### J-S46004-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA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 JANUARY 5, 2021 Appellant, Khylil Hodge, appeals from the judgment of sentence of 21⁄2 to 5 years’ incarceration, imposed after the court revoked a 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 are constrained to quash this appeal . The facts of Appellant’s underlying PWID conviction are not necessary to our disposition of his appeal. Briefly, Appellant pled guilty to PWID in 2005 and, over the following 12 years, he repeatedly violated his probation and was resentenced for that offense. On December 11, 2017, he committed a fourth violation, which once again resulted in the revocation of his probation . On June 24, 2019, the trial court resentenced Appellant to 21⁄2 to 5 years’ incarceration .

### J-S46004-20

- 2 -

Appellant filed a timely, post-sentence motion on June 28, 2019. However, before the court ruled on that motion, Appellant filed a notice of appeal on July 24, 2019 . 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 a 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 the 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. Before we can review Appellant’s sentencing challenge, we must address the fact that his timely-filed, post-sentence motion was apparently never ruled on by the trial court. Pennsylvania Rule of Criminal Procedure 720 states: (A) Timing.

*** (2) If the defendant files a timely post-sentence motion, the notice of appeal shall be filed: (a) within 30 days of the entry of the order deciding the motion; (b) within 30 days of the entry of the order denying the motion by operation of law in cases in which the judge fails to decide the motion; or

### J-S46004-20

- 3 - (c) within 30 days of the entry of the order memorializing the withdrawal in cases in which the defendant withdraws the motion. Pa. R.Crim.P. 720(A)(2). Our Supreme Court has held that when a premature appeal is filed during the pendency of post-sentence motions, the trial court retains jurisdiction to decide the motions, and the appeal is perfected upon the filing of an order denying post-sentence motions. Commonwealth v. Cooper, 27 A.3d 994, 1008 (Pa. 2011) . However, “no direct appeal may proceed while a timely post-sentence motion or motion to modify sentence is pending, and any such appeal is rendered premature. ” Id. at 1005. Here, Appellant’s timely-filed, post-sentence motion was not ruled on by the trial court, denied by operation of law, or withdrawn by Appellant. 1 

### The disposition of that outstanding motion is necessary both to perfect his appeal, and to preserve the discretionary-aspects-of-sentencing claim he is raising herein. Consequently, we must quash this appeal, without prejudice to Appellant’s right to file another appeal after the entry of a final order disposing of his post-sentence motion. Appeal quashed. Jurisdiction relinquished.

_________________ ____________________ _______ 1 

### The Commonwealth asserts that the motion was denied, but the record does not support that claim. See Commonwealth’s Brief at 8. For its part, the trial court makes no mention of Appellant’s post-sentence motion in its Rule 1925(a) opinion. See Trial Court Opinion, 2/28/20, at 5.

### J-S46004-20

- 4 -

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/05/20210 

### Li

CirculateP6730/2020 10:05 AM



### IN 

### THE COURT OF COMMON PLEAS 

### FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CRIMINAL 

### TRIAL DIVISION COMMONWEALTH

vs.



