J-S27039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYRON HANDY,
Appellant No. 1653 EDA 2016
Appeal from the Judgment of Sentence April 22, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0009660-2011
BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JULY 07, 2017
Appellant, Tyron Handy, appeals from the judgment of sentence
imposed on April 22, 2016, following the revocation of his probation.
Specifically, he challenges the discretionary aspects of his sentence. We
affirm.
We take the factual and procedural history in this matter from our
review of the certified record and the trial court’s July 20, 2016 opinion. On
October 13, 2011, Appellant entered a negotiated guilty plea to burglary and
conspiracy.1 Pursuant to the plea agreement, on November 10, 2011, the
trial court sentenced him to not less than six nor more than twenty-three
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3502(a) and 903, respectively.
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months of incarceration, followed by three years of probation for burglary; it
did not impose a sentence for conspiracy.
Appellant was released on parole on February 28, 2013. After a
violation of probation hearing on March 21, 2014, the trial court continued
Appellant’s probation. Less than three months later, on June 10, 2014,
Appellant was arrested and charged with third-degree murder for his
participation in a shootout. On November 30, 2015, Appellant pleaded guilty
to murder of the third-degree2 and was sentenced to not less than twenty
nor more than forty years of imprisonment.
On April 22, 2016, the trial court conducted a revocation of probation
hearing, where it found that Appellant’s third degree murder conviction
placed him in direct violation of his probation. The court revoked his
probation and sentenced Appellant to not less than nine nor more than
eighteen years of imprisonment, to run consecutive to the sentence for
third-degree murder. Appellant filed a post-sentence motion for
reconsideration on April 29, 2016, which was denied by operation of law.
See Pa.R.Crim.P. 708(E) (“A motion to modify a sentence imposed after a
revocation shall be filed within [ten] days of the date of imposition. The
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2
18 Pa.C.S.A. § 2502(c).
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filing of a motion to modify sentence will not toll the [thirty]-day appeal
period.”). This timely appeal followed.3
Appellant raises one question for our review.
[Whether] the [trial] court abuse[d] its discretion by failing
to responsibly fashion an individualized sentence where, during a
perfunctory four-minute violation of probation hearing, the court
revoked [A]ppellant’s probation and imposed a manifestly
excessive sentence of [nine] to [eighteen] years’ incarceration,
ordered to run consecutive to another judge’s sentence of
[twenty-five] to [sixty] years’ incarceration, without considering
or even having knowledge of a single aspect of [A]ppellant’s
background or character, and without disclosing in open court
anything other than a boilerplate statement of reasons for the
sentence imposed?
(Appellant’s Brief, at 3).
Appellant’s issue challenges the discretionary aspects of his sentence.
This Court has concluded that a challenge to a discretionary sentencing
matter after revocation of probation proceedings is within the scope of its
review. See Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super.
2006), appeal denied, 906 A.2d 1196 (Pa. 2006).
Such a challenge to the discretionary aspects of a sentence is
not appealable as of right. Rather, Appellant must petition for
allowance of appeal pursuant to 42 Pa.C.S.A. § 9781.
Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super.
2004).
Before we reach the merits of this [issue], we must
engage in a four part analysis to determine: (1) whether
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3
Pursuant to the trial court’s order, Appellant filed his statement of errors
complained of on appeal on July 6, 2016. The trial court issued its opinion
on July 20, 2016. See Pa.R.A.P. 1925.
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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; 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] must petition
this Court, in his concise statement of reasons, to grant
consideration of his appeal on the grounds that there is a
substantial question. Finally, if the appeal satisfies each of
these four requirements, we will then proceed to decide
the substantive merits of the case.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super.
2013)[, appeal denied, 77 A.3d 1258 (Pa. 2013)] (citations
omitted); see also Commonwealth v. Kalichak, 943 A.2d
285, 289 (Pa. Super. 2008) (“[W]hen a court revokes probation
and imposes a new sentence, a criminal defendant needs to
preserve challenges to the discretionary aspects of that new
sentence either by objecting during the revocation sentencing or
by filing a post-sentence motion.”) [(citation omitted)].
Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014),
appeal denied, 109 A.3d 678 (Pa. 2015).
Here, Appellant has properly preserved his issue by filing a post-
sentence motion for reconsideration of sentence, which was denied by
operation of law, and a timely appeal. Appellant’s brief contains a Rule
2119(f) concise statement of reasons relied on for allowance of appeal.
(See Appellant’s Brief, at 9-11). In it, Appellant argues that the trial court
failed to consider the factors set forth in the sentencing code, to order a pre-
sentence investigation report (PSI), and to state the reasons for the
sentence imposed on the record. (See id. at 10-11). “We have held that an
appellant’s allegation that the trial court imposed sentence without
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considering the requisite statutory factors or stating adequate reasons for
dispensing with a pre-sentence report does raise a substantial question.”
