J-S88042-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

v.

BRANDON LANG,

 Appellant

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA

 

 No. 2548 EDA 2014

Appeal from the Judgment of Sentence August 7, 2014

in the Court of Common Pleas of Philadelphia County 

Criminal Division, at No(s): CP-51-CR-0013616-2012

BEFORE: OLSON, RANSOM, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 07, 2017

Brandon Lang (Appellant) appeals from the judgment of sentence of 

two to five years of incarceration entered following the revocation of his 

probation. We vacate Appellant’s judgment of sentence and remand this 

case for resentencing. 

In February 2014, Appellant entered a negotiated guilty plea to counts 

of receiving stolen property and unauthorized use of automobiles and other 

vehicles, and received respective concurrent sentences of five and two years 

of county probation. The trial court explained:

[A]t the time of imposition of the negotiated period of probation, 

all parties acknowledged that the computed [] sentencing 

guidelines calculated the lead offense with an offense gravity 

score of “5” and that [Appellant’s] prior record score [was] 1. 

Thus, the recommended range of sentence was incarceration of 

a length between one and twelve months with a possible 
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deviation of three months. [Appellant’s] criminal record included 

multiple misdemeanor convictions for theft from motor vehicles 

as well as an illegal narcotics possession and a summary 

conviction for contempt of court. [Appellant] had violated the 

terms of his previously imposed periods of probation or parole 

for those offenses. Th[e trial c]ourt was also aware that 

[Appellant] had previously failed to appear as scheduled for 

court on multiple occasions. Given all of the circumstances and 

facts of the underlying charges, the negotiated sentence of 

another period of probations was generously below the 

recommended guidelines.

As a minimal condition of [Appellant’s] supervision 

probation, [Appellant] had been directed by th[e trial c]ourt to 

report to his assigned probation officer, obtain a G.E.D., and pay 

restitution to the owner of the stolen automobile in the amount 

of $700.00 for the damages he had caused and pay mandatory 

court fines and costs throughout the period of probation. Upon 

entry of the guilty plea, [Appellant] waived his right to have any 

presentence investigative report completed. At the time of 

sentencing, [Appellant] was given credit for the county time he 

previously served while awaiting trial.

Sentencing Court Opinion, 2/5/2016, at 2 (unnecessary capitalization 

omitted).

Appellant reported to his probation officer upon his release from 

custody, but thereafter failed to report or attend the ordered G.E.D. classes. 

Consequently, a bench warrant was issued on May 20, 2014. 

On August 7, 2014, after sufficient basis for revocation of 

[Appellant’s] parole and probation was presented, all parties 

agreed to proceed immediately to sentencing without any 

request for any presentence investigation evaluations. Although 

presentence reports were not formally waived, th[e trial c]ourt 

deemed it waived from the prior waiver and the insistence of the 

parties to proceed immediately to sentencing following the 

revocation.
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After hearing argument, th[e trial c]ourt sentenced 

[Appellant] to a [] state term of minimum confinement of two to 

five years, and directed [Appellant] to pay the remaining court 

costs and fees, and pay owed amount of restitution. [Appellant] 

was given credit for any time served. Th[e trial c]ourt 

specifically recommended and directed that [Appellant] be 

eligible for the early release opportunity afforded in the state 

boot camp program. If accepted into the boot camp program, 

[Appellant] would have been released after a mere six months of 

confinement. ...

On August 11, 2014, [Appellant] filed a request for 

reconsideration of sentence. This was denied without hearing on 

August 15, 2014. On September 4, 2014, a notice of appeal was 

filed on behalf of [Appellant]. On September 16, 2014 this Court 

directed [Appellant] to file a 1925(b) statement. The statement 

was timely filed on October 3, 2014....

Id. at 3-4 (citations and unnecessary capitalization omitted). The 

sentencing court eventually filed its Rule 1925(a) opinion, offering therein 

reasons for the sentence imposed, on February 5, 2016, and this case is now 

ripe for our review.

Appellant presents this Court with a multi-faceted challenge to the 

discretionary aspects of his sentence, including the claim that the sentencing 

court failed to place on the record the reasons for the sentence imposed.1

Appellant’s Brief at 4.

