J-S12027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT LEDBETTER,
Appellant No. 980 EDA 2015
Appeal from the Judgment of Sentence of August 7, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001505-2010
BEFORE: MUNDY, OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 02, 2016
Appellant, Robert Ledbetter, appeals from the judgment of sentence
entered on August 7, 2012, as made final by the denial of his post-sentence
motion on December 14, 2012. We affirm.
The factual background and procedural history of his case are as
follows. On June 12, 2006, Appellant pled guilty to indecent assault without
consent.1 As a collateral consequence of that conviction, Appellant was
required to register as a sex offender. On June 2, 2009, Appellant failed to
register as required by statute.
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1
18 Pa.C.S.A. § 3126(a)(1).
*Retired Senior Judge assigned to the Superior Court.
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On February 22, 2010, Appellant was charged via criminal information
with failure to register as a sex offender,2 failure to verify address or be
photographed as required,3 and failure to provide accurate registration
information.4 On June 2, 2010, Appellant pled nolo contendre to failure to
verify address or be photographed as required and was immediately
sentenced to three years’ probation. On May 19, 2011, Appellant was
charged, in Delaware County, with 18 counts of possession of a firearm by a
prohibited person.5 On September 23, 2011, those charges were nolle
prossed because Appellant was charged with possession of a firearm by a
convicted felon6 in the United States District Court for the Eastern District of
Pennsylvania. See United States v. Ledbetter, 11-cr-504 (E.D. Pa.). On
November 28, 2011, Appellant pled guilty in federal court to possession of a
firearm by a convicted felon and was eventually sentenced to 46 months’
imprisonment.
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2
18 Pa.C.S.A. § 4915(a)(1).
3
18 Pa.C.S.A. § 4915(a)(2).
4
18 Pa.C.S.A. § 4915(a)(3).
5
18 Pa.C.S.A. § 6105.
6
18 U.S.C. § 922(g)(1).
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Based upon these charges, the Commonwealth sought revocation of
Appellant’s probation. On August 7, 2012, a Gagnon II7 hearing was held.
At that hearing, the trial court found Appellant in direct violation of the
terms of his probation, revoked his probation, and sentenced him to two to
four years’ imprisonment. On August 16, 2012, Appellant filed a post-
sentence motion. On December 14, 2012, that motion was denied via
operation of law. On April 6, 2013, Appellant filed a petition pursuant to the
Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Counsel
was appointed and, on April 6, 2015, the PCRA court granted the petition
and reinstated Appellant’s direct appeal rights nunc pro tunc. This appeal
followed.8
Appellant presents one issue for our review:
Is the [A]ppellant entitled to a new sentence hearing because
the sentence imposed by the trial court was unreasonable?
Appellant’s Brief at 2.
In his lone issue, Appellant argues that his sentence is excessive. This
issue challenges the discretionary aspects of Appellant’s sentence. See
Commonwealth v. Haynes, 125 A.3d 800, 806 (Pa. Super. 2015). We
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7
See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
8
On April 13, 2015, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(a). On April 22, 2015, Appellant filed his concise statement.
On July 16, 2015, the trial court issued its Rule 1925(a) opinion. Appellant’s
lone issue on appeal was included in his concise statement.
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note that “[s]entencing 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.” Commonwealth v. Clarke, 70 A.3d 1281,
1287 (Pa. Super. 2013), appeal denied, 85 A.3d 481 (Pa. 2014) (citation
omitted).
Since Appellant was sentenced following the revocation of probation,
the sentencing guidelines do not apply to Appellant’s sentence. 204 Pa.
Code § 303.1(b); Commonwealth v. Williams, 69 A.3d 735, 741 (Pa.
Super. 2013), appeal denied, 83 A.3d 415 (Pa. 2014).9 Nevertheless,
Appellant may challenge the discretionary aspects of his revocation
sentence. See Commonwealth v. Cartrette, 83 A.3d 1030, 1033-1042
(Pa. Super. 2013) (en banc). In sentencing Appellant, the trial court was
required to “consider the general principles and standards of the Sentencing
Code.” Commonwealth v. Russell, 460 A.2d 316, 322 (Pa. Super. 1983).
Section 9721 expresses these general principles in the following manner:
the sentence imposed should call for confinement that is
consistent with the protection of the public, the gravity of the
offense as it relates to the impact on the life of the victim and on
the community, and the rehabilitative needs of the defendant.
42 Pa.C.S.A. § 9721(b).
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9
Our General Assembly required that sentencing guidelines be promulgated
for probation revocation proceedings. See 42 Pa.C.S.A. § 2154.4. The
Pennsylvania Commission on Sentencing, however, has not yet complied
with this mandate.
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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); see also
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”). Appellant filed a timely notice of appeal and the issue
was properly preserved in a post-sentence motion. Appellant’s brief also
includes a statement pursuant to Pennsylvania Rule of Appellate Procedure
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2119(f).10 Thus, we turn to whether the appeal presents a substantial
question.
“In order to establish a substantial question, the appellant must show
actions by the trial court inconsistent with the Sentencing Code or contrary
to the fundamental norms underlying the sentencing process.”
Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014)
(citation omitted). “The determination of whether a particular case raises a
substantial question is to be evaluated on a case-by-case basis.”
