J

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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,

Appellee

v.

ANTHONY REED
,

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2404 EDA 2018

Appeal from the Judgment of Sentence Entered July 24, 2018 in th e Court of Common Pleas of Philadelphia County C riminal Division at No(s): CP

- 51

- CR

- 0000287

- 2016

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

ANTHONY REED
,

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2442 EDA 2018

Appeal from the Judgment of Sentence Entered July 24, 2018 in the Court of Common Pleas of Philadelphia Cou nty Criminal Division at No(s): CP

- 51

- CR

- 0002951

- 2017

BEFORE: BOWES, J., SHOGAN
, J. and STRASSBURGER, J

. *

MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 1 6 , 2019

In these consolidated appeals, Anthony Reed (Appellant) appeals from

the judgment of sentence entered July 24, 20 18 , after the trial court found

that Appellant committed a technical violation of his probation. We affirm.

The trial court summarized the factual and procedural history of this

case as follows.J

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- On March 30, 2016, [Appellant] appeared before th[e trial c] ourt and pled guilty [at docket number CP

- 51

- CR

- 0000287

- 2016 (287

- 2016)] to [r] obbery, graded as a felony of the third degree. Per his negoti ated plea agreement, th[e trial c] ourt sentenced [Appellant] to [six] to 23 months [’] county incarceration plus [ two] years [’] reporting probation, with parole at minimum to be determined by the prison. [Appellant] was released on parole less than a week later on April 5, 2016.

On November 11, 2016, [Appellant] was transported by the [s] heriffs to Eagleville Hospi tal. After completing 30 days of drug treatment, [Appellant] was transferred to NHS Fresh Start Recovery . On January 15, 2017, [Appellant] left Fresh Start and never turned [ sic ]. Wanted cards were issued on January 30, 2017.

On M arch 17, 2017, [Appellan t was arrested and charged at docket number CP

- 51

- CR

- 0002951

- 2017 (2951

- 2017)] with possession with intent to deliver a controlled substance (PWID), an ungraded felony, after the Philadelphia Narcotics Enforcement Team saw [Appellant] sell marijuana to sev eral buyers on Oxford Avenue. [Appellant] appeared before th[e trial c] ourt on September 20, 2017 [,] and pled guilty to this charge. Per his

n egotiated plea agreement, th[e trial c]ourt sentenced him to [six] to 23 months [’] county incarceration plus [thre e] years [’] reporting probation. That same day, th[e trial c] ourt conducted a violation hearing related to [docket number 287

- 2016]. Th[e trial c] ourt found him in both technical and direct violation for absconding from Fresh Start and pleading guilty to P WID. Th[e trial c] ourt revoked his probation and sentenced him to 111⁄2 to 23 months [’] county incarceration plus [three] years [’] reporting probation, with credit for time served, to run concurrently with his [] sentence [at docket number 2951

- 2017. Appell ant] was ordered to enroll in drug treatment, and upon release, continue to attend outpatient drug treatment through TREE
, [ 1 ] seek and maintain employment, stop using and selling drugs, and stay out of trouble with the law. [Appellant] was further ordered to pay all applicable costs and fines at a rate of $25 per month. Th[e trial court] warned [Appellant] that he would receive a state sentence if he violated his probation again.

1 “TREE” is an acronym for Teach Recovery Education Empowerment , an intensive outpatient program in Philade lphia

.J

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- On April 24, 2018, [Appellant] was granted early parole after he completed dr ug treatment at Hoffman Hall, [ 2 ] with the condition that he must comply with all terms and conditions of his sentence. [Appellant] immediately absconded from supervision and wanted cards were issued on May 22, 2018. On July 3, 2018, [Appellant] was apprehe nded by authorities.

On July 24, 2018, [Appellant] appeared before th[e trial c] ourt for his second violation hearing. First, th[e trial c]ourt reviewed [Appellant’s] criminal history since his original guilty plea in 2016 and incorporated the probation s ummary into the record by reference . [Appellant’s] probation officer recommended revocation and inc arceration.

Defen se counsel stated that [Appellant] had a serious drug problem and lacked the ability to address it from the street due to lack of structur e. She argued that 47

- y [ea] r
- old [Appellant] lacked the “emotional maturity” necessary to make good decisions. She re commended that th [e trial c] ourt order [Appellant] to undergo a [f]orensic [i]ntensive [r] ecovery (FIR) evaluation and sentence him to coun ty jail with subsequent parole to a FIR program.

The Commonwealth stated that consistent with the new policies of the Di strict Attorney’ s Office regarding technical violations, he recommended a sentence of 6 to 12 months [of] county incarceration.

