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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MONTERRAY ROBINSON :
:
Appellant : No. 2967 EDA 2017
Appeal from the Judgment of Sentence August 11, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0015620-2010,
CP-51-CR-0015643-2010
BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.E.: FILED MARCH 01, 2019
Appellant, Monterray Robinson, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following
revocation of his probation. We affirm.
The relevant facts and procedural history of this case are as follows. On
August 11, 2010, Appellant and two accomplices robbed Victim at gunpoint.
Appellant entered a negotiated guilty plea on April 30, 2012, to one count
each of robbery, conspiracy, and possession of an instrument of crime. The
court sentenced Appellant that same day to 11½ to 23 months’ imprisonment
plus 8 years’ probation.
On August 27, 2014, while Appellant was on probation, police arrested
Appellant during a traffic stop after they discovered a loaded firearm in the
vehicle. The Commonwealth charged Appellant with violations of the uniform
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firearm act. On June 9, 2017, the court found sufficient evidence of a
probation violation and revoked probation. The court resentenced Appellant
on August 11, 2017, to 9 to 18 years’ imprisonment plus 5 years’ probation.
On August 14, 2017, Appellant timely filed a motion for reconsideration of
sentence, which asked the court to reconsider the character testimony given
at the resentencing hearing and argued the court improperly weighed
Appellant’s prior record when fashioning the current sentence. Appellant
timely filed a notice of appeal on September 5, 2017. Subsequently, the trial
court denied Appellant’s motion for reconsideration of the revocation sentence
and granted counsel’s motion to withdraw. On October 16, 2017, the court
ordered Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). On April 3, 2018, the court appointed new
counsel, who filed a Rule 1925(b) statement on April 18, 2018.
Appellant raises the following issue for our review:
DID THE SENTENCING COURT ABUSE ITS DISCRETION BY
FASHIONING A SENTENCE THAT GREATLY EXCEEDED THAT
WHICH IS NECESSARY TO PROTECT THE PUBLIC AND
FAILED TO CONSIDER NUMEROUS MITIGATING FACTORS,
TO INCLUDE BUT NOT LIMITED TO, APPELLANT'S FAMILIAL
SUPPORT, BEING A POSITIVE FORCE IN HIS FAMILY, AND
BEING THE FATHER OF A YOUNG SON, AND APPELLANT’S
REHABILITATIVE NEEDS?
(Appellant’s Brief at 4).
Appellant argues his current sentence is at odds with fundamental
sentencing norms and Section 9721(b). Appellant further contends the court
during resentencing did not take into account his rehabilitative needs and
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mitigating circumstances, such as extensive familial support and remorse.
Appellant challenges involve the discretionary aspects of sentence. See
Commonwealth v. Cartrette, 83 A.3d 1031 (Pa.Super. 2013) (en banc)
(explaining claim sentencing court failed to consider Section 9721(b) factors
pertains to discretionary sentencing matters); Commonwealth v. Cruz-
Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676
A.2d 1195 (1996) (stating claim that sentencing court failed to consider or did
not adequately consider mitigating factors implicates discretionary aspects of
sentencing).
When reviewing the outcome of a revocation proceeding, this Court is
limited to determining the validity of the proceeding, the legality of the
sentence imposed, and the discretionary aspects of sentencing.
Commonwealth v. Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013) (en
banc) (explaining that, notwithstanding prior decisions which stated our scope
of review in revocation proceedings is limited to validity of proceedings and
legality of sentence, appellate review of revocation sentence can also include
discretionary sentencing challenges).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910
(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing
issue:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
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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. 720; (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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
Objections to the discretionary aspects of a sentence are waived if they are
not raised at the sentencing hearing or in a motion to modify the sentence
imposed at that hearing. Commonwealth v. Kittrell, 19 A.3d 532
(Pa.Super. 2011). See also Commonwealth v. Oree, 911 A.2d 169
(Pa.Super. 2006), appeal denied, 591 Pa. 699, 918 A.2d 744 (2007)
(explaining challenges to discretionary aspects of sentencing must be raised
in post-sentence motion or during sentencing proceedings; absent such
efforts, claim is waived).
Instantly, the court resentenced Appellant on August 11, 2017. On
August 14, 2017, Appellant timely filed a post-sentence motion, which argued
the court over-emphasized Appellant’s past conduct and asked the court to
reconsider testimony presented on his behalf at the resentencing hearing. On
appeal, Appellant argues the court did not consider mitigating factors and
sentenced Appellant outside the fundamental norms of the Sentencing Code
and Section 9721(b). As presented, these claims are distinct. Appellant’s
failure to specify in his post-sentence motion the precise claims he now raises
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constitutes waiver of his issue on appeal. See id.; Evans, supra.
Accordingly, we affirm the judgment of sentence. See generally In re
K.L.S., 594 Pa. 194, 197 n.3, 934 A.2d 1244, 1246 n.3 (2007) (stating where
issues are waived on appeal, this Court should affirm rather than quash
appeal).1
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/19
____________________________________________
1Moreover, the revocation court (a) considered the pre-sentence investigative
report and all relevant sentencing factors when it imposed the revocation
sentence, (b) set forth its reasons for the sentence on the record, and (c)
noted the sentence did not exceed the statutory limits.
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