J-S01035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RAYMOND A. MIKELONIS

                            Appellant                  No. 1049 WDA 2014


             Appeal from the Judgment of Sentence May 28, 2014
              In the Court of Common Pleas of Clearfield County
             Criminal Division at No(s): CP-17-CR-0000325-2006


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                      FILED FEBRUARY 20, 2015

       Appellant, Raymond A. Mikelonis, appeals from the judgment of

sentence entered in the Clearfield County Court of Common Pleas, following

revocation of his probation.1 We affirm.

       In its opinion, the trial court set forth the relevant facts and procedural

history of this appeal as follows:

          On March 21, 2006, Trooper Carol Ponce of the
          Pennsylvania State Police filed a Criminal Complaint,
          charging [Appellant] with three counts of Indecent Assault
          (Person Less Than 13 Years of Age), three counts of
          Indecent Exposure, and three counts of Indecent Assault
____________________________________________


1
   Although Appellant purports to appeal from the order revoking his
probation, the appeal properly lies from the judgment of sentence imposed
following revocation of his probation. See Commonwealth v. W.H.M., Jr.,
932 A.2d 155 (Pa.Super. 2007).          (stating direct appeal in criminal
proceeding properly lies from judgment of sentence).
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       (Without the Consent of Other). The charges stemmed
       from [Appellant] touching the genitalia of three young girls
       under the age of six, as well as having the victims touch
       his penis. [Appellant] subsequently pled guilty to three
       counts of Indecent Assault and three counts of Indecent
       Exposure on June 5, 2006. On November 1, 2006, the
       [c]ourt sentenced [Appellant] to a minimum of seven
       months and a maximum of four years of incarceration,
       with an additional consecutive period of five years’
       probation. At sentencing, the [c]ourt further imposed
       conditions of his probation: Megan’s Law registration and
       absolutely no contact with the victims, [or] any child under
       the age of eighteen. Also on that day, [Appellant] was
       classified as a sexually violent predator following a hearing
       on [Appellant’s] Megan’s Law Assessment.

       []     Upon regaining his freedom from incarceration,
       [Appellant], on March 25, 2010, met with his probation
       officers. At that meeting, [Appellant] was given a form
       created by the Pennsylvania Board of Probation and Parole
       [(“Board”)] entitled “Standard Special Conditions for Sex
       Offenders—Minor Victims.” The form…set forth twenty-five
       conditions of his probation supervision.          [Appellant]
       initialed after each condition, and then signed his name at
       the     end.       According    to   these   conditions    of
       probation…[Appellant] had to provide “Probation/Parole
       Supervision Staff unlimited access to any computer or
       other wireless/electronic device in [his] possession,
       including, but not limited to, cellular phones, blackberries,
       etc., and allow Probation/Parole Supervision Staff to
       search all programs and records maintained on any
       computer or such other device in [his] possession.”
       Standard Special Conditions for Sex Offenders, ¶12.
       Additionally, [Appellant] was not permitted to “possess
       photographs or other pictures of anyone under the age of
       18 years old without prior written permission of
       Probation/Parole Supervision Staff.” Id. at ¶24.

       While [Appellant was] on probation, on September 1,
       2011, [Board] Agent Shuttlesworth…observed [Appellant’s]
       cellphone with a picture of two young boys on the screen
       during a routine visit at [Appellant’s] home. A search of
       the home was then conducted, and Agent Shuttlesworth
       found three DVDs under [Appellant’s] mattress. The items

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          were seized and turned over to local police. The police
          were able to view the contents of the DVDs and found
          forty-seven videos of pre-pubescent children, all under the
          age of eighteen, performing sexual acts.          Thereafter,
          [Appellant] was charged with sexual abuse of children
          relative to his possession of child pornography.1
              1
                [Appellant] ultimately pled guilty to these charges
              on January 5, 2012, and was sentenced in
              accordance with the plea agreement to an aggregate
              term of nine months to seven years’ incarceration.
              [Appellant] appealed [his] judgment of sentence to
              the Superior Court of Pennsylvania, which recently
              upheld the validity of [Appellant’s] guilty plea. [See]
              Commonwealth v. Mikelonis, 1505 WDA 2012[,
              unpublished memorandum (Pa.Super. filed May 9,
              2014)].

