J-S33024-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

LUIS TORRES, :

:

Appellant : No. 1734 EDA 2014

Appeal from the Judgment of Sentence May 8, 2014,

Court of Common Pleas, Philadelphia County,

Criminal Division at No(s): CP-51-CR-0004244-2011

and CP-51-CR-0008462-2011

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and LAZARUS, JJ.

MEMORANDUM BY DONOHUE, J.: FILED JUNE 10, 2015

Luis Torres (“Torres”) appeals from the judgment of sentence entered 

following the revocation of his probation. We affirm. 

The trial court summarized the factual history underlying this appeal 

as follows: 

On June 2, 2011, [Torres] entered a negotiated plea 

to possession with intent to deliver a controlled 

substance (PWID) before the Honorable Joan Brown 

and was sentenced to [three] years [of] probation. 

On December 1, 2011, [Torres] again entered a 

negotiated plea to a second PWID before Judge 

Brown and received a sentence of [six to twentythree] months [of] incarceration plus [three] years 

[of] probation. Although this was a direct violation, 

probation on the first sentence was continued. It was 

subsequently requested that supervision of [Torres’] 

cases be transferred to the Mental Health Court. On 

May 10, 2012, Judge Brown relinquished jurisdiction 

and [Torres] was formally admitted into Mental 

Health Court (MHC) upon his agreement to comply 
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with all the conditions of MHC, treatment, and 

probation/parole. As is the procedure in MHC, 

[Torres] was given initial mental health and other 

evaluations to determine his needs, and scheduled 

for status of mental health and treatment hearings at 

regular intervals to monitor his compliance and 

progress. At [Torres’] June 14, 2012 status hearing, 

his probation officer reported that [Torres] was not 

in compliance with his treatment program, was 

involved with the Latin Kings gang, was selling 

drugs, and had submitted two positive drug screens. 

However, despite these clear technical violations, 

[Torres] received no formal sanction, but was 

instead placed on increased reporting. At the June 

28, 2012 status hearing [Torres] remained noncompliant. This time [Torres] received a jury box 

sanction for his technical violations. At the July 12, 

2012 status hearing [Torres] was reported to be in 

compliance with his program. However, at the July 

19, 2012 hearing, [Torres] was again noncompliant 

and received a [thirty] day custody sanction for his 

technical violations. [Torres] completed his sanction 

and was reported in compliance with his program at 

the September 6, 2012 listing. On October 5, 2012, 

the [c]ourt was informed that [Torres] had incurred 

a new arrest for PWID on October 3, 2012. A 

violation hearing was scheduled but was continued 

pending the resolution of the open case. At the April 

25, 2013 status hearing, it was reported that the 

open case had been discharged and [Torres’] 

probation was continued. At the May 30, 2013 

status hearing, [Torres] was reported in compliance 

with treatment but that he had not had contact with 

his case manager. At the June 20, 2013 and July 11, 

2013 status hearings, it was reported that [Torres] 

had been hospitalized for seizures but was still 

attending treatment. However, [Torres] failed to 

appear for the August 8, 2013 status hearing. His 

probation officer reported that [Torres] was not 

doing well and refusing help. On November 16, 

2013, [Torres] was arrested and charged with PWID 

and simple possession. On December 12, 2013, the 

[c]ourt ordered a forthwith mental health evaluation. 
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At the April 3, 2014 hearing, [Torres] pleaded guilty 

to possession in exchange for a sentence of [nine] 

months [of] probation. After a violation hearing, the 

[c]ourt granted the Commonwealth's motion to 

revoke [Torres’] probation based on his direct and 

technical violations. Sentencing on the violation was 

deferred so that [Torres] could provide the [c]ourt 

documentation from his physician regarding the 

interactions between his medications. At the May 8, 

2014, sentencing hearing, [Torres] failed to provide 

the documentation. Following the arguments of both 

counsel and testimony from [Torres], the [c]ourt 

sentenced [Torres] to concurrent sentences of [two 

to four] years [of] incarceration and made him 

[b]oot [c]amp eligible. Post[-]sentence motions were 

subsequently denied. 

Trial Court Opinion, 9/16/14, at 1-3. This timely appeal follows, in which 

Torres presents the following issue for our review: “Was not the sentence of 

two to four years [of] incarceration for [a] probation violation excessive and 

unreasonable?” Torres’ Brief at 4. With this claim, Torres challenges 

discretionary aspects of his sentence.1 “Challenges to the discretionary 

aspects of sentencing do not entitle an appellant to review as of right.” 

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011) (citation 

omitted). 

An appellant challenging the discretionary aspects of 

his sentence must invoke this Court’s jurisdiction by 

satisfying a four-part test: (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 

 

1 We note that “this Court's scope of review in an appeal from a revocation 

sentencing includes discretionary sentencing challenges.” Commonwealth 

v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc). 
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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. (citation omitted). Torres filed a timely notice of appeal, raised this 

claim in his post-sentence motion, and included a statement pursuant to 

Pa.R.A.P. 2119(f) in his brief. Accordingly, we consider whether he has 

presented a substantial question that his sentence is not appropriate under 

the Sentencing Code. 