### KHYLIL HODGE CP-51-CR-1101541-2004 

### FILED 

# Fa 2 8 2020 OM%WiltkialRecants 

### ftettelkstifti SUPERIOR COURT 2156 

### EDA 2019



### OPINION BRINICLEY, 

### J. FEBRUARY 28, 2020 

### Defendant Khylil Hodge appeared before this Court for a 

### violation 

### ofprobation hearing. This Court found him in 

### direct violation and sentenced him to an 

### aggregate term 

### of 2 1/4 to 5 years state incarceration. 

### Defendant appealed this

### judgment 

### ofsentence and raised the following issues on appeal: (1) 

### whether the sentence imposed was manifestly 

### excessive and unreasonable; (2) 

### whether the trial 

### court failed to state adequate reasons for the 

### sentence imposed; and (3) whether 

### the trial court failed to give individualized 

### consideration to 

### Defendant's personal history, 

### rehabilitative needs and background. This 

### Court'sjudgment 

### ofsentence should be affirmed. 

### PROCEDURAL HISTORY On January 24, 

### 2005, Defendant appeared before this Court and 

### pled guilty to Possession with Intent to 

### Distribute a Controlled Substance (PWID). This Court 

### sentenced Defendantto hisnegotiated sentence 

### ofone 

### year in 

### the County Intermediate Punishment (IP) program, with six months 

### ofhouse arrest and 

### outpatient drug treatment 

### at Gaudenzia Outreach, phis six months reporting probation, 

### Defendant was ordered to seek and maintain 

### employment, complete drug treatment and random urinalysis, perform 40 hours 

### ofcommunity service, and pay all applicable fines, costs and fees, On December 21, 2006, Defendant appeared before this Court for his first violation hearing, This Court found him in technical violation for failing to attend drug treatment and not reporting to his probation officer. Defendant was also arrested and 

### charged with knowing and intentional 

### possession 

### ofa controlled substance (K&D; this charge 

### was subsequently dismissed. This Court revoked 

### his IP 

### probation and sentenced him to 1 11/2 to 23 months county incarceration plus 3 

### years reporting probation, Defendant was ordered to complete 90 days in the Options 

### drug treatment program, earn his GED, 

### completejob training, and_undergo random urinalysis. On August 14, 2010, 

### Defendant appeared before this Court for his second violation hearing. This Court 

### found him in technical violation and revoked his 

### probation. Defendant was sentenced to 11 1/2 to 23 months county incarceration plus 6 years 

### reporting probation, with credit for time served. This 

### Court recommended that Defendant serve this 

### sentence at 

### Hoffman Hall, and ordered him to 

### complete drug treatment, earn his GED, obtain

### job training, undergo random urinalysis, pay applicable costs and fees, and remain re-entry eligible. On June 24, 2013, 

### Defendant was released on parole. On 

### November 18, 2013, Defendant appeared before this 

### Court for his third violation hearing; he was found in technical violation for failing to find a

### job and not 

### paying fines and costs. 

### Probation was allowed to continue. He appeared before this Court numerous times 

### throughout 2013 and 2014 for status hearings; each

2time this Court 

### permitted his 

### probation to continue, On October 13, 2014, while serving probation, Defendant was arrested and charged with knowing and 

### intentional possession 

### of a controlled substance and patronizing prostitutes. On June 23, 2015, 

### Defendant appeared before this Court and pled guilty to 

### these charges. This Court sentenced him to his negotiated sentence 

### ofsix months reporting probation on each count,to run concurrently 

### with one another. On 

### that

same day, this Court found him in direct violation 

### ofhis 

### probation but allowed his 

### probation to continue. On April 1, 2016, Defendant appeared before this Court for a 

### status hearing. This Court continued the 

### matter so 

### that Defendant could bring in documentation showing 

### proofof employment, drug 

### treatment attendance, and progress towards his GED. On 

### August 13, 2017, Defendant was arrested and charged with theft by unlawful taking, 

### receiving stolen property, and

access device fraud, On 

### November 29, 2017, Defendant appeared before 

### the Honorable Arnold L. New andpled guilty to access device fraud. Judge 

### New sentenced him to nine months reporting probation. On 

### December 11, 2017, Defendant appeared before this 

### Court for this 

### fourth violation hearing. First, 

### this Court reviewed Defendant's criminal history since his original guiltyplea in 2005. This Court 

### also reviewed the Probation Department Summary 

### Report and incorporated it into the record by reference. The probation report recommended that 

### Defendant's probation be revoked. (N.T. 12111/17, p. 1-8). Defense counsel stated that 

### Defendant started a new job at Dollar Tree, continued to 

### take GED classes twice a week, and re-enrolled in outpatient drug therapy at Casa 

### Consejeria. Defense counsel also stated that 

### Defendant had a certificate 

### of achievement from 

### the Center for Literacy dated September 2016 for an 

### adult basic education
course, 

### but 

### that he 

### did not have a pay stub yet from Dollar Tree. Defense counsel acknowledged

3that Defendant had incurred a 

### direct violation, but asked this Court to defer sentencing so that Defendant could have an opportunity to bring in documentation about hisjob, education, and drug treatment. Id, at 8-12. The Commonwealth recommended probation revocation and stated that there would be no objection to a deferred sentencing date, Id, at 12. Next, Defendant spoke