          On October 25, 2011, [Appellant] appeared before the
          [c]ourt for a probation revocation hearing due to [these]
          infractions. The [c]ourt revoked [Appellant’s] probation at
          that time and sentenced [him] to a minimum of three
          months and a maximum of five years[’ incarceration] for
          each count [of indecent exposure], with the sentence for
          each count to be served concurrently. On November 29,
          2012, [Appellant] filed [a petition] pursuant to the Post
          Conviction Relief Act [(“PCRA”)].[2] The [c]ourt denied said
          [petition] on December 28, 2012 as untimely. …

          On January 28, 2014, the Superior Court of Pennsylvania
          vacated [the PCRA c]ourt’s Order dismissing [Appellant’s]
          Petition and remanded [the] case…for [the PCRA c]ourt to
          consider any PCRA petition filed by [Appellant].2 The
          [c]ourt thereafter scheduled a PCRA hearing to be held on
          March 5, 2014.      After the PCRA hearing, the [c]ourt
          granted [Appellant’s] PCRA Petition.[3]     As such, the
          [c]ourt, with the agreement of [Appellant] and his counsel,
____________________________________________


2
    42 Pa.C.S.A. §§ 9541-9546.
3
  Preliminarily, the court determined that Appellant’s PCRA petition was
timely under the prisoner mailbox rule.



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        ordered that a new probation revocation hearing be held.
        Said revocation hearing was held on May [28], 2014, and
        after the conclusion of the evidence and testimony
        presented, the [c]ourt, for a second time, revoked
        [Appellant’s] probation. Once again, the [c]ourt sentenced
        [Appellant] to a minimum of three months and a maximum
        of five years for each of the three counts [of indecent
        exposure], with the sentence for each count to be served
        concurrently.
           2
             [See] Commonwealth v. Mikelonis, 247 WDA
           2013[, unpublished memorandum (Pa.Super. filed
           January 28, 2014)].

(Trial Court Opinion, filed August 12, 2014, at 1-4). Appellant was ordered

to serve this revocation sentence consecutively to the sentence imposed

following his guilty plea on the new offenses. Appellant filed a timely notice

of appeal on June 24, 2014. The court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b);

Appellant timely complied.

     Appellant raises the following issues for our review:

        WHETHER     THE   COURT    ERRED    IN   REVOKING
        [APPELLANT’S] PROBATION AND RESENTENCING HIM,
        WHEN THE ALLEGED PROBATION VIOLATION PROVIDING
        REASONABLE     SUSPICION   FOR   A    SEARCH   OF
        [APPELLANT’S] PREMISES RESULTING IN THE DISCOVERY
        OF EVIDENCE OF A SUBSEQUENT CRIME WAS NOT A
        CONDITION OF PROBATION IMPOSED UPON [APPELLANT]
        BY THE COURT.

        WHETHER     THE  COURT   ERRED    IN   REVOKING
        [APPELLANT’S] PROBATION AND RESENTENCING HIM,
        WHEN THE COURT FAILED TO CONSIDER [APPELLANT’S]
        ARGUMENT CHALLENGING THE LEGALITY OF THE SEARCH
        OF HIS PREMISES BY HIS PROBATION OFFICER WHICH
        UNCOVERED EVIDENCE WHICH LED TO THE FILING OF
        SUBSEQUENT CRIMINAL CHARGES AGAINST [APPELLANT].

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(Appellant’s Brief at 5).

      In his first issue, Appellant argues he did not violate the conditions of

his probation by having photos of his grandchildren on his cell phone.

