J-S48029-18

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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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 procedural 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 presentence 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 addition, this sentence was to run 

concurrent with the sentence [Appellant] was serving for Judge 

Bronson, with credit for time served. As conditions of sentence, 

[the trial court] ordered [Appellant] to complete anger 

management treatment, undergo random urinalysis, obtain a 

GED, complete job training, seek and maintain employment, stay 

out of trouble with the law, stay away from the complainant and 
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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 June 12, 2017 

. . . . [The trial court] 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 that [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 of 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 job 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 probation. 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 probation.

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. 

[Appellant] 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.
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This [c]ourt found [Appellant] in both direct and technical 

violation of probation. This [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 intimidation. 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 motion 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, 2017, 

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 1-4.

On appeal, Appellant presents 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 requirements 

of 42 Pa.C.S.[A]. § 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 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 a 
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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 appellant 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 

time 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 

raises 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 the 

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 claim 
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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 committed 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 sentencing 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 that 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 

revocations. Commonwealth v. Ware, 737 A.2d 251, 255 (Pa. Super. 
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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 following 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

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1 204 Pa.Code § 303.1(b) states: “The sentencing guidelines do not apply to 

sentences imposed as a result of the following: . . . revocation of probation, 

intermediate punishment or parole.”