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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN HAMMONDS
Appellant No. 1382 WDA 2014
Appeal from the Judgment of Sentence May 5, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CC 200616040
BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED JULY 17, 2015
Appellant, Kevin Hammonds, appeals from the judgment of sentence
entered on May 5, 2014, following revocation of his probation. On appeal,
Hammonds argues that the sentence imposed was manifestly excessive and
unreasonable. We affirm.
On July 8, 2008, Hammonds pled guilty to one count of possession
with intent to deliver cocaine, one count of delivering cocaine, and one count
of possession of cocaine. Sentencing was deferred to allow for preparation of
a presentence report. At the sentencing hearing, Hammonds assured the
court that he had not used drugs since January 2008. At count 1, the trial
court imposed a sentence of 22 months of house arrest with a condition that
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*
Retired Senior Judge assigned to the Superior Court.
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Hammonds maintain employment and be supervised by the Intensive Drug
Unit. The court also imposed a concurrent period of three years of probation.
At count 2, the trial court imposed a sentence of 22 months of house arrest
and a concurrent period of three years of probation, all of which was to run
concurrent to the sentence imposed at count 1. No further penalty was
imposed at count 3. Hammonds was immediately required to submit to a
screen for drug or alcohol use. He tested positive for cocaine and opiates.
The trial court then amended Hammonds’s sentence as a result of his
dishonesty. He was sentenced to 18 to 36 months’ incarceration, with three
years of probation consecutive to the incarceration.
While serving his sentence of probation, his probation officer filed a
notice of violation for “submitting a false urinalysis” and “use of drugs
(opiates).” Following a violation hearing, Hammonds’s probation was
revoked. He was sentenced to a period of 3½ to 8 years of incarceration,
followed by three years of state probation.
After he was sentenced, Hammonds filed a pro se motion for
reconsideration of sentence, which the trial court denied. Hammonds then
filed an appeal, which he subsequently discontinued upon filing a petition
pursuant to the Post Conviction Relief Act (“PCRA”).
In his PCRA petition, Hammonds alleged that his prior counsel had
abandoned him and sought restoration of his rights to post-sentence
motions and to a subsequent direct appeal. The PCRA court granted
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Hammonds relief, and Hammonds filed a counseled post-sentence motion.
The trial court denied the motion, and this timely appeal followed.
On appeal, Hammonds argues that the trial court abused its discretion
in sentencing him to a manifestly excessive and unreasonable term of
imprisonment following his probation violation. Our standard when reviewing
a sentence imposed following the revocation of probation is as follows.
Our review is limited to determining the validity of the probation
revocation proceedings and the authority of the sentencing court
to consider the same sentencing alternatives that it had at the
time of the initial sentencing. Also, upon sentencing following a
revocation of probation, the trial court is limited only by the
maximum sentence that it could have imposed originally at the
time of the probationary sentence.
Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000) (citation
omitted). See also 42 Pa.C.S.A. § 9771(b).
Hammonds challenges the discretionary aspects of his sentence. In
Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc),
an en banc panel of this Court noted that our “scope of review in an appeal
from a revocation sentencing includes discretionary sentencing challenges.”
Id., at 1034. Therefore, Hammonds’ claim is properly before us.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted).
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An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
We 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. Moury, 992 A.2d 12, 170 (Pa. Super. 2010) (quotation
marks and some citations omitted).
Here, Hammonds challenged his sentence in a post-sentence motion
and filed a timely appeal. Hammonds’s appellate brief also contains the
requisite Rule 2119(f) concise statement. See Appellant’s Brief, at 6-8. We
must now determine whether Hammonds’s challenge to the discretionary
aspects of his sentence raises a substantial question.
