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[U] Commonwealth v. Morris

Superior Court of Pennsylvania

March 10, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
AAKI MORRIS, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence Entered August 17, 2012, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0311941-2002.

BEFORE: SHOGAN, OTT and PLATT [*] ,JJ.

MEMORANDUM

SHOGAN, J.

Appellant, Aaki Morris, appeals from the judgment of sentence entered following the revocation of his probation. We affirm.

The trial court summarized the procedural history of this case as follows:

[Appellant] entered a negotiated guilty plea to theft by deception and credit card fraud and, pursuant thereto, was sentenced to two (2) years reporting probation on May 31, 2002. On May 24, 2007, after having incurred both direct and technical violations, defendant's probation was revoked by this court and he was sentenced to six (6) to twelve (12) months in a county correctional facility, followed by one (1) year reporting probation. Defendant's petition for parole was granted on December 7, 2007 and defendant was released from custody. Following his release from prison, defendant reported to his probation officer for a few months, then stopped reporting in July 2008. Accordingly, an absconder warrant was issued for his arrest on September 15, 2008. However, defendant was not taken into custody on this warrant until August 25, 2011. In the period between the date he absconded and the date of his arrest on the outstanding warrant, defendant incurred four (4) arrests and two (2) convictions and served prison terms in two (2) different counties.1 On July 6, 2012, at a Gagnon II hearing, this court revoked defendant's probation, and set the matter down for argument on defendant's motion to dismiss for failure to timely hold a violation of probation hearing. On July 24, 2012, this court heard argument and denied defendant's motion. On August 17, 2012 this court imposed a sentence of incarceration in a state correctional facility for a period of two and one-half (2 1/2) to five (5) years. Defendant filed a notice of appeal on September 17, 2012 and was ordered to file a Statement of Matters Complained of on Appeal on September 18, 2012. Said statement was filed on October 9, 2012. This Court filed an opinion pursuant to Pa.R.A.P. 1925(a) on November 20, 2012. Defendant subsequently filed a "Petition to Remand to Lower Court for Acceptance of Supplemental Rule 1925(b) Statement and Issuance of Supplemental Rule 1925(b) Statement, and Petition to Vacate Briefing Schedule" with the Superior Court, raising additional issues with respect to the discretionary aspects of his sentence. The Superior Court remanded the matter to this Court on March 22, 2013, directing this defendant to file a supplemental Statement of Matters Complained of on Appeal, addressing the discretionary aspects of his sentence. Said Statement was filed on April 12, 2013.
1 Defendant incurred arrests in both Berks and Montgomery counties. He was convicted in Berks County on CP-06-CR-0001730-2011 and in Montgomery County on CP-46-CR-0000468-2011. In separate guilty pleas, defendant was sentenced to separate, but identical, sentences of nine (9) to twenty-three (23) month[s], followed by two (2) years [of] probation in both cases.

Trial Court Opinion, 6/11/13, at 1-2 (footnote in original).

Appellant presents the following issue for our review:

Where [Appellant] admittedly acted in direct and technical violation of parole, then served and was paroled from nine-month sentences of incarceration in other counties without a timely violation hearing in Philadelphia, then was released for nine months during which time [Appellant] appropriately reported to the probation department, tested to be drug-free, obtained employment and was providing for his son and family, did not the lower court abuse its discretion and impose an unduly harsh and excessive punishment, in contravention of the general standards set forth by 42 Pa.C.S.A. § 9721 and particularly without regard for the rehabilitative needs of [Appellant], by sentencing [Appellant] to a term of incarceration in a state institution for a period of 2 ½ to 5 years?

Appellant's Brief at 4.

As this Court recently clarified in Commonwealth v Cartrette, __A.3d__, 2013 PA Super. 325 (Pa. Super. filed December 24, 2013) (en banc), our scope of review following the revocation of probation is not limited solely 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. Rather, it also includes challenges to the discretionary aspects of the sentence imposed. Specifically, we unequivocally held that "this Court's scope of review in an appeal from a revocation sentencing includes discretionary sentencing challenges." Id. at *11. Further, as we have long held, the imposition of sentence following the revocation of probation is vested within the sound discretion of the court, which, absent an abuse of that discretion, will not be disturbed on appeal. Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).

We are also mindful that "[t]he right to appeal a discretionary aspect of sentence is not absolute." Commonwealth v. Martin, 727 A.2d 1136, 1143 (Pa. Super. 1999). Rather, where an appellant challenges the discretionary aspects of a sentence, the appeal should be considered to be a petition for ...


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