J-A11002-25
2025 PA Super 112
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL LEE SLAUGHTER, JR. :
:
Appellant : No. 1374 MDA 2024
Appeal from the Judgment of Sentence Entered August 21, 2024
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0004722-2022
BEFORE: MURRAY, J., KING, J., and STEVENS, P.J.E.*
OPINION BY MURRAY, J.: FILED MAY 23, 2025
Daniel Lee Slaughter, Jr. (Appellant), appeals from the judgment of
sentence imposed following the revocation of his probation. On appeal,
Appellant contends the violation of probation (VOP) court abused its discretion
when it sentenced him to a term of 2½ to 5 years’ incarceration, which
constituted an upward departure from the standard range of the applicable
Resentencing Guidelines.1 After careful consideration, we vacate the
judgment of sentence and remand for a new resentencing hearing.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 See 204 Pa. Code §§ 307.1-307a.4. The Resentencing Guidelines,
Amendment 1 (effective January 1, 2021), apply to revocations of probation
for “all offenses committed on or after January 1, 2021, but prior to January
1, 2024, for which the 7th Edition, Amendment 6 Sentencing Guidelines
applied.”
Id. § 307a.2(b)(2). Instantly, the Resentencing Guidelines, as
amended by Amendment 1, apply because Appellant committed his underlying
offenses in October 2022.
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On May 30, 2023, Appellant entered guilty pleas at two separate
dockets: 4720-2022 (Case 4720), and 4722-2022 (Case 4722). At Case
4722, Appellant pled guilty to retail theft (Count 1) and criminal conspiracy to
commit retail theft (Count 2);2 the trial court sentenced Appellant to an
aggregate three years of probation. N.T., 5/30/23, at 5, 11-12. At Case
4720, Appellant pled guilty to driving under the influence of a controlled
substance, possession of a controlled substance, possession of a small amount
of marijuana, and possession of drug paraphernalia.3 Id. at 5. The trial court
sentenced Appellant in that case to an aggregate one year of probation. Id.
at 10-11. The court ordered the sentences at Case 4720 and Case 4722 to
run concurrently. Id. at 11-12.
On January 22, 2024, the VOP court issued a bench warrant for
Appellant’s arrest, which stated that “this warrant is issued because [of
Appellant’s] violation of probation[.]” Bench Warrant, 1/22/24 (capitalization
modified). On August 20, 2024, the Dauphin County Probation and Parole
Office (the Dauphin PO) filed a request for a VOP hearing (Request). Attached
to the Request is a “Notice of Alleged Violations of Probation” (Notice of
Probation Violations), which Appellant signed and dated May 6, 2024. The
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2 18 Pa.C.S.A. §§ 3929(a)(1), 903(a)(1).
3 75 Pa.C.S.A. § 3802(d)(2); 35 P.S. § 780-113(a)(16), (31)(i), (32).
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Notice of Probation Violations stated Appellant had violated the following
conditions of his probation:
Condition 2: Failure to refrain from the violation of … local, state,
or federal penal laws. ([Appellant] was arrested by Susquehanna
P[olice] on 5/1/24, for possession of [] K-2[, i.e., synthetic
marijuana]).4
Condition 6: Failure to report to the [Dauphin PO] as directed.
([Appellant has] not been in the [Dauphin PO] since 9/27/23).
Condition 9: Failure to contact [the Dauphin PO] prior to changing
your address. ([Appellant] has changed his address several times
without notifying [the Dauphin PO]. ….).
Notice of Probation Violations, 5/6/24 (footnote added; capitalization
modified).
Appellant’s VOP/sentencing hearing (VOP hearing) occurred on August
21, 2024, wherein Appellant appeared with counsel. Two Dauphin PO officers
also appeared: Kamela Banning (Officer Banning), and Timothy Kinsinger
(Officer Kinsinger) (collectively, the Probation Officers). Preliminarily, the VOP
court recognized that Appellant had
been given numerous opportunities to successfully complete
supervision and [has] exhausted many County resources. [The]
Dauphin … [PO] is recommending5 that [Appellant] be
incarcerated in state prison and complete the state drug treatment
program.