on his 

### own behalf. He stated that 

### he was recently hired by Dollar Tree through a temp agency and had been working as a cleaner on 

### the side. He stated that he was taking 

### "pre-tests" to prepare for the GED exam. He explained that he pled guilty to 

### "a credit card 

### thing." Id, at 12. This Court found 

### Defendant in 

### direct violation and deferred sentencing until February 26, 

### 2018, instructing Defendant to bring in any necessary documentation regarding his 

### employment, GED classes, and drug treatment. Id. at 13. On February 26, 2018, 

### Defendant failed to appear for sentencing. On 

### June 24, 2019,

more than a year later, he finally appeared before this Court for sentencing. 

### First, after reviewing 

### Defendant's criminal history since his original appearance before this Court in 2005, this Court found Defendant 

### in contempt for failing to appear at his previous sentencing 

### date after 

### Defendant provided no reason for not showing up. (N.T, 6(24/19, p. 4-8). Next, defense counsel conceded that Defendant was in technical and 

### direct violation, and that he had 

### failed to 

### earn his GED, failed to 

### get drug 

### treatment, and failed to 

### bring 

### proofofemployment with him. She stated that he had been 

### employed for 

### thepast two months at 

### Friendly's restaurant at 

### Neshaminy Mall. She acknowledged that 

### Defendant had a 

### "tortured history" due to 

### "repeated technical and direct violations." She asked this 

### Court to consider 

### Defendant's employment and 

### recommended a county sentence 

### with work release eligibility and

### possible Recidivism Risk Reduction Incentive (RRRI) eligibility. In the alternative, she recommended a 1 to 3 year term 

### ofincarceration. Id. at 8-9. The 

### Commonwealth stated that it agreed with defense 

### counsel's recommendation, and

4argued that a probation tail was 

### not appropriate. Id. at 9. Next, Defendant spoke on 

### his own behalf, He stated that he had been working and keeping 

### himselftogether, but that his last 

### job 

### didn't pay enough so 

### he had been working "under the

### table." He stated that 

### heplanned to work

on his diploma. Id. at 9-10. This Court found Defendant 

### in technical 

### violation in addition to his direct 

### violation from having pled guilty to access device fraud. This Court 

### sentenced Defendant

to 2 1/2 to 5 years state incarceration, with RRRI eligibility. Defendant was ordered to earn his GED, complete

