Opinion
J-S46005-15 No. 3035 EDA 2014
08-04-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. KURTIS TYLER ALLEN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence September 24, 2014
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0004637-2006
BEFORE: MUNDY, J., OLSON, J., and MUSMANNO, J. MEMORANDUM BY MUNDY, J.:
Appellant, Kurtis Tyler Allen, appeals from the September 24, 2014 judgment of sentence of one to two years' imprisonment, imposed following the revocation of his probation. After careful review, we affirm.
The trial court summarized the relevant procedural history of this case as follows.
On March 23, 2007, [Appellant] pleaded guilty to Robbery (F3) and was sentenced to five (5) years['] probation. After violating his probation, [Appellant] was sentenced[, on March 3, 2009,] to 18 to 36 months['] incarceration [followed by two years' probation]. Upon his release from prison, he again violated his probation by incurring additional charges [in October 2013]. The new charges were for two (2) counts of Possession of a Firearm by a Felon and two (2) counts of Receiving Stolen Property. He also failed to pay fines, costs, fees and restitution. ....Trial Court Opinion, 2/11/15, at 1-2. Thereafter, on October 23, 2014, Appellant filed a timely notice of appeal.
On September 5, 2014, [Appellant] pleaded guilty to the Possession of a Firearm and Receiving Stolen Property charges. He was sentenced to 4 to 8 years[' imprisonment] in Lancaster County for those offenses.
On September 24, 2014, [Appellant] was sentenced for his violation of probation. While he could have received a 2 to 4 year sentence, the [trial] court sentenced him to 1 to 2 years imprisonment, which was what Adult Probation had requested. This sentence was consecutive to the 4 to 8 years he was serving in Lancaster County. The court explained that, due to [Appellant]'s lengthy prior record which included several violent offenses and the fact that probation had not worked with [Appellant], a 1 to 2 year sentence was appropriate.
A detainer was placed on [Appellant] on October 25, 2013. At the VOP hearing, [Appellant] asked for credit for time served from that date. His time in prison, however, was applied to his Lancaster County sentence. The [trial] court chose not to allow [Appellant] to "double dip," and therefore did not apply his credit for time served to his Chester County sentence as well.
[Appellant] filed a Petition for Reconsideration and Reduction of Sentence on October 2, 2014 and a hearing on the matter was held on October 21, 2014. At the conclusion of the hearing, the [trial] court denied [Appellant's] petition. The [trial] court again explained that based on [Appellant's prior record, his conduct while on probation, the fact that he committed additional crimes and failed to pay fines and costs, a 1 to 2 year sentence was appropriate. The [trial] court again reiterated its desire not to "double dip" with regard to credit for time served. [Appellant], therefore, did not get credit for time served on his Chester County sentence since the credit was applied to his Lancaster County sentence.
Appellant and the trial court have complied with Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Appellant raises the following issue for our review.
Did the trial court abuse its discretion by sentencing [Appellant] to an excessive term of incarceration when the [trial] court revoked [A]ppellant's probation and sentenced him to one to two years' incarceration to be served consecutively to a sentence of four years to eight years' incarceration that he received in another county?Appellant's Brief at 4.
This Court recently stated that, "we unequivocally hold that this Court's scope of review in an appeal from a revocation sentencing includes discretionary sentencing challenges." Commonwealth v. Cartrette , 83 A.3d 1034 (Pa. Super. 2013) (en banc). Further, our review is guided by the following.
[T]he proper standard of review when considering whether to affirm the sentencing court's determination is an abuse of discretion. [A]n abuse of discretion is more than a mere error of judgment; thus, a sentencing court will not have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will. ... An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, orCommonwealth v. Provenzano , 50 A.3d 148, 154 (Pa. Super. 2012) (citation omitted).
ill-will, or such lack of support so as to be clearly erroneous.
Likewise, we review a sentence imposed following the revocation of probation for an error of law or an abuse of discretion. Commonwealth v. Ahmad , 961 A.2d 884, 888 (Pa. Super. 2008).
[W]e must accord the sentencing court great weight as it is in the best position to view the defendant's character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime. ... [A] sentence should not be disturbed where it is evident that the sentencing court was aware of sentencing considerations and weighed the considerations in a meaningful fashion.Id. at 887 (citations and quotation marks omitted).