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4 The record does not disclose whether the Commonwealth filed any criminal
charge against Appellant related to synthetic marijuana possession.
5 There is no indication in the record, or VOP court docket, that the
Commonwealth filed a petition for revocation of Appellant’s probation, or any
sentencing recommendation. At the brief VOP hearing, the prosecutor did not
explain the Commonwealth’s position.
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N.T., 8/21/24, at 2 (footnote added; formatting and capitalization modified).
At the VOP hearing, Officer Banning stated that Appellant
has a major, major, major drug issue. He has been to drug and
alcohol [treatment] facilities. He likes to use cocaine and
marijuana and synthetic marijuana[,] rather than follow any kind
of [mental health] treatment plan [or take] psych[iatric]
med[ication]. And he’s been in denial that he has drug issues.
[Appellant has] been removed from many [drug and alcohol
treatment] facilities because of him being intoxicated. …. It
actually took the final new charge [related to Appellant] having
possession of [synthetic marijuana] for him to … [admit that],
yeah, I may have a drug problem.
…
[Appellant] has been on supervision with [the Dauphin PO] for
years[,] doing the same thing over and over and over.
Id. at 3-4 (formatting modified).
Appellant’s counsel requested that the VOP court “give [Appellant] a
chance in work release. It’s a first [probation] revocation 6 on a probationary
sentence.” Id. at 5 (footnote added). Appellant’s counsel stated that
“[Appellant] does have schizoaffective disorder, Bipolar type. I think the root
[problem] here is [Appellant’s] mental health issues[.]” Id. at 2.
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6 At the VOP hearing, Officer Banning clarified that
this is [Appellant’s] first [probation revocation in the instant case],
but only because [a different trial court judge] closed the previous
revocation docket when [Appellant] got the new charges that [the
Dauphin PO is] currently supervising [Appellant] on. Like I said,
[Appellant has] been in the system for many, many years.
N.T., 8/21/24, at 7.
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The VOP court then considered Appellant’s allocution. Appellant stated
he accepted “full accountability on [his] new charges,” and admitted his
“relapse” into drug use. Id. at 5. Appellant also referenced his “mental health
issues,” “traumatic brain injury,” and diagnosis of Type II diabetes. Id. at 5-
6.
Following Appellant’s allocution, the VOP court observed that the State
Correctional Institution (SCI) at Waymart (SCI—Waymart) offers a drug
treatment program to some inmates. Id. at 9. Officer Kinsinger informed the
court that SCI—Waymart’s drug “treatment program requires a minimum
[sentence] of two years [in prison,] so a [sentence of] two and a half to five
[years in prison] would be perfect.” Id. The VOP court stated,
… I think what we need to do is [impose a sentence that would]
give [Appellant] a program that … [could] help [Appellant] in the
long run. And I believe SCI[—]Waymart, as well as the state drug
treatment program, will be the best options for [Appellant].
Id. (punctuation modified). The VOP court then resentenced Appellant,7 at
Case 4722,8 to 2½ to 5 years in prison at Count 1, and a concurrent term of
2½ to 5 years in prison at Count 2. Id. at 9-10; see also Sentencing Order,
8/21/24, at 1 (unpaginated) (providing, in relevant part: “Order no drugs, no
alcohol. Order that [Appellant] complete SCI[—]Waymart, the mental health
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7 The VOP court did not have the benefit of a pre-sentence investigation
report.
8 The VOP court closed Case 4720 and did not resentence Appellant at that
docket. N.T., 8/21/24, at 10.
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program, as well as … that he be eligible for the state drug treatment
program[.]”).