### job training, undergo random urinalysis, and 

### pay costs and fines at a rate 

### of$25 per month. Id. at 10- 1 I. On. 

### July 24, 

### 2019, Defendant file a Notice of

### Appeal to 

### Superior Court. The 

### court reporters who attended the 

### December 11, 2017 and June 24, 2019 

### violation 

### ofprobation hearings

are no 

### longeremployed by the First Judicial District 

### ofPennsylvania; thus, there was a significant delay in 

### receiving the transcribed notes 

### of testimony from these proceedings. This Court received the 

### June 24, 2019 notes 

### oftestimony on 

### December 19, 2019; the notes from the December 11, 2017 hearing were received on January 29, 2020. On 

### January 15, 2020, this Court ordered that defense counsel file a Concise Statement 

### ofErrors Complained 

### of on Appeal Pursuant 

### to Rule 1925(b) and defense counsel did so on January 31, 2020. ISSUES L 

### WHETHER THE SENTENCE IMPOSED WAS 

### MANIFESTLY EXCESSIVE AND 

### UNREASONABLE. II. 

### WHETHER THE TRIAL COURT FAILED 

### TO STATE ADEQUATE REASONS 

### FOR THE SENTENCE IMPOSED. 

### M. WHETHER THE TRIAL COURT FAILED TO GIVE INDIVIDUALIZED CONSIDERATION TO DEFENDANT'S 

### PERSONAL HISTORY, 

### REHABILITATIVE NEEDS AND 

### BACKGROUND.

5

### DISCUSSION 

### THE SENTENCE IMPOSED WAS 

### NOT MANIFESTLY EXCESSIVE OR UNREASONABLE. Defendant claims that 

### this Court erred when it sentenced him to 2 1/2 to 5 years state incarceration after finding him in 

### technical and direct violation, arguing 

### that this sentence was manifestly excessive and unreasonable. This claim is without merit. The standard 

### ofreview for sentences imposed following a revocation 

### ofprobation is well-settled; The 

### imposition 

### of sentence following the revocation 

### ofprobation is vested 

### within the sound discretion 

### ofthe trial court, which, absent an 

### abuse 

### ofthat discretion, will not be disturbed on appeal. An abuse 

### of discretionis more than an error in

### judgment-a sentencing court has not abused its discretion unless 

### the record discloses that 

### thejudgment exercised was manifestly unreasonable, or the result 

### ofpartiality, prejudice, bias or Commonwealthv. Swope, 123 333 (Pa,Super.2015) v. Colon, 102 A.3d 1033, 1043 (Pa.Super.2014)). 

### When considering an 

### appeal from a sentence imposed 

### after

### the revocation 

### ofprobation or parole, appellate review is limited to the determination 

### of "the validity 

### of the probation revocation proceedings and 

### the authority 

### ofthe sentencing court to 

### consider the same sentencing alternatives it had at the 

### time 

### ofthe initial sentencing." Commonwealth v. 

### MacGregor, 2006 PA Super. 336, 2006 Pa, Super. LEXIS 4088, 3 (2006) (citing 42 

### Pa.C,S, § 

### 9771(c)); Commonwealth v, Gheen, 455 Pa. Super. 499, 688 A.2d 1206, 1207 (1997)). The sentencing court is limited only by 

### the maximum sentence it could 

### have imposed 

### at the time 

### ofthe original sentencing. 14. 

### Pursuant to 204 Pa. Code 3 03.1(b), sentencing guidelines do not apply to sentences imposed as 

### a result 

### ofrevocation 

### ofprobation, 

### intermediate punishment or parole. Once 

### probation or parole has been 

### revoked, a sentence 

### oftotal 

### confinement may be imposed 

### if

6any 

### ofthe following conditions exist; the defendant has been convicted 

### ofanother crime; the conduct 

### ofthe defendant indicates 

### that it is likely that he will commit another crime 

### ifhe is not imprisoned; or, such a 

### sentence is essential to vindicate the authority 

### ofcourt. 42 Pa.C.S.A. § 9771(c); Commonwealth v, Coolbaugh, 2001 PA Super, 77, 770 A.2d 788, 792 (2001). There is

no requirement that a sentencing 

### court's imposition 

### ofsentence be the 

### "minimum possible confinement." Walls, 592 Pa. at 571, 926 A.2d at 965. In 

### the case atbar, 

### this Court properly sentenced Defendant to 2 1/2 to 5 years state incarceration after finding him in direct and technical violation 

### ofhis 

### probation. This sentence

was within the statutory limits and was reasonable after considering all relevant factors. As stated above, the length 

### of incarceration was solely 

### within this 

### Court's discretion and was limited only by 

### the maximum sentence that could have been imposed at the original sentencing. Under Pennsylvania law, the 

### maximum sentence for PWID, an ungraded felony, is 10 years, $25,000 fine, or both. This Court sentenced Defendant to 2 1/2 to 5 years state 

