J-S04018-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TERRANCE KEITH MILLER, JR.,

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1183 MDA 2017

Appeal from the Judgment of Sentence June 28, 2017

In the Court of Common Pleas of Dauphin County

Criminal Division at No.: CP-22-CR-0003505-2012

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

MEMORANDUM BY DUBOW, J.: FILED JUNE 15, 2018

Appellant, Terrance Keith Miller, Jr., appeals from the Judgment of 

Sentence entered following the revocation of his probation. Appellant 

challenges the discretionary aspects of his sentence, arguing that, in 

imposing a term of three to six years’ imprisonment, the violation of

probation (“VOP”) court imposed an excessive and unreasonable sentence. 

After careful review, we affirm.

The facts, as gleaned from the VOP court’s Pa.R.A.P. 1925(a) Opinion

and the certified record, are as follows. On August 29, 2013, Appellant 

entered a guilty plea at docket No. CP-22-CR-0003505-2012 to one count 

each of Persons Not to Possess Firearms, Receiving Stolen Property,

Carrying a Firearm Without a License, Possession of a Controlled Substance 

with Intent to Deliver (“PWID”), Possession of Drug Paraphernalia,
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Possession of a Small Amount of Marijuana, and Unlawful Activities.

1

 The 

trial court imposed an aggregate sentence of 5 years’ probation.2

While serving his probationary sentence, police arrested Appellant 

three times in three months, including a December 2016 arrest for 

“possessing three pounds of marijuana in his car while driving under 

suspension.” VOP Court Opinion, filed 10/18/17, at 1.

On June 28, 2017, the trial court, sitting as the VOP court, conducted 

a VOP hearing. Probation Officer Naomi Morrow testified that Appellant had 

been arrested three times in three months, and that he had been convicted 

of PWID five times since 2007, with three of those convictions in the last five 

years. N.T. VOP, 6/28/17, at 2. Appellant did not contest the violations and 

instead requested that the VOP court impose probation again. Id. at 4-6.

After consideration of the foregoing, the VOP court found that 

Appellant had violated his probation. On June 28, 2017, the VOP court 

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1 18 Pa.C.S. § 6105; 18 Pa.C.S. § 3925; 18 Pa.C.S. § 6106; 35 P.S. § 780-

113(a)(30), 35 P.S. § 780-113(a)(32); 35 P.S. § 780-113(a)(31), and 75 

Pa.C.S. § 4107, respectively.

2 The trial court imposed the probationary sentence for the Persons Not to 

Possess Firearms conviction, and no further penalty for the remaining 

convictions. The trial court also ordered that Appellant serve his 

probationary sentence consecutive to a term of 101⁄2 to 21 months’ 

incarceration at docket No. CP-22-CR-0000388-2013, which had been 

consolidated for that same day.
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resentenced Appellant to an aggregate term of three to six years’ 

incarceration.3

On July 17, 2017, Appellant filed a Motion to Reconsider his VOP 

sentence nunc pro tunc, citing a breakdown in representation for the

untimeliness and asserting that his VOP sentence was excessive and 

unreasonable. On July 18, 2017, the VOP court granted Appellant’s nunc pro 

tunc request and denied his Motion to Reconsider.

Appellant filed a timely Notice of Appeal. Both Appellant and the VOP 

court complied with Pa.R.A.P. 1925.

Appellant presents one issue for our review:

I. Whether the [VOP] court erred when it denied Appellant’s 

Motion to modify the sentence where the sentence was excessive 

and unreasonable?

Appellant’s Brief at 5.

Appellant avers that the VOP court’s sentence was excessive and 

unreasonable. Appellant’s Brief at 12-14. Initially, we note that Appellant’s

claim implicates the discretionary aspects of sentencing. See 

Commonwealth v. Hornaman, 920 A.2d 1282, 1283-84 (Pa. Super. 2007) 

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3 The VOP court ordered time credit for two months and twenty-seven days, 

and time-served for a consolidated case at docket No. CP-22-CR-0002949-

2012. Accordingly, that docket closed and is not part of the instant appeal.

On July 10, 2017, the VOP court entered an Order directing Appellant’s June 

28, 2017 sentence to run consecutively to other sentences at docket Nos. 