Appellant timely filed a post-sentence motion (PSM) on August 30,
2024. Appellant claimed the VOP court abused its discretion by imposing a
sentence of 2½ to 5 years in prison, and deviating above the Resentencing
Guidelines’ standard range.9 PSM, 8/30/24, ¶ 5; see also id., ¶ 6 (asserting
the Dauphin PO “submitted Resentencing Guidelines with a standard range of
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9 On appeal, it is undisputed that the VOP court’s sentence constituted an
upward departure from the standard range recommended by the
Resentencing Guidelines. Appellant’s Brief at 21-23; Commonwealth’s Brief
at 9-10, 12, 14. Based on the limited certified record before us, we are unable
to calculate the applicable Resentencing Guidelines’ ranges. However, we
observe Appellant’s contention that
the record indicates that [the Dauphin PO] submitted Resentencing
Guidelines of 6-16 months. ([PSM, 8/30/24,] at 2). [Appellant’s
underlying conviction of] retail theft, graded as a felony of the third
degree, as a third o[r] subsequent offense, has an offense gravity
score of 3. 204 Pa. Code § 303.15. [Appellant] had 5 prior retail
theft convictions. [Appellant’s conviction of] criminal conspiracy to
commit retail theft has the same [offense gravity score] of 3. See
204 Pa. Code[] § 303.3(c)[(2)] (“Convictions for … conspiracy to
commit any offense which is not a Felony 1 offense, receive the
Offense Gravity Score of the offense … which was the object of the
conspiracy.”). With this acknowledged presumptive resentencing
range, [Appellant] would have a prior record score of 5 and
[Appellant’s] standard [] recomm[ended] range was 6-16 months.
See 204 Pa. Code § 303.16(a). The presumptive aggravated range
was an additional three months. Id. However, the [VOP] court
imposed a 30-month [minimum] sentence, almost twice the highend standard range sentence, and a 14-month aggravation.
Appellant’s Brief at 22-23 (some internal citations omitted; formatting,
capitalization, and punctuation modified). At the VOP hearing, neither the
VOP court nor the parties mentioned the Resentencing Guidelines.
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sentencing of 6 to 16 months [in jail].10 [Appellant’s] counsel agrees with
[these] calculations.” (footnote added; capitalization modified)). The PSM
further claimed that the VOP court failed to “provid[e] reasons on the record
for such an aggravated sentence.” Id., ¶ 7.
The Commonwealth filed a court-ordered response to the PSM on
September 15, 2024. The Commonwealth asserted the VOP court imposed
an appropriate resentence, and the court properly stated on the record its
reasons for deviating above the standard range of the Resentencing
Guidelines. Response, 9/15/24, ¶ 4. But see also id., Prayer for Relief
(“[T]he Commonwealth respectfully requests [the VOP court to] deny
[Appellant’s PSM] or, in the alternative, schedule a hearing to list the reasons
for the departure from the standard range of the Resentencing Guidelines on
the record.” (capitalization modified)).
On September 16, 2024, the VOP court denied the PSM. Appellant
timely filed a notice of appeal three days later. On October 3, 2024, Appellant
timely filed a court-ordered Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal (Concise Statement), raising two claims of error:
1. [The VOP] court abused its discretion when, during a
[probation] revocation, th[e] court sentenced [Appellant] to a
2.5-5 year sentence[,] when this was the first revocation, the
violation was technical in nature, and the court did not utilize
____________________________________________
10 The record does not include any document from the Dauphin PO related to
the Resentencing Guidelines. Rather, the first mention of the Resentencing
Guidelines was in Appellant’s PSM.
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the escalating penalties mandated by 42 Pa.C.S.A. § 977111
and impose the least restrictive means of punishment.
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11 Our Legislature amended Section 9771 effective June 11, 2024, two months
prior to Appellant’s sentencing. Section 9771 provides, in pertinent part, as
follows:
(c) Limitation on sentence of total confinement. There is a
presumption against total confinement for technical violations of
probation. The following shall apply:
(1) The court may impose a sentence of total confinement upon
revocation only if:
(i) the defendant has been convicted of another crime;
(ii) the court finds by clear and convincing evidence that
the defendant committed a technical violation that involves
an identifiable threat to public safety and the defendant
cannot be safely diverted from total confinement through
less restrictive means; or
(iii) the court finds by a preponderance of the evidence that
the defendant committed a technical violation and any of
the following apply:
(A) The technical violation was sexual in nature.