Appellant asserts the conditions of his probation, which the court imposed at

sentencing, required Appellant simply to have no contact with any child

under the age of eighteen. Appellant contends that, in the absence of any

evidence of a probation violation, the probation officer lacked reasonable

suspicion to perform a search of Appellant’s home.         Appellant avers the

revocation of his probation resulted from his conviction for possession of

child pornography, which was based on evidence the probation officer

recovered during the allegedly unlawful search of Appellant’s residence.

Although Appellant pled guilty to the child pornography charges, he suggests

the plea was uninformed and claims plea counsel was ineffective for failing

to challenge the search of the residence.    Appellant argues that if counsel

had successfully brought a motion to suppress the evidence, the outcome of

that case, and by extension the current probation revocation proceedings,

would have been different.     Appellant concludes the court erred when it

revoked Appellant’s probation. We disagree.

      The Sentencing Code provides as follows with respect to a court’s

authority to attach conditions to an order of probation:

         § 9754. Order of probation

         (a)   General rule.—In imposing an order of probation

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        the court shall specify at the time of sentencing the length
        of any term during which the defendant is to be
        supervised, which term may not exceed the maximum
        term for which the defendant could be confined, and the
        authority that shall conduct the supervision.

        (b) Conditions generally.—The court shall attach such
        of the reasonable conditions authorized by subsection (c)
        of this section as it deems necessary to insure or assist the
        defendant in leading a law-abiding life.

42 Pa.C.S.A. § 9754(a)-(b). Subsection (c) enumerates fourteen conditions

a sentencing court may impose upon a defendant when it imposes probation,

including a catchall of “any other conditions reasonably related to the

rehabilitation of the defendant and not unduly restrictive of his liberty or

incompatible with his freedom of conscience.”      Id. § 9754(c)(13).    The

“[Pennsylvania] Board [of Probation and Parole] or its agents may impose

more specific conditions of supervision pertaining to that probation, so long

as those supervision conditions are in furtherance of the trial court’s

conditions of probation.” Commonwealth v. Elliott, 616 Pa. 524, 536-37,

50 A.3d 1284, 1292 (2012).

     “Revocation of a probation sentence is a matter committed to the

sound discretion of the trial court and that court’s decision will not be

disturbed on appeal in the absence of an error of law or an abuse of

discretion.” Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa.Super.

2007), appeal denied, 596 Pa. 729, 945 A.2d 169 (2008). The Sentencing

Code permits a court to revoke an order of probation under the following

circumstances:

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         § 9771.      Modification or revocation of order of
         probation

         (a) General rule.—The court may at any time terminate
         continued supervision or lessen or increase the conditions
         upon which an order of probation has been imposed.

         (b) Revocation.—The court may revoke an order of
         probation upon proof of the violation of specified conditions
         of the probation.       Upon revocation the sentencing
         alternatives available to the court shall be the same as
         were available at the time of initial sentencing, due
         consideration being given to the time spent serving the
         order of probation.

         (c) Limitation on sentence of total confinement.—
         The court shall not impose a sentence of total confinement
         upon revocation unless it finds that:

            (1) the defendant has been convicted of another
            crime; or

            (2) the conduct of the defendant indicates that it is
            likely that he will commit another crime if he is not
            imprisoned; or

            (3) such a sentence is essential to vindicate the
            authority of the court.

42 Pa.C.S.A. § 9771(a)-(c). Whether the probationer, in fact, violated the

conditions of his probation must be demonstrated by evidence of probative

value.   Commonwealth v. Sims, 770 A.2d 346 (Pa.Super. 2001).            The

Commonwealth bears a lesser burden of proof at a probation revocation

hearing than it does in a criminal trial. Commonwealth v. Allshouse, 969

A.2d 1236 (Pa.Super. 2009). “The Commonwealth establishes a probation

violation meriting revocation when it shows, by a preponderance of the

evidence, that the probationer’s conduct violated the terms and conditions of

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his probation, and that probation has proven an ineffective rehabilitation tool

incapable   of   deterring   probationer       from   future   antisocial   conduct.”

Perreault, supra at 558.        “[A]n implied condition of any sentence of

probation is that the defendant will not commit a further offense.”

