J-S31008-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

MONTAEYA WHITE

Appellant No. 807 WDA 2016

Appeal from the Judgment of Sentence May 11, 2016

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0010006-2014

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

MEMORANDUM BY PANELLA, J. FILED JUNE 9, 2017

Appellant, Montaeya White, appeals from the judgment of sentence 

entered on May 11, 2016, following the revocation of her probation in the 

Court of Common Pleas of Allegheny County. White contends that we should 

vacate her sentence due to the revocation court’s abuse of discretion in 

fashioning it. After careful review, we vacate White’s sentence and remand 

for resentencing. 

The relevant facts and procedural history of this case are as follows. 

On December 16, 2014, White pleaded guilty to misdemeanor counts of 

retail theft and tamper with/fabricate physical evidence.1 The court 

____________________________________________

1 18 Pa.C.S.A. §§ 3929(a)(1) and 4910(1), respectively. 
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sentenced White to three years of probation.2 While White was still serving 

her probationary term, she garnered an attributable conviction for theft of 

services. 

White’s conviction triggered a probation violation hearing for her 

underlying charges. On May 11, 2016, the revocation court determined that 

White had violated her probation by receiving new charges. That same day, 

the court resentenced White to a period of 2 to 4 years’ incarceration. White 

filed a timely post-sentence motion to reconsider, which the revocation court 

denied. This timely appeal follows. 

On appeal, White raises a single question for our review: 

DID THE TRIAL COURT FAIL TO ADEQUATELY CONSIDER AND 

APPLY ALL OF THE RELEVANT SENTENCING CRITERIA, 

INCLUDING [] WHITE’S CHARACTER AND REHABILITATIVE 

NEEDS, THE GRAVITY OF THE OFFENSE/VIOLATION AND THE 

PROTECTION OF THE PUBLIC AS REQUIRED UNDER 42 

P[a].C.S.A. § 9721(b)...[?]

Appellant’s Brief, at 4. 

This claim challenges the discretionary aspects of White’s sentence. 

Initially, we note that our “scope of review in an appeal from a revocation 

sentencing includes discretionary sentencing challenges.” Commonwealth 

v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc). 

____________________________________________

2 As a condition of her probation, the revocation court ordered restitution of 

$1,250 and required White to enroll in a GED program and obtain 

employment. 
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“A challenge to the discretionary aspects of a sentence must be 

considered a petition for permission to appeal, as the right to pursue such a 

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. 

Super. 2004) (citation omitted).

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. [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.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) 

(quotation marks and some citations omitted). 

Here, White fulfilled the first two requirements by filing a timely postsentence motion for reconsideration and a timely appeal. However, due to 

the disparity between the claims in her post-sentence motion to reconsider 

and her appellant brief, we must determine which of the challenges to the 

discretionary aspects of her sentence have been preserved for our review. 

A defendant can only preserve a claim to the discretionary aspects of a 

court’s sentence if she notes a specific objection at the sentencing hearing or 

in a post-sentence motion to modify. See id. White did not object to any 

aspects of her sentence at the probation revocation hearing. Thus, to 

preserve her challenges to the discretionary aspect of her sentence, she was 
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required to note her specific challenges to the revocation court’s discretion in 

a post-trial motion to reconsider. 

White filed a motion to reconsider through which she alleged that her 

sentence was excessive due to the revocation court’s failure to “consider 

[her] rehabilitative needs prior to imposing sentence.” Motion to Reconsider 

Sentence, 5/17/16, at ¶ 4. However, in her appellate brief, White conflates 

this claim by asserting that the revocation court failed to apply the relevant 

sentencing criteria under 42 Pa.C.S.A. § 9721(b), “including [] White’s 

character and rehabilitative needs, the gravity of the offense/violation and 

the protection of the public.” Appellant’s Brief, at 4. Because White failed to 

raise challenges to the revocation court’s consideration of the gravity of the 

offense/violation, White’s character, and the protection of the public in her 

post-sentence motion, she has waived these specific challenges to the 

discretionary aspects of her sentence. See Moury, 992 A.2d at 170. 

Addressing the next factor in the four-factor test, we find that White’s 

appellate brief contains the requisite Rule 2119(f) concise statement. We 

must now determine whether White’s remaining challenge to the 

discretionary aspects of her sentence raises a substantial question. 

“A substantial question will be found where an appellate advances a 

colorable argument that the sentence imposed is either inconsistent with a 

specific provision of the Sentencing Code or is contrary to the fundamental 

norms which underlie the sentencing process.” Commonwealth v. Zirkle, 

107 A.3d 127, 132 (Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa. 
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2015) (citation omitted). We examine an appellant’s Rule 2119(f) statement 

to determine whether a substantial question exists. See Commonwealth v. 

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Our inquiry must focus on 

the reasons for which the appeal is sought, in contrast to the facts

underlying the appeal, which are necessary only to decide the appeal on the 

merits.” Id. (citation omitted). See also Pa.R.A.P. 2119(f). 

As discussed further below, at sentencing following the probation 

revocation, the court must consider not only the pertinent factors at 42 

Pa.C.S.A. § 9721(b), but also at § 9771(c). See, e.g., Commonwealth v. 

Derry, 150 A.3d 987, 994 (Pa. Super. 2016). Thus, White’s allegation that 

her sentence is excessive due to the revocation court’s failure to consider 

relevant sentencing criteria raises a substantial question for our review. See 

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014) 

(en banc) (“[A]rguments that the sentencing court failed to consider the 

factors proffered in 42 Pa.C.S. § 9721 does present a substantial question 

whereas a statement that the court failed to consider facts of record, though 

necessarily encompassing the factors of § 9721 has been rejected.”) As 

such, we will address White’s claim on its merits. 

