J-S03013-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

JOHN EDWARD FLAMER,

Appellant No. 2650 EDA 2018

Appeal from the Judgment of Sentence Entered August 2, 2018

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0006457-2013

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 16, 2019

Appellant, John Edward Flamer, appeals from the judgment of sentence 

of an aggregate term of 11⁄2 to 5 years’ imprisonment, imposed after the court 

revoked his term of probation based on a new conviction in an unrelated case. 

Appellant challenges the discretionary aspects of his sentence. After careful 

review, we affirm. 

The trial court provided the following summary of the procedural history 

of this case in its Pa.R.A.P. 1925(a) opinion:

On July 8, 2013, [Appellant] was arrested by the Ridley 

Township Police Department and charged with retail theft, 18 

Pa.C.S. § 3929[,] and providing false identification to police, 18 

Pa.C.S. § 4914, after stealing a GPX portable DVD player from a 

Kmart store and then falsely identifying himself after being 

arrested. 

On December 16, 2013, [Appellant] entered into a 

negotiated plea agreement and was sentenced to 8 to 23 

months[’] incarceration followed by three years[’] probation on 
J-S03013-19

- 2 -

the retail theft charge and one-year [of] probation on the false 

identification charge. 

On April 29, 2014, [Appellant] was arrested in the state of 

Delaware on charges of theft. He was convicted on January 26, 

2015. The Adult Probation and Parole Services Department 

charged him with a violation of Rule 3 of his probation, that he 

comply with all municipal, county, state and federal laws, as well 

as Rule 10A, that he pay his court costs and fines. It 

recommended that he be found in violation of the terms of his

probation, that his probation be revoked, and that he receive a 

new sentence of 18 to 60 months on the retail theft charge and 6 

to 12 months[’] probation on the false identification charge. 

On August 2, 2018, this court conducted a Gagnon II[1] 

hearing, at which defense counsel asked that [Appellant] be 

sentenced to county time. This court rejected that request, 

expressing the belief that the state has more resources than the 

county to help [Appellant] with treatment and placement. It 

adopted the recommendations of the probation department and 

sentenced [Appellant] accordingly. 

On August 6, 2018, counsel filed a motion to reconsider 

sentence, in which he argued that this court erred when it 

departed from the sentencing guidelines without stating a basis. 

On August 7, 2018, this court denied that motion without a 

hearing. 

Trial Court Opinion (“TCO”), 10/17/18, at 1-2 (unnecessary capitalization 

omitted). 

Appellant filed a timely notice of appeal on August 31, 2018, followed 

by a timely, court-ordered Rule 1925(b) concise statement of errors 

complained of on appeal. Appellant now presents the following issue for our 

review:

The [c]ourt erred in that its sentence was unreasonable in that it 

was four times the standard guidelines without articulating 

____________________________________________

1 Gagnon v. Scarpelli, 411 U.S. 778 (1973). 
J-S03013-19

- 3 -

adequate reasons for the departure. The trial court abused its 

discretion when it imposed a sentence exceeding the aggravated 

guidelines without explaining compelling reasons why the 

particular offense was more severe than the normal crime of 

[that] type. 

Appellant’s Brief at 4. 

Appellant’s allegations relate to the discretionary aspects of his 

sentence. 

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right. 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 

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 the Sentencing Code, 42 

Pa.C.S.[] § 9781(b).

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

and internal quotations omitted). 

Here, the record reflects that Appellant filed a timely notice of appeal,

properly preserved his claim in his post-sentence motion, and included a Rule 

2119(f) statement in his appellate brief in compliance with Pennsylvania Rules 

of Appellate Procedure. Thus, we proceed to determine whether Appellant has 

raised a substantial question to meet the fourth requirement of the four-part 

test outlined above. 
J-S03013-19

- 4 -

As we explained in Moury:

The determination of what constitutes a substantial question must 

be evaluated on a case-by-case basis. 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.

Id. at 170 (citations and internal quotations omitted). 

Appellant maintains in his Rule 2119(f) statement that the trial court 

“violated the express provisions of the Sentencing Code and imposed an 

excessive sentence contrary to the fundamental norms which underlie the 

sentencing process.” Appellant’s Brief at 6. More specifically, Appellant 

contends that his revocation sentence is “grossly disproportionate to the 

nature of the violation,” that the trial court failed to consider all relevant 

sentencing criteria, and that the court accepted an unsupported sentencing 

recommendation from the probation department. Id. at 7. Based on the 

arguments presented in Appellant’s Rule 2119(f) statement, and the case law 

on which he relies, we conclude that he has presented a substantial question 

for our review. See Commonwealth v. Simmons, 56 A.3d 1280, 1286 (Pa. 

Super. 2012); Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 

2011); Commonwealth v. Parlante, 823 A.2d 927, 929-30 (Pa. Super. 

2003). 

