J-S25026-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES EUGENE LUCAS
Appellant No. 1254 WDA 2015
Appeal from the Judgment of Sentence July 13, 2015
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000053-2006
BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED JUNE 02, 2016
Appellant, Charles Eugene Lucas, appeals from the July 13, 2015
aggregate judgment of sentence of 15 to 30 years’ imprisonment, imposed
following the revocation of his probation. After careful review, we affirm.
The relevant facts and procedural history, as gleaned from the certified
record, are as follows. On February 15, 2006, Appellant pled guilty to four
counts of burglary for incidents involving four different victims.1 Thereafter,
on July 10, 2006, Appellant was sentenced to 6 to 12 months’ imprisonment
for the first-degree felony burglary count, and three concurrent sentences of
nine years’ probation on each of the second degree burglary counts.
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1
18 Pa.C.S.A. § 3502(a). Count 1 was graded as a first-degree felony;
counts 2, 3, and 4 were graded as second-degree felonies.
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On February 20, 2008, following new charges in Clarion County,
Appellant’s probation was revoked on the three second-degree felony
burglary charges and Appellant was resentenced to an aggregate of one to
two years’ incarceration, followed by five years’ probation. On February 3,
2015, Jefferson County probation and parole filed a detainer based on
information that Appellant was again in violation of his probation/parole. A
Gagnon I2 hearing was held on February 17, 2015, at which the trial court
ordered Appellant remain incarcerated pending the outcome of the new
charges on the two counts of misdemeanor theft in Clarion County. On June
17, 2015, a Gagnon II hearing was held and the trial court took judicial
notice of Appellant’s guilty plea to the Clarion County charges. On July 1,
2015, the trial court revoked Appellant’s probation on all three second-
degree felony charges, and resentenced Appellant to three consecutive
sentences of five to ten years’ imprisonment, for an aggregate sentence of
15 to 30 years’ imprisonment. On July 6, 2015, Appellant made a motion
for credit for time served, and on July 13, 2015, the trial court amended its
July 1, 2015 order to reflect Appellant’s credit for 887 days of time served.3
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2
Gagnon v. Scarpelli, 411 U.S. 778 (1973) (setting forth the procedural
requirements for probation and parole revocations).
3
Said order was amended a second time on September 1, 2015 to reflect
the amount of time served as 890 days, not 887 days. The order stated that
“[a]ll other terms and conditions of t[he trial c]ourt’s Order of July 13, 2015,
shall remain in full forced [sic] and effect.” Trial Court Order, 9/1/15.
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On July 15, 2015, Appellant filed a motion to reconsider his sentence
asserting the trial court’s sentence was excessive. The trial court denied
Appellant’s motion the same day. On July 30, 2015, Appellant filed a timely
notice of appeal.4
On appeal, Appellant raises the following issue for our review.
Whether the trial court abused its discretion when it
revoked Appellant’s probation and re-sentenced him
to serve a sentence of incarceration in the State
Correctional Institution aggregating to a minimum of
fifteen (15) years to a maximum of thirty (30) years
for [A]ppellant’s violations of probation/parole[?]
Appellant’s Brief at 4.
We review a trial court’s sentence imposed following the revocation of
probation for an error of law or an abuse of discretion. Commonwealth v.
Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014), appeal denied, 109 A.3d
678 (Pa. 2015). “[Our] scope of review in an appeal from a revocation of
sentencing includes discretionary sentencing challenges.” Commonwealth
v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc). “An abuse
of discretion is not merely an error of judgment, but if in reaching a
conclusion the law is overridden or misapplied or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will,
as shown by the evidence or the record, discretion is abused.”
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4
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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Commonwealth v. Burns, 988 A.2d 684, 689 (Pa. Super. 2009) (en banc)
(citation omitted), appeal denied, 8 A.3d 341 (Pa. 2010).
[W]e must accord the sentencing court great
weight as it is in the best position to view the
defendant’s character, displays of remorse, defiance
or indifference, and the overall effect and nature of
the crime. … [A] sentence should not be disturbed
where it is evident that the sentencing court was
aware of sentencing considerations and weighed the
considerations in a meaningful fashion.
Commonwealth v. Ahmad, 961 A.2d 884, 887 (Pa. Super. 2008) (citations
and quotation marks omitted).
Instantly, Appellant notes that he “does not question that a sentence
of total confinement was appropriate.” Appellant’s Brief at 9. “He doe[s],
however, aver that the aggregate sentence of fifteen (15) to thirty (30)
years in a State Correctional Facility was excessive given the charges for
which his probation was revoked.” Id. at 9-10. Specifically, Appellant
argues his probation was revoked following his conviction for two
misdemeanor theft charges for which he only received an aggregate
sentence of nine months to two years’ imprisonment. Id. at 10.
This challenge to the discretionary aspects of a sentence is not
appealable as of right. Colon, supra at 1042. Instead, an appellant must
petition for permission to appeal. Id. We evaluate the following factors to
determine whether to grant permission to appeal a discretionary aspect of
sentencing.
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Before we reach the merits of this issue, we must
engage in a four part analysis to determine: (1)
whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant’s brief
includes a concise statement of the reasons relied
upon for allowance of appeal with respect to the
discretionary aspects of sentence [as required by
Rule 2119(f) of the Pennsylvania Rules of Appellate
Procedure]; and (4) whether the concise statement
raises a substantial question that the sentence is
appropriate under the sentencing code. The third
and fourth of these requirements arise because
Appellant’s attack on his sentence is not an appeal
as of right. Rather, he must petition this Court, in
his [Rule 2119(f)] concise statement of reasons, to
grant consideration of his appeal on the grounds that
there is a substantial question. [I]f the appeal
satisfies each of these four requirements, we will
then proceed to decide the substantive merits of the
case.
Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)
(citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
Instantly, Appellant filed a timely notice of appeal, preserved his claim
in a timely post-sentence motion, and included a separate Pa.R.A.P. 2119(f)
statement within his appellate brief. See Appellant’s Brief at 7. Accordingly,
Appellant has complied with the technical requirements to challenge the
discretionary aspects of his sentence. See Edwards, supra at 330.
Appellant’s Rule 2119(f) statement merely states “the sentence was
manifestly unreasonable in that it was excessive and constitutes too severe
a punishment under the circumstances of the case and the probation
violation, and that the [trial c]ourt’s reasons for the sentence did not justify
the severity.” Appellant’s Brief at 7. Instantly, our review reveals that
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Appellant has failed to present a substantial question for our review. This
Court has long recognized that “a bald assertion that Appellant’s sentence
was excessive” does not raise a substantial question for our review.
Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012), appeal
denied, 62 A.3d 378 (Pa. 2013).5 Accordingly, Appellant has failed to
present a reviewable claim.
Based on the foregoing, we conclude Appellant has failed to raise a
substantial question for our review. Accordingly, the trial court’s July 13,
2015 judgment of sentence is affirmed.
Judgment of sentence affirmed.
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5
Further, even if Appellant’s claim arguably raised a substantial question,
Appellant does not develop an argument or cite to any authority that
Appellant’s probation revocation sentence should be based on the severity of
any new convictions, rather than the severity of the convictions underlying
the revoked sentences. This Court will not consider an argument where an
appellant fails to cite to any legal authority or otherwise develop the issue.
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009), cert. denied,
Johnson v. Pennsylvania, 562 U.S. 906 (2010); see also In re Estate of
Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (stating, “[f]ailure to cite
relevant legal authority constitutes waiver of the claim on appeal[]”)
(citation omitted), appeal denied, 69 A.3d 603 (Pa. 2013).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/2/2016
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