Next , [Appellant] spoke on his own behalf. He stated that he started freebasing when he was in the 7 th grade and that he was unable to adapt to living outside of prison. He stated when he was high, he had “no spiritual will” and acknowledged that h e had “ kind of set myself up at this point” for a state prison sentence.

Th[e trial c]ourt found [Appellant] in technical violation for absconding from supervision and not complying with any of the terms and conditions of his sent ence. Th[e trial c]ourt t erminated [A ppellant’s] parole and revoked his probation. [Appellant] was sentenced to [three and one

- half to seven

2 Hoffman Hall is a Philadelphia residential reentry center.J

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-

years’] state incarceration [at docket number 2951

- 2017] , and [two to four years’] state incarceratio n [at docket number 287

- 2016] , to run concurrently with one another, fo r an aggregate sentence of [three and one

- half to seven y ears ’] state incarceration. Th[e trial c]ourt recommended that [Appellant] serve his sentence at SCI

- Chester or SCI

- Phoenix so that he could successfully complete drug treatment. Th[e trial c] ourt ord ered [Appellant] to complete drug treatment and job training while in jail, and upon release, seek and maintain employment, undergo random urinalysis, and pay costs and fines at a rate of $25 per month. Th[e trial c]ourt stated that th is sentence was absolutely necessary to vindicate the authority of the court.

Trial Court Opinion, 12/12/20 18, at 2

- 4 (citations omitted).

On July 26, 2018, [Appellant] filed a “petition to vacate and reconsider

[s] entence ” (post

- sentence motion)

. On A ugust 13, 2018, Appellant filed

two separate notices of appeal 3 to this Court pursuant to our Supreme

Court’s holding in Commonwealth v. Walker , 185 A.3d 969 (Pa. 2018)

(holding that failure to file separate notices of appeal from a single order

resolving issues on more than one lower court docket will result in quashal of

3 We recognize that Appellant filed his notice of appeal before the trial court ruled on his post

- sentence motion

. I n fact, the docket reveals that, as of the date of this memorandum, t he trial court has yet to rule on his post

sentence motion and no order has been entered denying the motion by operation of law. Because of this, the Commonwealth argues that Appellant failed to preserve his sentencing issue because he deprived the trial c ourt of jurisdiction when he filed his appeal while his post

- sentence motion was pending. See Commonwealth’s Brief at 9

- 10 . However, p ursuant to our Rules of Criminal Procedure, a motion to modify a sentence imposed fol lowing revocation of probation does not toll the appeal period. Pa.R.Crim.P. 708(E) . Thus
, Appellant was required to file his notice of appeal before the 30

- day appeal period lapsed, despite the fact that the trial court had yet to address his motion. Therefore , because Appellant timely filed his notice of appeal within thirty days of the imposition of sentence as required by Rule 708, the appeal herein is ripe for our review.J

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-

the appeal)

. Both Appellant and the trial court have complied with Pa.R.A.P.

1925.

On appeal, Appellant argues that the trial court “ abused its discretion
,
and violate[d] general sente ncing principles when,” it imposed a sentence

that

was manifestly excessive and unreasonable, [and] surpassed what was required to protect the public, where the court failed to adequately examine and investigate [Appellant’s] background, character and reh abilitative needs, failed to state sufficient reasons of record for the sentence which was well beyond what was necessary to foster [Appellant’s] rehabilitation and failed to comply with the requ irements of [42 Pa.C.S.] § 9771(c)[.]

Appellant’s Brief at 4

.
Appellant challenges the discretionary aspects of his sentence. We

consider his issue mindful of the following. It is within this Court’s scope of

review to consider challenges to the discretionary aspects of an appellant’s

sentence in an appeal follo wing a revocation of probation. Commonwealth

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

Sentencing 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 discret ion. 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 par tiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

* * *

When imposing sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant. In considering these f actors, the court shouldJ

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refer to the defendant’s prior criminal record, age, personal characteristics and potential for rehabilitation.

Commonwealth v. Antidormi , 84 A.3d 736, 760

- 61 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

An appellant is not entitled to the review of challenges to the discretionary aspects of a sentence as of right. Rather, an appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction. We determine whether the
ap pellant has invoked our jurisdiction by considering the following four factors:

(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 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 t he Sentencing Code, 42 Pa.C.S.[] § 978 1(b).

Commonwealth v. Samuel , 102 A.3d 1001, 1006

- 07 (Pa. Super. 2014) (some citations omitted).