Accordingly, we will review the merits of his claim, mindful of the 

following standard of review:

Sentencing is a matter vested within the discretion of the trial 

court and will not be disturbed absent a manifest abuse of 
J-S03013-19

- 5 -

discretion. An abuse of discretion requires the trial court to have 

acted with manifest unreasonableness, or partiality, prejudice, 

bias, or ill-will, or such lack of support so as to be clearly 

erroneous. It is also now accepted that in an appeal following the 

revocation of probation, it is within our scope of review to consider 

challenges to both the legality of the final sentence and the 

discretionary aspects of an appellant’s sentence. 

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) 

(citations omitted). Moreover, when we consider an appeal from a sentence 

imposed following the revocation of probation, 

[o]ur review is limited to determining the validity of the probation 

revocation proceedings and the authority of the sentencing court 

to consider the same sentencing alternatives that it had at the 

time of the initial sentencing. 42 Pa.C.S. § 9771(b). Also, 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. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006) 

(internal citation omitted). 

The reason for the trial court’s broad discretion in sentencing and the 

deferential standard of appellate review is that “the sentencing court is in the 

best position to measure various factors and determine the proper penalty for 

a particular offense based upon an evaluation of the individual circumstances 

before it.” Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011) (internal 

citation and quotation marks omitted). Our Supreme Court has recognized 

that the sentencing court’s “institutional advantage” is, perhaps, even “more 

pronounced in fashioning a sentence following the revocation of probation, 

which is qualitatively different than an initial sentencing proceeding.” 

Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014). 
J-S03013-19

- 6 -

At initial sentencing, all of the rules and procedures designed to 

inform the court and to cabin its discretionary sentencing 

authority properly are involved and play a crucial role. However, 

it is a different matter when a defendant reappears before the 

court for sentencing proceedings following a violation of the mercy 

bestowed upon him in the form of a probationary sentence. For 

example, in such a case, contrary to when an initial sentence is 

imposed, the Sentencing Guidelines do not apply, and the 

revocation court is not cabined by Section 9721(b)’s requirement 

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. See Commonwealth v. Reaves, ... 923 A.2d 

1119, 1129 ([Pa.] 2007) (citing 204 Pa.Code. § 303.1(b) 

(Sentencing Guidelines do not apply to sentences imposed as 

result of revocation of probation)). 

Id. 

In response to Appellant’s assertion that his new sentence exceeds the 

standard guidelines, the court emphasized that the standard sentencing 

guidelines do not apply following a revocation of probation. TCO at 4. The 

court further explained:

Even if the guidelines were to apply, this court sentenced 

[Appellant] within them. Although the DVD player that 

[Appellant] stole from ... Kmart was worth only $95.39, the 

offense was graded as a felony of the third degree because it was 

“a third subsequent offense, regardless of the value of the 

merchandise.” 18 Pa.C.S. § 3929(b)(1)(iv). His offense gravity 

score under the guidelines matrix is 5. [Appellant] had a prior 

record score of 5, so the standard range for the minimum 

sentence pursuant to the matrix is 12 to 18 months. 

At the recommendation of the office of Adult Probation and Parole 

Services, this court imposed a minimum sentence of 18 months, 

which is at the top of but, nevertheless, within the guidelines. The 

sentence was not “beyond the top end of the aggravated range,” 

or “four times the standard guidelines” as [Appellant] suggests. 

Id. (unnecessary capitalization omitted). 
J-S03013-19

- 7 -

Moreover, the record reflects that the trial court did consider the 

rehabilitative needs of Appellant prior to sentencing. 

As stated on the record,[2]this [c]ourt sentenced [Appellant] to 

state time because the state parole department has superior 

resources to assist him once he has completed his minimum 

sentence. [Appellant] has a history of psychosis, for which he has 

been evaluated and treated. Those evaluations, however, also 

indicate that he has shown some resistance to treatment. Once 

he has finished his sentence, the State Parole Department will be 

better equipped to assist him in his transfer back to the 

community. 

Id. at 4-5. The court also recognized that after given credit for time served, 

Appellant will essentially be immediately eligible for parole. N.T. Sentencing 

at 6-7.

Finally, Appellant argues that the court failed to explain its reasoning for 

imposing a harsher sentence on Appellant post-revocation. See Brief at 8-9, 

12. However, as the Pasture Court made clear:

[F]ollowing revocation, a sentencing court need not undertake a 

lengthy discourse for its reasons for imposing a sentence or 

specifically reference the statutes in question. Simply put, since 

the defendant has previously appeared before the sentencing 

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....

____________________________________________

2 See N.T. Sentencing, 8/2/18, at 12 (“One of the reasons that I think that 

[Appellant] should be on state parole is because they have more resources to 

help him with his treatment and placement than the county does or even state 

probation, and I think it’s probably the best placement for him.”). 
J-S03013-19

- 8 -

Pasture, 107 A.3d at 28. The Pasture Court further emphasized that “a trial 

court does not necessarily abuse its discretion in imposing a seemingly 

harsher post-revocation sentence where the defendant received a lenient 

sentence and then failed to adhere to the conditions imposed on him.” Id. 

Based on our review of the record, we are satisfied with the justification 

provided for the sentence imposed on Appellant post-revocation, and we 

discern no abuse of discretion by the trial court. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/16/19