J-S92001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAWN HARRIS,
Appellant No. 91 WDA 2015
Appeal from the Judgment of Sentence December 16, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011219-2009,
CP-02-CR-0012807-2009
BEFORE: SHOGAN, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 24, 2017
Appellant, Shawn Harris, appeals from the judgment of sentence
entered on December 16, 2014, following the revocation of his probation.
We affirm.
The relevant facts and procedural history of this matter are as follows:
On March 15, 2010, Appellant, Shawn Harris, as part of a
plea agreement, pled guilty at two informations. At CC #
200911219, Appellant pled guilty [to] two counts of Firearms Not
to be Carried Without a License1, two counts of Person Not to
Possess/Use Firearms2, one count of Resisting Arrest3 and one
summary. This Court sentenced Appellant at Firearms Not to be
Carried Without a License to two to four years incarceration.
This Court sentenced Appellant at the other Firearms Not to be
Carried Without a License to two to four years incarceration
concurrent [with] Count One. At each of the Person Not to
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*
Retired Senior Judge assigned to the Superior Court.
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Possess counts, this Court imposed two years of probation,
consecutive to incarceration and to each other.4
1
18 Pa.C.S. [§]6106 (a)(1).
2
18 Pa.C.S. [§]6105 (a)(1).
3
18 Pa.C.S. [§]5104[.]
4
This Court imposed no further penalty at the
remaining counts.
At CC# 200912807, Appellant pled guilty to Firearms Not
to be Carried Without a License, Person Not to Possess/Use
Firearms, Receiving Stolen Property5 (RSP), and three
summaries. This Court sentenced him to two to four years of
incarceration at the Firearms Not to be Carried Without a License
count, run concurrent with the sentence imposed at the other
information. At the Person Not to Possess/Use Firearms count,
two years of probation consecutive to incarceration but
concurrent to the other probation imposed. At the RSP count
this Court imposed two years probation consecutive to the
Person Not to Possess/Use Firearms count but concurrent with
the other information.6 The aggregate sentence imposed was 2-
4 years incarceration with 4 years [of] probation consecutive to
incarceration.
5
18 Pa.C.S. [§]3925 (a).
6
This Court imposed no further penalty for the
summaries.
On December 16, 2014, this Court found Appellant to be a
technical violator [of] his probation. This Court revoked his
probation and resentenced Appellant to 4 to 8 years of
incarceration and four years of probation consecutive to
incarceration.[1] Appellant filed a Notice of Appeal on
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1
Specifically, after revoking Appellant’s probation, the trial court
resentenced Appellant as follows: At CP-02-CR-0012807-2009, the trial
court imposed a sentence of two to four years of incarceration on the
persons not to possess firearms charge followed by a consecutive term of
(Footnote Continued Next Page)
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January 15, 2015 and a Statement of Errors Complained of on
Appeal on February 6, 2015.
Trial Court Opinion, 4/22/16, at 2-3.
On appeal, Appellant raises the following issue for this Court’s
consideration:
Whether the aggregate revocation sentence of 4-8 years state
incarceration was manifestly excessive and an abuse of
discretion when the trial court did not consider the sufficiency of
the sanctions already imposed on [Appellant], as well as the
availability of community-based resources to address
[Appellant’s] serious rehabilitative needs?
Appellant’s Brief at 9 (full capitalization omitted).
Appellant’s issue on appeal presents a challenge to the discretionary
aspects of his sentence. We note that “[t]he right to appellate review of the
discretionary aspects of a sentence is not absolute.” Commonwealth v.
Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014). Rather, where an appellant
challenges the discretionary aspects of a sentence, the appeal should be
considered a petition for allowance of appeal. Commonwealth v. W.H.M.,
932 A.2d 155, 163 (Pa. Super. 2007). Additionally, we point out that while
Appellant has appealed the discretionary aspects of a sentence following the
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(Footnote Continued)
two years of probation for receiving stolen property. At CP-02-CR-0011219-
2009, the trial court resentenced Appellant to a term of two to four years of
incarceration on the persons not to possess firearms charge, consecutive to
the sentence at CP-02-CR-0012807-2009, followed by a consecutive term of
two years of probation on the additional charge of persons not to possess
firearms. This sentence, as noted above, resulted in an aggregate term of
four to eight years of incarceration followed by four years of probation.
