J-S56025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CYRUS E. CROSS
Appellant No. 3247 EDA 2016
Appeal from the Judgment of Sentence September 28, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No: CP-46-CR-0008998-2013
BEFORE: BOWES, STABILE, and PLATT, * JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 30, 2017
Appellant, Cyrus E. Cross, appeals from the September 28, 2016
judgment of sentence entered in the Court of Common Pleas of Montgomery
County (“trial court”) sentencing Appellant to 7 to 23 months’ incarceration
following the revocation of his parole. Upon review, we affirm.
On October 27, 2014, Appellant pled guilty to two counts of passing bad
checks and one count of securing the execution of documents by deception.1
On February 2, 2015, the trial court sentenced Appellant to an aggregate of 7
to 23 months’ incarceration followed by two years’ probation. Appellant
stipulated to violating his parole at his September 28, 2016 Gagnon2 II
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 4105(a)(1), 4105(a)(2), and 4114, respectively.
2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
J-S56025-17
hearing. At the conclusion of his Gagnon II hearing, the trial court revoked
Appellant’s parole and recommitted his sentence. The trial court did not make
Appellant eligible for work release. Appellant filed a timely post-sentence
motion on October 4, 2016, which included a motion to modify sentence. The
trial court denied Appellant’s post-sentence motion on October 14, 2016.
Appellant filed a timely notice of appeal. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises one issue on appeal, which we repeat verbatim.
I. Did the trial court err in denying Appellant work release?
Appellant’s Brief at 4.
Appellant challenges the discretionary aspects of sentencing. Appellant
argues that the trial court did not account for the statutory factors when it
recommitted Appellant following his probation violation. Before we can reach
the merits of a discretionary aspects of sentencing challenge,
[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. 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. Grays, 167 A.3d 793, 815-16 (Pa. Super. 2017) (quoting
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations
omitted)).
-2-
J-S56025-17
In the matter sub judice, Appellant filed a timely appeal, preserved the
issue by filing a post-sentence motion, and complied with Pa.R.A.P. 2119(f).
Thus, the only remaining inquiry is whether Appellant has raised a substantial
question. Specifically, whether the trial court’s sentence was manifestly
excessive when it failed to make Appellant eligible for work release.
Generally speaking, when sentencing a defendant, a trial court must
comply with the sentencing guidelines.
In selecting from the alternatives set forth in subsection (a), the
court shall follow the general principle that the sentence imposed
should call for confinement that is consistent with the protection
of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the
rehabilitative needs of the defendant. The court shall also
consider any guidelines for sentencing and resentencing adopted
by the Pennsylvania Commission on Sentencing and taking effect
under section 2155 (relating to publication of guidelines for
sentencing, resentencing and parole and recommitment ranges
following revocation). In every case in which the court imposes a
sentence for a felony or misdemeanor, modifies a sentence,
resentences an offender following revocation of probation, county
intermediate punishment or State intermediate punishment or
resentences following remand, the court shall make as a part of
the record, and disclose in open court at the time of sentencing,
a statement of the reason or reasons for the sentence imposed.
42 Pa.C.S.A. § 9721(b). However, “[u]pon revocation of parole, the only
sentencing option available is recommitment to serve the balance of the term
initially imposed.” Commonwealth v. Ware, 737 A.2d 251, 253 (Pa. Super.
1999) (citing Commonwealth v. Fair, 497 A.2d 643 (Pa. Super. 1985)). “It
is well settled that ‘[t]he sentencing guidelines do not apply to sentences
imposed as a result of probation or parole revocations…’” Ware, 737 A.2d at
-3-
J-S56025-17
255 (quoting 204 Pa.Code § 303.1(b); Commonwealth v. Cappellini, 690
A.2d 1220, 1224 (Pa. Super. 1997)). Thus, the trial court was not required
to comply with the guidelines. Therefore, Appellant’s claim fails.
Even if the trial court was required to comply with the guidelines,
Appellant’s claim still fails. Following the Gagnon II hearing, the court
explained the reason for the sentence imposed on the record. See N.T.
Gagnon II Hearing, 9/28/16, at 17-22. Thus, we find that the trial court did
not abuse its discretion when it denied Appellant’s request for work release.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2017
-4-
Com. v. Cross, C.
Combined Opinion