J-S22044-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TRACY ALLEN LENNEX 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1008 WDA 2023

Appeal from the Judgment of Sentence Entered July 31, 2023

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0007156-2016

BEFORE: PANELLA, P.J.E., LANE, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED: August 20, 2024

Appellant, Tracy Allen Lennex, appeals from the judgment of sentence 

of 18 to 48 months’ incarceration, imposed after his term of probation was 

revoked due to technical violations. Herein, Appellant solely challenges the 

discretionary aspects of his sentence. After careful review, we affirm.

The facts of Appellant’s underlying convictions are not germane to the 

issue he raises on appeal. We need only note that in August of 2016, Appellant 

entered a negotiated guilty plea to endangering the welfare of children (18 

Pa.C.S. § 4304(a)(1)), corruption of a minor (18 Pa.C.S. § 6301(a)(1)(ii)),

and selling/furnishing liquor to a minor (18 Pa.C.S. § 6301.1(a)). On March 

22, 2017, Appellant was sentenced to an aggregate term of 3 to 6 years’ 

incarceration, followed by 5 years’ probation. He was also ordered to register 

for a term of 15 years under the Sexual Offender Registration and Notification 

Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41, and his sentence included the
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specific condition that he “not resid[e] or go[] to places where minors are 

known to frequent without prior approval of [his] probation/parole officer.” 

Charge Specific Special Conditions, 3/22/17, at unnumbered 1 (attachment to 

sentencing order).

Appellant was released from custody and began serving his term of 

probation. He was residing in a substance-abuse recovery center called 

Skyline Recovery Home when, in March of 2023, he “texted his probation 

officer ... indicating that he was moving from the Skyline Recovery Home....” 

Appellant’s Brief at 8 (citation to the record omitted). Appellant’s move was 

“provisionally approved[,]” however, a later inspection of Appellant’s new 

home conducted by his probation officer revealed that a nine-year-old child 

was also residing in the home. Id. at 8, 9 (citation to the record omitted). 

Further, the officer discovered that Appellant had “left Skyline Recovery Home 

because he relapsed and [had] consumed [marijuana] and cocaine.” Id. at 9

(citation to the record omitted). Drug testing of Appellant confirmed he had 

ingested those narcotics. Id. (citation to the record omitted).

Based on these technical violations, Appellant’s probation was ultimately 

revoked, and he was resentenced to an aggregate term of 18 to 48 months’ 

incarceration. Appellant filed a timely post-sentence motion, which was 

denied. He then filed a timely notice of appeal, and he complied with the trial 

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal. The court filed a Rule 1925(a) opinion on October 

23, 2023. Herein, Appellant raises one issue for our review: “Whether the 
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trial court abused its discretion in fashioning an excessive and unreasonable 

aggregate sentence of 18-48 months’ ... incarceration because the 

requirements of 42 Pa.C.S.[] § 9725 and 42 Pa.C.S.[] § 9721(b) were not 

met?” Id. at 6.

Appellant’s issue implicates the discretionary aspects of his sentence. 

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right. Commonwealth v. 

Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). 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 

[the] 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. 720; (3) whether [the] 

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. Evans, 901 A.2d 528, 533 (Pa. Super. 2006), 

appeal denied, ... 909 A.2d 303 ([Pa.] 2006). Objections to the 

discretionary aspects of a sentence are generally waived if they 

are not raised at the sentencing hearing or in a motion to modify 

the sentence imposed. Commonwealth v. Mann, 820 A.2d 788, 

794 (Pa. Super. 2003), appeal denied, ... 831 A.2d 599 ([Pa.] 

2003).

The determination of what constitutes a substantial question must 

be evaluated on a case-by-case basis. Commonwealth v. Paul,

925 A.2d 825, 828 (Pa. Super. 2007). A substantial question 

exists “only when the appellant advances a colorable argument 

that the sentencing judge’s 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.” 

Sierra, supra at 912–13.
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Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting 

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

Here, Appellant filed a timely, post-sentence motion, as well as a timely 

notice of appeal, and he has presented a Rule 2119(f) statement in his brief 

to this Court. See Appellant’s Brief at 18. Therein, Appellant contends that 

his aggregate sentence is excessive because the court failed “to consider his 

rehabilitative needs and responsiveness to treatment.” Id. at 22 (citation to 

the record omitted). The Commonwealth concedes that Appellant’s claim 

constitutes a substantial question for our review. See Commonwealth’s Brief 

at 15 n.12. We agree. See Commonwealth v. Johnson-Daniels, 167 A.3d 

17, 27 (Pa. Super. 2017) (“[The a]ppellant’s assertion in his Rule 2119(f) 

statement that his aggregate sentence ‘does not comport with the protection 

of the public, gravity of the offense, and his rehabilitative needs,’ raises a 

substantial question.”) (citing, inter alia, Commonwealth v. Caldwell, 117 

A.3d 763, 770 (Pa. Super. 2015) (en banc) (concluding “[a]ppellant’s 

challenge to the imposition of his consecutive sentences as unduly excessive, 

together with his claim that the court failed to consider his rehabilitative needs 

upon fashioning its sentence, presents a substantial question”);

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (holding 

“an excessive sentence claim – in conjunction with an assertion that the court 

failed to consider mitigating factors – raises a substantial question”)).