Commonwealth v. Infante, 585 Pa. 408, 420, 888 A.2d 783, 790 (2005)

(quoting Commonwealth v. Mallon, 406 A.2d 569, 571 (Pa.Super. 1979)).

      A revocation hearing need not “be conducted with the same procedural

and evidentiary rules as would apply to a trial on the criminal charges

growing out of the same facts.”      Commonwealth v. Kates, 452 Pa. 102,

118, 305 A.2d 701, 710 (1973). “In this area of rights of probationers and

parolees the controlling factor is not whether the traditional rules of evidence

or procedure including Fourth and Fifth Amendment exclusionary rules, have

been strictly observed, but rather whether the probative value of the

evidence has been affected.”       Id.   See also Commonwealth v. Holder,

569 Pa. 474, 482 n.7, 805 A.2d 499, 504 n.7 (2002) (stating that in

revocation hearing, “probationer…is not entitled to strict application of the

rules of evidence or procedure, including the Fourth and Fifth Amendment

exclusionary rules”); Commonwealth v. Lehman, 851 A.2d 941 (Pa.Super.

2004) (holding that in context of probation violation hearings and application

of exclusionary rule, Pennsylvania Constitution affords no greater protection

than does federal constitution).

      Instantly, the trial court reasoned as follows with respect to the


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validity of the conditions the Board imposed on Appellant’s probation:

        The provisions outlined in the Standard Special Conditions
        for Sex Offenders, which were imposed upon [Appellant]
        by the probation office, are permissible conditions of
        supervision and are derivative of the [c]ourt’s condition of
        probation that [Appellant] not have contact with minors.
        This general condition was imposed by the [c]ourt at
        [Appellant’s] sentencing on November 1, 2006. Thus, the
        [c]ourt believes that the provisions in the Standard Special
        Conditions were lawfully imposed upon [Appellant] by the
        probation office.

(Trial Court Opinion at 5). We agree. Appellant’s focus on the trial court’s

condition that Appellant avoid contact with minor children ignores the

Board’s more specific requirement that Appellant not possess photographs of

any minors without prior written permission.       This requirement was in

furtherance of the court’s general condition of probation that Appellant not

have contact with minors.    Therefore, the Board’s condition of probation

prohibiting Appellant from possessing photographs of minors was valid. See

42 Pa.C.S.A. § 9754; Elliott, supra.         Moreover, the photograph on

Appellant’s cell phone was not the only evidence of a probation violation.

During a subsequent search of the residence, Agent Shuttlesworth found

under Appellant’s mattress three DVDs containing child pornography. At the

time of the revocation hearing on May 28, 2014, Appellant had pled guilty, in

a new criminal case, to forty-seven counts of sexual abuse of children in

connection with the child pornography recovered from his home. This Court

had determined the guilty plea was valid and affirmed Appellant’s judgment

of sentence on May 9, 2014.        Appellant’s commission of a new crime

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provided a sufficient basis for the court to revoke his sentence of probation.

See Infante, supra.         Accordingly, the revocation of Appellant’s probation

was supported by sufficient probative evidence.4           See Sims, supra;

Perreault, supra.

       In his second issue, Appellant argues he presented testimony at the

revocation hearing that he had already served four years in prison for his

original offenses. Appellant asserts that during his first year of probation, he

successfully participated in a sex-offender rehabilitation program. In light of

these factors, Appellant contends his “technical” violation of probation, i.e.,

the photographs of Appellant’s grandsons on his cell phone, would have

been insufficient, on its own, to support revocation of probation. Appellant

further claims the subsequently discovered evidence of child pornography

DVDs had limited probative value in the revocation proceedings. Appellant

insists the court improperly focused on the fact that Appellant did not

challenge the admissibility of this evidence in the separate criminal case;

and the court failed to consider factors supporting a lesser sanction than

____________________________________________


4
  With respect to Appellant’s assertion that the search of his residence was
unsupported by reasonable suspicion, Appellant was not entitled to
application of the exclusionary rule at the probation revocation hearing. See
Holder, supra; Lehman, supra. In any event, Appellant pled guilty to
sexual abuse of children in new criminal proceedings based on the evidence
recovered during the search, and this Court subsequently affirmed the
judgment of sentence. To the extent Appellant challenges the validity of his
guilty plea or plea counsel’s stewardship in that case, those issues relate to
Appellant’s separate criminal case, which is not presently before us.



