J-S45027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAWN SAVAGE
Appellant No. 1892 EDA 2013
Appeal from the Judgment of Sentence of August 24, 2010
In the Court of Common Pleas of Philadelphia County
Criminal Division at Nos.: CP-51-CR-0001391-2008
CP-51-CR-0008647-2007
MC-51-CR-0057415-2007
BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*
MEMORANDUM BY WECHT, J.: FILED AUGUST 26, 2014
Shawn Savage appeals his August 24, 2010 judgment of sentence.
We affirm.
The sentencing court1 summarized the relevant factual and procedural
history of this case as follows:
On June 5, 2009, Shawn Savage knowingly and voluntarily
entered into three negotiated guilty pleas for three separate
instances of retail theft each graded as felonies of the third
1
degree. [Savage] received the negotiated sentences of [six to
twenty-three] months, plus two years [of] reporting probation,
on each count, to run concurrent[ly].
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Because Savage challenges only aspects of his sentence, we refer
J-S45027-14
1
18 Pa.C.S. § 3929.
[Savage] was paroled in June 2010. A mere six days after
being paroled[, Savage] was arrested again in Bucks County for
retail theft [after] stealing $1,500 worth of goods. During this
arrest, [Savage] engaged in a physical altercation with police.2
[Savage] was convicted of this retail theft, resisting arrest, two
counts of simple assault, and possession of an instrument of
crime and sentenced to a period of incarceration. This conviction
put [Savage] in direct violation of his sentence by [the
sentencing court]. He was also cited for technical violations [of
his parole,] including absconding from probation.
2
This was not the first time [Savage] was
convicted of assaulting a police officer. While being
arrested for possession of heroin and cocaine,
[Savage] punched an officer in the mouth (CP-51-
CR-0512851-1999).
A violation of probation hearing was held on August 13, 2010.
Despite serious misgivings, [the sentencing court] gave
[Savage] another chance to rehabilitate himself on the street,
and resentenced [Savage] to seven years [of] reporting
probation on each felony, to run concurrent[ly]. Strict conditions
were imposed on [Savage], including the condition that [Savage]
report to his probation officer within [forty-eight] hours of his
release and immediately report to his drug treatment program.
[Savage] again immediately violated his probation when he
was paroled by failing to report to his probation officer or his
drug treatment program. A second violation of probation
hearing was held on August 24, 2010, during which [the
reporting probation and
resentenced [Savage] to [one and a half to three] years [of]
incarceration on each felony count, with two of the sentences
running consecutive[ly] and the third running concurrent[ly].
After the second violation hearing and resentencing[, Savage]
did not file a direct appeal. Nearly a year later, on June 29,
2011, [Savage] filed a pro se petition pursuant to the Post-
Conviction [] Relief Act, 42 Pa.C.S. § 9541 et seq. PCRA counsel
was appointed and on Nov[ember] 2, 2012, counsel filed an
amended PCRA petition. The amended petition asserted that
trial counsel was ineffective for failing to file a direct appeal of
request to do so. Thereafter, [Savage] requested the
-2-
J-S45027-14
reinstatement of his right to file a direct appeal nunc pro tunc,
which this court granted on June 12, 2013.3
3
The Commonwealth did an investigation into,
counsel failed to file a direct appeal despite
-2 (citations omitted or
modified, minor modifications to capitalization, emphasis in original).
On July 9, 2013, Savage filed a timely notice of appeal. On July 17,
2013, the sentencing court ordered Savage to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On August 2,
2013, Savage timely complied with the
January 3, 2014, the sentencing court filed an opinion pursuant to Pa.R.A.P.
1925(a).
Savage presents two issues for our review:
1. Whether the [sentencing] court abused its discretion in
sentencing [Savage] to a harsh and excessive sentence as
sentence?
2. Whether the [sentencing] court abused its discretion by
Brief for Savage at 8.
In his first issue, Savage argues that his sentence was harsh and
rehabilitative needs as is required by 42 Pa.C.S. § 9721(b). Brief for Savage
at 15-
-3-
J-S45027-14
discretionary aspects of his sentence. Commonwealth v. Walker, 666
A.2d 301, 307 (Pa. Super. 1995).
whether Savage properly has preserved this issue for our review.
