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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KEYYI HILLIAM
Appellant No. 21 EDA 2015
Appeal from the Judgment of Sentence November 24, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1109351-1999
BEFORE: SHOGAN, J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 02, 2016
Keyyi Hilliam appeals from the judgment of sentence imposed by the
Court of Common Pleas of Philadelphia County following revocation of his
probation. Upon careful review, we affirm.
The trial court set forth the factual and procedural history of this case
as follows:
[Hilliam] pled guilty before the Honorable Eugene Maier, to
attempted rape and indecent assault, for which he originally
received a sentence of eleven and one-half to twenty-three
months’ incarceration followed by eight years’ probation. After a
violation hearing on July 31, 2002, Judge Maier found [Hilliam]
in violation, revoked parole, and sentenced him to a new period
of eleven and one-half to twenty-three months’ incarceration
followed by eight years of probation. After a second violation
hearing on August 25, 2005, Judge Maier revoked probation and
sentenced [Hilliam] to four to eight years of state incarceration
followed by twelve years of probation. In the interim, [Hilliam’s]
supervision was transferred to this court. On March 20, 2011,
[Hilliam] was arrested on charges including burglary and
indecent exposure. After a bench trial, the Honorable William
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Mazzola found [Hilliam] guilty of burglary, indecent exposure,
and simple assault, and sentenced [Hilliam] on April 19, 2013 to
ten to twenty years’ incarceration. Meanwhile, on May 9, 2012,
[Hilliam] was arrested for aggravated assault and related
charges relating to an incident wherein [Hilliam] threw a punch
at a corrections officer. [Hilliam] eventually pled guilty before
this court to the charges of simple assault and recklessly
endangering another person, and received a negotiated sentence
of two years’ probation on August 7, 2014.
Following a violation hearing held on the same day, this court
determined that [Hilliam] had directly violated his probation and
deferred sentence to November 24, 2014. On that date, this
court sentenced [Hilliam] to a period of five to ten years’
incarceration followed by two years’ probation, consecutive to
Judge Mazzola’s sentence.
Trial Court Opinion, 2/5/15, at 1-2 (citations omitted).
Hilliam filed a motion for reconsideration, which the court denied on
December 4, 2015. This timely appeal followed, in which Hilliam raises the
following issue for our review:
Was not the sentence imposed by the lower court following a
finding [Hilliam] violated his probation, consisting of a term of
incarceration of 5 to 10 years followed by a term of probation of
2 years, manifestly excessive, unreasonable, contrary to the
fundamental norms which underlie the sentencing process and
lacking the necessary quality of individualized sentencing, where
the lower court failed to adequately examine and investigate
[Hilliam’s] background, character and rehabilitative needs, failed
to state sufficiently adequate reasons for imposing the new
sentence and failed to order or consider a pre-sentence report
and failed to place its reasons for dispensing with such a report
on the record?
Appellant’s Brief, at 3.
Section 9771 of the Sentencing Code, 42 Pa.C.S. § 9771, which
governs modification or revocation of probation orders, provides:
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(a) General Rule. – The court may at any time
terminate continued supervision or lessen or increase
the conditions upon which an order of probation has
been imposed.
(b) Revocation. – The court may revoke an order
of probation upon proof of the violation of specified
conditions of the probation. Upon revocation the
sentencing alternatives available to the court shall be
the same as were available at the time of initial
sentencing, due consideration being given to the
time spent serving the order of probation.
(c) Limitation on sentence of total confinement. –
The court shall not impose a sentence of total
confinement upon revocation unless it finds that:
(1) the defendant has been convicted of another
crime; or
(2) the conduct of the defendant indicates that it is
likely that he will commit another crime if he is
not imprisoned; or
(3) such a sentence is essential to vindicate the
authority of the court.
42 Pa.C.S. § 9771.
Hilliam challenges the discretionary aspects of his sentence. When the
discretionary aspects of a sentence are questioned, an appeal is not
guaranteed as of right. Commonwealth v. Moore, 617 A.2d 8, 11 (Pa.
Super. 1992).
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test: (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
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appealed from is not appropriate under the Sentencing Code, 42
Pa.C.S. § 9781(b).
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011) (citation
omitted).
Here, Hilliam filed a timely notice of appeal, and has preserved his
claim by raising it in a motion for reconsideration of sentence. In his brief
he has included a statement pursuant to Pa.R.A.P. 2119(f). Accordingly, we
must determine whether Hilliam has raised a substantial question.
Judicial review of the discretionary aspects of a sentence is granted
only upon a showing that there is a substantial question that the sentence
was inappropriate and contrary to the fundamental norms underlying the
Sentencing Code. Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.
1987). A substantial question exists “only when the appellant advances a
colorable argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision in the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999) (en
banc).
This Court has held that a challenge to an unduly excessive sentence
together with a claim that the court failed to consider an appellant’s
rehabilitative needs upon fashioning its sentence raises a substantial
question. Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super.
2015) (en banc).. Accordingly, we will address Hilliam’s claims, which he
summarizes as follows:
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In the instant matter, the lower court did not order a pre-
sentence investigation report and did not state on the record
why it dispensed with the report even though it sentenced the
defendant to a term of incarceration of 5 to 10 years. More to
the point, the lower court made little effort to ascertain any
“information regarding the circumstances of the offense and the
character of the defendant sufficient to assist the judge in
determining sentence.” Pa.R.Crim.P. 702(A)(3).
Appellant’s Brief, at 16.
Hilliam further asserts that the trial court focused on the protection of
the public without considering “the rehabilitative needs of the defendant.”
42 Pa.C.S. § 9721(b).
The imposition of sentence following revocation of probation is vested
within the sound discretion of the trial court, which, absent abuse of that
discretion, will not be disturbed on appeal. Commonwealth v. Sierra, 752
A.2d. 910, 914 (Pa. Super. 2000). In a revocation of probation proceeding,
“a sentencing court need not undertake a lengthy discourse for its reasons
for imposing a sentence or specifically reference the statutes in question.”
Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014). Moreover, a
revocation court is under no obligation to order a presentence report for a
defendant who has already undergone formal sentencing and consideration
of all relevant information regarding his crime, character and background.
Commonwealth v. Fish, 752 A.2d 921 (Pa. Super. 2000).
The record indicates that the court considered Hilliam’s character as
well as the nature of his crime. He is a three-time probation violator, who
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committed two sexually violent offenses against strangers, and an assault on
a correctional officer while on probation.
The court noted Hilliam’s mental health issues before the sentencing,
and allowed him to seek psychiatric evaluation, which Hilliam declined. The
court heard testimony from his parole agent concerning Hilliam’s inability to
function in society. Hilliam addressed the court with respect to his family
life, drug problems and mental illness. He asked the court to send him back
to the mental health unit where he was incarcerated because he felt more
comfortable there. N.T. Hearing, 8/7/14, at 13-14; N.T. Sentencing,
11/24/14, at 13-14; 16-18, 23-35.
Section 9721(b) of the Sentencing Code provides, “[i]n every case in
which the court . . . resentences an offender following revocation of
probation . . . the court shall make a part of the record, and disclose in open
court at the time of sentencing, a statement for the reason or reasons for
the sentence imposed.” 42 Pa.C.S. § 9721(b). Here, the court noted
Hilliam’s lack of remorse, his failure to rehabilitate himself, his lack of control
and his inability to stay out of trouble. N.T. Sentencing, 11/24/14, at 21-24.
Hilliam has failed to establish that the court abused its discretion in
imposing a sentence of five to ten years’ incarceration plus two years’
probation. Accordingly, we affirm the judgment of sentence.
Judgement of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/2/2016
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