The imposition of sentence following the revocation of 

probation is vested within the sound discretion of the trial court, 

which, absent an abuse of that discretion, will not be disturbed 

on appeal. An abuse of discretion is more than an error in 

judgment—a sentencing court has not abused its discretion 

unless the record discloses that the judgment exercised was 

manifestly unreasonable, or the result of partiality, prejudice, 

bias or ill-will.
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Commonwealth v. Simmons, 56 A.3d 1280, 1283-1284 (Pa. Super. 2012) 

(citation omitted).

“Upon revocation the sentencing alternatives available to the court 

shall be the same as were available at the time of initial sentencing, due 

consideration being given to the time spent serving the order of probation.” 

42 Pa.C.S.A. § 9771(b). And the revocation court may impose a sentence of 

total confinement upon revocation if “the defendant has been convicted of 

another crime[.]” Id., at (c)(1). “[T]he trial court is limited only by the 

maximum sentence that it could have imposed originally at the time of the 

probationary sentence.” Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. 

Super. 2013) (citation omitted).

In addition, in all cases where the court resentences an offender 

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 [and] [f]ailure to comply with these provisions 

shall be grounds for vacating the sentence or resentence and 

resentencing the defendant. 42 Pa.C.S. § 9721(b). A trial court 

need not undertake a lengthy discourse for its reasons for 

imposing a sentence or specifically reference the statute in 

question, but the record as a whole must reflect the sentencing 

court’s consideration of the facts of the crime and character of 

the offender. 

Commonwealth v. Colon, 102 A.3d 1033, 1044 (Pa. Super. 2014), appeal 

denied, 109 A.3d 678 (Pa. 2015) (case citations and quotation marks 

omitted) (emphasis added). See also 12 West’s Pa. Prac., Law of Probation 

& Parole § 16:7 (3d ed.)
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We carefully reviewed the transcript from the revocation proceeding. 

Our review reveals that although the revocation court was familiar with 

White’s history (the court presided over White’s initial guilty plea) and that 

her conviction correctly stood as a basis for total confinement, the court 

failed to sufficiently explain the reasons for imposing the sentence of 2 to 4 

years’ imprisonment. The only statement the court made following the 

imposition of sentence was that “[White] just doesn’t get the idea. She’s 

been here for stealing people’s stuff too many times.” N.T., Revocation 

Hearing, 5/11/16, at 10. 

While the revocation court is not required to undertake a lengthy 

discourse prior to imposing sentence, this statement is far too vague to 

evaluate whether the court adequately considered any of the criteria set 

forth in the Sentencing Code. See Colon, 102 A.3d at 1044. Further, there 

is no indication on the record that the revocation court consulted a prior 

presentence investigation report. See Commonwealth v. Walls, 926 A.2d 

957, 967 n.7 (Pa. 2007) (“[W]here pre-sentence reports exist, we shall 

continue to presume that the sentencing judge was aware of the relevant 

information regarding the defendant's character and weighed those 

considerations along with mitigating statutory factors.”)

In its Rule 1925(a) statement, the revocation court noted that it was 

not required to consider White’s rehabilitative needs pursuant to § 9721(b) 
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in resentencing her following the probation violation. See Revocation Court 

Opinion, 10/24/16, at 4. That is simply not true. 

In the very case relied upon by the revocation court to justify its 

position, our Supreme Court noted that “42 Pa.C.S. § 9721(b) specifies that 

in every case following the 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.’” 

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

citing Pa.R.Crim.P. 708(C)(2) (indicating at the time of sentencing following 

the revocation of probation the sitting judge must state on the record the 

reasons for the sentence imposed)). While the revocation court is correct in 

observing that Pasture states the revocation court is not “cabined by 42 

Pa.C.S. § 9721(b),” 107 A.3d at 27, we have since interpreted this 

statement to indicate that the revocation court must not only consider the 

factors set forth at 42 Pa.C.S.A. § 9721(b), but also the factors found at 42 

Pa.C.S.A. § 9771(c), which are unique to resentencing after probation 

revocation. 

A panel of this Court explained the meaning of the “cabined” language 

as follows: 

Thus, we read “the revocation court is not cabined by Section 

9721(b)’s requirement,” Pasture, 107 A.3d at 27 (emphasis 

added), to be synonymous with, ‘the revocation court is not 

confined or restrained solely by Section 9721(b) factors.’ 

Instead, at a VOP sentencing hearing, additional factors and 

concerns are in play. The statute governing the modification or 
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revocation of an order of probation discusses these additional 

concerns [i.e., 42 Pa.C.S.A. § 9771(c)].

Derry, 150 A.3d at 993-994. The panel concluded, “a VOP sentencing court 

must consider those factors [i.e., 42 Pa.C.S.A. § 9721(b)], but must also 

consider factors set forth in Section 9771(c), which are unique to VOP

sentences.” Id., at 995 (internal case citation omitted).

The revocation court’s sole justification regarding White’s rehabilitative 

needs challenge relied upon the incorrect premise that it was not required to 

evaluate the factors under § 9721(b). With no indication on the record that 

the revocation court consulted a prior presentence report, considered factors 

specified in the Sentencing Code, or considered either the character or 

circumstances of the offense for which the court imposed sentence, we are 

constrained to vacate the judgment of sentence and remand for 

resentencing. 

Judgment of sentence vacated. Case remanded for proceedings 

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/9/2017
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