Challenges to the discretionary aspects of a sentence generally are waived if
they are not raised at the sentencing hearing or in a post-sentence motion
to modify the sentence. Commonwealth v. Shugars, 895 A.2d 1270,
1273-74 (Pa. Super. 2006) (citation omitted). The sentencing transcript in
this case reflects that Savage did not raise a challenge to the discretionary
aspects of his sentence in open court after the sentencing court announced
its sentence. Notes of Testimony of Violation of Probation Hearing, Volume 2
-12.
Because Savage did not raise his first issue at his violation of
probation hearing after his sentence was imposed, we turn our attention to
whether he properly preserved this issue in a post-sentence motion. As a
general matter, when resolving an appellate issue, we are limited to
considering only the materials that are contained in the certified record.
Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006) (citation
omitted). The appellant bears the burden to ensure that the certified record
Id.
document which is not part of the officially certified record is deemed non-
existent a deficiency which cannot be remedied merely by including copies
-4-
J-S45027-14
Id. at 6
(citations omitted). In the absence of an adequate certified record, there is
uested relief can be granted. Id. at
7.
In his brief, Savage indicates that he filed a motion to vacate and
reconsider his sentence on September 3, 2010, and he states that this
motion was denied by operation of law. Brief for Savage at 11. Additionally,
on September 28, 2010, the Alternative Sentencing Unit of the Defender
Association of Philadelphia sent a letter to Savage indicating both that they
behalf, and that the motion had been denied by operation of law. Letter to
Savage, 9/28/2010. However, the docket does not reflect that such a
motion ever was filed or that such a motion ever was denied by operation of
law. Furthermore, the certified record does not contain an order or other
indication that such a motion ever was denied by operation of law.
If an appellant fails to raise a challenge to the discretionary aspects of
his sentence at the sentencing hearing, he must raise it in a post-sentence
motion in order to preserve it. Shugars, supra. Where, as here, an
appellant alleges that a post-sentence motion has been filed, then that
Preston, 904 A.2d
at 7. Instantly, Savage bears the burden of ensuring that the certified
record is complete. Id. -sentence motion is neither
-
-5-
J-S45027-14
sentence motion is deemed non-existent for purposes of this appeal. Id. at
6. Because the certified record is incomplete, Savage has not met his
burden and there is no basis upon which relief can be granted. Id. at 7.
Consequently, Savage did not properly preserve his first issue. Shugars,
supra. For the foregoing reasons, we are constrained to find
first issue before this Court is waived. Id.
In his second issue, Savage argues that the sentencing court abused
be in violation of
the interests of society in preventing future criminal conduct by [Savage]
against the poss Id.
his revocation sentence. Commonwealth v. Ortega, 995 A.2d 879, 886
(Pa. Super. 2010).
al following a sentence imposed after
probation revocation is limited to the validity of the revocation proceedings
Id. at 883-
enever it is
shown that the conduct of the probationer indicates [that] the probation has
proven to have been an ineffective vehicle to accomplish rehabilitation and
Commonwealth
-6-
J-S45027-14
v. Infante, 888
Ortega, 995
A.2d at 886 (citation omitted).
The question before this Court is whether the evidence admitted at
hearing established, by a preponderance of
the evidence, that probation had proven ineffective at rehabilitating Savage
and deterring him from antisocial behavior. Id. In addressing this question,
tion officer that
Savage, in violation of a condition of his probation, did not report to his
probation officer within forty-eight hours of his release. N.T. V.O.P. 2 at 1-
antisocial behavior and failed past attempts at rehabilitation when it
addressed Savage at his violation of probation hearing:
As an adult, [you have] [twenty-four] arrests, [eleven]
convictions, [seventeen] probation and parole violations, eight
willful [failure to appear warrants], eight aliases, seven phony
dates of birth
seven phony Social Security numbers. Apparently, [you are]
a harden[ed] career criminal . . . . So [the Commonwealth
believes] that your likelihood of recidivism [is] high and I have
no choice at this time but to revoke your probation on each of
issues . . . on my [conscience] out there causing more crimes,
being . . . a danger to the public.
Id. at 7-
-7-
J-S45027-14
violation of probation hearing was sufficient to support the revocation
sentence imposed by the sentencing court. Ortega, 995 A.2d at 886.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2014
-8-