Here, Appellant timely filed a notice of appeal after preserving the

issue by filing a post

- sentence motion to modify his sentence . Further,

Appellant’s brief contains a statemen t pursuant to Pa.R.A.P. 2119(f). Thus,

we now consider whether Appellant has raised a substantial question. Here,

Appellant claims the trial court did not address “the criteria for total

confinement, the character of [Appellant] and the circumstances of the crime

which sentence was being imposed.” Appellant’s Brief at 10 (footnote

omitted).J

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-

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 fundam ental norms which underlie the

sentencing process.” Commonwealth v. Griffin , 65 A.3d 932, 935 (Pa.

Super. 2013) (citation and quotation marks omitted).

Upon review, we find Appellant has raised a substantial question by

presenting a plausible argument th at his sentence is contrary to the

fundamental norms which underlie the sentencing process. See

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

that Parlante raised a substantial question by arguing that “ the trial court

imposed a se ntence that is grossly disproportionate to her crimes and failed

to consider her background or nature of offenses and provide adequate

reasons on the record for the sentence ”). See also Commonwealth v.

Schutzues , 54 A.3d 86, 98 (Pa. Super. 2012) (“An argu ment that the trial

court imposed an excessive sentence to technical probation violations raises

a substantial question.”). Accordingly, we proceed to address the merits of

Appellant’s claim.

Regarding sentences imposed following the revocation of probat ion, we

observe the follow ing

.J

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- The imposition of sentence following the revocation of probation is vested within the sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal. An abuse of discretion is more than an error in judgment

— a sentencing court has not abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill

- will.

In determining whether a senten ce is manifestly excessive, the appellate court must give great weight to the sentencing court’s discretion, as he or she is in the best position to measure factors such as the nature of the crime, the defendant’s character, and the defendant’s display of remorse, defiance, or indifference.

Upon revoking probation, a sentencing court may choose from any of the sentencing options that existed at the time of the original sentencing, including incarceration. [U]pon revocation [of probation] ... the trial cou rt is limited only by the maximum sentence that it could have imposed originally at the time of the probationary sentence. However, 42 Pa.C.S.[] § 9771(c) provides that once probation has been revoked, a sentence of total confinement may only be imposed i f any of the following conditions exist[s]:

(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 essen tial to vindicate the authority of the court.

In addition, 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 sta tement of the reason or reasons for the sentence imposed [and f]ailure to comply with these provisions shall be grounds for vacating the sentence or resentence andJ

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resentencing the defendant. A trial court need not undertake a lengthy discourse [ 4 ] 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 at 103 3, 1044 (Pa. Super. 2014)

(citations and quotation marks omitted).

Moreover, in addition to these considerations, a trial court must also

consider the factors set forth in subsection 9721(b) 5 when imposing a

sentence following the revocation of probation

. Commonwealth v. Derry
,
150 A.3d 987, 995 (Pa. Super. 2016 ).

4 As our Supreme Court has explained:

Simply put, since the defendant has previously a ppeared before the [trial] court, the stated reasons for a revocation sentence need not be as elaborate as that which is required at initial sentencing. The rationale for this is obvious. When sentencing is a consequence of the revocation of probation, the trial judge is already fully informed as to the facts and circumstances of both the crime and the nature of the defendant [.]

Commonwealth v. Pasture , 107 A.3d 21, 28 (Pa. 2014).

5 That sub section provides, in relevant part, that when imposing a judgment of sentence,

the court shall follow the general principle that the sentence imposed should call for confinement that is 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).J

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Instantly, Appellant contends that the trial court abused its discretion

by : (1) imposing an excessive sentence without careful consideration of “the

factors as set forth in the [s]entencing [c]ode[;]” (2) failing to consider the

technical nature of Appellant’s violation, his long

- standing drug abuse, and

rehabilitative needs; and (3) failing to provide sufficient rationale for a

sentence of total confinement for the technical violation commi tted.

Appellant’s Brief at 10, 17

- 18.

Upon review of the certified record and applicable filings, we find

Appellant’s claim without merit. In its opinion to this Court, the trial court

thorough ly addressed Appellant’s arguments as follows.

In the case a t bar, th[e trial c] o urt properly sentenced [Appellant] to an aggregate term of [three and one

- half to seven years ’] state incarceration after finding him in technical violation of his probation. This sentence was within the statutory limits and was reason able after considering all relevant factors.