(B) The technical violation involved assaultive
behavior or included a credible threat to cause bodily
injury to another, including acts committed against a
family or household member.
(C) The technical violation involved possession or
control of a firearm or dangerous weapon.
(D) The technical violation involved the manufacture,
sale, delivery or possession with the intent to
manufacture, sell or deliver, a controlled substance or
other drug regulated under the act of April 14, 1972
(P.L.233, No.64), known as The Controlled Substance,
Drug, Device and Cosmetic Act.
(Footnote Continued Next Page)
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2. [The VOP] court abused its discretion [], when imposing a total
incarceration sentence, for a probation revocation of an offense
committed after January 1, 2021, the court failed to consult
and utilize the Resentencing Guidelines. The imposed sentence
constitutes an abuse of discretion because it departs from th[e]
standard range and the court did not provide adequate reasons
to justify this aggravated[-]range sentence.
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(E) The defendant absconded and cannot be safely
diverted from total confinement through less
restrictive means.
(F) The technical violation involved an intentional and
unexcused failure to adhere to recommended
programming or conditions on three or more separate
occasions and the defendant cannot be safely diverted
from total confinement through less restrictive means.
….
(2) If a court imposes a sentence of total confinement following a
revocation, the basis of which is for one or more technical
violations under paragraph (1)(ii) or (iii), the court shall consider
the employment status of the defendant. The defendant shall be
sentenced as follows:
(i) For a first technical violation, a maximum period of 14
days.
(ii) For a second technical violation, a maximum period of
30 days.
(iii) For a third or subsequent technical violation, the court
may impose any sentencing alternatives available at the
time of initial sentencing.
42 Pa.C.S.A. § 9771(c)(1), (c)(2).
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Concise Statement, 10/3/24, at 1-2 (unpaginated) (footnote added;
capitalization and citation modified).12, 13
On November 18, 2024, the VOP court issued a “Statement in Lieu of
Opinion Pursuant to Pa.R.A.P. 1925” (VOP Court Statement).14 The court
conceded it had abused its discretion at resentencing, and requested that this
Court vacate the judgment of sentence and remand for resentencing:
Appellant’s [Concise] Statement … allege[s that the VOP] court
abused its discretion by not utilizing the escalating penalties
mandated by 42 Pa.C.S. § 9771, when resentencing [] Appellant
after revocation [of his probation]. After reviewing the relevant
____________________________________________
12 Significantly, Appellant raised his issue implicating Section 9771 for the first
time in his Concise Statement.
13 Following Appellant’s filing of his counseled notice of appeal and Concise
Statement, he submitted several pro se filings in the trial court, including (1)
handwritten correspondence challenging, inter alia, the voluntariness of his
guilty pleas in Case 4720 and Case 4722, as well as the VOP court’s judicial
bias; and (2) a petition for relief filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. See generally, e.g., Pro Se
Correspondence, 10/17/24; PCRA Petition, 10/30/24. On November 6, 2024,
the VOP court entered an order stating that Appellant’s “[PCRA] petition shall
not be entertained[,] as this court is without jurisdiction to address it while
[Appellant’s case] is on appeal with the Superior Court of Pennsylvania.
Further, [Appellant] is represented by counsel and should file motions through
counsel.” Order, 11/6/24 (capitalization modified); see also
Commonwealth v. Staton, 184 A.3d 949, 957 (Pa. 2018) (“[N]o defendant
has a constitutional right to hybrid representation, either at trial or on appeal.”
(citation omitted)); Pa.R.A.P. 1701(a) (providing that the filing of an appeal
divests a trial court of jurisdiction).
Moreover, we observe that on October 2, 2024, Appellant filed in the
trial court pro se correspondence stating that he was incarcerated at SCI—
Smithfield, as opposed to SCI—Waymart. Pro Se Correspondence, 10/2/24.
