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____________________________________ * Retired Senior Judge assigned to the Superior Court. NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WILLIAM WARD

Appellant :
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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2284 EDA 2017
Appeal from the Judgment of Sentence June 12, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0013019

- 2008

BEFORE: DUBOW, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 05, 2018

William Ward (Appellant) appeals from the judgment of sentence

imposed following the revocation of his probation. Upon review, we affirm.

The trial court summarized the factual and procedura l background as

follows:

On December 14, 2009, [Appellant] entered into an open guilty plea to ethnic intimidation, graded as a felony of the first degree, and conspiracy to commit aggravated assault, graded as a felony of the second degree. A presentenc e sentence report was ordered and sentencing was deferred several times until February 7, 2011.

[The trial court] sentenced [Appellant] to 111⁄2 to 23 months county incarceration, plus five years reporting probation on both counts to run concurrent. In add ition, this sentence was to run concurrent with the sentence [Appellant] was serving for Judge Bronson, with credit for time served. As co nditions of sentence, [the trial court] ordered [Appellant] to complete anger management treatment, undergo random ur inalysis, obtain a GED, complete job training, seek and maintain employment, stay out of trouble with the law, stay away from the complainant andJ

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his wife, and pay mandatory court costs and supervision fees at a rate of $40 per month. No appeal was filed.

While serving probation, [Appellant] was arrested on April 29, 2016 and charged with possession of a controlled substance with intent to deliver (PWID) and conspiracy. [Appellant] was sentenced on that case on May 22, 2017 by Judge McCaffery to 11⁄2 to 3 years state incarceration, plus 4 years reporting probation.

A violation of probation hearing was held on J une 12, 2017 . . . . [The trial c o urt] read and incorporated the report of the Probation Department, dated 5/25/2017, into the record. The [c]ourt noted that at the time of arrest, [Appellant] was employed but had not paid court costs or completed vocational training or anger management treatment, which was necessitated by the nature of the ethnic intimidation. Defense Counsel stated he believed th at [Appellant] was doing well on probation prior to the new arrest, requested the [c]ourt “take everything into consideration” and impose a sentence concurrent with the new sentence imposed by Judge McCaffery.

The Commonwealth then elaborated on facts o f the new conviction that formed the basis for this direct violation. The underlying offense was possession with intent to deliver $16,000 worth of narcotics. The Commonwealth argued that the amount of drugs indicated that this was neither a part time jo b nor supplemental income for [Appellant]. [The] Commonwealth also argued that the amount of drugs suggested that [Appellant] did not enter this activity recently and that [Appellant] was carrying out this activity regularly while on [the c]ourt’s probati on. The Commonwealth recommended the [c]ourt punish the ethnic intimidation more harshly than the PWID due to the higher rate of victimization. As a result, the Commonwealth recommended a sentence of 2 to 4 years’ incarceration plus five years of probati on.

This [c]ourt asked [Appellant] to recall that when he pled guilty, the maximum possible sentence was 30 years in jail. The [c]ourt noted that [Appellant] served two years, so there were 28 years remaining for which [Appellant] could be sentenced. [A ppellant] responded that he knew he made a mistake and that he lost dearly with family and kids. He stated he hoped the [c]ourt would not sentence him to 28 years. [Appellant] did not express remorse for any of his actions.J

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- Th is [ c ] ourt found [Appellant] in both direct and tech nical violation of probation. T his [ c ] ourt revoked probation and imposed a new sentence of five to ten years in state prison on the ethnic intimidation charge, plus five years reporting probation to run consecutive to parole. This sentence was to run consecutive to Judge McCaffery’s sentence. On the conspiracy to commit aggravated assault charge, the [c]ourt imposed a new sentence of five years reporting probation, which would run concurrent to the probation for ethnic intimidatio n. As conditions of the sentence, [Appellant] was ordered to complete anger management treatment, job training, parenting classes, undergo random urinalysis, and pay $40 a month in costs, finds, and supervision fees.

