. 2006). A sentence should not be disturbed where it is evident the court was aware of the appropriate sentencing considerations and weighed them in a meaningful fashion. Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.Super. 2000). The Sentencing Guidelines do not apply to sentences imposed following revocation of probation. Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa.Super. 2006), appeal denied, 588 Pa. 788, 906 A.2d 1196 court is limited only by the maximum sentence that it could have imposed originally at the ti Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001). A court can sentence a defendant to total confinement after revoking probation if the defendant was -7- J-S34031-14 ates that it is likely that he will commit another crime if he is not imprisoned, or such a sentence Commonwealth v. Crump, 995 A.2d 1280 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010). Preliminarily we note Appellant failed to raise in his post-sentence Therefore, this argument is waived. See Commonwealth v. Mann, 820 A.2d 788 (Pa.Super. 2003) (stating issues that challenge discretionary aspects of sentencing are generally waived if they are not raised during sentencing proceedings or in post-sentence motion). Moreover, even if properly preser court enumerated its reasons for the sentence at the revocation hearing, During the revocation hearing, the Jefferson County court took judicial County court reviewed the postpresent case, as well as the PSI and the Clarion County sentence. Additionally, the Jefferson County court -8- J-S34031-14 rt then convicted in Clarion County of delivery of a controlled substance, drug delivery resulting in death, criminal use of communication, and abuse of a corpse. See Crump, supra. Therefore, the record indicates the Jefferson County court was aware of the relevant sentencing considerations and weighed them in a meaningful fashion. See Fish, supra. Moreover, to a manifestly excessive sentence because it runs consecutive to the Clarion County sentence does not raise a substantial question. See Mouzon, supra; Prisk, supra revocation sentence should remain undisturbed. See Hoover, supra. Accordingly, we affirm the judgment of sentence. Judgment of sentence affirmed. *PRESIDENT JUDGE EMERITUS STATEMENT. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/16/2014 -9- BENDER FILES A DISSENTING

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