J-S27025-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOHN LEE 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2028 EDA 2021

Appeal from the Judgment of Sentence Entered March 22, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-1111421-2001

BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.

MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 20, 2022

Appellant John Lee appeals nunc pro tunc from the judgment of 

sentence imposed following the revocation of his probation. We reverse and 

remand for resentencing. 

On May 27, 2004, Appellant pled nolo contendere to rape and corruption 

of minors.

1 On May 4, 2005, the trial court sentenced Appellant to an 

aggregate term of five to ten years’ incarceration followed by fifteen years’ 

probation.2 Appellant’s probation was subsequently revoked several times. 

Most recently, on March 22, 2018, the trial court revoked Appellant’s probation 

and resentenced him to an aggregate term of seven-and-a-half to fifteen 

____________________________________________

1 18 Pa.C.S. §§ 3121 and 6301, respectively. 

2 Specifically, the trial court sentenced Appellant to five to ten years’ 

incarceration followed by ten years’ probation for rape and imposed a 

consecutive term of five years’ probation for corruption of minors. 
J-S27025-22

- 2 -

years’ incarceration.3 Appellant filed a timely post-sentence motion 

requesting reconsideration of the sentence.

4

 Appellant did not file a direct 

appeal. 

Appellant then filed a pro se petition pursuant to the Post Conviction 

Relief Act (PCRA)5 on November 27, 2019. On August 30, 2021, the PCRA 

court, concluding that Appellant had established the government interference 

exception to the PCRA’s one-year time-bar,6 granted Appellant’s petition and 

reinstated Appellant’s direct appeal rights nunc pro tunc. 

Appellant filed a timely notice of appeal nunc pro tunc on September 2, 

2021. The trial court did not order Appellant to file a concise statement of 

errors complained of on appeal under Pa.R.A.P. 1925(b), and Appellant did 

not file one. The trial court filed a Rule 1925(a) opinion conceding that it failed 

to adequately explain its reasons for imposing Appellant’s sentence.

On appeal, Appellant raises the following issue:

The sentencing court abused its discretion when it sentenced 

[Appellant] to an excessively [] harsh sentence with inadequate 

____________________________________________

3 Specifically, the trial court resentenced Appellant to five to ten years’ 

incarceration for rape and a consecutive term of two-and-a-half to five years’ 

incarceration for corruption of minors. 

4 An order ruling on Appellant’s post-sentence motion does not appear on the 

trial court docket or in the certified record. Because a timely post-sentence 

motion following the revocation of probation does not toll the appeal period, 

the trial court’s failure to rule on this motion does not affect the finality of the 

judgment of sentence. See Pa.R.Crim.P. 708(E). 

5 42 Pa.C.S. §§ 9541-9546. 

6 42 Pa.C.S. § 9545(b)(1)(i). 
J-S27025-22

- 3 -

reasons on the record as required by . . . 42 Pa.C.S. § 9721 and 

case law.

Appellant’s Brief at 8. 

Appellant argues that the trial court erred by failing to state its reasons 

for imposing the instant sentence of seven-and-a-half to fifteen years’ 

incarceration on the record. Id. at 15-16. Appellant also contends that the 

trial court imposed a manifestly excessive sentence for a technical violation of 

probation without considering mitigating factors. Id. at 15-17. 

The Commonwealth “concurs [that the trial court failed to provide

sufficient reasons for its sentence] and does not oppose a remand for 

resentencing so the court may properly consider the relevant factors.” 

Commonwealth’s Brief at 6. 

It is well settled that

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. [708]; (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).

Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (some 

citations omitted and formatting altered). “A substantial question exists only 

when the appellant advances a colorable argument that the sentencing judge’s 
J-S27025-22

- 4 -

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. (citation omitted). 

Instantly, Appellant preserved his sentencing issue in a post-sentence 

motion, filed a timely appeal, and included a Pa.R.A.P. 2119(f) statement in 

his brief. See id. We conclude that Appellant has raised a substantial 

question for our review. See Commonwealth v. Flowers, 149 A.3d 867, 

871 (Pa. Super. 2016) (stating that a “claim that sentencing court failed to 

state adequate reasons for sentence imposed presents substantial question 

regarding appropriateness of sentence” (citation omitted)). 

Our standard of review is as follows:

We review a sentence imposed following a revocation of probation 

for an error of law or an abuse of discretion. . . . An abuse of 

discretion is not merely an error of judgment, but if in reaching a 

conclusion the law is overridden or misapplied or the judgment 

exercised is manifestly unreasonable, or the result of partiality, 

prejudice, bias, or ill will, as shown by the evidence or the record, 

discretion is abused.

Id. at 873 (citations omitted). 

Section 9721 of the Sentencing Code states, in relevant part, “[i]n every 

case in which the court . . . resentences a person 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 statement of the reason or reasons for 

the sentence imposed.” 42 Pa.C.S. § 9721(b); see also Pa.R.Crim.P. 

708(D)(2) (providing that during sentencing following the revocation of 
J-S27025-22

- 5 -

probation, “[t]he judge shall state on the record the reasons for the sentence 

imposed”). 

This Court has explained that

the requirement that a trial court explain its sentence under 

Section 9721 and corresponding Criminal Rule [of Procedure] 708 

has two components. First, the court must state its reasons on 

the record at the time the sentence is imposed. Requiring the 

sentencing court to state its reasons at that time provides a 

procedural mechanism for the aggrieved party both to attempt to 

rebut the court’s explanation and inclination before the sentencing 

proceeding ends, and to identify and frame substantive claims for 

post-sentence motions or appeal. 

* * *

Second, although [a] sentencing court need not undertake a 

lengthy discourse for its reasons for imposing a sentence, . . . the 

record as a whole must reflect the sentencing court’s 

consideration of the facts of the crime and character of the 

offender.

Flowers, 149 A.3d at 875-76 (citations and quotation marks omitted). 

Here, as noted previously, both parties and the trial court agree that the 

trial court failed to provide adequate reasons for Appellant’s sentence. In its 

Rule 1925(a) opinion, the trial court stated that “[u]pon a full review of the 

record, this court concedes that the reasons it stated for its March 22[, 2018] 

sentence were insufficient to support a lengthy state sentence for a technical 

violation of probation.” Trial Ct. Op., 11/9/21, at 2 (formatting altered). 

Based on our review of the record, we agree with the trial court’s conclusion. 

Therefore, we remand this matter for resentencing. See Flowers, 149 A.3d 

at 875-76. 
J-S27025-22

- 6 -

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/20/2022