[Appellant filed an unsuccessful moti on for reconsideration of his sentence on June 22, 2017.] On July 12, 2017, [Appellant] filed a Notice of Appeal to the Superior Court. On August 2, 2 017, upon receipt of the notes of testimony, this [c]ourt ordered appellate counsel to file a Concise Statement of Errors pursuant to Pa.R.A.P. 1925(b). Appellate counsel did so on August 24, 2017.
Trial Court Opinion, 9/22/17, at 1

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. On appeal, Appellant present s two questions for our review:

1. Was not the [trial] court’s imposition of a five (5) to ten (10) year sentence of incarceration for violations of probation an abuse of discretion where the court violated the req uirements of 42 Pa.C.S.[A]. § 9721(b) of the Sentencing Code where the court failed to give indi vidualized 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 need s of the [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.

These issues challenge the discretionary aspects of Appellant’s

sentence. “The right to appellate review of the discretionary aspects of aJ

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sentence is not absolute, and must be considered a petition for permission to

appeal.” Commonwealth v. Buterbaugh , 91 A.3d 1247, 1265 (Pa. Super.

2014), appeal denied , 104 A.3d 1 (Pa. 2014). “ An appellan t must satisfy a

four

- part test to invoke this Court’s jurisdiction when challenging the

discretionary aspects of a sentence.” Id. We conduct this four

- part test to

determine whether:

(1) the appellant preserved the issue either by raising it at the tim e of sentencing or in a post[

- ]sentence motion; (2) the appellant filed a timely notice of appeal; (3) the appellant set forth a concise statement of reasons relied upon for the allowance of his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant

r aises a substantial question for our review.

Commonwealth v. Baker , 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted), appeal denied
, 86 A.3d 231 (Pa. 2014). “ A defendant presents a

substantial question when he sets forth a plausible argument that th e

sentence violates a provision of the sentencing code or is contrary to the

fundamental norms of the sentencing process.” Commonwealth v. Dodge
, 77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),

appeal denied , 91 A.3d 161 (Pa. 2014 ).

Here, Appellant has complied with the first three prongs of the

discretionary aspect test to invoke our jurisdiction. We thus proceed to

determine whether he has raised a substantial question. Appellant argues in

his 2119(f) statement that the sentence imposed by the trial court was

“manifestly unreasonable and excessive.” Appellant’s Brief at 10. A claimJ

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that a sentence is manifestly excessive such that it constitutes too severe a

punishment raises a substantial question for our review. See

Commonwealth v. Kelly , 33 A.3d 638, 640 (Pa. Super. 2011).

Our scope of review in an appeal of a sentence imposed after probation

revocation is limited to the validity of the revocation proceedings and the

legality of the sentence imposed following revocation. Commonwealth v.

Infante , 888 A.2d 783, 790 (Pa. 2005). “Revocation of a probation sentence

is a matter comm itted to the sound discretion of the trial court and that court’s

decision will not be disturbed on appeal in the absence of an error of law or

an abuse of discretion.” Commonwealth v. Ahmad , 961 A.2d 884, 888 (Pa.

Super. 2008) (citation omitted). Upon s entencing following a revocation of

probation, the trial court is limited only by the maximum sentence that it could

have imposed originally at the time of the probationary sentence.

Commonwealth v. Coolbaugh , 770 A.2d 788, 792 (Pa. Super. 2001).

However , a re

- sentence may not exceed the statutory limits of the sentence,

including allowable deductions for time served. See id.

Although Appellant argues th at the sentence imposed by the trial court

following revocation of probation was excessive, he notably does not argue

that the sentence imposed by the court was beyond the maximum. Nor does

the record support such an assertion. It is well settled that the sentencing

guidelines do not apply to sentences imposed as a result of probation or parole

revocatio ns. Commonwealth v. Ware , 737 A.2d 251, 255 (Pa. Super.J

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1999), appeal denied , 747 A.2d 900 (Pa. 1999). 1 Here, the trial court did

not exceed the statutory maximum when it resentenced Appellant to five to

ten years’ imprisonment for ethnic intimidation fo llowing the revocation of his

probation. Therefore, we find no abuse of discretion in the trial court’s

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/5/18

_________________ __________ ______ ____ _______

1 204 Pa.Code § 303.1(b) stat es: “The sentencing guidelines do not apply to sentences imposed as a result of the following: . . . revocation of probation, intermediate punishment or parole.”