Accordingly, we proceed to the merits of Appellant’s sentencing issue, 

mindful that,
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[s]entencing is a matter vested in the sound discretion of 

the sentencing judge, and a sentence will not be disturbed on 

appeal absent a manifest abuse of discretion. In this context, an 

abuse of discretion is not shown merely by an error in judgment. 

Rather, the appellant must establish, by reference to the record, 

that the sentencing court ignored or misapplied the law, exercised 

its judgment for reasons of partiality, prejudice, bias or ill will, or 

arrived at a manifestly unreasonable decision.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).

The Sentencing Code requires that the trial court fashion a sentence 

consistent with “the protection of the public, the gravity of the offense as it 

relates to the impact on the life of the victim and on the community, and the 

rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b). Additionally, 

42 Pa.C.S. § 9725 states: 

The court shall impose a sentence of total confinement if, having 

regard to the nature and circumstances of the crime and the 

history, character, and condition of the defendant, it is of the 

opinion that the total confinement of the defendant is necessary 

because:

(1) there is undue risk that during a period of probation or 

partial confinement the defendant will commit another 

crime;

(2) the defendant is in need of correctional treatment that 

can be provided most effectively by his commitment to an 

institution; or

(3) a lesser sentence will depreciate the seriousness of the 

crime of the defendant.

42 Pa.C.S. § 9725. 

In the context of resentencing after the revocation of a defendant’s 

probation, the court shall not impose a sentence of confinement unless it finds 

that:
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(1) the defendant has been convicted of another crime; or

(2) the conduct of the defendant indicates that it is likely that he 

will commit another crime if he is not imprisoned; or

(3) such a sentence is essential to vindicate the authority of the 

court.

42 Pa.C.S. § 9771(c)(1) (effective Dec. 18, 2019 to June 10, 2024).1

In this case, Appellant insists that the court failed to adhere to sections

9721(b) and 9725. He contends that the court disregarded that he had been 

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1 We recognize that section 9771(c) was recently amended, effective June 11, 

2024, to remove the above-quoted language. The amendments also added

language that creates a presumption against total confinement for technical 

violations of probation, and permits the imposition of a sentence of total 

confinement upon revocation of probation only in limited, specific 

circumstances. See 42 Pa.C.S. § 9771(c)(1) (effective June 11, 2024). These 

amendments did not become effective until nearly one year after Appellant’s 

revocation of probation and resentencing proceeding. Section 1953 of the 

Statutory Construction Act, entitled “Construction of amendatory statutes,” 

provides:

Whenever a section or part of a statute is amended, the 

amendment shall be construed as merging into the original 

statute, become a part thereof, and replace the part amended, 

and the remainder of the original statute and the amendment shall 

be read together and viewed as one statute passed at one time; 

but the portions of the statute which were not altered by the 

amendment shall be construed as effective from the time of their 

original enactment, and the new provisions shall be

construed as effective only from the date when the

amendment became effective.

1 Pa.C.S. § 1953 (emphasis added). Moreover, our Supreme Court has 

declared that “amendatory statutes are to be construed retroactively only if 

such construction is clearly indicated under the provisions of the statute.” 

Commonwealth v. Shaffer, 734 A.2d 840, 843 (Pa. 1999) (citation 

omitted). Section 9771(c) does not indicate that the legislature intended it to 

apply retroactively. Thus, under the Statutory Construction Act, the 

amendments to section 9771(c), which became effective on June 11, 2024, 

apply prospectively only and do not impact our disposition of Appellant’s 

appeal from his July 31, 2023 judgment of sentence.
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sober for 16 years, and that he only relapsed because three family members 

died within one year and he did not know how to appropriately handle his 

grief. See Appellant’s Brief at 27-28. Appellant explains that his relapse then 

resulted in his being “kicked out of Skyline” and his “imminent ... 

homelessness.” Id. at 28. It was only of Appellant’s desperation to find a 

place to live that he moved in “with a woman whom he had previously worked 

for” without “thinking about the presence of the minor [child] in [her] home.” 