14 The Court of Common Pleas judge who authored the VOP Court Statement
also resentenced Appellant.
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transcripts, the Notice of Probation Violations, and [Section 9771]
…, specifically, the limitations on resentencing to total
confinement, we agree with [] Appellant. We respectfully request
that this case be remanded back to [the VOP] court for a
resentencing hearing.
VOP Court Statement, 11/18/24, at 1 (punctuation and capitalization
modified).
On appeal, Appellant presents two issues for our review:
I. Did the [VOP] court improperly follow the requirements for a
revocation proceeding when it imposed a sentence of total
incarceration for a first, technical [probation] violation, when
the probation statute contemplates escalating penalties for a
technical violation of probation?
II. Did the [VOP] court abuse its discretion in imposing a sentence
of state confinement, outside of the aggravated range of the
Resentencing Guidelines, and failed to consider them?
Appellant’s Brief at 6 (punctuation and capitalization modified).
In his first issue, Appellant claims the VOP court abused its discretion in
imposing a sentence of total confinement for Appellant’s first, technical
probation violation,15 emphasizing that the court “concurs that it failed to
follow the escalating penalties of 42 Pa.C.S. § 9771(c)(2).” Id. at 20; see
also VOP Court Statement, 11/18/24, at 1.
Preliminarily, we acknowledge that “in an appeal from a sentence
imposed after the court has revoked probation, we can review the validity of
____________________________________________
15 As stated above, the Notice of Probation Violations represented that
Appellant had been arrested for a new crime, in addition to other probation
violations.
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the revocation proceedings, the legality of the sentence imposed following
revocation, and any challenge to the discretionary aspects of the sentence
imposed.” Commonwealth v. Wright, 116 A.3d 133, 136 (Pa. Super. 2015)
(citation omitted). In the instant case, Appellant’s issue implicates the
discretionary aspects of sentencing. See Commonwealth v. Schutzues,
54
A.3d 86, 91 (Pa. Super. 2012) (stating that a sentencing court’s lack of
adherence to Section “9771(c) [is] a matter implicating the discretionary
aspects of a sentence.”); see also
id. at 98 (“[C]hallenges under [Section]
9771(c) are not among the narrow class of issues that implicate the legality
of a sentence.”).
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Lawrence, 313 A.3d
265, 284 (Pa. Super. 2024) (citation and brackets omitted). Rather, this Court
applies a four-part test to determine:
(1) whether the appellant 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 the
appellant’s brief has a fatal defect, see 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. Bartic, 303 A.3d 124, 134 (Pa. Super. 2023) (brackets
and some citations omitted; emphasis added).
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Instantly, although Appellant timely filed a notice of appeal and his brief
contains the required 2119(f) statement,16 he failed to preserve his instant
claim either in his PSM or at sentencing. The PSM did not mention Section
9771(c), let alone argue that the VOP court erred by imposing a sentence that
was in contravention of Section 9771(c). See generally PSM, 8/30/24.
Rather, the PSM claimed only that the VOP court abused its discretion by (1)
imposing a sentence of total confinement that deviated above the standard
range of the Resentencing Guidelines, id., ¶¶ 5-6; and (2) failing to “provid[e]
reasons on the record for such an aggravated sentence.” Id., ¶ 7.
It is well-settled that “[i]ssues challenging the discretionary aspects of
a sentence must be raised in a post-sentence motion or by presenting
the claim to the trial court during the sentencing proceedings. Absent
such efforts, an objection to a discretionary aspect of a sentence is waived.”
Commonwealth v. Kittrell, 19 A.3d 532, 538 (Pa. Super. 2011) (citation
and brackets omitted; emphasis added); see also Commonwealth v.
Thompson,
333 A.3d 461, *7 (Pa. Super. filed Mar. 13, 2025) (same).
Instantly, although Appellant raised his issue implicating Section 9771(c) in
the Concise Statement, we have held that “a party cannot rectify the failure
to preserve an issue by proffering it in response to a Rule 1925(b) order.”
