Com. v. Holloway, K. (memorandum)

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J-S82020-18 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. KURT HOLLOWAY Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1579 EDA 2018 Appeal from the Judgment of Sentence April 27, 2018 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0001877-2017 BEFORE: LAZARUS, J., OLSON, J., and STRASSBURGER*, J. MEMORANDUM BY OLSON, J.: FILED FEBRUARY 08, 2019 Appellant, Kurt Holloway, appeals from the judgment of sentence entered on April 27, 2018. We affirm. The trial court ably summarized the facts and procedural posture of this appeal: On July 13, 2017, Appellant [pleaded] guilty to one count of retail theft. . . . [The trial court sentenced him to serve a term of three years of probation.]. As [a] special condition[] of his probation he was ordered, [among other things, to] continue residence at Last Stop Recovery House. . . . Shortly after being [placed on probation,] Appellant left the court-ordered recovery house without permission or notice. He incurred a new arrest in Bucks County on September 1, 2017, and a second arrest in Montgomery County on September 13, 2017. Appellant’s arrest in Bucks County was for a retail theft of powder infant formula from a Wegman’s Store. His arrest in Montgomery County was for possession of a controlled substance and drug paraphernalia. He was taken into custody and detained at the Bucks County ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S82020-18 Correctional Facility [(“BCCF”)] after the Montgomery County arrest. While in BCCF, Appellant incurred six misconducts. . . . Trial Court Opinion, 7/24/18, at 1-3 (internal footnotes and some internal capitalization omitted). On April 27, 2018, the trial court held a violation of probation hearing. The trial court found Appellant in violation of his probation and the trial court then resentenced Appellant to serve a term of one to three years in prison for the underlying retail theft conviction.1 N.T. Revocation and Resentencing Hearing, 4/27/18, at 28-31. Appellant filed a timely notice of appeal. He raises one claim to this Court: Did the trial court abuse its discretion by imposing a sentence that was excessive in that it exceeds what is necessary to protect the public and rehabilitate Appellant? Appellant’s Brief at 5 (some internal capitalization omitted). Appellant’s claim challenges the discretionary aspects of his sentence. See Commonwealth v. Lee, 876 A.2d 408 (Pa. Super. 2005) (claim that the trial court erred in imposing an excessive sentence is a challenge to the discretionary aspects of a sentence). We note that, in an appeal following the revocation of probation, our scope of review includes discretionary aspects of sentencing claims. Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc). With respect to our standard of review, we have held ____________________________________________ 1 18 Pa.C.S.A. § 3929(a)(1). -2- J-S82020-18 that “sentencing is a matter vested in the sound discretion of the sentencing judge, whose judgment will not be disturbed absent an abuse of discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001). Moreover, pursuant to statute, Appellant does not have an automatic right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for permission to appeal the discretionary aspects of his sentence. Id. As this Court has explained: [t]o reach the merits of a discretionary sentencing issue, we conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, Pa.R.Crim.P. [708(E)]; (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. § 9781(b). Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007); see also Cartrette, 83 A.3d at 1042 (“issues challenging the discretionary aspects of a sentence [following the revocation of probation] must be raised in a postsentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discretionary aspect of a sentence is waived”); Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008) (“when a court revokes probation and imposes a new sentence, a criminal defendant needs to preserve challenges to the -3- J-S82020-18 discretionary aspects of that new sentence either by objecting during the revocation sentencing or by filing a [motion to modify] sentence”). Appellant did not challenge the discretionary aspects of his sentence at the resentencing hearing and Appellant did not file a motion to modify his sentence. See N.T. Revocation and Resentencing Hearing, 4/27/18, at 1-32; Pa.R.Crim.P. 708(E). Therefore, Appellant waived his discretionary aspects of sentencing claim. Cartrette, 83 A.3d at 1042. Judgment of sentence affirmed. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 2/8/19 -4-

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