J-S14005-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

QUANTAY SIMONE WILLIAMS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1707 EDA 2017

Appeal from the Judgment of Sentence April 21, 2017

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0010030-2008

BEFORE: OTT, J., McLAUGHLIN, J., and RANSOM, J.

MEMORANDUM BY OTT, J.: FILED JUNE 05, 2018

Quantay Simone Williams appeals from the judgment of sentence 

imposed on April 21, 2017, in the Court of Common Pleas of Philadelphia 

County, following a violation of parole/probation (VOP) hearing. In this 

appeal, Williams challenges the discretionary aspects of her revocation 

sentence of one to three-and-one-half years’ imprisonment. Based upon the 

following, we affirm.

The trial court has summarized the procedural history of this case as 

follows:

On July 10, 2009, [Williams] pleaded guilty to risking a 

catastrophe, 18 Pa.C.S. Section 3302(b) and reckless 

endangerment, 18 Pa.C.S. Section 2705. She was sentenced to 

11-1/2 to 23 months of imprisonment with immediate parole on 

____________________________________________

 Retired Senior Judge assigned to the Superior Court.
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the charge of risking a catastrophe and four years of probation for 

reckless endangerment. The sentences were to run concurrently.

On February 22, 2011, May 16, 2014, and September 10, 2014, 

this court found [Williams] in violation of probation. On each date,

probation was revoked and a new sentence was imposed.

On December 14, 2014, this court found [Williams] in violation of 

probation and parole. [Williams] was sentenced to [one to] two 

years of imprisonment to be followed by three years of probation 

for risking a catastrophe. She was paroled on November 30, 

2015. 

On April 17, 2017, this [c]ourt found [Williams] in violation of 

parole[/probation]. She was sentenced to one to three-and-onehalf years of imprisonment. This court determined that her

sentence for reckless endangerment had been completed.

VOP Court Opinion, 8/30/2017, at 1-2.

“[T]his Court’s scope of review in an appeal from a revocation 

sentencing includes discretionary sentencing challenges.” Commonwealth 

v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc). Furthermore,

“[t]here is no absolute right to appeal when challenging the 

discretionary aspect of a sentence.” Commonwealth v. Crump, 

2010 PA Super 101, 995 A.2d 1280, 1282 (Pa.Super. 2010); 42 

Pa.C.S. § 9781(b). Rather, an "[a]ppeal is permitted only after 

this Court determines that there is a substantial question that the 

sentence was not appropriate under the sentencing code." 

Crump, supra at 1282. In determining whether a substantial 

question exists, this Court does not examine the merits of the 

sentencing claim. Commonwealth v. Tuladziecki, 513 Pa. 508, 

522 A.2d 17 (Pa. 1987).

In addition, “issues challenging the discretionary aspects of a 

sentence must be raised in a post-sentence motion or by 

presenting the claim to the trial court during the sentencing 

proceedings. Absent such efforts, an objection to a discretionary 

aspect of a sentence is waived.” Commonwealth v. Kittrell, 

2011 PA Super 60, 19 A.3d 532, 538 (Pa. Super. 2011). 

Furthermore, a defendant is required to preserve the issue in a 
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court-ordered Pa.R.A.P. 1925(b) concise statement and a 

Pa.R.A.P. 2119(f) statement. Commonwealth v. Naranjo, 2012 

PA Super 183, 53 A.3d 66, 72 (Pa. Super. 2012).

Cartrette, at 1042.

 

Here, Williams properly preserved her challenge to the discretionary 

aspects of the sentence by filing a timely appeal, raising the claim in a post 

sentence motion for reconsideration, and including in her appellate brief a 

statement pursuant to Pa.R.A.P. 2119(f), setting forth the reasons she relies 

upon for allowance of appeal. Therefore, we consider whether Williams has 

presented a substantial question that her sentence is inappropriate under the 

Sentencing Code.

A substantial question exists when an appellant sets forth “a colorable 

argument that the sentence imposed is either inconsistent with a specific 

provision of the Sentencing Code or is contrary to the fundamental norms 

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d 

1128, 1133 (Pa. Super. 2009) (citation omitted). In her Section 2119(f) 

statement, Williams challenges “the sheer disproportionality and 

excessiveness of the lower court’s sentence for a technical violation of 

probation.” Appellant’s Brief at 11. This claim raises a substantial question. 

See Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (“A claim 

that a sentence is manifestly excessive such that it constitutes too severe a 

punishment raises a substantial question.”) Furthermore, Williams contests 

the trial court’s imposition of a sentence of total confinement. This claim also 
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presents a substantial question. See Commonwealth v. Colon, 102 A.3d 

1033, 1043 (Pa. Super. 2014) (“Appellant’s claim that the trial court 

sentenced him to a term of total confinement based solely on a technical 

violation raises a substantial question for our review.”). Therefore, we will 

review Williams’ sentencing claim.

The following principles guide a court's review of a VOP sentence:

[A] trial court has broad discretion in sentencing a defendant, and 

concomitantly, the appellate courts utilize a deferential standard 

of appellate review in determining whether the trial court abused 

its discretion in fashioning an appropriate sentence. The reason

for this broad discretion and 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. Simply stated, the sentencing court 

sentences flesh-and-blood defendants and the nuances of 

sentencing decisions are difficult to gauge from the cold transcript 

used upon appellate review. Moreover, the sentencing court 

enjoys an institutional advantage to appellate review, bringing to 

its decisions an expertise, experience, and judgment that should 

not be lightly disturbed.