The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis. Commonwealth v. Glass, 50 A.3d 

720, 727 (Pa. Super. 2012). 

A substantial question exists where an appellant 

advances a colorable argument that the trial court's 

actions were inconsistent with a specific provision of 

the sentencing code, or contrary to the fundamental 

norms underlying the sentencing process. In 

determining whether a substantial question exists, 

our inquiry must focus on the reasons for which the 

appeal is sought in contrast to the facts underlying 

the appeal, which are necessary only to decide the 

appeal on the merits.

Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012) 

(internal citations omitted). Furthermore, this Court may not look beyond 

the content of the 2119(f) statement to determine whether the appellant has 

raised a substantial question. Id. 
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In his Rule 2119(f) statement, Torres alleges that his “sentence is 

disproportionate to the conduct at issue, and not justified by sufficient 

reasons[.]” Torres’ Brief at 8. This Court has previously held that this 

presents a substantial question so as to invoke our review, see 

Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa. Super. 2003), and so 

we will review Torres’ claim. 

We begin by recognizing that 

[s]entencing is a matter vested within the discretion 

of the trial court and will not be disturbed absent a 

manifest abuse of discretion. An abuse of discretion 

requires the trial court to have acted with manifest 

unreasonableness, or partiality, prejudice, bias, or 

ill-will, or such lack of support so as to be clearly 

erroneous. 

Commonwealth v. Schutzues, 54 A.3d 86, 98-99 (Pa. Super. 2012) 

(internal citations omitted). Additionally, “[a] court may revoke an order of 

probation upon proof of the violation of specified conditions of the probation. 

Upon revocation the sentencing alternatives available to the court shall be 

the same as were available at the time of initial sentencing, due 

consideration being given to the time spent serving the order of probation.” 

42 PaC.S.A. § 9771(b). Furthermore, 

in all cases where the court resentences an offender 

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 and 

failure to comply with these provisions shall be 

grounds for vacating the sentence or resentence and 
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resentencing the defendant. A trial court need not 

undertake a lengthy discourse for its reasons for 

imposing a sentence or specifically reference the 

statute in question, but the record as a whole must 

reflect the sentencing court's consideration of the 

facts of the crime and character of the offender. 

Commonwealth v. Colon, 102 A.3d 1033, 1044 (Pa. Super. 2014) 

(internal citations omitted). 

Torres argues that his sentence was excessive in light of the nature of 

his probation violation and the fact that this was his first violation. Torres’ 

Brief at 13. He compares his situation with Parlante, arguing that if the 

sentence in that case, “for a probationer who had violated her probation six 

times, was deemed excessive at a maximum of eight years, surely [] Torres’ 

first violation of probation sentence should not mandate four years of 

incarceration.” Id. 

The very premise of Torres’ argument – that this is his first probation 

violation – is faulty. It is clear from the record that the violation that led to 

the revocation of his probation was not an isolated or unique event. It is 

notable that in making his argument, Torres does not acknowledge the 

number and nature of his many probation violations, as detailed in the trial 

court’s recitation of the facts above and as supported by the evidence of 

record. See N.T., 5/8/14, at 8-10. 

Torres does not present argument regarding the second aspect of the 

claim he presented in his Rule 2119(f) statement: that the trial court did not 
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place sufficient reasons for the sentence imposed on the record. As such, 

this argument is waived. See Commonwealth v. Hunzer, 868 A.2d 498, 

516 (Pa. Super. 2005); Pa.R.A.P. 2119. Nonetheless, we note that our 

review of the record reveals that the trial court satisfied its obligation to 

state the reasons for the sentence. See Colon, 102 A.3d at 1044. It 

stated,

Mr. Torres, you are a young individual who has a 

lifetime ahead of him. You have so many 

opportunities available to you and I know when one 

is young sometimes we make very stupid mistakes 

because we really don’t understand all the 

consequences that are going to occur because of our 

actions. 

But, as I review your history I do believe that the 

non-reporting, the testing positive, failing to appear 

for court and your basic refusal to comply with all 

the conditions of mental health court and of course a 

direct violation with the new case, all of which 

indicates that you are not willing to follow the rules 

or regulations of this [c]ourt and so in order to 

vindicate the authority of this [c]ourt, protect the 

public, I do think that ... a sentence of incarceration 

in the state in necessary. 

I will say, what I really believe will help you in terms 

of responsibility is [b]oot [c]amp, and what I’m 

going to do is sentence you on the violation matters 

to [two] to [four] years of incarceration. I’ll make 

you eligible for [b]oot [c]amp, you’ll receive credit 

for all times served. 

N.T., 5/8/14, at 13-14. Having found no merit to Torres’ claims, we affirm 

the judgment of sentence. 

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/10/2015