Id. According to Appellant, “this arrangement was always meant to be 

temporary” until he “could arrange alternative housing for himself.” Id.

Appellant maintains that the trial court improperly characterized the

circumstances that led to his probation violations as “ridiculous excuses.” Id.

at 29. He further insists that the court concluded he is “a threat to the 

community at large” based on factors that are not supported by the record. 

Id. For instance, Appellant cites the court’s statement that his “record on 

probation [was] ‘very poor’” and that Appellant “‘was provided with ample 

opportunities to conform his conduct to the dictates of the law[,’ but] ... that 

he failed ‘to avail himself of past programs offered by Allegheny County’....” 

Id. at 31 (citing Trial Court Opinion (TCO), 10/23/23, at 4)). According to 

Appellant, these conclusions are not supported by the record, which shows 

that the instant violations of probation were his first and only violations since 

his release from incarceration in 2021. See id. Appellant also challenges the 

court’s determination that he poses a risk of future criminal conduct. See id. 

at 32 (citing TCO at 4). According to Appellant, he only briefly lived at the 
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home with a minor child, “and at no point during his stay was he alone with 

the minor.” Id. In sum, Appellant concludes that the court imposed a 

manifestly excessive sentence by ignoring his “character, personal history, 

and rehabilitative needs,” and placed too much weight on factors that were 

not supported by the record. Id.

Appellant’s argument is unconvincing. First, as he acknowledges, the 

trial court had the benefit of a presentence investigation (PSI) report. See 

id. at 28. Thus, we must presume the court “was aware of the defendant’s 

character and rehabilitative needs, and weighed those considerations with the 

other mitigating statutory factors.” Id. (citing Commonwealth v. McCain, 

176 A.3d 236, 243 n.3 (Pa. Super. 2017)). 

Second, at the revocation and resentencing hearing, defense counsel 

emphasized to the court that Appellant had no prior violations of probation, 

he had been “compliant with all supervision[,] including drug and alcohol” 

requirements, and that he would be “welcomed back at Skyline” Recovery 

Home if the court chose not to incarcerate him. N.T., 7/31/23, at 5. Defense 

counsel told the court that Appellant’s violations had stemmed from a dispute 

with an employee of Skyline Recovery Home, which had then led to Appellant’s

using drugs, and to his “homelessness issue” that had resulted in his living 

with a minor child. Id. Counsel insisted that Appellant “was never alone” 

with the minor child, and that he only was in the residence “for four nights.” 

Id. The court also heard that Appellant “has a successful business” and had 

“completed sex offender treatment.” Id. Additionally, the court was told that 
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Appellant had “lost his sister, mother[,] and nephew all at the same time[,]” 

and that he “has a long history of depression....” Id. at 6. Counsel assured 

the court that Appellant “is not a risk....” Id.

However, defense counsel also agreed with the court that the PSI report 

outlined Appellant’s “long history” of criminal conduct. Id. at 7.2 The trial 

court also stressed that, at the time of the hearing, Appellant was “55-yearsold. He’s 55, not 25.” Id. The court questioned whether Appellant would 

“ever take responsibility for himself[,]” and emphasized that he knew he was 

violating his probation by using drugs and moving in with a child. Id. at 8. 

The court also doubted Appellant’s claim that he was never alone with the 

child, noting, “What is he going to do, tell me he was alone with her? He’s 

never going to tell me that. He has to say he was never alone with her whether 

he was or wasn’t.” Id.

Additionally, the court expressed concern over the fact that Appellant’s 

violations had all stemmed from a simple dispute with an employee at Skyline 

Recovery Home. Id. The court noted that life involves difficulties, such as 

disputes with other individuals, yet Appellant, at 55 years old, allowed one 

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2 Specifically, the Commonwealth details in its brief to this Court that 

Appellant’s 

record included four different state prison sentences, served both 

in Pennsylvania and Missouri; a seven-and-a-half-year term in 

federal prison that was issued by the United States District Court 

for the Western District of Missouri; and six different county jail 

sentences, served in both Pennsylvania and Missouri.

Commonwealth’s Brief at 14. 
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dispute to completely derail his conduct and justify his violating the terms of 

his probation. Id. at 11. When Appellant remarked to the court that his 

relapse was also due to his losing several family members, the court noted

that there was no “exception in [Appellant’s probation] conditions” that 

allowed him to use drugs to deal with grief, and that he was still expected to 

act responsibly and “handle [such difficulties] without committing a crime[.]” 

Id. at 15, 16. When Appellant further commented that the marijuana he used 

“was actually at the house [he] was in[,]” the court and Appellant had the 

following exchange: 

THE COURT: Does that justify it?

