Com. v. Duran, H.

J-S46022-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HAKEEM DURAN :
:
Appellant : No. 1772 EDA 2017
Appeal from the Judgment of Sentence January 20, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001180-2014
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 28, 2018
Appellant, Hakeem Duran, appeals from the judgment of sentence
entered following the revocation of his probation. We affirm.
We summarize the procedural history of this case as follows. In an
information filed on February 10, 2014, Appellant was charged with possession
of a controlled substance with intent to deliver (“PWID”) and simple
possession of a controlled substance.1 On November 7, 2014, pursuant to a
negotiated agreement, Appellant pled guilty to the charge of PWID and the
charge of simple possession was nol prossed. Also on that date, the trial court
imposed the agreed-upon sentence of three to twenty-three months of
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1 35 P.S. § 780-113(a)(3) and (a)(16), respectively.
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incarceration, to be followed by three years of probation. Appellant was given
credit for time served and immediately paroled.
On April 7, 2016, Appellant was arrested on charges of stalking and
related crimes, and he was convicted and sentenced on April 29, 2016. On
May 27, 2016, the trial court found Appellant to be in technical and direct
violation of his probation. On January 20, 2017, the trial court resentenced
Appellant to serve a term of incarceration of twenty to sixty months and a
consecutive term of probation of two years. Appellant filed a timely post-
sentence motion, which the trial court denied on April 18, 2017.
On May 16, 2017, Appellant filed a motion seeking permission to take a
direct appeal nunc pro tunc. The trial court granted the motion on May 19,
2017, specifically giving Appellant leave to file an appeal within thirty days.
This appeal followed. Both Appellant and the trial court have complied with
Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Was not the lower court’s imposition of a twenty (20) to
sixty month (60) sentence of incarceration for violations of
probation an abuse of discretion where the court violated the
requirements of 42 Pa.C.S. §9721(b) of the Sentencing Code
where the court failed to give individualized consideration to
[A]ppellant’s personal history, rehabilitative needs or background,
and without explaining how, as a matter of law, this sentence was
the least stringent one adequate to protect the community and to
serve the rehabilitative needs of [A]ppellant?
2. Did not the trial court err and abuse its discretion by
sentencing [Appellant] to an excessive period of incarceration?
Appellant’s Brief at 4.
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Each of Appellant’s issues challenges the discretionary aspects of the
sentence imposed following the revocation of his probation. In an appeal from
a sentence imposed after the court has revoked probation, we can review “the
validity of the revocation proceedings, the legality of the sentence imposed
following revocation, and any challenge to the discretionary aspects of the
sentence imposed.” Commonwealth v. Wright, 116 A.3d 133, 136 (Pa.
Super. 2015). Further, as we have long held, 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. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).
We are also mindful that “[t]he right to appeal a discretionary aspect of
sentence is not absolute.” Commonwealth v. Martin, 727 A.2d 1136, 1143
(Pa. Super. 1999). Rather, where an appellant challenges the discretionary
aspects of a sentence, the appeal should be considered a petition for allowance
of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super.
2007).
As we observed in Commonwealth v. Moury, 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 and modify sentence, see Pa.R.Crim.P.
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[708]; (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 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)).
Pennsylvania Rule of Appellate Procedure 302(a) provides that “issues
not raised in the lower court are waived and cannot be raised for the first time
on appeal.” Pa.R.A.P. 302(a). Objections to the discretionary aspects of a
sentence are generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed. Moury, 992 A.2d at 170
(citing Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003)).
In Commonwealth v. Reeves, 778 A.2d 691 (Pa. Super. 2001), we
reaffirmed the principle articulated in Commonwealth v. Jarvis, 663 A.2d
790 (Pa. Super. 1995), wherein this Court observed that, although
Pa.R.Crim.P. 1410 (presently Rule 720) characterizes post-sentence motions
as optional, the rule expressly provides that only issues raised in the trial court
will be deemed preserved for appellate review. Applying this principle, the
Reeves Court held that an objection to a discretionary aspect of a sentence
is waived if not raised in a post-sentence motion or during the sentencing
proceedings.
