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[U] Commonwealth v. Simms

Superior Court of Pennsylvania

February 3, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MAURICE SIMMS, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence Entered February 15, 2013, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0006174-2007.

BEFORE: GANTMAN, SHOGAN and MUSMANNO, JJ.

MEMORANDUM

SHOGAN, J.

Appellant, Maurice Simms, appeals from the judgment of sentence imposed after the trial court revoked his probation. We affirm.

Appellant and an accomplice robbed a seventy-six-year-old man at gunpoint on the morning of May 10, 2007, as the victim was walking his motorcycle through his yard to an alley. Appellant and his cohort absconded with $25.00. A jury convicted Appellant of robbery, graded as a first-degree felony, on August 16, 2007. The trial court sentenced him on September 21, 2007, to incarceration for an aggregate term of two and one-half to five years, followed by five years of probation. N.T., 9/21/07, at 14. Appellant filed post-sentence motions, which the trial court denied following a hearing. N.T., 10/26/07, at 5. Appellant filed a notice of appeal to this Court at 3135 EDA 2007, but discontinued the appeal on April 10, 2008. After serving his maximum state sentence, Appellant was released from custody on May 23, 2012. He did not report to the probation department to begin his five-year probationary sentence.

In October 2012, Appellant was arrested for disorderly conduct (engaging in fighting), 18 Pa.C.S.A. § 5503(a)(1). Following a bench trial on January 9, 2013, the trial court found Appellant guilty and sentenced him on the same day to no further penalty. While awaiting trial on the disorderly conduct charge, Appellant was arrested on November 9, 2012, and charged with burglary, criminal trespass, and defiant trespass. He entered a negotiated plea on January 23, 2013, to defiant trespass (actual communication), 18 Pa.C.S.A. § 3503(b)(1)(i), and the Commonwealth withdrew the burglary and criminal trespass charges. The trial court sentenced Appellant to twelve months of probation.

Appellant was taken into custody for alleged probation violations on January 25, 2013, and he appeared for a hearing on February 15, 2013. The trial court found Appellant to be in direct and technical violation of his probation, revoked probation, and sentenced him to incarceration for two and one-half to five years. N.T., 2/15/13, at 8. Appellant filed a timely post-sentence motion, which was denied by operation of law. Petition to Vacate and Reconsider Sentence, 2/22/13.

This timely appeal followed, in which Appellant presents a single question for our consideration:

Did not the lower court err and abuse its discretion by sentencing appellant to a manifestly excessive and unreasonable sentence following the revocation of appellant's probation in light of the minor probation violations at issue in this case, where the lower court failed to give proper consideration to appellant's individualized circumstances and where the Court failed to explain how, as a matter of law, this sentence was the least stringent sentence adequate to protect the community?

Appellant's Brief at 4.[1]

Appellant's issue challenges the discretionary aspects of his sentence. See Commonwealth v. Baker, 72 A.3d 652 (Pa.Super. 2013) (recognizing a claim that an aggregate sentence was excessive is treated as a challenge to the discretionary aspects of sentencing).[2] Where an appellant challenges the discretionary aspects of a sentence there is no automatic right to appeal, and an appellant's appeal should be deemed a petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa.Super. 2007). As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.Super. 2010):

[a]n 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. [708]; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that ...

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