CP-22-CR-0000514-2017 and CP-22-CR-0000233-2017.
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(concluding that a claim that trial court imposed an excessive and 

unreasonable sentence implicated a discretionary aspect of sentence).

Challenges to the discretionary aspects of sentence are not appealable 

as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 

2015). Rather, an appellant challenging the sentencing court’s exercise of 

its discretion must invoke this Court’s jurisdiction by satisfying a four-part 

test: “(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).” Id. (citation omitted).

Appellant met the first three requirements of the above test. We thus 

consider whether Appellant has presented a substantial question in his

Pa.R.A.P. 2119(f) Statement. 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).

In his Pa.R.A.P. 2119(f) Statement, Appellant summarily claims that 

the VOP court imposed a manifestly excessive VOP sentence of three to six 
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years’ incarceration. Appellant’s Brief at 10-11. Appellant argues that the 

VOP court’s sentence “constitutes too severe a punishment in light of the 

rehabilitative needs of the Appellant and what is necessary for the protection 

of the public.” Id. “A claim that a sentence is manifestly excessive such 

that it constitutes too severe a punishment raises a substantial question.” 

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

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). Thus, we will review the merits of 

Appellant’s claim.4

In an appeal from a probation revocation order, “[o]ur standard of 

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.” 

Commonwealth v. Hoover, 909 A.2d 321, 322-23 (Pa. Super. 2006) 

(citing 42 Pa.C.S. § 9771(b)). “Revocation of a probation sentence is a 

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4 Appellant’s subsequent argument that the VOP court failed to consider 

various mitigating factors does not present a substantial question 

appropriate for our review. See Commonwealth v. Hanson, 856 A.2d 

1254, 1257-58 (Pa. Super. 2004); Commonwealth v. Griffin, 804 A.2d 1, 

9 (Pa. Super. 2002) (citing Commonwealth v. Williams, 562 A.2d 1385, 

1388 (Pa. Super. 1989) (en banc) (concluding that an allegation that the 

sentencing court did not adequately consider various factors is, in effect, a 

request that this court substitute its judgment for that of the lower court in 

fashioning a defendant’s sentence)).
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matter committed to the sound discretion of the [VOP] court and that court’s 

decision will not be disturbed on appeal in the absence of an error of law or 

an abuse of discretion.” Commonwealth v. Colon, 102 A.3d 1033, 1041 

(Pa. Super. 2014) (citation and quotation omitted). 

“A probation violation is established whenever it is shown that the 

conduct of the probationer indicates the probation has proven to have been

an ineffective vehicle to accomplish rehabilitation and not sufficient to deter 

against future antisocial conduct.” Id. (citation and quotation omitted). 

When imposing a sentence of incarceration after revocation of probation, the 

sentencing court “is limited only by the maximum sentence that it could 

have imposed originally at the time [it imposed] the probationary sentence.” 

Id. at 1044 (citation omitted).

Although 42 Pa.C.S. § 9721(b) requires the court to make a statement 

of the reasons for the sentence imposed following revocation, the reasons 

“need not be as elaborate as that which is required at the initial sentencing.” 

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

Our review of the VOP sentencing transcript and the VOP court’s 

Pa.R.A.P. 1925(a) Opinion indicates that, contrary to Appellant’s averment, 

the VOP court highlighted the following factors when fashioning Appellant’s 

revocation sentence: (1) the revocation sentence of three to six years’ 

incarceration fell within the statutory limits; (2) Appellant’s probation officer 

recommended state incarceration; (3) Appellant had repeated convictions 
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and recent arrests, including his possession of three pounds of marijuana in 

his car in December 2016; (4) Appellant failed to take advantage of the 

opportunity the court had granted him to prove himself in 2013; and (5) 

Appellant acknowledged that he made “mistakes.” N.T. VOP, 6/28/17, at 2-

6; VOP Court Opinion at 1, 3.

The record is devoid of any indication that the VOP court exercised 

judgment that was “manifestly unreasonable, or the result of partiality, 

prejudice, bias[,] or ill-will.” Colon, supra at 1043. We, thus, conclude 

that the VOP court did not abuse its discretion in imposing Appellant’s 

sentence of confinement for violating the conditions of his probation.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 06/15/2018