Commonwealth v. Monjaras-Amaya,
163 A.3d 466, 469 (Pa. Super. 2017)
____________________________________________
16 See Appellant’s Brief at 12-15.
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(citation, emphasis, and brackets omitted). Accordingly, as Appellant failed
to preserve the instant challenge to his sentence at sentencing or in his PSM,
he waived his first issue. Kittrell, 19 A.3d at 538.
We next address Appellant’s second issue, which also implicates the
discretionary aspects of sentencing. See Appellant’s Brief at 14-15, 21-26.
Unlike his first issue, Appellant preserved this issue in his PSM, wherein he
claimed the VOP court abused its discretion by (1) imposing a sentence that
excessively deviated above the standard range of the Resentencing
Guidelines; and (2) failing to state adequate reasons of record for the
deviation. See PSM, 8/30/24, ¶¶ 5-7. Accordingly, we determine whether
Appellant’s claim presents a substantial question for our review.
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. A substantial question
exists 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.
Thompson, 333 A.3d 461, *7-8 (internal citations and quotation marks
omitted).
Instantly, Appellant asserts, in his Rule 2119(f) statement, the VOP
court abused its discretion by “fail[ing] to consider the Resentencing
Guidelines during the revocation[,] and provid[ing] no reasons for departing
from the presumptive guideline[-]range sentence.” Appellant’s Brief at 14
(capitalization modified); see also Commonwealth v. Diehl, 140 A.3d 34,
44-45 (Pa. Super. 2016) (“[W]e cannot look beyond the statement of
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questions presented and the prefatory 2119(f) statement to determine
whether a substantial question exists.”). We conclude Appellant’s claim
presents a substantial question. See Commonwealth v. Macias, 968 A.2d
773, 776 (Pa. Super. 2009) (citations omitted) (observing that “[t]he failure
to set forth adequate reasons for the sentence imposed has been held to raise
a substantial question. Likewise, an averment that the court … failed to
consider all relevant factors raises a substantial question.” (internal citations
omitted)); Commonwealth v. Booze,
953 A.2d 1263, 1278 (Pa. Super.
2008) (holding a claim that the sentencing court failed to state adequate
reasons on the record for imposing an aggravated-range sentence raises a
substantial question). Accordingly, we review the merits of Appellant’s
sentencing challenge.
Our standard of review of a discretionary sentencing challenge is well
settled: “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.” Commonwealth v.
Stewart, 327 A.3d 301, 304 (Pa. Super. 2024) (citation omitted).
[A]n abuse of discretion is not shown merely by an error in
judgment. Rather, the appellant must establish, by reference to
the record, that the sentencing court ignored or misapplied the
law, exercised its judgment for reasons of partiality, prejudice,
bias or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Lucky, 229 A.3d 657, 663 (Pa. Super. 2020) (citation
omitted).
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Instantly, Appellant argues the VOP court abused its discretion by failing
to (1) “mention its awareness of the [Resentencing G]uidelines” prior to
imposing sentence; or (2) state on the record any “factual basis and specific
reasons which compelled [the court’s] deviation” from the standard range of
the Resentencing Guidelines. Appellant’s Brief at 23, 24.
The [VOP] court’s sentence is [] subject to reversible error
because it failed to consider the Resentencing Guidelines at all.
While sentencing guidelines are merely the starting point of a
court’s sentencing, when the court departs from the guidelines, it
must demonstrate its awareness of the sentencing guidelines and
provide a reason for this deviation. Commonwealth v. Sheller,
961 A.2d 187, 190 (Pa. Super. 2008).
Appellant’s Brief at 21 (capitalization and punctuation modified). According
to Appellant,
there is no indication in the record that the [VOP] court was aware
of the [Resentencing] Guidelines, nor that it was consciously
choosing to depart from the standard range. Rather, the court’s
sentence [constituted] an immediate acceptance of [Officer
Kinsinger’s] recommendation that “the state treatment program
requires a minimum of two years so a two and a half to five would
be perfect.” ([N.T., 8/21/24, at 9]).
