J-S79021-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARCUS ROSS
Appellant No. 86 EDA 2014
Appeal from the Judgment of Sentence November 19, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000454-2010
BEFORE: ALLEN, OLSON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 31, 2014
Appellant, Marcus Ross, appeals from the judgment of sentence
entered on November 19, 2013. We affirm.
The trial court explained the procedural posture of this case:
On October 26, 2011, . . . [Appellant pleaded] guilty to
statutory sexual assault, corruption of minors, and indecent
assault on a person less than 16 years of age,[1] and was
sentenced to [an aggregate term of ten to 23 months in jail,
followed by six years of probation].
On August 9, 2012, [Appellant] was arrested for possession
[of a controlled substance] with the intent to deliver
[(hereinafter “PWID”)] and conspiracy[. Appellant pleaded]
guilty to [these crimes] on October 18, 2012. [Appellant]
was sentenced to [serve an aggregate term of one-and-a-
half] to three [] years [in prison for these convictions].
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18 Pa.C.S.A. §§ 3122.1, 6301(a)(1), 3126(a)(8), respectively.
*Retired Senior Judge assigned to the Superior Court.
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[Appellant’s convictions for PWID and conspiracy rendered
Appellant in violation of the probationary terms the trial
court imposed on October 26, 2011. Thus, o]n May 30,
2013, [following] a violation of probation hearing, . . .
[Appellant] was found to be in direct violation of [his]
probation, and a presentence investigation report was
ordered. On November 19, 2013, [the trial court re-
sentenced Appellant] to four [] to eight [] years [in prison
for his statutory sexual assault conviction]. This sentence
was to be served consecutive[ly] to the sentence
[Appellant] received [for PWID and conspiracy].
Trial Court Opinion, 4/2/14, at 1-2 (internal footnote omitted).
On November 26, 2013, Appellant filed a “Petition to Vacate and
Reconsider Sentence,” wherein Appellant claimed that the trial court abused
its discretion when it sentenced him to serve four to eight years in prison.
Specifically, Appellant claimed that his “sentence . . . was excessive in that it
far surpassed what was necessary to foster [Appellant’s] rehabilitation.”
Appellant’s Petition to Vacate and Reconsider Sentence, 11/26/13, at 2. The
trial court apparently did not rule upon Appellant’s motion to modify
sentence and, on December 19, 2013, Appellant filed a timely notice of
appeal to this Court.2 See Pa.R.Crim.P. 708(E) (“[a] motion to modify a
sentence imposed after a revocation shall be filed within 10 days of the date
of imposition. The filing of a motion to modify sentence will not toll the 30-
day appeal period”).
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Within the trial court’s Rule 1925(a) opinion, the trial court states that it
denied Appellant’s motion to modify sentence on November 27, 2013. Trial
Court Opinion, 4/2/14, at 2. However, the certified record does not contain
the trial court’s November 27, 2013 order and the docket does not reflect
the entry of a November 27, 2013 order.
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The trial court ordered Appellant to file and serve a concise statement
of errors complained of on appeal, pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b). Appellant complied and, as is relevant to the
current appeal, Appellant raised the following claim in his Rule 1925(b)
statement:
The sentencing court violated the requirements of 42
[Pa.C.S.A. §] 9721(b) of the Sentencing Code . . . by
imposing the instant [four to eight] year sentence of
incarceration for violation of probation as the lower court
failed to consider [Appellant’s] rehabilitative needs or
mitigating circumstances.
Appellant’s Rule 1925(b) Statement, 2/7/14, at 1-2.
Appellant now raises the following claim on appeal:
Did not the sentencing court violate the requirements of 42
[Pa.C.S.A.] § 9721(b) of the Sentencing Code . . . as the
lower court seemed to exclusively focus on [Appellant’s]
criminal conduct and his desire to litigate a claim under
[the] Pennsylvania Rules of Criminal Procedure rather than
his rehabilitative needs or mitigating circumstances[?]
Appellant’s Brief at 3.
Appellant does not challenge the revocation of his probation or the fact
that the trial court imposed a sentence of total confinement. Rather,
Appellant objects to the length of his sentencing term, which is a challenge
to the discretionary aspects of his sentence. Commonwealth v. Rhoades,
8 A.3d 912, 916 (Pa. Super. 2010) (claim that sentence is excessive is a
challenge to the discretionary aspects of a sentence).
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We note 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:
To 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]; (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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007);
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 discretionary aspects of that sentence
either by objecting during the revocation sentencing or by filing a post-
sentence motion”); Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.
