J-S69036-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CARL DENNIS LOVE, JR.,

Appellant No. 560 EDA 2015

Appeal from the Judgment of Sentence of January 26, 2015

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0004785-2006

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.

MEMORANDUM BY OLSON, J.: FILED DECEMBER 29, 2015

Appellant, Carl Dennis Love, Jr., appeals from the judgment of 

sentence entered on January 26, 2015. We affirm.

We quote the relevant facts as follows:

On July 17, 2007, Appellant pled guilty to possession of a 

controlled substance with the intent to deliver and was 

sentenced to three (3) years [of] probation. [Appellant] violated 

his probation by incurring new charges. Specifically, on March 

14, 2013, he was charged in Delaware County with 

[m]anufacture, [d]elivery or [p]ossession with [i]ntent to 

[m]anufacture or [d]eliver, [i]ntent to [p]ossess [c]ontrolled 

[s]ubstance by [p]erson not [r]egistered, [p]ossession of 

[m]arijuana, [u]se/[p]ossession of [d]rug [p]araphernalia, and 

[c]onspiracy. [Appellant] was sentenced to seven (7) to twenty 

(20) years incarceration by the Delaware County Court of 

Common Pleas for these charges. On January 26, 2015, th[e 

trial] court sentenced [Appellant] to one (1) to two (2) years 

incarceration consecutive to the Delaware County [s]entence for 

his probation violation.
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[Appellant] filed a [m]otion to [m]odify [s]entence on February 

5, 2015[,] which was denied on February 9, 2015. [Appellant] 

thereafter appealed his judgment of sentence. [The parties and 

the trial court complied with Pa.R.A.P. 1925.]

Trial Court Opinion, 7/2/15, at 1-2.

On appeal, Appellant asks us to review a single question:

Did the sentencing court manifestly abuse its discretion when 

the court sentenced [Appellant] to one to two years on a 

probation revocation, to be served consecutively to [Appellant’s] 

new sentence of seven to 20 years, and violate 42 Pa.C.S.A. 

§ 9757 by failing to state the minimum sentence to be served for 

all offenses?

Appellant’s Brief at 3.

Appellant’s argument pertains to the discretionary aspects of his 

sentence. Accordingly, we consider such an argument to be a petition for 

permission to appeal. Commonwealth v. Buterbaugh, 91 A.3d 1247, 

1265 (Pa. Super. 2014) (en banc) (citation omitted), appeal denied, 104 

A.3d 1 (Pa. 2014). Prior to reaching the merits of a discretionary aspects of 

sentencing issue, we conduct a four-part analysis to determine whether a 

petition for permission to appeal should be granted. Commonwealth v. 

Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014) (citation omitted), appeal 

denied, 99 A.3d 925 (Pa. 2014). Specifically, we must determine:

(1) [W]hether appellant has filed a timely notice of appeal, 

Pa.R.A.P. 902, 903; (2) whether the issue was properly 

preserved at sentencing or in a motion to reconsider and modify 

sentence, 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 
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appropriate under the Sentencing Code, 42 [Pa.C.S.A.] § 

9781(b).

Id.

The record reflects that Appellant filed a timely post-sentence motion 

and a timely notice of appeal. He also included a Rule 2119(f) statement in 

his brief. See Appellant’s Brief at 5. We therefore proceed to determine 

whether Appellant raised a substantial question for our review.

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d 

323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75 

(Pa. 2013). “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. 