Appellant’s Brief at 24 (emphasis omitted; capitalization modified).
Appellant further cites Commonwealth v. Griffin, 804 A.2d 1 (Pa.
Super. 2002), wherein we stated, “when deviating from the sentencing
guidelines, a trial judge must indicate that [s]he understands the suggested
ranges.”
Id. at 8; Appellant’s Brief at 23-24. Finally, Appellant complains the
VOP court failed to offer any
reason why [Appellant’s] behaviors, standard behaviors of an
individual in [active] addiction, justified a stark deviation from the
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[Resentencing G]uidelines. Instead, the [VOP] court took the
statements by [the Dauphin PO], and immediately adopted its
recommended sentence. This constitutes an unreasoned abuse of
discretion and requires remand for a proper sentencing hearing.
Appellant’s Brief at 26.
The Commonwealth counters that the VOP court “properly exercised its
discretion when it deviated from the Resentencing Guidelines[,] and the record
clearly establishes the rationale for the deviation.” Commonwealth Brief at 8
(capitalization modified); see also id. at 5 (“While this was [A]ppellant’s first
probation violation …, the record is clear that the revocation was based on
both new criminal charges and technical violations.”). According to the
Commonwealth, “the record clearly indicates that the [VOP] court properly
considered the Resentencing Guidelines.”
Id. at 9 (capitalization modified).
The Commonwealth maintains that the VOP “court’s resentencing decision for
deviating from the Resentencing Guidelines was implicitly stated in the
record and should be affirmed.”
Id. at 14 (emphasis added; capitalization
modified); see also
id. (“[T]he record clearly indicates that the [VOP] court
had more than sufficient information to allow a fully[-]formed[,] individualized
sentence.”).
This Court has stated that a “sentencing court is permitted to deviate
from the sentencing guidelines” where it places “on the record its reasons for
the deviation.” Commonwealth v. Snyder, 289 A.3d 1121, 1127 (Pa. Super.
2023) (citations omitted) (relating to application of the sentencing
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guidelines);17 see also id. (observing the sentencing guidelines are “purely
advisory in nature”). When doing so,
a trial judge … [must] demonstrate on the record, as a proper
starting point, its awareness of the sentencing guidelines. Having
done so, the sentencing court may deviate from the guidelines, if
necessary, to fashion a sentence which takes into account the
protection of the public, the rehabilitative needs of the defendant,
and the gravity of the particular offense as it relates to the impact
on the life of the victim and the community, so long as it also
states of record the factual basis and specific reasons
which compelled it to deviate from the guideline range.
Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012)
(emphasis added; citation and brackets omitted); see also Commonwealth
v. Shull,
148 A.3d 820, 835-36 (Pa. Super. 2016) (when “a sentencing court
imposes a sentence outside of the sentencing guidelines, the court must
provide in open court a contemporaneous statement of reasons in support of
its sentence.” (citations omitted)).
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17 We are mindful that the “Sentencing Guidelines do not apply to sentences
imposed following a revocation of probation.” Commonwealth v. Ferguson,
893 A.2d 735, 739 (Pa. Super. 2006); see also Commonwealth v. Tann,
79 A.3d 1130, 1132 (Pa. Super. 2013) (“[U]pon 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.” (citation omitted)). However, we observe the dearth of precedent
applying the Resentencing Guidelines, and that many of the same legal
precepts in cases implicating the Sentencing Guidelines apply to cases
implicating the Resentencing Guidelines. See, e.g., Commonwealth v.
Patterson,
309 A.3d 1045, 1881 EDA 2022 (Pa. Super. 2023) (unpublished
memorandum at 18-19) (in a probation revocation case implicating the
Resentencing Guidelines, citing case law implicating the Sentencing
Guidelines); see also Pa.R.A.P. 126(b) (providing this Court’s unpublished
memoranda filed after May 1, 2019, may be cited for their persuasive value).
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[W]hen deviating from the sentencing guidelines, a trial judge
must indicate that [s]he understands the suggested ranges.