Commonwealth v. Seagraves, 103 A.3d 839, 841 (Pa. Super. 2014),
appeal denied, 116 A.3d 604 (Pa. 2015) (citation omitted).
In his Rule 2119(f) statement, Appellant argues that this case presents
a substantial question because the trial court failed to consider the nature of
the underlying offense and did not state its reasons for imposing its
sentence on the record. He also argues that a sentence of total confinement
was unwarranted in this case. He further argues that the consecutive nature
of his sentence, along with the trial court’s failure to consider his
rehabilitative needs, was contrary to the fundamental norms of the
Sentencing Code. “An allegation that [the trial court] failed to offer specific
reasons for a sentence does raise a substantial question.” Commonwealth
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10
Although the Commonwealth states that Appellant’s Rule 2119(f)
statement is defective, it is in fact arguing that Appellant does not raise a
substantial question.
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v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011) (internal quotation
marks, alteration, and citations omitted). As Appellant raises such a claim,
this case presents a substantial question and, thus, we consider the merits
of his discretionary aspects claim.
Appellant argues that a sentence of total confinement was
inappropriate in this case. The Sentencing Code, however, specifically states
that a sentence of total confinement may be imposed if “the defendant has
been convicted of another crime[.]” 42 Pa.C.S.A. § 9771(c). As Appellant
was convicted of another crime, i.e., possession of a firearm by a convicted
felon, total confinement was appropriate in this case. Appellant also argues
that the trial court failed to consider the underlying offense for which he was
on probation. This argument is without merit. At the Gagnon II hearing,
the trial court heard that Appellant was required to register as a sex offender
because he was convicted of having sexual intercourse with an underage
female. See N.T., 8/7/12, at 4.11 Appellant then addressed the trial court
regarding the underlying offense, i.e., failure to verify address or be
photographed as required. Id. at 5. The trial court noted that although it
was concerned with the underlying charge, it was more concerned with
Appellant’s failure to comply with the terms of his probation. See id.
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11
The notes of testimony from August 7, 2012 are incorrectly marked as
being from August 7, 2013.
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Appellant also argues that the trial court abused its discretion by
ordering Appellant’s sentence to run consecutively to his federal sentence.
He avers that the trial court was unaware of the length of the federal
sentence. The record belies this assertion. The trial court was informed of
the length of the sentence at the Gagnon II hearing and asked a question
to clarify the length of the sentence. Id. at 4. The trial court then
determined that a consecutive sentence was appropriate. This is consistent
with this Court’s precedent. Commonwealth v. Swope, 123 A.3d 333, 341
(Pa. Super. 2015) (citation omitted) (“Appellant is not entitled to a volume
discount for his crimes.”); Commonwealth v. Zirkle, 107 A.3d 127, 134
(Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa. 2015).
Appellant contends that the trial court failed to consider his
rehabilitative needs. The sentencing transcript, however, reflects that the
trial court engaged in a colloquy with Appellant about how he was told to
stay out of trouble while on probation. N.T., 8/7/12, at 4-5. Then, as the
trial court put it, Appellant had “gun charges of all things” brought against
him. Id. at 5. The trial court therefore determined that probation was not
succeeding in rehabilitating Appellant and sentenced him to total
confinement.
Finally, Appellant argues that the trial court did not adequately explain
its rationale for its sentence. As this Court has noted, “although a court is
required to explain its reasons for imposing sentence, it need not specifically
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cite or include the language of the sentencing code, it must only
demonstrate that the court [] considered the factors specified in the code.”
Commonwealth v. Fish, 752 A.2d 921, 924 (Pa. Super. 2000) (internal
quotation marks and citation omitted). We conclude that the trial court in
the case sub judice satisfied this minimum requirement. Our review of the
sentencing transcript indicates that the trial court reviewed Appellant’s case
prior to the Gagnon II hearing. See N.T., 8/7/12, at 4 (offering unsolicited
that Appellant was on probation for a sexual offense). The trial court
determined that Appellant’s possession of at least 18 firearms while both a
convicted felon and still on probation constituted a danger to the public. As
noted above, the trial court also found that such possession was a grave
violation of the terms of Appellant’s probation. Id. at 4-5. Finally, the trial
court considered Appellant’s rehabilitative needs. It concluded that
Appellant was lying when he averred at the Gagnon II hearing that he was
unaware he could not possess a firearm. Id. at 6. It therefore determined
that a sentence of two to four years’ imprisonment was appropriate.
We conclude that this determination was not an abuse of discretion.
Appellant committed a serious sex offense and was required to register as a
sex offender. Appellant failed to comply with his registration requirements
and made excuses for his failure. See id. at 5 (stating that his failure to
register was a result of a miscommunication with the Pennsylvania State
Police). As a convicted felon, Appellant was aware that he could not possess
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a firearm; yet, he was found in possession of at least 18 firearms. He then
pleaded ignorance of the law at his Gagnon II hearing. The record
supports the trial court’s conclusion that Appellant’s refusal to comply with
the collateral consequences of his convictions and his violation of the terms
of his probation warranted significant prison sentence. Accordingly,
Appellant’s discretionary aspects claim is without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/2/2016
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