Com. v. Lee, J.

J-S27025-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN LEE :
:
Appellant : No. 2028 EDA 2021
Appeal from the Judgment of Sentence Entered March 22, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1111421-2001
BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.
MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 20, 2022
Appellant John Lee appeals nunc pro tunc from the judgment of
sentence imposed following the revocation of his probation. We reverse and
remand for resentencing.
On May 27, 2004, Appellant pled nolo contendere to rape and corruption
of minors.1 On May 4, 2005, the trial court sentenced Appellant to an
aggregate term of five to ten years’ incarceration followed by fifteen years’
probation.2 Appellant’s probation was subsequently revoked several times.
Most recently, on March 22, 2018, the trial court revoked Appellant’s probation
and resentenced him to an aggregate term of seven-and-a-half to fifteen
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1 18 Pa.C.S. §§ 3121 and 6301, respectively.
2 Specifically, the trial court sentenced Appellant to five to ten years’
incarceration followed by ten years’ probation for rape and imposed a
consecutive term of five years’ probation for corruption of minors.
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years’ incarceration.3 Appellant filed a timely post-sentence motion
requesting reconsideration of the sentence.4 Appellant did not file a direct
appeal.
Appellant then filed a pro se petition pursuant to the Post Conviction
Relief Act (PCRA)5 on November 27, 2019. On August 30, 2021, the PCRA
court, concluding that Appellant had established the government interference
exception to the PCRA’s one-year time-bar,6 granted Appellant’s petition and
reinstated Appellant’s direct appeal rights nunc pro tunc.
Appellant filed a timely notice of appeal nunc pro tunc on September 2,
2021. The trial court did not order Appellant to file a concise statement of
errors complained of on appeal under Pa.R.A.P. 1925(b), and Appellant did
not file one. The trial court filed a Rule 1925(a) opinion conceding that it failed
to adequately explain its reasons for imposing Appellant’s sentence.
On appeal, Appellant raises the following issue:
The sentencing court abused its discretion when it sentenced
[Appellant] to an excessively [] harsh sentence with inadequate
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3 Specifically, the trial court resentenced Appellant to five to ten years’
incarceration for rape and a consecutive term of two-and-a-half to five years’
incarceration for corruption of minors.
4 An order ruling on Appellant’s post-sentence motion does not appear on the
trial court docket or in the certified record. Because a timely post-sentence
motion following the revocation of probation does not toll the appeal period,
the trial court’s failure to rule on this motion does not affect the finality of the
judgment of sentence. See Pa.R.Crim.P. 708(E).
5 42 Pa.C.S. §§ 9541-9546.
6 42 Pa.C.S. § 9545(b)(1)(i).
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reasons on the record as required by . . . 42 Pa.C.S. § 9721 and
case law.
Appellant’s Brief at 8.
Appellant argues that the trial court erred by failing to state its reasons
for imposing the instant sentence of seven-and-a-half to fifteen years’
incarceration on the record. Id. at 15-16. Appellant also contends that the
trial court imposed a manifestly excessive sentence for a technical violation of
probation without considering mitigating factors. Id. at 15-17.
The Commonwealth “concurs [that the trial court failed to provide
sufficient reasons for its sentence] and does not oppose a remand for
resentencing so the court may properly consider the relevant factors.”
Commonwealth’s Brief at 6.
It is well settled that
challenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right. An appellant challenging the
discretionary aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:
We 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. [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. § 9781(b).
Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (some
citations omitted and formatting altered). “A substantial question exists only
when the appellant advances a colorable argument that the sentencing judge’s
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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.” Id. (citation omitted).
Instantly, Appellant preserved his sentencing issue in a post-sentence
motion, filed a timely appeal, and included a Pa.R.A.P. 2119(f) statement in
his brief. See id. We conclude that Appellant has raised a substantial
question for our review. See Commonwealth v. Flowers, 149 A.3d 867,
871 (Pa. Super. 2016) (stating that a “claim that sentencing court failed to
state adequate reasons for sentence imposed presents substantial question
regarding appropriateness of sentence” (citation omitted)).
Our standard of review is as follows:
We review a sentence imposed following a revocation of probation
for an error of law or an abuse of discretion. . . . An abuse of
discretion is not merely an error of judgment, but if in reaching a
conclusion the law is overridden or misapplied or the judgment
exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill will, as shown by the evidence or the record,
discretion is abused.
Id. at 873 (citations omitted).
Section 9721 of the Sentencing Code states, in relevant part, “[i]n every
case in which the court . . . resentences a person following revocation of
probation . . . 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. § 9721(b); see also Pa.R.Crim.P.
708(D)(2) (providing that during sentencing following the revocation of
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probation, “[t]he judge shall state on the record the reasons for the sentence
imposed”).
This Court has explained that
the requirement that a trial court explain its sentence under
Section 9721 and corresponding Criminal Rule [of Procedure] 708
has two components. First, the court must state its reasons on
the record at the time the sentence is imposed. Requiring the
sentencing court to state its reasons at that time provides a
procedural mechanism for the aggrieved party both to attempt to
rebut the court’s explanation and inclination before the sentencing
proceeding ends, and to identify and frame substantive claims for
post-sentence motions or appeal.
* * *
Second, although [a] sentencing court need not undertake a
lengthy discourse for its reasons for imposing a sentence, . . . the
record as a whole must reflect the sentencing court’s
consideration of the facts of the crime and character of the
offender.
Flowers, 149 A.3d at 875-76 (citations and quotation marks omitted).
Here, as noted previously, both parties and the trial court agree that the
trial court failed to provide adequate reasons for Appellant’s sentence. In its
Rule 1925(a) opinion, the trial court stated that “[u]pon a full review of the
record, this court concedes that the reasons it stated for its March 22[, 2018]
sentence were insufficient to support a lengthy state sentence for a technical
violation of probation.” Trial Ct. Op., 11/9/21, at 2 (formatting altered).
Based on our review of the record, we agree with the trial court’s conclusion.
Therefore, we remand this matter for resentencing. See Flowers, 149 A.3d
at 875-76.
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Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2022
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