J-S61011-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MAURICE BUSSEY
Appellant No. 2428 EDA 2016
Appeal from the Judgment of Sentence June 27, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001781-2014,
CP-51-CR-0002751-2011, CP-51-CR-0009409-2015
BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 02, 2017
Maurice Bussey appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, following his guilty plea to
possession with intent to deliver (PWID) and conspiracy. We vacate and
remand.
In 2011, Bussey pled guilty to PWID and conspiracy, and the court
sentenced him to 6 to 24 months’ imprisonment, followed by three years’
probation. In 2014, while on probation, Bussey was again arrested for PWID
and related charges. The court sentenced him to 11½ to 23 months’
imprisonment, followed by 4 years’ probation.
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*
Retired Senior Judge assigned to the Superior Court.
J-S61011-17
On July 9, 2015, while on probation, Bussey was arrested again for
PWID and conspiracy. Bussey pled guilty, and on June 27, 2016, the court
sentenced him to three to six years’ imprisonment, followed by ten years’
probation for the 2015 charges, as well as a concurrent term of eight years’
probation for the 2011 and 2014 cases. Bussey filed a post-sentence motion
on July 7, 2016 and a notice of appeal on July 27, 2016. The court did not
dispose of Bussey’s post-sentence motion, however, and it was denied by
operation of law on November 7, 2016.1
On appeal, Bussey raises the following claims, challenging
discretionary aspects of sentencing:
Did not the sentencing court err as a matter of law, abuse its
discretion, and violate general sentencing principles when,
following a sentence on an open guilty plea and a revocation of
parole and probation hearing, the court imposed a sentence of
three to six years followed by [ten] years’ probation, where the
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1
Pursuant to Pa.R.Crim.P. 720(B)(3)(a), “the judge shall decide the post-
sentence motion . . . within 120 days of the filing of the motion. If the judge
fails to decide the motion within 120 days, or to grant an extension as
provided in paragraph (B)(3)(b), the motion shall be deemed denied by
operation of law.” Here, Bussey prematurely filed his notice of appeal.
However, on November 7, 2016, the post-sentence motion was denied by
operation of law and, thus, the judgment of sentence became final for
purposes of appeal. See Pa.R.Crim.P. 720(B)(3)(a), (c). Further, “[a]
notice of appeal filed after the announcement of a determination but before
the entry of an appealable order shall be treated as filed after such
entry and on the day thereof.” Pa.R.A.P. 905(a)(5) (emphasis added).
“In response to an extensive history of appeals that were quashed because
of the premature filing of the notice of appeal, the last sentence of Pa.R.A.P.
905(a) was drafted to create a legal fiction that treats the premature appeal
as being filed after the entry of the appealable order.” Pa.R.Crim.P. 720,
cmt., Miscellaneous.
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court did not engage in individualized sentencing, did not
demonstrate any familiarity with [Bussey’s] background save for
the cases in front of the court, did not consult any pre-sentence
reports, and failed to adequately consider [Bussey’s]
rehabilitative needs, and was not such a sentence a violation of
[Bussey’s] right to due process under the Pennsylvania and
United States Constitutions?
Appellant’s Brief, at 3.
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to appellate review as of right. 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. 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. 1410 [now Rule 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). Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
or raised in a motion to modify the sentence imposed at that
hearing. Additionally, an appellant must invoke the appellate
court’s jurisdiction by including in his brief a separate concise
statement demonstrating that there is a substantial question as
to the appropriateness of the sentence under the Sentencing
Code. Pa.R.A.P. 2119(f). The requirement that an appellant
separately set forth the reasons relied upon for allowance of
appeal furthers the purpose evident in the Sentencing Code as a
whole of limiting any challenges to the trial court’s evaluation of
the multitude of factors impinging on the sentencing decision to
exceptional cases. The determination of what constitutes a
substantial question must be evaluated on a case-by-case basis.
A substantial question exists 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.
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Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa. Super. 2005)
(internal quotation marks and citations omitted).
Bussey has complied with these requirements, although he did not
specifically claim in his post-sentence motion that the court did not state on
the record its reasons for the sentencing it imposed. The trial court,
however, acknowledges as much in its Rule 1925(b) opinion, stating “this
[c]ourt concedes that it erred in failing to state the reasons for its sentence
on the record, and that the case[] should be remanded for re-sentencing.”
Trial Court Opinion, 1/17/17, at 2.2
After our review, we agree with the Honorable Rayford A. Means’
assessment. Accordingly, we vacate the judgment of sentence and remand
for resentencing.
Vacated and remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2017
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2
We also note that we are unable to locate a transcript of a sentencing
proceeding.
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