J-S04023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    CASEY MICHAEL STIDFOLE                     :
                                               :
                      Appellant                :   No. 1180 MDA 2017

      Appeal from the Judgment of Sentence Entered November 23, 2016
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0000030-2014,
              CP-41-CR-0000103-2014, CP-41-CR-0000535-2014

BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                              FILED OCTOBER 19, 2018

        Appellant, Casey Michael Stidfole, appeals from the Judgment of

Sentence entered on November 23, 2016 in the Lycoming County Court of

Common Pleas following the revocation of his probation. We affirm.

        The relevant facts and procedural history of this matter are as follows.

On June 27, 2014, Appellant entered pleas of guilty to Retail Theft, Theft by

Unlawful Taking, and Burglary.1, 2 As part of Appellant’s plea agreement, the

Commonwealth waived Appellant’s ineligibility for the State Intermediate

Punishment (“SIP”) program.             The trial court deferred sentencing for


____________________________________________


1Appellant entered guilty pleas at docket numbers 30-2014; 103-2014; and
535-2014.

2 The transcript from Appellant’s guilty plea hearing does not appear in the
record.
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Appellant to undergo an SIP program evaluation to determine his eligibility

for the program.

       On January 27, 2015, the court held a sentencing hearing,3 after which

it sentenced Appellant to complete the SIP program for his conviction of

Burglary at an unrelated docket number.4         The court also sentenced

Appellant to one year of probation for each of these three other convictions.

The court ordered Appellant to serve each of these terms of probation

consecutive to one another and consecutive to his SIP sentence. One of the

conditions of Appellant’s probation was his successful completion of the SIP

sentence.

       On August 3, 2016, the court revoked Appellant’s SIP and probation

sentences because he had been expelled from the SIP program. The court

resentenced Appellant to time-served on the crime for which it imposed SIP,

and consecutive terms of six months’ to two years’ less one day

incarceration for his Retail Theft conviction; one year of probation for his

Theft by Unlawful Taking conviction; and four years of probation for his

Burglary conviction.

       On October 27, 2016, Appellant was paroled and directed to

immediately report to the Adult Probation Office (“APO”). As conditions of

____________________________________________


3 The transcript from Appellant’s January 27, 2015 sentencing hearing is not
included in the record.

4   Docket Number 2145-2013.



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his parole and probation, the court ordered Appellant, inter alia, to report to

his AOP officer as directed, refrain from using drugs, complete the Vivitrol5

Program, complete drug treatment, and complete the Re-entry Services

Program.

       On November 4, 2016, Appellant was detained on probation and parole

violations. At a hearing on November 23, 2016, Appellant admitted that he

violated his probation and parole by using methamphetamines and cocaine.

The APO testified that Appellant failed to report for treatment and APO visits,

attempted to avoid his Vivitrol shot, and lied to his APO officer. The court,

therefore, revoked Appellant’s probation and parole and sentenced Appellant

to serve the balance of his Retail Theft sentence and a three to seven-year

term of incarceration for his Burglary conviction.        The court vacated

Appellant’s sentence of probation on his Theft by Unlawful Taking conviction,

and imposed a sentence of no further penalty.

       On December 9, 2016, Appellant filed a Motion to Reconsider Sentence

Nunc Pro Tunc, in which he alleged that the court imposed an excessive

sentence.      In particular, Appellant complained that the court failed to

“consider the loss of his best friend and his mother by homicide and its




____________________________________________


5 Vivitrol is a non-addictive extended-release injectable drug designed to
prevent opioid and alcohol dependence after detox by physiologically
reducing cravings.



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effect on him[,]” his immediate admission that he had relapsed, and the fact

that he turned himself in to the APO. See Motion, 12/9/16, at ¶¶ 5-6.

        On   December      12,   2016,    the    court   denied   Appellant’s   Motion.

Appellant did not file a direct appeal from his Judgment of Sentence.

        On March 6, 2017, the trial court entered an Order on the docket

referencing a letter Appellant had sent to the court requesting the

reinstatement of his direct appeal rights.6 The court treated this letter as a

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546, and appointed PCRA counsel.

        On April 5, 2017, counsel filed an Amended PCRA Petition.               On June

30, 2017, the PCRA court reinstated Appellant’s direct appeal rights nunc pro

tunc.     This timely appeal followed.          Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

        Appellant raises the following two issues on appeal:

        1. The [t]rial [c]ourt committed an abuse of discretion by
           imposing a manifestly excessive aggregate sentence of three
           to seven years[’] incarceration following technical supervision
           violations without properly considering the general principles
           of sentencing.