****

Upon revoking probation, "the sentencing alternatives available to 

the court shall be the same as were available at the time of initial 

sentencing, due consideration being given to the time spent 

serving the order of probation." 42 Pa.C.S. § 9771(b). Thus, upon 

revoking probation, the trial court is limited only by the maximum 

sentence that it could have imposed originally at the time of the 

probationary sentence, although once probation has been 

revoked, the court shall not impose a sentence of total

confinement unless it finds that: 

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

****

[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. In point of fact, where the 

revocation sentence was adequately considered and sufficiently 

explained on the record by the revocation judge, in light of the 

judge's experience with the defendant and awareness of the 

circumstances of the probation violation, under the appropriate 

deferential standard of review, the sentence, if within the 

statutory bounds, is peculiarly within the judge's discretion.

Commonwealth v. Pasture, 107 A.3d 21, 27-29 (Pa. 2014) (case citations 

omitted). See also Commonwealth v. Derry, supra, 150 A.3d 987, 994-

995 (holding a VOP sentencing court must consider 42 Pa.C.S. § 9721(b) 

factors, and must also consider factors set forth in 42 Pa.C.S. § 9771(c)).

Preliminarily, we agree with the Commonwealth that Williams has 

waived any claim that the trial court abused its discretion in imposing a term 

of total confinement because her counsel suggested to the court that a one to 

three-and-one-half year sentence would be appropriate. See 

Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa. Super. 2006)

(finding that where counsel suggested county incarceration might be proper 

and appellant himself claimed a jail term of 12 to 24 months would be more 
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appropriate than 18 to 36 months, such comments “would appear to waive 

appellant’s argument’s regarding total confinement”). At the opening of the 

Violation of Probation Hearing, held on April 21, 2017, counsel for Williams 

stated, unequivocally:

So, Your Honor, what I would be asking for because she, I have 

had Ms. Williams for years as Your Honor knows. I would ask it 

just be one to three years, no probationary tail, because she is 

just not a candidate for probation. She is not committing any 

offenses, but she is not compliant in any way, shape, or form with 

probation. And I can’t argue that. So I would just ask for one to 

three if Your Honor. [sic]

N.T. VOP Hearing, 4/21/2017, at 3-4. Unlike Malovich, where counsel merely 

suggested incarceration would be proper, here, counsel asked the court to 

impose a sentence of incarceration. Therefore, all issues currently raised by 

Williams challenging the fact that a term of incarceration was imposed, 

including the failure to obtain a pre-sentence report, are waived. 

Although Williams has claimed her sentence was disproportionate and 

excessive to her technical violations, her argument specifically addresses the 

imposition of any term of total incarceration, as discussed above, and not a 

specific claim that the term of incarceration was excessive. Nonetheless, as 

such a claim might be construed as being fairly encompassed in a claim of 

excessive sentencing, we will briefly comment thereon.

The VOP court, which was also the trial court and the court that heard 

all previous VOP allegations, imposed a sentence of one to three-and-one-half 

years’ incarceration. The minimum term of one year is identical to the 
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sentence requested by Williams’ counsel. See N.T. VOP Hearing, supra. 

Initially, we note the three-and-one-half year maximum term of incarceration 

is six months longer that the term requested by Williams’ counsel. Id. There 

is no apparent reason to determine the extra 180 days imposed on the 

requested three years maximum sentence represents an abuse of discretion 

that resulted in a manifestly excessive sentence. Moreover, the VOP judge 

noted sufficient reasons for imposing the sentence. 

In fashioning the sentence, this court considered that [Williams] 

has not been convicted of a new crime since her initial guilty plea 

and sentencing in 2009. This court considered defense counsel’s 

recommended sentence of one to three years of imprisonment. 

[Williams] was found in violation of probation five times since her 

guilty plea. The docket entries show that she was given the 

opportunity for mental health and drug treatment to address her 

rehabilitative needs. Nevertheless, she has repeatedly failed to 

fulfill the terms of her probation. [Williams] has shown contempt 

of court by failing to appear for her hearings. The supervision, 

counseling and treatment services made available to her have not 

succeeded. Incarceration in required to protect [Williams] from 

her own irresponsible behavior. Incarceration “is essential to 

vindicate the authority of this court.” 42 Pa.C.S. Section 9771 (c).

VOP Court Opinion, 8/30/2017, at 5-6 (citation to record omitted).

It has been often repeated that:

[A] court may sentence a defendant to total confinement 

subsequent to revocation of probation if any of the following 

conditions exist:

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
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3. such a sentence is essential to vindicate the authority 

of this court.

Commonwealth v. Crump, 995 A.2d 1280, 1282-83 (Pa. Super. 2010) 

(emphasis added).

The VOP court had the authority to impose a sentence of total 

incarceration; defense counsel requested a sentence of total incarceration 

based upon Williams’ inability to conform the terms of her probation; the VOP 

court, having been involved with Williams from the inception of the underlying 

matter, was all too aware of Williams’ multiple failings regarding compliance 

with the terms of her probation; the VOP court imposed a sentence that was 

only six months longer than the sentence requested by defense counsel; and, 

the VOP court imposed a sentence designed to both aid Williams in her 

rehabilitation and to vindicate the authority of the court.

We find no abuse of discretion, and, therefore, Williams is not entitled 

to relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/5/18