(citations omitted). “Additionally, we cannot look beyond the statement of 

questions presented and the prefatory 2119(f) statement to determine 

whether a substantial question exists.” Commonwealth v. Provenzano, 

50 A.3d 148, 154 (Pa. Super. 2012).

Within his petition for allowance of appeal, Appellant contends that the 

trial court, “did not justify making [Appellant’s revocation] sentence 

consecutive to the very harsh sentence of seven to 20 years imposed by the 

Delaware County Court.” Appellant’s Brief at 5. Appellant supports this 
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claim by suggesting that, “[t]he sentencing court’s failure to state the 

minimum sentence to be served for [all of Appellant’s] offenses, as required 

by 42 Pa.C.S.A. § 9757, illustrates the court’s failure to consider the 

reasonableness of imposing a consecutive sentence.” Id. at 15. It is well 

settled that the imposition of consecutive sentences falls within the 

discretionary authority of the sentencing court and that challenges to the 

imposition of consecutive sentences do not raise a substantial question. 

Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa. Super. 2005). 

However, Appellant alleges an inconsistency with a specific provision of the 

Sentencing Code to the extent he asserts noncompliance with 42 Pa.C.S.A. 

§ 9757. Thus, we conclude that Appellant has raised a substantial question. 

Although Appellant successfully sought review of the merits of his 

sentencing claim, our review of the record as a whole belies Appellant’s 

assertion of trial court error.

Our standard of review of a challenge to the discretionary aspects of 

sentence is well-settled:

Sentencing is a matter vested in the 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.

In every case in which the court imposes a sentence for a felony 

or a misdemeanor, the court shall make as a part of the record, 

and disclose in open court at the time of sentencing, a statement 
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of the reason or reasons for the sentence imposed. The 

sentencing guidelines are not mandatory, and sentencing courts 

retain broad discretion in sentencing matters, and therefore, 

may sentence defendants outside the [g]uidelines. In every 

case where the court imposes a sentence ... outside the 

guidelines adopted by the Pennsylvania Commission on 

Sentencing ... the court shall provide a contemporaneous written 

statement of the reason or reasons for the deviation from the 

guidelines. However, this requirement is satisfied when the 

judge states his reasons for the sentence on the record and in 

the defendant's presence. Consequently, all that a trial court 

must do to comply with the above procedural requirements is to 

state adequate reasons for the imposition of sentence on the 

record in open court.

When imposing sentence, a court is required to consider the 

particular circumstances of the offense and the character of the 

defendant. In considering these factors, the court should refer 

to the defendant's prior criminal record, age, personal 

characteristics and potential for rehabilitation. Where presentence reports exist, we shall ... presume that the sentencing 

judge was aware of relevant information regarding the 

defendant's character and weighed those considerations along 

with mitigating statutory factors. A pre-sentence report 

constitutes the record and speaks for itself.

Commonwealth v. Antidormi, 84 A.3d 736, 760-761 (Pa. Super. 2014) 

(internal citations and quotations omitted).

Appellant claims that the court abused its discretion when it imposed a 

one- to two-year sentence consecutive to the seven to 20-year sentence 

imposed by the Delaware County Court. Appellant suggests that his 

punishment is too harsh because of the nature of his offenses and because a 

substantial period elapsed between the original offense and the probation 

violation for which he was recently sentenced. Appellant repeatedly 
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references the length of his Delaware County prison term in leveling his 

attack on his revocation sentence.

We have carefully reviewed the submissions of the parties, the opinion 

of the trial court, and the certified record. Based upon our review, we are 

satisfied that the trial court correctly exercised its discretion in imposing 

consecutive sentences given its undisputed finding that Appellant had a long 

history of offenses involving the sale and distribution of controlled 

substances. See Trial Court Opinion, 7/2/15, at 2. We also conclude that 

Appellant’s passing contention with respect to 42 Pa.C.S.A. § 9757 is 

unavailing. This Court has previously held that, “Although [42 Pa.C.S.A. 

§ 9757] requires the sentencing court, when it imposes consecutive 

sentences, to inform the defendant of his total minimum sentence, [the 

court’s] failure to do so does not require resentencing.” Commonwealth v. 

Bell, 476 A.2d 439, 452 (Pa. Super. 1984).

For each of these reasons, we hold that Appellant is not entitled to 

relief. Accordingly, we affirm.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/29/2015