        2. The [t]rial [c]ourt committed an abuse of discretion by
           imposing a sentence of total confinement following revocation
           of Appellant’s supervision without considering the record of
           Appellant’s original sentencing proceeding in violation of 42
           Pa.C.S. § 9771(d).


____________________________________________


6   This letter does not appear in the certified record.



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Appellant’s Brief at 5.

       Appellant’s first issue challenges the discretionary aspects of his

sentence.    Challenges to the discretionary aspects of sentencing do not

entitle an appellant to review as of right, and a challenge in this regard is

properly viewed as a petition for allowance of appeal. 42 Pa.C.S. § 9781(b);

Commonwealth         v.   Tuladziecki,   522    A.2d    17,    18   (Pa.   1987);

Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000).                  An

appellant challenging the discretionary aspects of his sentence must satisfy a

four-part test. We evaluate: (1) whether Appellant filed a timely notice of

appeal; (2) whether Appellant preserved the issue at sentencing or in a

motion to reconsider and modify sentence; (3) whether Appellant’s brief

includes a concise statement of the reasons relied upon for allowance of

appeal; and (4) whether the concise statement raises a substantial question

that   the    sentence    is   appropriate   under     the    Sentencing   Code.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa. Super. 2013). An

appellant must articulate the reasons the sentencing court’s actions violated

the Sentencing Code. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.

Super. 2010); Sierra, 752 A.2d at 912–13.

       In the instant case, Appellant did not preserve the specific challenge to

the discretionary aspects of his sentence that he seeks to raise on appeal

either at sentencing or in his Motion to Reconsider Sentence. In particular,

Appellant did not raise any claim alleging an abuse of the sentencing court’s

discretion; identify how or in what manner the court violated the sentencing

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code; allege that his sentence was excessive or unreasonable; or allege that

the court failed to consider any required sentencing factor or improperly

weighed evidence. As noted supra, Appellant merely alleged that the court

failed to “consider the loss of his best friend and his mother by homicide and

its effect on him[,]” his immediate admission that he had relapsed, and that

he turned himself in to the APO. See Motion, 12/9/16, at ¶¶ 5-6.

       Given this fatal oversight, Appellant has waived this issue on appeal.

See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”).7

       In his second issue, Appellant claims that the trial court erred in not

considering the Notes of Testimony of Appellant’s original sentencing hearing

before imposing a sentence of total confinement at his revocation hearing.

____________________________________________


7 Appellant relies on Commonwealth v. Malovich, 903 A.2d 1247 (Pa.
Super. 2006), in support of his argument that he did not waive this issue on
appeal because “the record does not reveal that he was apprised on the
need to file post-sentence motions to preserve issues for appeal.”
Appellant’s Brief at 16. In Malovich, the defendant sought to challenge the
discretionary aspects of his sentence on appeal, but failed to file any post-
sentence motion preserving the claim. This Court concluded that, because
the sentencing court did not inform the defendant that he could file such a
motion, the defendant’s failure to preserve his issue in a post-sentence
motion did not result in waiver of the claim on appeal.

      Here, although the Notes of Testimony confirm that the court did not
inform Appellant that he could or should file a post-sentence motion,
Appellant did, in fact, file a Motion to Reconsider Sentence in which he
attempted to challenge the discretionary aspects of his sentence on grounds
other than those presented in his Brief to this Court. Accordingly, because
Malovich is factually inapposite, Appellant’s reliance on it is misplaced.



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Appellant’s Brief at 19-21.     We find this issue similarly waived because

Appellant did not raise it at his sentencing or in his Motion to Reconsider

Sentence.

      Moreover, even if Appellant had not waived this issue, he would not be

entitled to relief.    This Court’s review of the Notes of Testimony of

Appellant’s November 16, 2016 Sentencing Hearing reveals that the

sentencing court, which had presided over every stage of this proceeding—

from Appellant’s original guilty plea hearing to the resentencing that is the

subject of the instant appeal—ably and thoroughly considered the full history

of this matter.       See Trial Ct. Op., 10/13/17, at 7-12.          The court

acknowledged Appellant’s mental health and drug dependence issues and

noted its repeated attempts over the course of three years to assist him in

obtaining treatment by avoiding incarcerating Appellant when possible, and,

when incarceration was required, in sentencing him to county jail instead of

state prison. The court further noted its desire that Appellant “succeed in

the various programs to which he was sentenced to complete so that he

would be a healthy and productive member of society.”          Id. at 10.    The

court observed that, after so many failed efforts, Appellant “left the court

with no choice but to revoke his probation[.]” Id. Thus, we would conclude

that, in the instant case, the sentencing court did not abuse its discretion in

failing to refer specifically to the Notes of Testimony from Appellant’s original

sentencing hearing.

      Judgment of Sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2018




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