J-S63025-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANTHONY PAUL MUNOZ

Appellant No. 471 MDA 2014

Appeal from the Judgment of Sentence August 1, 2013

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0003754-2008

 CP-36-CR-0004581-2010

 CP-36-CR-0004656-2010

BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J. FILED NOVEMBER 10, 2014

Appellant, Anthony Paul Munoz, appeals from the judgment of 

sentence entered August 1, 2013, in the Court of Common Pleas of 

Lancaster County, following the revocation of his probation. We affirm. 

On May 18, 2012, Munoz entered guilty pleas to two counts of Delivery 

of Cocaine at 4581 and 4656 of 2010, respectively, and to one count of 

Possession with Intent to Deliver Cocaine at 3754 of 2008. Pursuant to a 

negotiated plea agreement, Munoz was sentenced to concurrent terms of ten 

years’ probation on each count.

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* Retired Senior Judge assigned to the Superior Court.
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While serving probation, Munoz entered guilty pleas to two counts of 

criminal conspiracy to deliver a controlled substance at 914 and 915 of 

2013. On August 1, 2013, the trial court conducted a probation revocation 

hearing for the charges imposed at 4581 and 4656 of 2010 and 3754 of 

2008. After reviewing a pre-sentence investigation report, the court revoked 

Munoz’s probation and resentenced him to five to ten years’ incarceration at 

each count, to be served concurrently. Munoz filed a timely post-sentence 

motion, which the trial court denied. 

Munoz’s privately retained counsel filed a notice of appeal and a 

Petition for Leave to Withdraw. Counsel was permitted to withdraw and new 

counsel was subsequently appointed. On October 23, 2013, this Court 

quashed Munoz’s appeal as untimely. Thereafter, Munoz filed a PCRA 

petition requesting reinstatement of his appellate rights nunc pro tunc, 

which the PCRA court granted. Munoz filed a new Motion to Modify 

sentence, which the trial court denied. A timely nunc pro tunc appeal 

followed. 

On appeal, Munoz argues that his aggregate sentence was manifestly 

excessive and grossly disproportionate to the crimes committed. Our 

standard when reviewing a sentence imposed following the revocation of 

probation is as follows:

Our review is limited to determining the validity of the probation 

revocation proceedings and the authority of the sentencing court 

to consider the same sentencing alternatives that it had at the 

time of the initial sentencing. Also, upon sentencing following 

revocation of probation, the trial court is limited only by the 
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maximum sentence that it could have imposed originally at the 

time of the probationary sentence.

Commonwealth v. Tann, 79 A.3d 1130, 1132 (Pa. Super. 2014) (citation 

omitted), appeal denied, 94 A.3d 1009 (Pa. 2014). 

Munoz challenges the discretionary aspects of his sentence. In 

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

an en banc panel of this Court concluded that “this Court’s scope of review in 

an appeal from a revocation sentencing includes discretionary sentencing 

challenges.” Id., at 1034. Therefore, Munoz’s claim is properly before us. 

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, Munoz filed a timely appeal and challenged his sentence in a 

post-sentence motion. Munoz’s appellate brief also contains the requisite 
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Rule 2119(f) concise statement, in which he argues that the trial court’s 

sentence of five to ten years’ incarceration was disproportionate to the 

crimes committed, and so manifestly excessive as to constitute an abuse of 

discretion. Appellant’s Brief at 14. This claim raises a substantial question 

for our review. See Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. 

Super. 2011) (claim that a sentence is manifestly excessive such that it 

constitutes too severe a punishment raises a substantial question for our 

review). 

Initially, we note our confusion regarding Munoz’s challenge to the 

“aggregate” nature of his sentence. The trial court sentenced Munoz to 

concurrent, rather than consecutive terms of five to ten years’ 

imprisonment. Although the trial court could have sentenced Munoz to serve 

consecutive terms of imprisonment, it chose not to do so. If anything, 

Munoz arguably benefited from this aspect of the court’s sentencing 

structure. Simply put, we see no basis on which to challenge the court’s 

imposition of concurrent sentences. 

Although Munoz claims that the trial court erred in imposing a 

sentence that was inconsistent with the protection of the public, the gravity 

of the offenses, and his rehabilitative needs, we note that the trial court 

reviewed a pre-sentence report. Where the trial court had the benefit of 

reviewing a pre-sentence report, we must

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 
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pre-sentence report constitutes the record and speaks for itself. 

In order to dispel any lingering doubt as to our intention of 

engaging in an effort of legal purification, we state clearly that 

sentencers are under no compulsion to employ checklists or any 

extended or systematic definitions of their punishment 

procedure. Having been fully informed by the pre-sentence 

report, the sentencing court's discretion should not be disturbed. 

This is particularly true, we repeat, in those circumstances where 

it can be demonstrated that the judge had any degree of 

awareness of the sentencing considerations, and there we will 

presume also that the weighing process took place in a 

meaningful fashion. It would be foolish, indeed, to take the 

position that if a court is in possession of the facts, it will fail to 

apply them to the case at hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citing 

Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988)). 

As the trial court in this case did have the benefit of a pre-sentence report, 

we must presume that it considered all relevant sentencing factors and did 

not impose a sentence based solely on the gravity of the offenses. 

We additionally note that while Munoz argues that the sentence 

imposed by the lower court following revocation was excessive, he notably 

does not argue that the sentence imposed by the court was beyond the 

maximum. Nor does the record support such an assertion. It is well settled 

that the sentencing guidelines do not apply to sentences imposed as a result 

of probation or parole revocations. See Commonwealth v. Ware, 737 A.2d 

251, 255 (Pa. Super. 1999).1 Here, the lower court did not exceed the 

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1 204 PA.CODE § 303.1(b) provides: “The sentencing guidelines do not apply 

to sentences imposed as a result of the following: . . . revocation of 

probation, intermediate punishment or parole.”
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statutory maximum when it resentenced Munoz following the revocation of 

his probation. Accordingly, we discern no abuse of discretion in the 

sentence imposed by the trial court. 

Judgment of sentence affirmed.

 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/10/2014