Opinion
J-S53045-16 No. 2156 MDA 2015
09-09-2016
COMMONWEALTH OF PENNSYLVANIA v. DENNIS JAY MacCOLL Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence November 10, 2015 in the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002834-2013 BEFORE: BOWES, SHOGAN, and FITZGERALD, JJ. JUDGMENT ORDER BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Dennis Jay MacColl, appeals from the judgment of sentence entered following a violation of probation and parole hearing. He contends his sentence was excessive. We affirm.
We adopt the facts and procedural history set forth by the trial court's opinion. See Trial Ct. Op., 1/14/16, at 1-3. Appellant argues his sentence of two-and-one-half to five years' imprisonment is excessive for a probation violation. He asserts the court failed to consider his efforts to comply with the terms of his probation, his rehabilitative needs, and the fact this was his first violation for this docket. Appellant also claims the trial court was biased against him. We affirm.
This Court has stated that
[c]hallenges to the discretionary aspects of sentencing do not entitle an appellant to appellate review as of right. 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 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.A. § 9781(b).
Commonwealth v. Evans , 901 A.2d 528, 533-34 (Pa. Super. 2006) (some citations and punctuation omitted). "[I]t is now accepted that it is within our scope of review to consider challenges to the discretionary aspects of an appellant's sentence in an appeal following a revocation of probation." Commonwealth v. Ferguson , 893 A.2d 735, 737 (Pa. Super. 2006).
Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or raised in a motion to modify the sentence imposed at that hearing.
Appellant has complied with the Rule 2119 requirements and therefore we address the merits. After careful review of the record, the parties' briefs, and the decision by the Honorable Donald R. Totaro, we affirm on the basis of the trial court's opinion. See Trial Ct. Op. at 7-12 (holding court considered (1) pre-sentence investigation report, (2) five previous violations for other dockets, (3) unsuccessful repeated attempts at drug rehabilitation, (4) rehabilitative needs before imposing sentence, and (5) Appellant's own acknowledgement that he did not take "probation seriously." N.T. Sentencing Hr'g, 11/10/15, at 15). Accordingly, we affirm the judgment of sentence.
Although reflected in the docket, Appellant's post-sentence motion was not part of the certified record. Neither the Commonwealth nor the trial court, however, contend Appellant waived any issue.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/9/2016
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