Herein, Appellant does not challenge the legality of his sentence. Rather, Appellant's sole issue raised on appeal pertains to the discretionary aspects of his sentence.
It is well settled that, with regard to the discretionary aspects of sentencing, there is no automatic right to appeal. [Therefore, b]efore we reach the merits of this issue, we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code. The third and fourth of these requirements arise because Appellant's attack on his sentence is not anCommonwealth v. Edwards , 71 A.3d 323, 329-330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
appeal as of right. Rather, he must petition this Court, in his concise statement of reasons, to grant consideration of his appeal on the grounds that there is a substantial question. [I]f the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.
Instantly, Appellant filed a timely notice of appeal, preserved his claim in a timely post-sentence motion, and included a separate Pa.R.A.P. 2119(f) statement within his appellate brief. See Appellant's Brief at 9. Accordingly, Appellant has complied with the technical requirements to challenge the discretionary aspects of his sentence. See Edwards , supra at 330. Therefore, we next determine whether Appellant has raised a substantial question for our review.
The determination of whether a particular issue raises a substantial question is to be evaluated on a case-by-case basis. In order to establish a substantial question, the appellant must show actions by the trial court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process.Commonwealth v. Treadway , 104 A.3d 597, 599 (Pa. Super. 2014) (citation omitted). "At a minimum, the Rule 2119(f) statement must articulate what particular provision of the code is violated, what fundamental norm the sentence violates, and the manner in which it violates that norm." Commonwealth v. Zirkle , 107 A.3d 127, at 132 (Pa. Super. 2014) (citation omitted).
In his Rule 2119(f) statement, Appellant argues "the trial court sentenced [Appellant] to a manifestly excessive sentence that was disproportionate to his offense." Appellant's Brief at 9. Specifically, Appellant asserts that this Court has "held that an appellant raises a substantial question when he or she alleges that a court's decision to sentence consecutively raises the aggregate sentence to, what appears on its face to be, an excessive level in light of the criminal conduct in the case." Id. (citations omitted). Therefore, Appellant argues "[t]he aggregate sentence of five to ten years' incarceration is excessive and is disproportionate to the criminal conduct at issue in this case." Id.
Upon review, we conclude it was within the trial court's discretion to impose a consecutive rather than a concurrent sentence. Zirkle , supra (citations omitted). Significantly, "[a] challenge to the imposition of consecutive rather than concurrent sentences does not present a substantial question regarding the discretionary aspects of sentence." Id. Nevertheless, "we have recognized that a sentence can be so manifestly excessive in extreme circumstances that it may create a substantial question." Id. (citation omitted). The focus in such determinations is "whether the decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct in this case." Id. (citation omitted).
In the instant case, the trial court did not impose two consecutive sentences, but rather imposed a one to two year sentence to run consecutively to a sentence Appellant was already serving. Accordingly, the aggregate sentence imposed for Appellant's conduct was not five to ten years' incarceration as he posits, but was one to two years imprisonment. Furthermore, Appellant's discussion of how the sentence imposed is allegedly disproportionate to the offense, focuses on the Lancaster County weapons possession charges, which are not the subject of this appeal. Appellant's Brief at 11.
Pertaining to the instant appeal, Appellant merely complains the trial court sentenced above the standard guideline range. However, although a sentencing court following a revocation of probation must follow general sentencing principles, the sentencing guidelines do not apply. Cartrette , supra at 1040-1041. Beyond this argument and the challenge to the consecutive aspect of the sentence to an existing sentence, Appellant makes only a bald assertion of manifest excessiveness. "[W]here [an] appellant's Rule 2119(f) statement contains no factual averments which suggest that the sentencing scheme as a whole has been compromised... the petition for permission to appeal must be denied." Commonwealth v. Williams , 562 A.2d 1385, 1389 (Pa. Super. 1989) (en banc).
Furthermore, we conclude the one to two year sentence imposed in this case is not so disproportionate to the underlying criminal conduct and failure of prior supervision that we could conclude it is so manifestly excessive, on its face, as to raise a substantial question. See id.
Accordingly, we conclude Appellant has not raised a substantial question as to the discretionary aspects of his sentence, and we affirm the September 24, 2014 judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2015