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revocation of his probation, such a challenge is permitted. See
Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013)
(stating that challenges to the discretionary aspects of an appellant’s
sentence in an appeal following a revocation of probation are allowed).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e 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. [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).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.
Super. 2006)). The determination of whether there is a substantial question
is made on a case-by-case basis, and this Court will grant the appeal only
when the appellant advances a colorable argument that the sentencing
judge’s actions were either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process. Commonwealth v. Sierra, 752 A.2d 910, 912-913
(Pa. Super. 2000).
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Herein, Appellant filed a timely post-sentence motion;2 however, the
only issue raised in that post-sentence motion alleged that the sentence
imposed was illegal. Motion, 12/18/14, at ¶4. The record reflects that the
trial court corrected that sentencing error.3 Trial Court Opinion, 4/22/16, at
4; Order Correcting Sentence, 4/13/15. Appellant failed to present a
challenge to the discretionary aspects of his sentence at sentencing or in his
post-sentence motion. The first time Appellant raised this issue was in his
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2
We point out that while Appellant timely filed a post-sentence motion, he
was required to file his notice of appeal before the trial court could rule on
the motion. Post-sentence motions filed after sentences imposed following
the revocation of probation do not toll the time in which to file an appeal.
Pa.R.Crim.P. 708(E).
3
Due to the fact that Appellant was constrained to file an appeal prior to
the trial court ruling on his motion to correct sentence, the trial court would
ordinarily be without jurisdiction to correct Appellant’s sentence.
Commonwealth v. Martz, 926 A.2d 514, 525 (Pa. Super. 2007) (citing 42
Pa.C.S. § 5505); Pa.R.Crim.P. 708(E). Although we recognize that the trial
court corrected Appellant’s sentence after he filed his notice of appeal, our
Supreme Court has held that “under limited circumstances, even where the
court would normally be divested of jurisdiction, a court may have the power
to correct patent and obvious mistakes.” Commonwealth v. Klein, 781
A.2d 1133, 1135 (Pa. 2001). Here, the patent error was that at docket
number CP-02-CR-0012807-2009, the scrivener transposed the sentences at
counts one and two. Thus, the trial court’s order correcting the sentence
merely directed that the judgment of sentence was to reflect the correct and
legal sentence as stated in the transcript. Order, 4/13/15. Accordingly, we
conclude the trial court had the authority to correct the patent mistake in
Appellant’s original sentencing order.
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1925(b) statement. Accordingly, Appellant’s challenge was waived.
Cartrette, 83 A.3d 1042-1043.4
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/2017
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4
We note that Appellant filed a pro se post-sentence motion that was dated
December 21, 2014, and filed on the docket on December 30, 2014.
However, Appellant was at all times represented by counsel, and hybrid
representation is not permitted. See Commonwealth v. Jette, 23 A.3d
1032, 1036 (Pa. 2011) (concluding that a petitioner’s pro se motion for
remand when that petitioner is represented by counsel is impermissible as
hybrid representation). This Court will not accept a pro se motion while an
appellant is represented by counsel; pro se motions have no legal effect and
are legal nullities. See Commonwealth v. Nischan, 928 A.2d 349, 355
(Pa. Super. 2007) (discussing a pro se post-sentence motion filed by a
petitioner who had counsel); compare Commonwealth v. Williams, ___
A.3d ___, 2016 PA Super 262 (Pa. Super. filed November 23, 2016)
(distinguishing pro se notices of appeal from other filings that require
counsel to provide legal knowledge and strategy where the defendant is
represented by counsel). Thus, Appellant’s pro se motion does not preserve
his challenge to the discretionary aspects of his sentence. Assuming,
however, for the sake of argument, that Appellant’s pro se motion preserved
his issue on appeal, we would affirm on the basis of the trial court’s opinion.
See Trial Court Opinion, 4/22/16, at 4-7.
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