J-S20012-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DEVIN SIMS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1166 WDA 2021

Appeal from the Judgment of Sentence Entered August 31, 2021

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0011886-2018

BEFORE: NICHOLS, J., MURRAY, J., and KING, J.

MEMORANDUM BY NICHOLS, J.: FILED: AUGUST 2, 2022

Appellant Devin Sims appeals from the judgment of sentence entered 

following the revocation of his probation. Appellant challenges the 

discretionary aspects of his sentence and contends that the trial court failed

to consider relevant sentencing factors required by 42 Pa.C.S. § §9721(b). 

We affirm. 

The record reflects that on May 14, 2019, Appellant entered guilty pleas 

to one count each of strangulation, terroristic threats, and simple assault in 

the instant case at trial court docket CP-02-CR-0011886-2018 (11886-2018).

1

 

N.T., 4/14/19, at 9. The trial court sentenced Appellant to two years of 

probation at each count, and the trial court ordered the sentences to run 

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1 18 Pa.C.S. §§ 2718(a)(1), 2706(a)(1), and 2701(a)(1), respectively. 
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concurrently. Id. at 10-11. While on probation, Appellant was charged and 

convicted of defiant trespass and criminal mischief at trial court docket CP02-CR-0002343-2020 (2343-2020).

2 N.T., 9/17/20, at 15-19.

As a result of the new crimes at 2343-2020, the trial court revoked 

Appellant’s probation in the instant case and re-sentenced Appellant to a term 

of time served for simple assault, and it imposed new sentences of two years 

of probation for strangulation and terroristic threats. Id. at 33-34. The new 

probationary sentences for strangulation and terroristic threats were ordered 

to run concurrently with each other and concurrently to the sentence imposed 

on the new crimes at 2343-2020. Id. at 34-35

While serving his concurrent terms of probation in the instant case, 

Appellant was convicted of involuntary deviate sexual intercourse (IDSI) with 

a child at CP-02-CR-0000119-2021 (119-2021) and CP-02-CR-0000120-2021 

(120-2021).

3

 Convicted Violation Report, 5/20/21, at 2-3. The trial court 

sentenced Appellant to terms of seven to fourteen years of incarceration 

followed by four years of probation at both 119-2021 and 120-2021, and the 

trial court ordered these sentences to run concurrently. See id.

Following the convictions for IDSI with a child, the trial court revoked 

Appellant’s probation in the instant case. N.T., 8/31/21, at 11. The trial court 

resentenced Appellant to a term of one to two years of incarceration for 

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2 18 Pa.C.S. §§ 3503(b)(1)(i), and 3304(a)(5), respectively. 

3 18 Pa.C.S. § 3123(b).
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strangulation followed by a consecutive term of one to two years of 

incarceration for terroristic threats, resulting in an aggregate term of two to 

four years of incarceration. Id. at 15-16. The trial court ordered these 

revocation sentences to run consecutively to the sentences for involuntary 

deviate sexual intercourse with a child. Id. at 16. 

Appellant filed a timely post-sentence motion, which the trial court 

denied on September 21, 2021. This timely appeal followed. Both the trial 

court and Appellant complied with Pa.R.A.P. 1925.

On appeal, Appellant presents the following issue:

Did the trial court fail to consider and apply all relevant sentencing 

criteria, including the protection of the public, the gravity of the 

offense/violation, and [Appellant’s] character and rehabilitative 

needs, as required by 42 Pa.C.S. §9721(b) (sentencing generally; 

general standards), thus making [Appellant’s] sentence excessive 

and unreasonable?

Appellant’s Brief at 5 (formatting altered).

Appellant’s issue implicates the discretionary aspects of his sentence, 

and we note that “[t]he right to appellate review of the discretionary aspects 

of a sentence is not absolute[.]” Commonwealth v. Zirkle, 107 A.3d 127, 

132 (Pa. Super. 2014) (citations omitted). Rather, where an appellant 

challenges the discretionary aspects of a sentence, the appeal should be 

considered a petition for allowance of appeal. Commonwealth v. W.H.M., 

932 A.2d 155, 163 (Pa. Super. 2007). 
J-S20012-22

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As this Court explained in Commonwealth v. Moury, 992 A.2d 162 

(Pa. Super. 2010), an appellant challenging the discretionary aspects of a 

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. [708(E)]; (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. § 9781(b).