Similarly, Pa.R.Crim.P. 708 provides that a motion to modify sentence
must be filed within ten days of the imposition of sentence following the
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revocation of probation. Pa.R.Crim.P. 708(D). As the comment to
Pa.R.Crim.P. 708 explains:
Issues properly preserved at the sentencing proceeding need not,
but may, be raised again in a motion to modify sentence in order
to preserve them for appeal. In deciding whether to move to
modify sentence, counsel must carefully consider whether the
record created at the sentencing proceeding is adequate for
appellate review of the issues, or the issues may be waived.
Pa.R.Crim.P. 708 cmt. Thus, an objection to a discretionary aspect of a
sentence is waived if not raised in a post-sentence motion or during the
sentencing proceedings. See Commonwealth v. Parker, 847 A.2d 745 (Pa.
Super. 2004) (holding challenge to discretionary aspect of sentence was
waived because appellant did not object at sentencing hearing or file post-
sentence motion); Commonwealth v. Petaccio, 764 A.2d 582 (Pa. Super.
2000) (same).
Herein, the first requirement of the four-part test is met because
Appellant brought a timely appeal following the reinstatement of his direct
appeal rights. However, our review of the record reflects that Appellant did
not meet the second requirement because he did not raise the instant
challenges to the discretionary aspects of his sentence in a post-sentence
motion or at the time of sentencing. Specifically, in his post-sentence motion,
Appellant sought only the trial court’s reconsideration of the mitigating factors
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set forth in the motion.2 Motion to Modify Sentence, 1/29/17, at 3. Because
this is the only issue raised in the post-sentence motion, this is the only claim
preserved for our review. However, Appellant has abandoned this claim on
appeal.
Appellant now presents other theories to support his claim that the trial
court abused its discretion in fashioning Appellant’s sentence. Appellant’s
Brief at 8-10. Specifically, Appellant argues “By imposing a sentence of total
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2In his post-sentence motion, Appellant presented the following argument in
an effort to achieve reconsideration of his sentence:
8. While on parole, [Appellant] was enrolled at the RISE program.
[Appellant] obtained work through a TEMP Agency until he was
able to secure full time employment at World Class solutions.
9. [Appellant] was diagnosed with Schizophrenia which causes
him to suffer from hallucinations. He is a lifelong resident of the
city and county of Philadelphia. Prior to his direct violation,
[Appellant] has no violation convictions. He is a high school
graduate and he had completed a semester of college. He has
positive ties to the community as a volunteer little [sic] basketball
coach. He still has the support of his family who has [sic] written
letters in support of [Appellant]. (See Exhibit D-1). If given the
opportunity, [Appellant’s] family would like to address the [c]ourt.
Both counsel and [Appellant’s] family understand that [the trial
court] must consider the safety of the community before imposing
a sentence. However, [Appellant] requests that you
reconsider the mitigating factors addressed in this motion.
10. [Appellant] requests that his sentence be vacated pending a
hearing on this motion.
Post-Sentence Motion, 1/29/17, at 2-3 (emphasis added).
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confinement of twenty to sixty months solely because [A]ppellant violated his
drug offense probation, the lower court violated the express requirements of
the Sentencing Code, 42 Pa.C.S.A. §9721(b),3 as it did not 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.” Id. at 8. In addition, Appellant
contends that “[t]he court failed to explain how as a matter of law the
sentence was the least stringent one adequate to protect the community and
to serve the rehabilitative needs of the appellant, and as such was manifestly
unreasonable and excessive.” Id. To the extent that Appellant presents other
issues attempting to raise challenges to the discretionary aspect of
sentencing, such claims are waived due to Appellant’s failure to present them
at the time of sentencing or in his post-sentence motion. See Reeves.
Accordingly, these challenges to the discretionary aspects of sentence are not
preserved for review.
Judgment of sentence affirmed.
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3 We note that the factors to be considered under 42 Pa.C.S. § 9721(b) include
the protection of the public, gravity of offense in relation to impact on victim
and community, and rehabilitative needs of the defendant.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/18
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