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[U] Commonwealth v. Morrison

Superior Court of Pennsylvania

February 26, 2014

COMMONWEALTH OF PENNSYLVANIA
v.
ROLAND AARON MORRISON, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence, February 19, 2013, in the Court of Common Pleas of Allegheny County Criminal Division at Nos. CP-02-CR-0004475-2010, CP-02-CR-0012312-2010

BEFORE: FORD ELLIOTT, P.J.E., BOWES AND WECHT, JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.

Roland Aaron Morrison appeals from the judgment of sentence of February 19, 2013, following his violation of probation. We affirm.

On September 14, 2011, appellant pled guilty to two counts of felony retail theft, as well as other charges, and received an aggregate sentence of 9 to 18 months' incarceration, followed by 3 years of probation. These were appellant's twelfth and thirteenth convictions of retail theft. (Notes of testimony, 9/14/11 at 10.) Appellant was explicitly warned that if he was convicted again, he would be facing state time. (Id. at 11.)

On August 17, 2012, appellant pled guilty to two new counts of retail theft, representing his fourteenth and fifteenth convictions for that offense. (Notes of testimony, 2/19/13 at 2, 4.) A violation of probation ("VOP") hearing was held on February 19, 2013. Probation was revoked, and appellant was resentenced to an aggregate of 3½ to 7½ years' imprisonment. Post-sentence motions were denied, and this timely appeal followed. Appellant has complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion.

On appeal, appellant challenges the discretionary aspects of sentencing:

Was the three and a half to seven and a half year sentence of incarceration imposed manifestly excessive, unreasonable, and an abuse of discretion where the court did not consider [appellant]'s rehabilitative needs or his nature and characteristics?

Appellant's brief at 6.

The sentence imposed 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.'" Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001), quoting Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000) (other citations omitted). See also Commonwealth v. Cartrette, A.3d, 2013 WL 6821398 (Pa.Super. filed December 24, 2013) (en banc) (holding that this court's scope of review on appeal from a probation revocation sentence includes discretionary sentencing challenges). As the Coolbaugh court observed:

We recently summarized our standard of review and the law applicable to revocation proceedings 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. 42 Pa.C.S.A. ยง 9771(b) . . . . Also, upon sentencing following a revocation of probation, the trial court is limited only by the maximum sentence that it could have imposed originally at the time of the probationary sentence. Finally, it is the law of this Commonwealth ...

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