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revocation and total confinement. Appellant likewise argues the revocation

proceeding was fundamentally unfair, because the court failed to give due

consideration to all possible alternatives to incarceration.    Appellant insists

the revocation hearing was simply a procedural formality and its outcome

was a foregone conclusion. Appellant concludes this Court should vacate his

revocation sentence.      As presented, Appellant’s challenge is to the

discretionary aspects of his sentence. See Commonwealth v. Lutes, 793

A.2d 949 (Pa.Super. 2002) (stating claim that sentence is manifestly

excessive challenges discretionary aspects of sentencing); Commonwealth

v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa.

653, 676 A.2d 1195 (1996) (stating claim that court did not consider certain

mitigating factors challenges discretionary aspects of sentencing).

      When reviewing the outcome of a revocation hearing, this Court is

limited to determining the validity of the proceeding and the legality of the

judgment of sentence imposed.      Commonwealth v. Heilman, 876 A.2d

1021 (Pa.Super. 2005).       Notwithstanding the stated scope of review

suggesting only the legality of a sentence is reviewable, an appellant may

also challenge the discretionary aspects of a sentence imposed following

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

See also Commonwealth v. Cartrette, 83 A.3d 1030 (en banc) (Pa.Super.

2013) (stating reviewing court’s scope of review in appeal from revocation

sentence includes discretionary sentencing challenges).        Challenges to the


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discretionary aspects of sentencing do not entitle an appellant to an appeal

as of right.   Sierra, supra.      Importantly, objections to the discretionary

aspects of a sentence are generally waived if they are not raised at the

sentencing     hearing   or   in    a    timely    filed    post-sentence     motion.

Commonwealth        v.   Hartman,        908      A.2d     316   (Pa.Super.   2006).

Additionally, when appealing the discretionary aspects of a sentence, an

appellant must invoke the appellate court’s jurisdiction by including in his

brief a separate concise statement demonstrating a substantial question as

to the appropriateness of the sentence under the Sentencing Code.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.

2119(f).   If an appellant fails to include a Rule 2119(f) statement but the

Commonwealth does not object, the reviewing court can ignore the omission

and determine if the appellant raised a substantial question as to the

discretionary aspects of his sentence.         Commonwealth v. Stewart, 867

A.2d 589 (Pa.Super. 2005).

      Instantly, Appellant failed to object to his revocation sentence at

imposition or to file a post-sentence motion.                Therefore, Appellant’s

challenge to the discretionary aspects of his sentence is waived.                See

Hartman, supra. Moreover, Appellant’s bald claim that the court ignored

certain factors does not raise a substantial question.           See Cruz-Centeno,

supra (stating allegation that sentencing court failed to consider or did not

adequately consider certain factors does not raise substantial question). To


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the extent Appellant argues his sentence was manifestly excessive, absent

more, this claim also fails to present a substantial question. See Mouzon,

supra (explaining bald allegations of excessiveness do not raise substantial

question).    See also Commonwealth v. Carrillo-Diaz, 64 A.3d 722

(Pa.Super. 2013) (holding record showed court conducted proper pre-

sentence inquiry and considered relevant sentencing factors following

revocation of appellant’s probation, where same judge sat for appellant’s

plea hearing, original sentencing, and probation revocation hearing and

resentencing; at revocation sentencing, court heard from appellant, defense

counsel, and Commonwealth’s attorney regarding factors relevant to

sentencing decision).     Based on the foregoing, we conclude Appellant’s

revocation sentence should remain undisturbed. Accordingly, we affirm.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2015




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