... [T] he length of incarc eration was solely within th[e trial c] ou rt’ s discretion and was limited only by the maximum sentence that could have been imposed at the original sentencing. Under Pennsylvania law, the maximum sentence for [PWID], an ungraded felony, is 10 years [’] incarceration, a $100,000 fine, or both. 35 Pa.C.S. 780

- 113(f) ( 1.1). The maximum sentence for [r] obbery, graded as a felony of the third degree, is [seven] years, $15 ,000 fine, or both. Thus, th[e trial c] ourt could have sentenced [Appellant] up to a maximum aggregate sentence of 17 years, minus credit for t ime [Appellant] already served in prison. Th[e trial c]ourt sentenced [Appellant] to an aggregate term of [three and one

- half to seven yea rs ’] state incarceration. This was well within the statutory limits and wa s a reasonable exercise of th[e trial c] ou rt’ s di scretion in light of [Appellant’s] continued substance abuse, absconding from supervision, and failure to show any meaningful growth and progress towards rehabilitation.J

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- Indeed, th[e trial c] ourt had tried to allow [Appell a nt] to get drug treatment through county inpatient and o utpatient programs and [Appellant] was not successful. After his initial
appearance before th[e trial c] our t where he p led guilty to robbery, [Appellant] only served six days and then was released on parole. He later entered drug treatment at Eagleville Hospital, and upon completion of a 30 day program, was released to a recovery house, after which he absconde d. His whereabouts remained unknown for the next two months until he was arrested and charged with PWID.

... Instead of using th is opportunity to turn his life around and get the substance abuse treatment he needed, [Appellant] absconded from supervision as soon as he was release d on parole. Each time [Appellant] was released from custody, he immedi ately thumbed his nose at th[e trial c] ourt and continued doing whatever he wanted to do, namely abscond from supervision and continue using drugs.

Furthermore, th[e trial c] ourt properly considered the fa ctors set forth in [section] 9721: the protection of the pu blic, the gravity of [Appellant’s] offense in relation to the impact on the victim and the community, and his rehabilitative needs. As discussed above, s ince his original guilty plea in 2016, th[e trial c]ourt had given [Appellant] multiple chances to rehabilitate himself through county parole, county probation, county incarceration, and inpatient/outpatient drug treatment programs, including Eagleville Ho spital and Hoffman Hall for treatment. Unfortunately, [Appellant] once again failed to take his sentence seriously and absconded from supervision and continued to use drugs. Revocation and a state sentence was an appropriate sentence under the circumstance s in order to vindicate the authority of the [c] ourt. In order to make this determination, th[e trial c]ourt considered [Appellant] conduct since his original guilty plea in 2016, the probation officer’ s summary and recommendation for revocation and incarc eration, argument from defense counsel and t he Commonwealth, and [Appellant’s] own allocution. As he was explaining why he believed he failed at probation, parole, and outpatient treatment programs, [Appellant] admitt ed that he did not know how to “ functio n socially outside of incarceration.” Defen se counsel argued that [Appellant] was unable to make good decisions without the structure of incarcerat ion and that his addiction was “running his life.” After taking all of this into consideration, th[e trial c] ourt found it appropriate to impose a [three and one

- half to seven] year state sent ence, with orders that [Appellant] receive drugJ

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tre atment while incarcerated. Th[e trial c] ourt stated, “So [I a] m sentencing you to a state sentence so you c an take the sen tence [seriously] this time and your drug treatment seriously this time. I am recommending SCI Chester because they have a good drug treatment program, but I think they have a good program at SCI Phoenix, too. So if you take your own treatment seriously th is time, you w ill be better when you get out.” ... [T]here is no requirement that th[e trial c] ourt impose the “ minim um possible sentence.” Rather, based upon [Appellant’s] ongoing failure to comply with the terms and conditions of probation as well as his serious drug problem that had yet to be adequately addressed, th[e trial c] ourt found it appropriate to sentence [Appellant] to a term of state incarceration.

[Appellant also] argues that a sentence of total confinement v iolated 42 Pa.C.S. § 9771(c)(3) an d the fundamental norms un derlying the sentencing process. This claim is without merit. As discussed above, o nce probation or parole has been revoked, a sentence of total confinement may be imposed if any of the following conditions exist: the defendant has been convicted of another crime; the conduct of the defendant indicates that it is lik ely that he will commit another crime if he is not imprisoned; or, such a sentence is essential to vi ndicate the authority of court. Here, this sentence was absolute ly necessary to vindicate the authority of the [c] ourt.

