J. S26028/17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

HASSAN BURGESS FOLKES, :

:

APPELLANT :

: No. 1237 MDA 2016

Appeal from the Judgment of Sentence June 27, 2016

In the Court of Common Pleas of Lancaster County 

Criminal Division at No(s): CP-36-CR-0001156-2015

 CP-36-CR-0005789-2014

 

BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*

MEMORANDUM BY DUBOW, J.: FILED MAY 04, 2017

Appellant, Hassan Burgess Folkes, appeals from the Judgment of 

Sentence of 2 to 5 years’ incarceration imposed following the revocation of 

his probation. After careful review, we affirm. 

The relevant facts and procedural history, as gleaned from the 

Certified Record, are as follows. On May 22, 2015, Appellant entered a 

guilty plea to Possession with Intent to Deliver and Possession of a 

Controlled Substance (Heroin)1at each of two criminal docket numbers. 

Pursuant to a negotiated plea agreement, the court sentenced Appellant to 

 

*

Former Justice specially assigned to the Superior Court.

1 35 P.S. § 7800-113(a)(30) and 35 P.S. § 780-113(a)(16), respectively.
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two concurrent sentences of time-served to 23 months’ incarceration, 

followed by 2 years’ probation. 

On August 4, 2015, Appellant failed to report to a scheduled probation 

appointment. In investigating Appellant’s failure to report, the probation 

department learned that Appellant had provided false addresses. 

Accordingly, the court issued a bench warrant for Appellant’s arrest on 

August 7, 2015. 

Police arrested Appellant on March 16, 2016. On April 18, 2016, 

Appellant appeared before the trial court for a parole violation hearing, at 

which he admitted to violating his parole, and represented to the court that 

he had voluntarily surrendered to police. 

Following his parole violation hearing, the court found Appellant in 

violation of his supervision, ordered a Presentence Investigation (“PSI”) 

Report, and directed that Parole Services verify whether Appellant had, in 

fact, voluntarily turned himself in.

On June 27, 2016, the court held Appellant’s sentencing hearing. At 

the hearing, the Commonwealth informed the court that Appellant had not 

voluntarily surrendered to police; rather, that the Susquehanna Regional 

Police Department had arrested him seven months after he had disappeared, 

after finding him sleeping in an illegally-occupied apartment. 

In addition, the PSI report revealed that in the 15 years prior to his 

original plea on these charges, Appellant had been convicted of charges 
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relating to the sale of illegal drugs, as well as theft crimes, resisting arrest, 

and simple assault. Over the years, Appellant had been convicted of at least 

25 felonies and misdemeanors. 

Following the hearing, the court sentenced Appellant to 2 to 5 years’ 

incarceration with time-served credit from March 4, 2016 until the date of 

sentencing. 

On July 7, 2016, Appellant filed a Post-Sentence Motion, in which he 

argued that his sentence was excessive for a first technical violation of 

parole and that the court failed to consider mitigating circumstances in 

sentencing him. The trial court denied Appellant’s Motion on July 11, 2016.

Appellant filed a timely appeal. Both Appellant and the trial court 

complied with Pa.R.A.P. 1925.

Appellant raises the following issue on appeal:

Was the trial court’s sentence of two (2) to five (5) years 

of incarceration manifestly excessive under the 

circumstances so as to constitute an abuse of discretion.

Appellant’s Brief at 5.

“Generally, in reviewing an appeal from a judgment of sentence 

imposed after the revocation of probation, this Court’s scope of review 

includes the validity of the hearing, the legality of the final sentence, and if 

properly raised, the discretionary aspects of the appellant’s sentence.” 

Commonwealth v. Kuykendall, 2 A.3d 559, 563 (Pa. Super. 2010) (citing 

Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006)).
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Appellant claims on appeal that his revocation sentence is excessive 

because the trial court failed to consider his turbulent upbringing, the gravity 

of his first-time, technical parole violation, and his rehabilitative needs 

before sentencing him. Appellant’s Brief at 16-15. He also alleges that his 

revocation sentence exceeded his original sentence of two concurrent terms 

of time served to 23 months’ incarceration, followed by 2 years’ probation. 

Id. at 19. These issues implicate the discretionary aspects of Appellant’s 

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

(en banc). 

“Where an appellant challenges the discretionary aspects of a 

sentence, there is no automatic right to appeal, and and appellant's appeal 

should be considered a petition for allowance of appeal.” Commonwealth 

v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007). As we observed in 

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

An appellant challenging the discretionary aspects of 

his sentence must invoke this Court's jurisdiction by 

satisfying a four-part test: 

[W]e 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).
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Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. 