### incarceration with RRRI eligibility. This 

### sentence was well 

### within the statutory limits and was a 

### reasonable exercise 

### of this 

### Court's discretion in 

### light 

### ofDefendant pleading guilty to 

### new crimes, failing to appear at his sentencing, and failing to 

### comply with the terms and conditions 

### ofhis sentence. Indeed, this was 

### Defendant's fourth violation 

### ofprobation hearing since his initial negotiated guilty 

### plea in 2005. 

### After Defendant violated the terms ofhis original sentence 

### of County IP probation, this 

### Court imposed another county sentence with terms and conditions, including drug 

### treatment, GED classes, andjob training, designed to help 

### Defendant turn his life around. When Defendant violated

### the terms 

### ofhis probation again for not reporting, using drugs and getting arrested for 

### theft, this 

### Court once again 

### imposed a county sentence. Once he was released onprobation, this Court scheduled numerous status hearings to 

### help Defendant stay on

7the light track, When he appeared for status hearings and was still 

### using drugs, still unemployed, and still 

### had not obtained a GED, this Court allowed his 

### probation to 

### continue to give him more time to work on 

### his rehabilitation. In 2015, he pled guilty to K&I and 

### patronizing a prostitute. Although these 

### were direct violations, this Court allowed 

### Defendant's probation to continue. Instead 

### ofusing 

### these numerous opportunities to turnhis life around, 

### Defendant continued to use drugs, failed to comply with any 

### ofthe terms and conditions 

### ofhis probation, and absconded from supervision. 

### After this Court found him in direct violation on 

### December 11, 2017 for pleading guilty to access device fraud, upon request 

### of Defendant's counsel, this Court continued his sentencing to a later date so that Defendant could bring in 

### documentation 

### of employmeht and GED classes. Instead 

### ofusing this chanceto show his progress, 

### Defendant failed to appear. When he finally did 

### appear for 

### sentencing more than a year later, he 

### had done nothing he was supposed to do. After 

### taking all 

### of this into consideration, this Court found it appropriate to impose a 2 1/2 to 5 

### year state sentence. As stated above, there is no 

### requirement that this Court impose the "minimum 

### possible sentence," Rather, based upon 

### Defendant's ongoing failure to take the necessary steps to 

### comply with the teams and conditions 

### ofprobation, including incurring a direct violation, this Court found it appropriate to 

### sentence Defendant to 

### a term 

### of state incarceration. IL 

### THIS COURT STATED ADEQUATE REASONS 

### FOR THE SENTENCE 

### IMPOSED. The Court stated 

### sufficient reasons on the record

### justifying the sentence imposed. At the time 

### of sentencing, 

### thejudge is obligated to state on 

### therecord the reason for 

### the sentenced imposed, however the 

### explanation need not be lengthy and "a discourse on 

### the 

### court's sentencing philosophy is not required," Pa. R. Crim. P. 708(C)(2); Commonwealth v. Malovich, 903 A.2d 1247 

### (Pa.Super.2006) (quoting Commonwealth v. McAfee, 849 

### A.2d 270, 275 (Pa.Super.

82004)). The purpose 

### of this requirement is to provide "a procedural 

### mechanism for 

### the aggrieved party both to attempt to 

### rebut the 

### court's explanation and inclination before the sentence proceeding ends, and to identify and frame substantive claims for 

### post sentence motions or appeal," 

### Commonwealth v. Reaves. 592 Pa. 134, 150-151, 923 A,2d 1119, 1129 (2007). According to the 

### Pennsylvania Supreme Court: VOP proceedings are 

### often short and to the point. A 

### convicted defendant released into 

### the community under 

### such control 

### of the sentencing judge, who violates the terms 

### of his release and thereby betrays the

### judge's trust, is rarely in a strong position. Unless the 

### defendant's lapses are explainable, or there has 

### been some mistake 

### offact, the 

### question 

### ofwhether release will be 

### terminated, and 

### if so, the 

### length 

### of incarceration, rests peculiarly 

### within the discretion 

### ofthe VOPjudge. In instances where parole is revoked, the 

### reason for 

### revocation and 

### sentence are usually obvious, and there is 

### not much that the

### judge would need to say. ld, at 153, fn, 12. More recently in Pasture, the Pennsylvania Supreme 

### Court explained: Simply put, since the defendant has previously appeared before the sentencing court, the stated reasons for a revocation sentence need not be as elaborate as that which is required at initial sentencing. The 

