J. A10010/17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

WAYNE DUMAS :

APPELLANT :

:

: No. 929 EDA 2016

Appeal from the Judgment of Sentence February 22, 2016

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0014535-2011

 

BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.: FILED JULY 21, 2017

Appellant, Wayne Dumas, appeals from the February 22, 2016 

Judgment of Sentence imposed after the court found him in violation of 

probation (“VOP”). After careful review, we conclude the VOP court failed to 

conduct a proper sentencing proceeding. We, thus, vacate and remand for 

resentencing.

On January 24, 2013, Appellant entered a negotiated guilty plea to 

Criminal Trespass. The Honorable Rayford Means sentenced Appellant to 

three years’ probation. While on probation, Appellant committed a Robbery. 

On May 1, 2015, the Honorable Daniel J. Anders convicted him of the 

Robbery charge and imposed a sentence of fifteen to thirty months’ 

incarceration, followed by five years’ probation. 
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On February 22, 2016, Judge Means held a VOP hearing that lasted 

approximately two-and-a-half minutes.1 At the hearing, the Commonwealth 

told Judge Means about Appellant’s initial conviction for Criminal Trespass, 

on which the court had imposed a sentence of three years’ probation, and 

informed the court of Appellant’s violation resulting from the subsequent 

Robbery conviction. The Commonwealth then requested a consecutive 

sentence of one-and-a-half to three years’ incarceration, followed by four 

years’ probation. Appellant declined to allocute. See N.T. VOP Hearing, 

2/22/16, at 3-5. At the end of the hearing, Judge Means concluded that 

Appellant was in direct violation of his probationary sentence, revoked 

Appellant’s probation, and sentenced him to the statutory maximum 

sentence of three-and-a-half to seven years’ imprisonment, to run 

consecutively to his Robbery sentence. 

On February 24, 2016, Appellant filed a Petition for Reconsideration of 

Sentence, which the VOP court denied. Appellant timely appealed. Both 

Appellant and the VOP court complied with Pa.R.A.P. 1925. 

Appellant raises the following issue on appeal:

Did the lower court abuse its discretion where, during a 

perfunctory two[-]and[-]one-half minute video hearing, the 

court revoked [A]ppellant’s probation and imposed a manifestly 

excessive, consecutive statutory maximum sentence, without 

considering, or even having knowledge of, [A]ppellant’s personal 

history and rehabilitative needs, and without stating any reasons 

for its sentence?

 

1 Appellant “appeared” via video monitor. 
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Appellant’s Brief at 3.

When we consider an appeal from a sentence imposed after the VOP 

court has revoked probation, our review is limited to “the validity of the 

revocation proceedings, the legality of 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) (citation omitted). 

Instantly, Appellant raises a challenge to the discretionary aspects of 

his sentence. We review a sentencing determination for an abuse of 

discretion. Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 

2014). However, “[t]he right to appellate review of the discretionary 

aspects of a sentence is not absolute, and must be considered a petition for 

permission to appeal.” Id. In order to invoke this Court’s jurisdiction, we 

must consider the following four elements:

(1) whether appellant has filed a timely notice of appeal; 

(2) whether the issue was properly preserved at sentencing or 

in a motion to reconsider and modify sentence;

(3) whether appellant's brief has a fatal defect; and

(4) whether there is a substantial question that the sentence 

appealed from is not appropriate under the Sentencing 

Code.

Id. 

Here, Appellant filed a timely Notice of Appeal, properly preserved the 

issues, and included in his brief a Statement of Reasons relied upon for 

allowance of appeal, pursuant to Pa.R.A.P. 2119(f). Accordingly, we next 
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determine whether Appellant’s claim presents a “substantial question” for 

review. 

An appellant raises a “substantial question” when he “sets forth a 

plausible argument that the sentence violates a provision of the 

[S]entencing [C]ode or is contrary to the fundamental norms of the 

sentencing process.” Commonwealth v. Crump, 995 A.2d 1280, 1282 

(Pa. Super. 2010) (citation omitted).

Appellant argues that he presents a “substantial question” that 

warrants review by this Court because the VOP court imposed a manifestly 

excessive sentence without considering Appellant’s background or 

rehabilitative needs, without stating on the record its reasons for dispensing 

with a pre-sentence investigative (“PSI” report), and without stating any 

reasons for the sentence on the record. Appellant’s Brief at 7-9. We agree 

that Appellant has raised a “substantial question.” See, e.g., 

Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006) 

(concluding that a claim that a sentence is manifestly excessive presents a 

“substantial question” for review); Commonwealth v. Flowers, 950 A.2d 

330, 332 (Pa. Super. 2008) (imposition of a sentence without considering 

the requisite statutory factors or stating adequate reasons for dispensing 

with a pre-sentence report does raise a “substantial question”);

Commonwealth v. L.N., 787 A.2d 1064, 1071 (Pa. Super. 2001) (stating a 

claim that a sentencing court has failed to state adequate reasons on the 
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record for the sentence imposed presents a “substantial question” for 

review). 