Super. 2013) (en banc) (“issues challenging the discretionary aspects of a
sentence [following the revocation of probation] must be raised in a post-
sentence motion or by presenting the claim to the trial court during the
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sentencing proceedings. Absent such efforts, an objection to a discretionary
aspect of a sentence is waived”).
Within Appellant’s Rule 2119(f) statement, Appellant claims that the
trial court abused its discretion when, at sentencing, the trial court:
“exclusively focus[ed] on the severity of the crime;” punished Appellant for
“litigat[ing] a speedy revocation hearing claim under the [Pennsylvania]
Rules of Criminal Procedure;” and, failed to consider either Appellant’s
“rehabilitative needs” or the “mitigating circumstances” of the case. See
Appellant’s Brief at 6-8. However, Appellant has only preserved the claim
that the trial court failed to consider his rehabilitative needs at sentencing,
as this was the only claim that was contained in Appellant’s Petition to
Vacate and Reconsider Sentence, Rule 1925(b) statement, and Rule 2119(f)
statement. See Appellant’s Petition to Vacate and Reconsider Sentence,
11/26/13, at 2. Appellant has waived all of the other claims that are
contained in his brief. Kalichak, 943 A.2d at 289.
We must now determine whether Appellant’s claim – that the trial
court failed to consider Appellant’s rehabilitative needs at sentencing –
presents a “substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.” Cook, 941 A.2d at 11.
Generally, to raise a substantial question, an appellant must “advance
a colorable argument that the trial judge’s actions were: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary to the
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fundamental norms which underlie the sentencing process.”
Commonwealth v. McKiel, 629 A.2d 1012, 1013 (Pa. Super. 1993);
Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en
banc), appeal denied, 759 A.2d 920 (Pa. 2000).
As this Court has held, a claim that the sentencing court failed to
consider the rehabilitative needs of a defendant does raise a substantial
question under the Sentencing Code. Commonwealth v. Dodge, 77 A.3d
1263, 1273 (Pa. Super. 2013) (en banc) (“we find that Appellant’s claim that
the sentencing court disregarded rehabilitation and the nature and
circumstances of the offense in handing down its [consecutive, standard
range] sentence presents a substantial question for our review”); see also
Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2013) (a claim
that the trial court “failed to consider relevant sentencing criteria, including
the protection of the public, the gravity of the underlying offense and the
rehabilitative needs” of the defendant, raised a substantial question).
Therefore, we may reach the merits of Appellant’s claim that, at sentencing,
the trial court failed to consider Appellant’s rehabilitative needs.
However, Appellant’s claim on appeal immediately fails because the
trial court undoubtedly considered Appellant’s rehabilitative needs when it
imposed Appellant’s sentence. Certainly, within the trial court’s Rule
1925(a) opinion, the trial court explained:
This [c]ourt did not violate the sentencing requirements of
42 [Pa.C.S.A. §] 9721(b) of the Sentencing Code by failing
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to consider [Appellant’s] rehabilitative needs. . . . To the
contrary, [the trial court] did consider [Appellant’s]
rehabilitative needs [and the] mitigating circumstances, as
well as aggravating factors such as the potential danger
[Appellant] poses to society. When sentencing [Appellant,
the trial court] explicitly stated on two separate occasions
that in crafting [Appellant’s] sentence, [the trial court] was
striking a balance between [Appellant’s] potential for
rehabilitation and the [trial court’s] duty to protect the
public.
...
Furthermore, at [Appellant’s] sentencing, [the trial court]
was equipped with a current [pre-sentence r]eport. The
[pre-sentence r]eport stated [that,] as a juvenile,
[Appellant] had four arrests, two adjudications of
delinquency[,] and four commitments. As an adult,
[Appellant] has five arrests, four convictions[,] and three
convictions. In addition to all mitigating factors contained
in the [pre-sentence r]eport, the aforementioned criminal
activity and persistent violations of the law factor into the
[trial court’s] decision [] regarding [Appellant’s] capacity for
rehabilitation.
[The trial court] did advise [Appellant] that he should earn
his GED while incarcerated and endeavor to learn a trade
from the over two-dozen vocational training programs
offered to inmates so that[,] when he is paroled, he will be
able to find a legitimate means of employment and not
resort to selling drugs.
Trial Court Opinion, 4/2/14, at 4-5.
From the above, it is apparent that the trial court expressly considered
Appellant’s rehabilitative needs at sentencing. Appellant’s claim to the
contrary is factually baseless; thus, the claim fails.
Judgment of sentence affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/2014
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