J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KHYLIL HODGE

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2156 EDA 2019
Appeal from the Judgment of Sentence Entered June 24, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 1101541

- 2004

BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 03, 2021

Appellant, Khylil Hodge, appeals from the judgment of sentence of 21⁄2

to 5 years’ incarceration, i mposed after the court revoked the term of

probation that Appellant was serving for his conviction of possession with

intent to deliver (PWID). Appellant solely challenges the discretionary aspects

of his revocation sentence. After careful review, we affirm.

The facts of Appellant’s underlying PWID conviction are not necessary

to our dispo sition of his appeal. In regard to the lengthy procedural history

of this case, we only briefly note that Appellant pled guilty to PWID in 2005

and, o ver the following 12 years, he repeatedly violated his probation and was

re sentence d f or that offense. 1 On December 11, 2017, he committed a fourth

violation, which once again resulted in the revocation of his probation . On

_________________ __________ ______ ____ _______

1 The trial court provided a detailed discussion of the procedural history of Appellant’s case in its Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion (TCO), 2/28/20, at 1

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June 24, 2019, the trial court resentenced Appellant to 21⁄2 to 5 years’

incarceration

. Appellant filed a timely , post

- sentence motion on June 28, 2019.

However, before the court ruled on that motion , Appellant filed a timely notice

of appeal on July 24, 2019

. 2 The court thereafter ordered Appellant to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and

he timely complied. The court then issued its Rule 1925(a) opinion on

February 28, 2020.

Herein, Appellant states one issue for our review:

Did not the [trial] court violate the tenets of the Sentencing Code, which mandate individualized sentencing, where th e court did not state adequate grounds for imposing its sentence, failed to consider [A]ppellant’s background, character or rehabilitative needs, and imposed an excessive sentence of 21⁄2 to 5 years of incarceration, which was in excess of what was necessary to address the gravity of the offense, the protection of the community[,] and [A]ppellant’s rehabilitative needs?
Appellant’s Brief at 3.

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:

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2 Pursuant to Pennsylvania Rule of Criminal Procedure 708, a motion to modify a sentence imposed after the revocation of probation “will not toll the 30

- day appeal period.” Pa.R.Crim.P. 708(E). Therefore, even though Appellant’s post

- sentence motion had n ot been ruled on by the trial court, he properly filed his notice of appeal within 30 days of his sentencing.J

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- 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 , se e 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).

Commonwealt

h v. Evans

, 901 A.2d 528, 533 (Pa. Super. 2006), appeal denied , 589 Pa. 727, 909 A.2d 303 (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 sent ence imposed. Commonwealth v. Mann , 820 A.2d 788, 794 (Pa. Super. 2003), appeal denied , 574 Pa. 759, 831 A.2d 599 (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.

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 not ice of appeal, and he preserved his

above

- stated issue in his post

- sentence motion. He has also set forth a Rule

2119(f) statement in his appellate brief. Therein, Appellant claims that the

court’s sentence of 21⁄2 to 5 years’ incarceration is excessive in light of the fact

he committed only “ minor indiscretions. ” Appellant’s Brief at 14. He also

argues that the co urt “failed to conduct any individualized sentencing and

failed to consider the factors as set forth in 42 Pa.C.S.[] § 9721(b), namely,J

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the pro tection of the public , the gravity of the offense as it relates to the

impact on the life of the victim and the community, and the rehabilitative

needs of [Appellant].” Id. at 13. We conclude that Appellant has raised a

substantial question for our revi ew. See Commonwealth v. Derry , 150 A.3d

987, 995 (Pa. Super. 20 16) (holding that a claim that the violation

- of

probation court failed to consider the section 9721(b) factors presents a

subst antial question for our review); id. ( finding that a claim that

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

punishment raises a substantial question” ) (citation omitted).
In reviewing the merits of Appellant’s sentencing challenge, we are

mindful that,

[s] entencing is a matter vested in t he 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, 12 75 ( Pa. Super. 2006)

. In assessing Appellant’s sentencing challenge , we have reviewed his

brief, the Commonwealth’s response, the certified record, and the applicable

case law. We have also examined the Rule 1925(a) opinion authored by the

Honorable Genece E. Brinkley of the Court of Common Pleas of Philadelphia

County . We conclude that Judge Brinkley’s decision appropriately addressesJ

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the arguments Appellant presents herein. 3 Accordingly, we adopt Judge

Brinkley’s opinion as our own, and affirm App ellant’s judgment of sentence for

the reasons set forth therein.

Judgment of sentence affirmed.

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3 We recognize that Judge Brinkley’s opinion does not address Appellant’s argument that she erred by considering , in fashioning his current senten ce, the fact that he failed to appear for his initial sentencing hearing on February 26, 2018. According to Appellant, he was found in contempt of court for that failure to appear, and he was sentenced “to 2 months and 29 days [,] to 5 months and 29 days o f incarceration.” Appellant’s Brief at 20. He insists that , because he was punished for his contempt of court, Judge Brinkley’s taking his failure to appear into account in imposing his current sentence constituted a second punishment for that conduct, t hereby violating his “double jeopardy protections....” Id. at 21. Notably, Appellant did not raise this claim in his post

- sentence motion , or in his Rule 1925(b) statement , which resulted in Judge Brinkley’s not addressing it in her opinion . However, our Supreme Court has held that a defendant’s assertion that he was punished twice for the same offense “ implic ates the legality of a sentence, rendering the issue non

waivable

. ” Commonwealth v. Hill , 238 A.3d 399, 409 (Pa. 2020).

Nevertheless, Appellant’s claim is meritless. Appellant did not receive a second punishment for his contempt finding; instead, Judge Brinkley merely considered his failure to appear for his sentencing hearing

— which she had continued to February 26, 2018, so he could present doc umentation of his employment and GED classes

— as proof of his inability and/or unwillingness to rehabilitate. See TCO at 8 (“Instead of using this chance to show his progress, [Appellant] failed to appear. When he finally did appear for sentencing more than a year later, he had done nothing he was supposed to do.”). We discern no illegality, or abuse of discretion, in Judge Brinkley’s considering Appellant’s failing to appear for his original sentencing hearing in assessing his amenability to rehabilita tion

. See Commonwealth v. Griffin , 804 A.2d 1, 10 (Pa. Super. 2002 ) (noting that a sentencing court is required “to consider the prior criminal record to ascertain a defendant’s amenability to rehabilitation”).J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/3/2021Circulated 02/19/2021 12:07 PM