J-S80018-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD HARTZELL :
:
Appellant : No. 771 EDA 2017
Appeal from the Judgment of Sentence March 4, 2016
In the Court of Common Pleas of Bucks County Criminal Division at No(s):
CP-09-CR-0001483-2012,
CP-09-CR-0008163-2011
BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 27, 2018
Appellant, Edward Hartzell, appeals nunc pro tunc from the judgment
of sentence entered following the revocation of his probation at trial court
docket numbers CP-09-CR-0008163-2011 and CP-09-CR-0001483-2012.
Appellant filed this direct appeal after his appellate rights were reinstated as
a result of a petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. After review, we affirm.
We glean from the record the following factual and procedural history.
On April 13, 2015, the trial court sentenced Appellant on a separate criminal
case at trial court docket number CP-09-CR-0001084-2015, to a term of
three and one-half to seven years of incarceration followed by seven years
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of probation for the crime of burglary. PCRA Petition, 8/23/16, at ¶12.1 At
the time Appellant was sentenced at CP-09-CR-0001084-2015, he was
serving sentences of probation at CP-09-CR-0008163-2011 and CP-09-CR-
0001483-2012.2 On March 4, 2016, the trial court held a hearing and
concluded that Appellant violated his probation at CP-09-CR-0008163-2011
and CP-09-CR-0001483-2012. The trial court revoked Appellant’s probation
at each case and resentenced Appellant to terms of three to six years of
incarceration followed by ten years of probation at both CP-09-CR-0008163-
2011 and CP-09-CR-0001483-2012.3 These sentences were ordered to be
served concurrently to each other and consecutively to the sentence
imposed at docket number CP-09-CR-0001084-2015. Appellant did not file
post-sentence motions at CP-09-CR-0008163-2011 or CP-09-CR-0001483-
2012.
____________________________________________
1 Appellant did not file an appeal from the judgment of sentence at CP-09-
CR-0001084-2015. Therefore, the record in that matter is not before this
Court. Nevertheless, there is no dispute among the parties and the trial
court that this sentence was the impetus for the probation revocation and
subsequent sentences at CP-09-CR-0008163-2011 and CP-09-CR-0001483-
2012. N.T., 3/4/16, at 5.
2 Appellant was also serving a sentence of probation at CP-09-CR-0003920-
2013. However, Appellant stated in his PCRA petition that the sentence in
that case was closed. PCRA Petition, 8/23/16, at ¶17. Appellant did not file
an appeal at that docket number.
3The trial court also revoked Appellant’s parole at CP-09-CR-0008163-2011
and CP-09-CR-0001483-2012.
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On August 23, 2016, Appellant filed a timely PCRA petition at both CP-
09-CR-0008163-2011 and CP-09-CR-0001483-2012 seeking reinstatement
of his post-sentence and appellate rights. The PCRA court appointed
counsel, and on February 6, 2017, the PCRA court reinstated Appellant’s
direct appeal rights nunc pro tunc. The February 6, 2017 order did not
mention Appellant’s post-sentence rights, and Appellant did not file post-
sentence motions. On February 24, 2017, Appellant filed a timely nunc pro
tunc appeal from the judgment of sentence at CP-09-CR-0008163-2011 and
CP-09-CR-0001483-2012.
On appeal, Appellant raises one issue for this Court’s consideration:
A. Did the trial court abuse its discretion by imposing a
manifestly excessive and unjust sentence on the aforesaid
docket numbers as it did not consider the rehabilitation needs
of [A]ppellant or other sentences he was serving at the time
the above sentence was imposed?
Appellant’s Brief at 5 (full capitalization omitted).
Allegations that a sentencing court failed to consider certain factors or
imposed a manifestly excessive sentence are challenges to the discretionary
aspects of a sentence. See Commonwealth v. Cruz–Centeno, 668 A.2d
536, 545 (Pa. Super. 1995) (a claim that the sentencing court failed to
consider certain factors implicates the discretionary aspects of a sentence);
see also Commonwealth v. Lee, 876 A.2d 408, 411 (Pa. Super. 2005) (a
claim alleging a sentence is manifestly excessive is a challenge to the
discretionary aspects of the sentence). We note that “[t]he right to
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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 sentences imposed following the revocation of
probation, such challenges are permitted. See Commonwealth v.
Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (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).
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Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.
Super. 2006)).
We begin with the second prong of the test set forth in Moury as it is
dispositive. “[I]ssues challenging the discretionary aspects of a sentence
must be raised in a post-sentence motion or by presenting the claim to the
trial court during the sentencing proceedings. Absent such efforts, an
objection to a discretionary aspect of a sentence is waived.” See
Commonwealth v. Shugars, 895 A.2d 1270, 1273-1274 (Pa. Super. 2006)
(citation omitted). At the sentencing hearing following the revocation of his
probation, Appellant did not challenge the sentences imposed at trial court
docket numbers CP-09-CR-0008163-2011 or CP-09-CR-0001483-2012.
Moreover, as discussed above, Appellant did not file a post-sentence motion
to reconsider or modify his sentences at trial court docket numbers CP-09-
CR-0008163-2011 or CP-09-CR-0001483-2012. Accordingly, we are
constrained to conclude that Appellant failed to preserve his challenges to
the discretionary aspects of the sentences imposed therein. Shugars, 895
A.2d at 1273-1274. Due to Appellant’s waiver of his sole issue on appeal,
we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/18
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