An appellant is not entitled to the review of challenges to the 

discretionary aspects of a sentence as of right. Rather, an 

appellant challenging the discretionary aspects of his sentence 

must invoke this Court’s jurisdiction. We determine whether the 

appellant has invoked our jurisdiction by considering the 

following four factors: 

 

1 Because we determine that resentencing is necessary based upon this 

aspect of Appellant’s claim, we need not address his remaining arguments. 
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(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. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014) 

(some citations omitted). 

Here, Appellant timely filed a notice of appeal after filing a motion to 

modify sentence which included the claim at issue, and his brief contains a 

statement pursuant to Pa.R.A.P. 2119(f). We thus consider whether 

Appellant has presented a substantial question for our review. 

This Court has held that an allegation that the sentencing court failed 

to offer a contemporaneous statement on the record of the reasons for the 

sentence imposed raises a substantial question. Commonwealth v. 

Johnson, 541 A.2d 332, 341 n.4 (Pa. Super. 1988). Accordingly, we review 

the merits of Appellant’s claim.

Regarding prison sentences imposed following the revocation of 

probation, the Sentencing Code provides as follows:

The court shall not impose a sentence of total confinement upon 

revocation unless it finds that:

(1) the defendant has been convicted of another 

crime; or
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(2) the conduct of the defendant indicates that it is 

likely that he will commit another crime if he is not 

imprisoned; or

(3) such a sentence is essential to vindicate the 

authority of the court.

42 Pa.C.S. § 9771(c). Further, “[i]n every case in which 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.” 42 Pa. C. S. § 9721(b) (emphasis added). 

“Such a statement is mandatory.” Johnson, 541 A.2d at 340. 

Offering the reasons at a later time, such as in ruling upon a motion for 

reconsideration of sentence or in authoring a Rule 1925(a) opinion, does not 

cure noncompliance with subsection 9721(b). See, e.g., Commonwealth 

v. Holmes, 500 A.2d 890, 891 (Pa. Super. 1985); Commonwealth v. 

Giles, 449 A.2d 641, 642 (Pa. Super. 1982). 

Here, the transcript of the sentencing hearing reveals that the 

sentencing court detailed the history of the case, N.T., 8/7/2014, at 4-6; 

Appellant’s counsel explained Appellant’s reasons for failing to comply with 

the terms of probation and requested that the sentencing court “give him 

either a short jail sentence with parole or allow him to have another period 

of probation,” id. at 6-8; and the Commonwealth recommended “a short jail 
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sentence,” id. at 8. After Appellant briefly exercised his right to allocution, 

id. at 9, the sentencing transcript reads as follows:

THE COURT: Okay.

All right.

Sir, you may stand. This [c]ourt finds that you violated 

the period of probation presented to you on February 7th.

I resentence you [on] the receiving stolen property, 2-to-5 

years’ state incarceration. You are Boot Camp [eli]gible.

[APPELLANT’S COUNSEL]: Your Honor, would you 

consider a county sentence?

THE COURT: No.

[APPELLANT’S COUNSEL]: He’s never been in jail.

THE COURT: No.

As to the unauthorized use, I’m suspending your sentence. 

A condition of your parole is the payment of $700.00 restitution 

and any mandatory fines and cost.

You may advise him.

Id. at 9-10. Appellant’s counsel then explained Appellant’s post-sentence 

rights, and the hearing concluded. Id. at 10-11.

The record thus confirms Appellant’s contention that the sentencing 

court failed to state on the record any reasons for its sentence, let alone 

findings required under 42 Pa.C.S. § 9771(c) for imposition of a period of 

total confinement following revocation of probation. Accordingly, we must 

vacate Appellant’s sentence and remand for resentencing. See, e.g., 
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Commonwealth v. Riggins, 377 A.2d 140, 151 (Pa. 1977) (vacating 

sentence and remanding “to afford the trial court an opportunity to 

resentence appellant and to include a statement of reasons for the sentence 

imposed”); Commonwealth v. Harris, 457 A.2d 572, 574 (Pa. Super. 

1983) (vacating sentence and remanding for resentencing where “[a]lthough 

the judge did later write an opinion in which he discussed the sentence and 

his reasons for imposing it, ... the sentencing transcript indicates that he did 

not disclose those reasons at the time of sentencing”). 

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/7/2017