“A substantial question will be found where an appellant advances a
colorable argument that the sentence imposed is either inconsistent with a
specific provision of the Sentencing Code or is contrary to the fundamental
norms which underlie the sentencing process.” Commonwealth v. Zirkle,
107 A.3d 127, 132 (Pa. Super. 2014) (citation omitted). “[W]e cannot look
beyond the statement of questions presented and the prefatory 2119(f)
statement to determine whether a substantial question exists.”
Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013) (citation
omitted).
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Here, Hammonds claims in his Rule 2119(f) statement that his
sentence is “so disproportionate as to implicate the fundamental norms
which underline the sentencing process.” Appellant’s Brief, at 7 (citing
Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2002)). In
Sierra, a panel of this court held that “a substantial question is presented
when a sentence of total confinement, in excess of the original sentence, is
imposed as a result of a technical violation of parole or probation.” Id. at
913. Accordingly, this claim raises a substantial question for our review.
Hammonds further claims that not all factors demanded by the law were
considered. As Hammonds indicated that the sentence imposed is
inconsistent with § 9771, this also raises a substantial question for our
review. See Commonwealth v. Parlante, 823 A.2d 927, 929-930 (Pa.
Super. 2003).
The standard of review with respect to sentencing is as follows.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgement.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)
(citation omitted).
Although Hammonds claims that the trial court erred in imposing a
sentence that was inconsistent with the protection of the community and his
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rehabilitative needs, we note that the trial court reviewed a pre-sentence
report. Where the trial court had the benefit of reviewing a pre-sentence
report, we must
presume that the sentencing judge was aware of relevant
information regarding the defendants character and weighed
those considerations along with mitigating statutory factors. A
pre-sentence report constitutes the record and speaks for itself.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly that
sentencers are under no compulsion to employ checklists or any
extended or systematic definitions of their punishment
procedure. Having been fully informed by the pre-sentence
report, the sentencing courts discretion should not be disturbed.
This is particularly true, we repeat, in those circumstances where
it can be demonstrated that the judge had any degree of
awareness of the sentencing considerations, and there we will
presume also that the weighing process took place in a
meaningful fashion. It would be foolish, indeed, to take the
position that if a court is in possession of the facts, it will fail to
apply them to the case at hand.
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation
omitted). As the trial court in this case had the benefit of a pre-sentence
report, we must presume that it considered all relevant sentencing factors
and did not impose a sentence based solely on the gravity of the offenses.
Section 9721(b) specifies that in every case following the revocation of
probation, “the court shall make as a part of the record and disclose in open
court at the time of sentencing, a statement of the reason or reasons for the
sentence imposed.” Commonwealth v. Pasture, 107 A.3d 21, 28 (Pa.
2014). However,
a sentencing court need not undertake a lengthy discourse for its
reasons for imposing a sentence or specifically reference the
statutes in question. Simply put, since the defendant has
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previously appeared before the sentencing court, the stated
reasons for a revocation sentence need not be as elaborate as
that which is required at initial sentencing. The rationale for this
is obvious. When sentencing is a consequence of the revocation
of probation, the trial judge is already fully informed as to the
facts and circumstances of both the crime and the nature of the
defendant, particularly where … the trial judge had the benefit of
a PSI during the initial sentencing proceedings.
Id.
Here, the court provided adequate justification, although succinct, for
the sentence imposed. During sentencing, the court demonstrated its
knowledge of the case by noting that Hammonds did not have a good
support system in response to defense counsel suggesting he did. The court
stated, “he did not do well while living with his father.” N.T., Probation
Violation and Sentencing Hearing, 5/5/14, at 4. The court summed up its
reasoning stating, “Mr. Hammonds, in the past I’ve found you to be
articulate, even charming, but dishonest. You fooled me into giving you a
mitigated range sentence on this case the first time around because I
believed you. I no longer do.” Id., at 6-7.
It is clear that the trial court had sufficient information to make a fully
informed sentence following the revocation of Hammonds’ probation. Thus,
Hammonds’ sentence of 3½ to 8 years’ incarceration was not manifestly
excessive or unreasonable.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2015
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