Now that we have found that Appellant raised a “substantial question,” 

we will address the merits of Appellant’s claims. Appellant avers that the 

VOP court violated the Sentencing Code when it failed to order a PSI report, 

failed to state on the record the reasons for dispensing with a PSI report, 

and failed to state its reasons for imposing the sentence on the record.2 

Appellant’s Brief at 10. Appellant also contends that his sentence of threeand-a-half to seven years’ incarceration was manifestly unreasonable and 

excessive. Appellant’s Brief at 13. 

This Court has explained the general standards that a VOP court is to 

apply in sentencing a defendant:

When imposing a sentence, the sentencing court must consider 

the factors set out in 42 Pa.C.S. § 9721(b), that is, the 

protection of the public, gravity of offense in relation to impact 

on victim and community, and rehabilitative needs of defendant, 

and it must impose an individualized sentence. The sentence 

should be based on the minimum confinement consistent with 

the gravity of the offense, the need for public protection, and the 

defendant's needs for rehabilitation.

Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006) 

(citation omitted). When a 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 

 

2 The Commonwealth does not oppose a remand to allow the court to 

explain the reasons for its sentence. Commonwealth’s Brief at 7.
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or reasons for the sentence imposed.” 42 Pa.C.S. § 9721(b); see also 

Pa.R.Crim.P. 708(D). When stating its reasons, “[a] sentencing 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.” Crump, supra at 1283. Failure to comply with 

Section 9721(b) “shall be grounds for vacating the sentence or resentence 

and resentencing the defendant.” 42 Pa.C.S. § 9721(b).

It is the sentencing judge’s responsibility to be sure that he has before 

him “sufficient information to enable him to make a determination of the 

circumstances of the offense and the character of the defendant.” 

Commonwealth v. Goggins, 748 A.2d 721, 728 (Pa. Super. 2000). A 

sentencing court has the discretion to order a PSI report to aid in fashioning 

an individualized sentence. See Pa.R.Crim.P. 702(A); Goggins, supra at 

728-29 (listing “essential and adequate elements” of a PSI report). The 

sentencing judge must either order a PSI report or conduct “sufficient 

presentence inquiry such that, at a minimum, the court is apprised of the 

particular circumstances of the offense . . . as well as the defendant’s 

personal history and background.” Goggins, supra at 728. When deciding 

to forgo a PSI report in cases where incarceration for one year or more is a 

possible disposition, Rule 702 requires the court to place its reasons for 
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dispensing with the PSI report on the record. See Pa.R.Crim.P. 

702(A)(2)(a).

In the instant case, the notes of testimony show that at the time of 

the resentencing hearing, the VOP court did not state on the record any 

reasons for imposing Appellant’s sentence as required by Section 9721 and 

corresponding Rule 708.3 The record as a whole fails to reflect any 

consideration of the “facts of the crime and character of the offender.” See 

Crump, supra at 1283. Rather, the two-and-a-half minute long hearing 

consisted solely of a recitation of Appellant’s former and current convictions 

and their corresponding sentences. 

In addition, the VOP court failed to place on the record its reasons for 

dispensing with a PSI report as required by Rule 702; and, in the absence of 

a PSI report, the court failed to conduct a pre-sentence inquiry as required 

pursuant to Goggins, supra. The VOP hearing transcript is devoid of any 

information regarding the circumstances of Appellant’s probation violation 

and the facts of his crimes, his educational and employment background, his 

social and familial history, or his medical and psychiatric history. The court 

 

3

In its 1925(a) Opinion, the VOP court lists several factors that it took into 

consideration when imposing Appellant’s new sentence, but this does not 

fulfill the requirements of Section 9721(b). See Commonwealth v. 

Flowers, 149 A.3d 867, 876 (Pa. Super. 2016) (stating that “it is not 

sufficient for the trial court to state its reasons in a post-sentence Rule 

1925(a) opinion.”). Rather, “[t]he reasons must be given in open court at 

the time of sentencing.” Id. (quotation marks and citations omitted). 
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would have been privy to this background information had it ordered a PSI 

report or conducted the required pre-sentence inquiry. 

We conclude that the VOP court abused its discretion when it failed to 

state on the record the reasons for the sentence imposed, failed to state on 

the record the reasons for dispensing with a PSI report, and failed to 

conduct a pre-sentence inquiry regarding the circumstances of the offense 

and the character of the defendant in order to fashion an individualized 

sentence. Accordingly, we are constrained to remand this matter to the VOP 

court for re-sentencing. Because our disposition renders Appellant’s claim 

that his sentence was manifestly excessive unripe, we decline to address it. 

See Flowers, 149 A.3d at 877.

Judgment of sentence vacated. Case remanded for resentencing in 

accordance with this Memorandum. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/21/2017