J-S48032-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT
PENNSYLVANIA, : OF PENNSYLVANIA
:
Appellee :
:
v. :
:
DEVIN BURRELL, :
:
Appellant : No. 736 EDA 2018
Appeal from the Judgment of Sentence Entered February 9, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003272-2013
BEFORE: BOWES, J., SHOGAN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 16, 2019
Devin Burrell (Appellant) appeals from the February 9, 2018 judgment
of sentence, which the trial court imposed after revoking Appellant’s
probation. We affirm.
We glean the following facts and procedural history from the record. On
April 24, 2014, Appellant pleaded guilty to one count of possession of a
controlled substance with intent to deliver (PWID); driving under the influence
(DUI) of a controlled substance; and DUI of a controlled substance – impaired
ability. Appellant was sentenced on November 6, 2014, to an aggregate term
of 72 hours to 6 months of incarceration, with a concurrent probation term of
7 years, with immediate parole to a drug treatment program.
* Retired Senior Judge assigned to the Superior Court.
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The trial court revoked Appellant’s probation on June 12, 2015, after he
was charged with recklessly endangering the welfare of another person;
endangering the welfare of a child; and public drunkenness in Montgomery
County. On June 12, 2015, Appellant was resentenced to a term of five to ten
years of incarceration, followed by ten years of probation, on the PWID
conviction. No further penalty was imposed on the DUI convictions. On June
19, 2015, Appellant filed a motion for reconsideration, which the trial court
granted. On July 1, 2015, the trial court resentenced Appellant to a term of
11½ to 23 months of incarceration, followed by 10 years of probation, and
ordered him to be paroled immediately to an inpatient drug treatment
program once a bed became available. Appellant did not file a notice of
appeal.
Appellant was granted probation on June 17, 2016. While on probation,
Appellant was shot in the leg while exiting a taxi in November 2017, and he
reported to his probation officer that he was prescribed Xanax and Percocet
for his injury. Thereafter, Appellant tested positive for benzodiazepines and
opiates on two occasions; he eventually produced prescriptions for the drugs
months later. Appellant reported to his probation officer in January 2017, that
he was becoming addicted to the drugs, was enrolled in a drug treatment
program, and was receiving methadone maintenance. On March 28, 2017,
Appellant’s probation officer received a message from an individual purporting
to be from an inpatient drug treatment facility, stating that Appellant was an
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inpatient there. Despite multiple attempts, Appellant’s probation officer was
unable to verify this information.
On May 24, 2017, an unidentified male dropped off a letter from a drug
rehabilitation center, on behalf of Appellant, claiming that Appellant was
evaluated for 90 days of inpatient drug treatment at the facility. After calling
the facility, Appellant’s probation officer determined that the letter was
fraudulent and that Appellant had never been an inpatient there.
Between April 4, 2017, and May 24, 2017, Appellant failed to report for
six mandatory meetings with his probation officer. On June 16, 2017, wanted
cards were issued for Appellant’s arrest. While absconding, Appellant was
arrested on October 12, 2017, and charged with possession of a controlled
substance and false identification to law enforcement.
After a probation violation hearing, the trial court again revoked
Appellant’s probation on February 9, 2018, and resentenced Appellant to a
term of 4 to 8 years of incarceration. This timely-filed appeal followed. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant claims that his sentence of 4 to 8 years of
incarceration “for a technical violation of probation, the maximum possible
sentence allowable, [is] manifestly excessive, unreasonable, and
disproportionate to the conduct at issue.” Appellant’s Brief at 3. Because this
issue involves a challenge to the discretionary aspects of Appellant’s sentence,
we bear in mind the following.
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Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
***
When imposing sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer to
the defendant’s prior criminal record, age, personal characteristics
and potential for rehabilitation.
Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the following
four factors:
(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. 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.[] § 9781(b).
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
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Here, Appellant timely filed a notice of appeal. However, our review of
the record reveals that Appellant did not properly preserve this issue at
sentencing or by filing a post-sentence motion.
Appellant acknowledges that he was required to preserve a challenge to
the discretionary aspects of his sentence at the time of sentencing or in a
motion to reconsider, but claims in his brief that
defense counsel did specifically request a less than two year
sentence, a request which the trial court obviously rejected,
imposing a sentence of more than four times what defense counsel
asked for. By rejecting defense counsel’s proposed sentence, the
lower court implicitly also rejected the argument that such a lower
sentence was appropriate and proportional to the conduct at
issue. This preserved the claim that the sentenced of four to eight
years was excessive and disproportionate.
Appellant’s Brief at 12 n.3, citing N.T., 2/9/2018, at 16. We disagree. First,
our review of the notes of testimony of the February 9, 2018 hearing reveals
no such request, either at the location to which Appellant cites or anywhere
else in the sentencing hearing transcript. Moreover, even if Appellant’s
counsel had made a request for a sentence of less than two years, it would
not properly preserve a challenge to the discretionary aspects of sentencing
because it would have been lodged before the court imposed Appellant’s
sentence and would have lacked specificity. See Commonwealth v. Mann,
820 A.2d 788, 794 (Pa. Super. 2003) (holding failure to raise specific claim
regarding sentence during sentencing hearing deprived trial court of
opportunity to consider claim and thus, claim was waived). Moreover,
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Appellant’s counsel informed Appellant of his appellate rights at the hearing,
advising him as follows.
[DEFENSE COUNSEL:] … If you wish to challenge the sentence
that was imposed, you must file a motion to modify sentence
within ten days of today’s date. If you don’t do that, you won’t
be able to challenge your sentence. Again, my office will continue
to represent you for purposes of preparing those motions and
filing your appeal. Do you understand that?
[APPELLANT:] Yes.
N.T., 2/9/2018, at 32. Yet, as stated supra, no post-sentence motion was
filed.1
Accordingly, Appellant has not preserved this issue for our review, and
he is not entitled to relief. See Commonwealth v. Rhoades, 8 A.3d 912,
915 (Pa. Super. 2010) (stating that an appellant waives for appeal issues
challenging the discretionary aspects of his sentence where he does not raise
them at sentencing or in a post-sentence motion). Accordingly, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
____________________________________________
1 On November 6, 2018, nine months after sentencing and despite being
represented by counsel, Appellant filed a pro se Motion to Correct Illegal
Sentence, claiming his sentenced exceeded the statutory maximum. Because
hybrid representation is not permitted, this motion constituted a legal nullity.
Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007)
(“Appellant had no right to file a pro se motion because he was represented
by counsel. This means that his pro se post-sentence motion was a nullity,
having no legal effect.”) (citations omitted). In any event, said motion was
untimely filed. See Pa.R.Crim.P. Rule 720.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/19
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