However, there is no requirement that a sentencing court must
evoke “magic words” in a verbatim recitation of the guidelines
ranges to satisfy this requirement. Our law is clear that, when
imposing a sentence, the trial court has rendered a proper
“contemporaneous statement” under the mandate of the
Sentencing Code so long as the record demonstrates with clarity
that the court considered the sentencing guidelines in a rational
and systematic way and made a dispassionate decision to depart
from them.
Commonwealth v. Beatty, 227 A.3d 1277, 1288 (Pa. Super. 2020) (internal
citations and some quotation marks omitted); see also 42 Pa.C.S.A. §
9721(b).
The Resentencing Guidelines, at Section 307.2(d), provide as follows:
(d) In every case in which a court of record imposes a resentence
for a felony or misdemeanor, the court shall make as a part of
the record and disclose in open court at the time of
resentencing, a statement of the reason or reasons for the
revocation and for the resentence imposed. In every case
where a court of record imposes a resentence outside the
Resentencing Guidelines, the reason or reasons for the
deviation from the guidelines shall be recorded on the
Guideline Sentence Form, a copy of which shall be electronically
transmitted to the Pennsylvania Commission on Sentencing in the
manner described in 204 Pa. Code Chapter 303 (relating to
sentencing guidelines, 7th edition).
204 Pa. Code § 307.2(d) (emphasis added).
Instantly, at the VOP hearing, the entirety of the VOP court’s statement
of reasons for the sentence imposed is as follows:
THE COURT: I appreciate [your allocution, Appellant.] But what I
think we need to do is give you a program that … [will] be helpful
and help you in the long run. And I believe SCI[—]Waymart, as
well as the state drug treatment program, will be the best options
for you.
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N.T., 8/21/24, at 9 (formatting and punctuation modified). The VOP court
then sentenced Appellant to an aggregate term of 2½ to 5 years’
incarceration, which indisputably exceeded the standard range of the
Resentencing Guidelines. Id. At no point during the VOP hearing did the VOP
court, the parties, or the Probation Officers mention the applicable ranges of
the Resentencing Guidelines.18 See generally N.T., 8/21/24. The VOP court
neither acknowledged that its sentence constituted a deviation above the
Resentencing Guidelines, nor stated its reasons for the deviation. See
Bowen,
55 A.3d at 1264; see also
204 Pa. Code § 307.2(d).19
Further, to the extent the VOP court attempted to structure its sentence
such that Appellant’s place of incarceration would be SCI—Waymart, see N.T.,
8/21/24, at 9, Appellant correctly observes that a sentencing court “has no
authority to select which state correctional facility” will be a defendant’s place
of confinement. Appellant’s Brief at 23 (citing Commonwealth ex rel. Black
v. Superintendent, State Corr. Inst. Graterford, 439 A.2d 193 (Pa. Super.
1981)).
It is clearly established that the sentencing judge is without
authority to direct that a term of imprisonment in excess of two
years be served in a specific institution. Commonwealth ex rel.
Black …, 439 A.2d [at 194] …; 42 Pa.C.S.A. § 9762 [(governing
____________________________________________
18 The only place in the record wherein the applicable Resentencing Guidelines
are mentioned, albeit briefly, is Appellant’s PSM. PSM, 8/30/24, ¶ 6.
19 Moreover, the record does not contain a guideline sentence form. See 204
Pa. Code § 307.2(d).
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sentencing proceedings and places of confinement)]. See also
Commonwealth v. Maute, … 397 A.2d 826, 830 ([Pa. Super.]
1979).
Commonwealth v. Pulling, 470 A.2d 170, 174 (Pa. Super. 1983).
Based on the foregoing, we conclude the VOP court erred and abused
its discretion in resentencing Appellant. We therefore vacate the judgment of
sentence and agree with the VOP court “that this case [must] be remanded …
for a resentencing hearing.”20 VOP Court Statement, 11/18/24, at 1.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 5/23/2025
____________________________________________
20 Upon resentencing, the VOP court shall consider the Resentencing
Guidelines and any other information it deems relevant.
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