Com. v. Laventure, W. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WENDELL LAVENTURE :
:
Appellant : No. 1758 EDA 2017
Appeal from the Judgment of Sentence May 1, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000378-2009
BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, P.J.: FILED FEBRUARY 26, 2020
Wendell Laventure appeals from the judgment of sentence entered on
May 1, 2017, in the Court of Common Pleas of Philadelphia County, following
the revocation of his probation. Appellant contends the trial court failed to
consider his rehabilitative needs in imposing sentence. Pursuant to our review
of the record, we conclude the court did consider Appellant’s rehabilitative
needs and therefore affirm.
We briefly note, on May 1, 2017, the trial court revoked Appellant’s
probation and sentenced him to an aggregate term of 3 to 6 years’
imprisonment, following Appellant’s conviction on new criminal charges.
Having received leave of court, Appellant filed a post-sentence motion nunc
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pro tunc, which the trial court subsequently denied.1 The instant, timely
appeal followed.
On appeal, Appellant challenges the discretionary aspects of sentence,
claiming the trial court failed to consider his rehabilitative needs. In
Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc),
this Court held that “[our] scope of review in an appeal from a revocation
sentencing includes discretionary sentencing challenges.” Cartrette, supra
at 1034. Thus, Appellant’s claim is properly before us.
The principles that guide our review are well settled:
. . . [t]he right to appeal a discretionary aspect of sentence is not
absolute. Rather, where an appellant challenges the discretionary
aspects of a sentence, an appellant’s appeal should be considered
as a petition for allowance of appeal. As we stated in
Commonwealth v. Moury, 2010 PA Super 46, 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
____________________________________________
1 This Court was unable to determine from the record if the trial court
permitted Appellant to file his post-sentence motion nunc pro tunc and if the
court subsequently denied the motion. Accordingly, on October 17, 2019, we
remanded the matter for clarification. On November 1, 2019, the trial court
issued an order clarifying the situation. Therefore, the matter is ripe for our
review.
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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).
Id. at 170. Whether a particular issue constitutes a
substantial question about the appropriateness of
sentence is a question to be evaluated on a case-by-
case basis.
Commonwealth v. Radecki, 180 A.3d 441, 467 (Pa. Super. 2018)
(quotation marks and most citations omitted). Further, “the imposition of
sentence following the revocation of probation is vested within the sound
discretion of the trial court, which, absent an abuse of that discretion, will not
be disturbed on appeal. . . .” Commonwealth v. Edwards, 71 A.3d 323,
327 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75 (Pa.
2013).
Here, Appellant has complied with the first three requirements.
Moreover, a claim the trial court failed to consider a defendant’s rehabilitative
needs raises a substantial question. See Commonwealth v. Downing, 990
A.2d 788, 793 (Pa. Super. 2010).
Appellant contends that the trial court failed to adequately consider his
rehabilitative needs. The trial court made it clear at sentencing that one of its
main concerns was that Laventure repeatedly committed crimes while on
probation and parole, and thus has not been amenable to rehabilitation while
under supervision. See N.T., Sentencing, 5/1/17, at 11, 13. Further, the court
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noted that Appellant had not adequately availed himself of the rehabilitative
programs available to him while he was in prison and on parole. See id., at
11.
Admittedly, the sentencing court did not give an extended review of
Laventure’s rehabilitative needs. However, the court concluded,
I don’t have real faith that you’re going to take the
opportunities that have been given to you by continuing the
probation I gave you in April of 2016 and do something [positive
with it.] … I suggest you get a GED while you’re there. I suggest
you get some job training so you don’t have to steal people’s
things or be involved in the theft of people’s things.
…
Do you think you’ll learn [your lesson?] You’ll be 30 when
you get out or 29. Do you think you’ll learn your lesson?
Id., at 14-15. After Appellant responded that he thought he already had
learned his lesson, the court stated “Well, I don’t think you did because you
went and did this other thing[.]” Id., at 16. Therefore, the court considered
Appellant’s rehabilitative needs; it merely found that Appellant was unlikely
to be rehabilitated while not in prison. The court clearly expressed its desire
that Appellant would take the opportunities available to him to ensure that he
did not commit any future crimes.
Under these circumstances, we cannot conclude the court failed to
consider Appellant’s rehabilitative needs. We therefore conclude that
Appellant’s sole issue on appeal merits no relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/20
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