Commonwealth v. Flowers, 950 A.2d 330, 332 (Pa. Super. 2008) (citation
and internal quotation marks omitted). Thus, Appellant has presented a
substantial question and we will proceed to the merits of his claim.
Our standard of review of an appeal from a sentence imposed
following the revocation of probation is well-settled: “Revocation of a
probation sentence is a matter committed to the sound discretion of the trial
court and that court’s decision will not be disturbed on appeal in the absence
of an error of law or an abuse of discretion.” Colon, supra at 1041 (citation
omitted).
In his issue, Appellant claims that the trial court did not consider the
relevant sentencing factors and did not fashion an individualized sentence.
(See Appellant’s Brief, at 14-25). Specifically, he claims that the court failed
to consider his background and character, and failed to state adequately its
reasons on the record for imposing its sentence.4 (See id. at 14). We
disagree.
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4
Appellant also argues that the court erred in failing to order a PSI, or state
on the record its reasons for not doing so. (See Appellant’s Brief, at 19-21).
However, as noted by the Commonwealth, Appellant failed to object to the
lack of PSI either during the violation of probation hearing or in his post-
sentence motion, and failed to include it in his statement of errors
complained of on appeal. (See N.T. Hearing, 4/22/16, at 1-8; Motion for
Reconsideration, 4/27/16, at unnumbered pages 1-3; Statement of Errors
(Footnote Continued Next Page)
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Upon revoking probation, a sentencing court may choose
from any of the sentencing options that existed at the time of
the original sentencing, including incarceration. 42 Pa.C.S.A. §
9771(b). “[U]pon 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. Infante, 63 A.3d 358, 365 (Pa. Super.
2013) (internal quotation marks and citations omitted). . . .
Colon, supra at 1044. “A sentencing court need not undertake a lengthy
discourse for its reasons for imposing a sentence or specifically reference the
statute in question, but the record as a whole must reflect the sentencing
court’s consideration of the facts of the crime and character of the offender.”
Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010), appeal
denied, 13 A.3d 475 (Pa. 2010) (citation omitted). “[O]ur sentencing
guidelines are not required to be consulted” when sentencing upon
revocation. Commonwealth v. Cartrette, 83 A.3d 1030, 1040 (Pa. Super.
2013) (citing 204 Pa. Code. § 303.1(b)).
Here, the record reveals that the court was familiar with Appellant
because it had accepted his burglary plea, and sentenced him accordingly.
(See Negotiated Guilty Plea Sentence, 11/10/11, at 1; Written Guilty Plea
Colloquy, 10/13/11, at 4). At the revocation hearing, the court considered
Appellant’s criminal history, and specifically the fact that Appellant was on
probation for burglary when he committed third degree murder by shooting
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(Footnote Continued)
Complained of on Appeal, 7/06/16; see also Commonwealth’s Brief, at 5).
Therefore, we deem this argument waived, and limit our analysis to
considering only those arguments that were properly preserved.
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and killing the victim. (See N.T. Hearing, at 3-6). Although Appellant now
complains that the court did not have enough information to fashion an
individualized sentence, he declined the opportunity to testify on his own
behalf to provide any such material at the hearing. (See id. at 6). In fact,
as stated previously, Appellant did not challenge the court’s decision not to
order a PSI, either at the hearing or in his post-sentence motion. (See
supra at 5 n.4).
Furthermore, although the court did not “undertake a lengthy
discourse for its reasons for imposing [the] sentence[,]” Crump, supra at
1283 (citation omitted), it did set forth its reasons. (See N.T. Hearing, at 6)
(“Well, I’m going to impose a sentence for the protection of the community,
prevention, punishment, rehabilitation and to vindicate the authority of the
Court, because you were on my probation at the time and you should not
have been committing crimes.”).
Moreover, we note that the maximum sentence that the court could
have imposed at Appellant’s initial sentencing was twenty years’
incarceration. (See id. at 7). Therefore, the sentence levied upon
revocation, of not less than nine nor more than eighteen years of
incarceration, is within the maximum sentence that could have been
enforced. See 42 Pa.C.S.A. § 9771(b); Colon, supra at 1044.
Thus, we conclude that the record reflects the court’s reasons for
Appellant’s sentence and its consideration of the circumstances of the
offense, Appellant’s background, and his character. See Crump, supra at
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1283. The record also reflects that the sentence imposed was within the
maximum sentence that could have been imposed originally. See Colon,
supra at 1044. Accordingly, the court did not err or abuse its discretion in
this regard. See id. at 1041. Appellant’s issue lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2017
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