[Appellant]: No, sir.

THE COURT: Right. I don’t know why you want to keep making 

ridiculous excuses for your conduct. You want to minimize 

everything. What about going to live with a child? You do not 

have to answer that, but if you want to talk about it, I’d love to 

know.

[Appellant]: I didn’t have a place to go.

THE COURT: So you went some place where you knew you weren’t 

permitted to go, right?

[Appellant]: I was planning on just staying there for a week or ten 

days.

THE COURT: Can we agree that you went some place where you 

knew you were not permitted to go?

[Appellant]: Yes, sir.

THE COURT: You want to minimize it again and say, I was only 

going to stay there for a week or two. See, [defense counsel] is 

missing what I see as a major ... point in your case and that is that 

you minimize everything. You minimize. Instead of going after it 

and making sure you don’t cross the line to keep your freedom, 
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at 50 some years old, you’re crossing the line left and right [and] 

try[ing] to minimize it. I don’t have any faith in your

representation that you’re not going to do this anymore. 

***

You do what suits you at the time it suits you regardless of what 

restrictions you are on. That is the risk. [Defense counsel] says 

[you were] never alone with the child. Maybe that’s true. Maybe 

you didn’t get a chance yet. That’s how I have to look at it as the 

person who is responsible for that child’s safety in your case. You 

had no business being in her presence. 

Id. at 17-19.

Moreover, the court stressed that Appellant’s use of cocaine was “not 

just a relapse” but also “a crime.” Id. at 9. The court also observed that to 

use cocaine, Appellant had “to form the intent to go find the criminal that [he 

could] do some transaction with ... to obtain the [drug] before [he could] use 

it.” Id. The court found that Appellant’s actions demonstrated his “[c]riminal 

mentality while on probation after having been in state prison, [and] federal 

prison.” Id. at 9-10. The court concluded that Appellant’s conduct proved

that he “simply will not conform his conduct.” Id. at 10.

In its Rule 1925(a) opinion, the court reiterated its rationale for 

Appellant’s sentence, as follows:

The record in this case supports the sentence imposed by the 

[c]ourt. This [c]ourt considered the contents of the [PSI] report. 

[Appellant] has a very lengthy criminal history and his record 

while on probation of supervised release is very poor. He has a 

history of committing sex offenses on children. By not informing 

the probation office that he was residing with a minor child, 

[Appellant] deceptively violated the terms of his probation 

requiring him to have no contact with minor children and 

perpetuated the risk of future criminal conduct by actually residing 

with a minor child. He has convictions in both state and federal 

court. This [c]ourt noted that [Appellant] was provided with 
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ample opportunities to conform his conduct to the dictates of the 

law but chose not to do so by continuing to engage in conduct that 

is totally inconsistent with successful completion of probation. 

This [c]ourt believes that, based on [Appellant’s] failure to avail 

himself of past programs offered by Allegheny County, any 

rehabilitation and treatment should occur while [Appellant] is 

incarcerated in state prison. In sum, this [c]ourt imposed the 

sentence it did because of [Appellant’s] persistence in 

participating in wrongful conduct after having already served 

substantial prison sentences and probationary terms for the same 

precise conduct. The need to protect society from [Appellant] and 

his need for regimented treatment in a state prison facility 

warranted the sentence imposed in this case.

TCO at 3-4. 

Contrary to Appellant’s argument, this record convinces us that the trial 

court adequately considered his character and rehabilitative needs. The court 

had the benefit of a PSI report, which detailed Appellant’s lengthy criminal 

history. Although we agree with Appellant that the instant case does not 

show he has a poor record while serving probation, or that he did not avail 

himself of programs offered by the county, his overall record of repeatedly 

committing crimes, despite having served multiple, lengthy terms of 

incarceration and supervision in other cases, does support the court’s 

conclusions in those regards. Ultimately, the court clearly took into account 

the circumstances of Appellant’s probation violations and the reasons he

offered for why he committed them. The court found that Appellant was

consistently making excuses for his behavior and minimizing his conduct. It 

also found that he lacks the responsibility and maturity that a 55-year-old 

man should present. Instead, in the face of adversity, Appellant chose to use 

cocaine and marijuana, and then move into a home where a minor child lived, 
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despite knowing that these actions violated the conditions of his probation. 

This record supports the court’s decision that Appellant poses a risk to the 

community, and justifies its conclusion that a term of incarceration was 

warranted in this case. Accordingly, we discern no abuse of discretion in the 

court’s sentencing decision.

Judgment of sentence affirmed.

DATE: 8/20/2024