Super. 2006)).

In the instant case, Appellant filed a timely Notice of Appeal, and 

timely Post-Sentence Motion. He also included a separate Pa.R.A.P. 2119(f) 

statement in his appellate brief. As to whether Appellant has presented a 

substantial question, we must examine the specific sentencing issue raised 

by Appellant. 

In his Pa.R.A.P. 2119(f) Statement, Appellant alleges that his sentence 

is manifestly excessive because his probation violations were merely 

technical and the court failed to consider mitigating factors. Appellant’s Brief 

at 10-11. He also alleges that his revocation sentence is excessive because 

it exceeds his original aggregate sentence of time-served to 23 months’ with 

a consecutive two-year term of probation. Id. at 12. He concludes, 

therefore, that he has raised a substantial question as to the 

appropriateness of his sentence under 42 Pa.C.S. §§ 9721 and 9781(c)(2). 

Id. 

We disagree with Appellant that his allegation that the court failed to 

consider mitigating factors when resentencing him raises a substantial 

question. See Commonwealth v. Matroni, 923 A.2d 444, 445 (Pa. Super. 

2007) (“[T]his Court has held on numerous occasions that a claim of 

inadequate consideration of mitigating factors does not raise a substantial 

question for our review.” (quotation and citation omitted)). However, we 
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find that his claim that his revocation sentence, which was in excess of his 

original sentence, does present a substantial question. See 

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000) (finding a 

substantial question exists when “a sentence of total confinement, in excess 

of the original sentence, is imposed as a result of a technical violation of 

parole or probation[]”). 

Having determined that Appellant has raised a substantial question for 

review, we turn to the merits of his claim.

“In reviewing a challenge to the discretionary aspects of sentencing, 

we evaluate the court’s decision under an abuse of discretion standard.” 

Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa. Super. 2013) (citation 

and quotation omitted). Additionally, this Court’s review of the discretionary 

aspects of a sentence is confined by the statutory mandates of 42 Pa.C.S. § 

9781(c) and (d).” Id. Section 9781(c) reads:

(c) Determination on appeal.—The appellate court shall 

vacate the sentence and remand the case to the 

sentencing court with instructions if it finds:

(1) the sentencing court purported to sentence 

within the sentencing guidelines but applied the 

guidelines erroneously;

(2) the sentencing court sentenced within the 

sentencing guidelines but the case involves 

circumstances where the application of the guidelines 

would be clearly unreasonable; or

(3) the sentencing court sentenced outside the 

sentencing guidelines and the sentence is 

unreasonable.
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In all other cases the appellate court shall affirm the 

sentence imposed by the sentencing court.

42 Pa.C.S. § 9781(c).

In reviewing the record, we consider:

(1) The nature and circumstances of the offense and the 

history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

We review a claim that a revocation sentence is excessive with the 

following in mind:

The imposition of a 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.

Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014) (citation 

omitted). When imposing a sentence of incarceration after revocation of 

probation, the sentencing court “is limited only by the maximum sentence 

that it could have imposed originally at the time of the probationary 

sentence.” Id. at 1044.
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“Our Supreme Court has determined that where the trial court is 

informed by a pre-sentence report, it is presumed that the court is aware of 

all appropriate sentencing factors and considerations, and that where the 

court has been so informed, its discretion should not be disturbed.” 

Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) 

(citing Commonwealth v. Devers, 546 A.2d 12, 18–19 (Pa. 1988)).

Appellant essentially argues that the trial court abused its discretion in 

sentencing him to 2 to 5 years’ incarceration for a first-time, technical parole 

violation, when it originally sentenced him to two concurrent terms of timeserved to 23 months’ incarceration, and 2 years’ probation. Appellant’s Brief 

at 19. Appellant claims that he complied with the rules and regulations of 

his parole, reported for his weekly appointments, and submitted to drug 

testing. Id. He avers that he demonstrated a potential for rehabilitation 

and compliance with court orders. Id. at 20-21. Therefore, he asserts that 

the court’s revocation sentence was excessive and should be vacated. Id. at 

21.

After a thorough review of the record, Appellant’s Brief, the applicable 

law, and the comprehensive and well-reasoned Opinion of the trial court, we 

conclude there is no merit to Appellant’s issue on appeal. Accordingly, we 

affirm on the basis of the trial court’s Opinion. See Trial Ct. Op., 10/18/16, 

at 5-7. The parties are instructed to attach the October 18, 2016 Opinion to 

any future filings.
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Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/4/2017
Circulated 04/10/2017 12:04 PM