[Appellant] never took his sentence seriously and thumbed his n ose at th[e trial c] ourt by absconding from supervision at every opportunity. He continued to use and sell drugs, and never made any pro gress towards completing any of the terms and conditions of his sentence. As th[e trial c] ourt stated at the violation hearing, “ This sentence is absolutely necessary to vindicate the authority of the [c] ourt. You had two opportunities to get yourself clea n and with this [c] ourt sending you to Hoffman Hall. Hoffman Hall has a great drug treatment program
, but you decided not to follow up with it y ourself.” Instead of atten ding drug treatment and working towards achieving and

m aintaining sobriety, [Appellan t] decided to disre gard th[e trial c]ourt’ s orders and do whatev er he wanted to do. Thus, th[e trial c] ourt properly s entenced [Appellant] to a term of total confinement in order to vindicate the authority of the court.J

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-

Trial Court Opinion, 12/12/2018, at 6

- 9 (some citations and quotation marks

omitted).

Furthermore, the trial court set forth the following rationale at the time of

sentencing.

Sir, I find you to be in technica l violation for

absconding from supervision and not doing anything else that I or dered you to do because you’ re supposed to be lo oking for a job and maintaining your sobriety.

* * *

[Y]ou’ ve been using drugs for a l ong time and every time you get out you got some drug treatment and you don't follow up on it. That’s your choice. [.. .] It is your personal choice that you and only you can make that you do not want to be a drug addict anymore. You can’ t blame anybody but yourself for the condition you’ re in.

* * *

Hopefully [,] this sentence will a llow you to address all of your issues. [...] So I’ m sentencing you to a state sentence so you can take the sentence [seriously] this time and ta ke your drug treatment seriously this time.

N.T., 7/24/2018, at 13

- 15.

The record supports the foregoing. See Id. at 4

- 6 ( reviewing on the

record A ppellant’s history with the court begin ning with his 2016 guilty

plea); Id. at 12 (Appellant answering in the affirmative when the trial court

asked if he recalled the court’s warning at Appellant’s previous revocation

hearing that the trial court “was goi ng to give [Appellant] a state sentence”J

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-

if Appellant appeared before the court again); I d. at 15 (recommending

Appellant’s sentence be served at a state correctional institution that has a

“good drug treatment program[,]” in hopes Appellant would take his “drug

treatment seriously this time”); Id. (finding the sentence “absolutely

necessary to vindicate the authority of the court” after the trial court had

provided previously opportunities for Appellant to reform and address his

drug abuse to no avail ).

I n light of the foregoing, b ecause the trial court’s findings are

supported by the record and evidence thoughtful considerations by the trial

court about the specific needs of Appellant, we conclude that the trial court

did not abuse its discretion in sente ncing Appellant. 6 Probation has proven

6 Lastly, we briefly address Appellant’ s reliance o n Parlante
, supra to support his argument that his sentence is excessive. In Parlante , Parlante

was

convicted of fo rgery for purchasing $1000.00 in merchandise on a stolen credit card [and ] initially received probation. [Par lante] committed a series of technical violations, and also was arrested for drug possession and underage drinking. The tri al court sentenced [Parlante] to four to eight years of incarceration on the forgery offenses. This Court concluded that the length of the prison sentence was exc essive, given that [Parlante] never committed a violent crime and that most of her probation violations were technical.

Schutzues
, 54 A.3d at 100

. Additionally, the Parlante Court found that the trial court failed to consider mitigating factors, and focused “solely on the fact that [Parlante’s] prior record indicated that it was likely that she would violate her probation in the future[.]” Parlante , 823 A.2d at 930. We find Parlante distinguishable from the instant matter for several reasons. First, unlike in Parlante
, the record here clearly indicates that the trial court took (Footnote Continued Next Page)J

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to be ineffective in rehabilitating Appellant, and a prison sentence is

necessary to help Appellant with treatment as well as vindicate the authority

of the court. See Commonwealth v. Mouzon , 812 A.2d 617, 620 (Pa.

2002) (“Traditionally, the trial court is afforded broad discretion in

sentencing criminal defendants ‘because of the perception that the trial court

is in the best position to determine the proper penalty for a particular

offense based upon an evaluation of the individual circumstances before it.’”)

( citation omitted).

Accordingly , we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/16/19

(Footnote Continued)

_______________________ into account Appellant’s rehabilitative needs and did not base Appellant’s sentence solely on his prior record. Secondly, Appellant’s underlying convictions are for robbery and PWID, as opposed to Parlante’s forgery

co nviction. Lastly, the trial court warned Appellant of an impending state sentence at a prior revocation, should Appellant violate his probation yet again. Thus, we do not believe that this Court’s holding in Parlante warrants the conclusion that Appellant ’s sentence is excessive.