### rationale for this is obvious. When sentencing is a consequence 

### ofthe revocation 

### ofprobation, the

### judge is already fully informed as to the facts and circumstances 

### ofboth the crime and 

### the nature 

### ofthe defendant, particularly where, as here, the trial 

### judgehad the benefit 

### ofa PSI during the initial 

### sentencing proceedings, 107 A,3d at 453 (citing Walls, 592 Pa. at 574 n.7, 926 A.2d at 967 n.7). 

### "[W]here the revocation sentence was adequately considered and sufficiently explained on the record by 

### the revocation judge, 

### in light 

### ofthe

### judge's experience with the defendant 

### and awareness 

### ofthe circumstances 

### ofthe 

### probation violation, under 

### the appropriate deference standard 

### ofreview, the sentence, 

### if within the statutory bounds, is peculiarly within the

### judge's discretion. Id. at 454. In the case at bar, this Court had significant experience with this 

### Defendant and was 

### fully informed 

### ofthe facts and circumstances 

### of Defendant's nature and criminal history. There was 9no need 

### for lengthy reasons for 

### the sentence since the reasons were glaringly obvious. The record shows that Defendant was in direct violation after pleading guilty to access device fraud. He also incurred several technical violations for failing to complete drug treatment, failing to maintain employment, and failing to earn his GED. In addition, he failed to appear at his prior sentencing hearing and, as a result, was found in contempt. At sentencing, defense counsel conceded that Defendant was in direct and technical violation and acknowledged his "long 

### tortured history with [this Court] with repeated technical violations and direct 

### violations." This 

### Court was extremely well acquainted with 

### Defendant's history and circumstances as 

### he had appeared before her

numerous times since his original guilty 

### plea in 2005, As stated above, 

### when the reason for revocation and sentence is obvious, there is not much 

### more the

### judge would need to say. Reaves, supra. Since there was no 

### question 

### that Defendant was in direct and technical violation 

### ofhis probation, this 

### Court properly revoked his probation sentenced him to 2 'A to 5 years state incarceration. 

### HI. THIS COURT GAVE INDIVIDUALIZED 

### CONSIDERATION TO DEFENDANT'S PERSONAL HISTORY, REHABILITATIVE NEEDS AND 

### BACKGROUND. This Court fashioned an individualized sentence 

### for Defendant by properly considering the factors set forth in 42 Pa.C.S.A. § 9721: the 

### protection 

### ofthe public, the gravity 

### of Defendant's offense in 

### relation to the impact on the 

### victim and the community, and his rehabilitative needs. 

### Since his guilty plea in 2005, the Court had given 

### Defendant numerous chances to rehabilitate 

### himselfthrough the county intermediate punishment program, outpatient drug treatment, county probation and parole, and county incarceration. Unfortunately, Defendant failed to take his 

### sentence seriously and his conduct while on 

### probation indicated that he was not making 

### meaningful progress towards rehabilitation. Revocation and a state sentence was an

10appropriate sentence 

### under the circumstances since Defendant was in direct 

### violation 

### ofhis probation after having pled guilty to access device fraud and was in 

### technical violation for failing to comply with any 

### of the terms and conditions 

### ofhis sentence, In order to craft an individualized sentence, this Court considered 

### Defendant's history since 

### his original guilty plea in 2005, reviewed the 

### probation officer's summary report and 

### recommendation, heard argument from defense counsel and 

### the Commonwealth, and listened to 

### Defendant's allocution. After taking all 

### ofthis into 

### consideration, this Court found it appropriate to impose a 2 1/2 to 5 year state sentence. This

### judgment of sentence should be affirmed.

11

### CONCLUSION After reviewing all applicable case law, statutes, and testimony, this Court committed no error, This Court properly sentenced Defendant to 2 1/2 to 5 years state 

### incarceration after finding him in 

### direct and 

### technical violation, Accordingly, this 

### Court's judgment 

### of sentence should be affirmed,

12 

### BY THE COURT;

J.