Id. at 170 (formatting altered and citation omitted). 

In the instant case, following the revocation of his probation, Appellant 

filed a timely post-sentence motion, a timely appeal, and has included a Rule 

2119(f) statement in his appellate brief. Accordingly, Appellant is in technical 

compliance with the requirements to challenge the discretionary aspects of his 

sentence. See Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. Super. 

2010). Therefore, we will proceed to determine whether Appellant has raised 

a substantial question. See id. 

The determination of whether there is a substantial question is made on 

a case-by-case basis, and this Court will grant the appeal only when the 

appellant advances a colorable argument that the sentencing judge’s actions 

were either: (1) inconsistent with a specific provision of the Sentencing Code; 

or (2) contrary to the fundamental norms which underlie the sentencing 

process. Moury, 992 A.2d at 170. 
J-S20012-22

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In the instant case, Appellant contends that the trial court failed to 

consider relevant sentencing factors from 42 Pa.C.S. § 9721(b). Appellant’s 

Brief at 15-16. We conclude that Appellant has raised a substantial question

for our review. See Commonwealth v. Derrickson, 242 A.3d 667, 680 (Pa. 

Super. 2020) (holding that a claim that the trial court failed to consider 

sentencing criteria required by 42 Pa.C.S. § 9721(b), including the defendant’s 

rehabilitative needs, presents a substantial question).

Our standard of review is as follows:

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.

Commonwealth v. Starr, 234 A.3d 755, 760-61 (Pa. Super. 2020) (citation 

omitted). 

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 (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). 

[Section] 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.” 

See also Pa.R.Crim.P. 708[(D)(2)] (indicating at the time of 
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sentence following the revocation of probation, “[t]he judge shall 

state on the record the reasons for the sentence imposed.”).

However, following revocation, a sentencing court need not 

undertake a lengthy discourse for its reasons for imposing a 

sentence or specifically reference the statutes in question. 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 of the revocation of probation, the trial judge is 

already fully informed as to the facts and circumstances of both 

the crime and the nature of the defendant, particularly where, as 

here, the trial judge had the benefit of a PSI [report] during the 

initial sentencing proceedings. See [Commonwealth v. Walls, 

926 A.2d 957, 967 n.7 (Pa. 2007)] (“Where [PSI report] exist[s], 

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.”).

Commonwealth v. Pasture, 107 A.3d 21, 28 (Pa. 2014). Moreover, “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.” 

Commonwealth v. Parson, 259 A.3d 1012, 1019 (Pa. Super. 2021) (citation 

omitted and formatting altered); see also 42 Pa.C.S. § 9771(b).

Upon review, we find Appellant’s argument meritless. The record 

reveals that the trial court concluded that Appellant had multiple opportunities 

on probation in this matter and failed to avail himself of those opportunities 

because he committed new crimes and was non-compliant with the terms of 

his probation. N.T., 8/31/21, at 10-15. Moreover, the trial court also stated 

that it reviewed and considered a PSI report prior to imposing sentence. N.T., 
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8/31/21, at 10. Because the trial court had the benefit of a PSI report, we 

conclude that the trial court was familiar with Appellant, his background, and 

his character, and contrary to Appellant’s argument, we may presume that 

the trial court considered all relevant sentencing factors and weighed those 

considerations along with mitigating factors. See Pasture, 107 A.3d at 28. 

After review, we conclude that the trial court aptly stated its 

consideration of relevant sentencing factors and stated its reasons for the 

sentence imposed. The record reflects that the trial court reviewed the PSI 

report prior to sentencing and was aware of Appellant’s rehabilitative needs 

as well as other statutory factors. See Moury, 992 A.2d at 171; Pasture, 

107 A.3d at 28. Accordingly, we discern no abuse of discretion, and we affirm 

Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/2/2022