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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
GEORGE GILLARD,                            :           No. 612 EDA 2018
                                           :
                          Appellant        :


            Appeal from the Judgment of Sentence, January 5, 2017,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0010234-2010


BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED AUGUST 15, 2019

        George Gillard appeals from the January 5, 2017 judgment of sentence

entered by the Court of Common Pleas of Philadelphia County following the

revocation of his probation and imposition of a new sentence. After careful

review, we affirm.

        The trial court set forth the following procedural history:

              On October 13, 2010, [appellant] was arrested and
              charged with, inter alia, aggravated assault, criminal
              conspiracy, and possessing instruments of crime.[1]
              On May 13, 2013, [appellant] entered into a
              negotiated guilty plea and was sentenced, in accord
              with the plea agreement, to 11½ to 23 months[’]
              incarceration followed by 7 years[’] probation.

              Subsequently, while on probation, [appellant] was
              arrested in early 2015 in Delaware County on four
              counts of possession with intent to deliver

1   18 Pa.C.S.A. §§ 2702(a), 903, and 907(a), respectively.
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             (PWID)[Footnote 4]. On June 30, 2015, [appellant]
             [pled] guilty to the PWID charges and was sentenced
             to 18 to 36 months[’] incarceration followed by 1 year
             of probation.

                   [Footnote 4] Pursuant to 35 P.S. § 780-
                   113(a)(30).

             [Appellant’s violation of probation (“VOP”)] hearing
             was originally scheduled for February 11, 2015, but
             was administratively continued five[Footnote 5] times
             due to “open bills[.”] The VOP hearing was ultimately
             held on October 7, 2016, where the [trial court] found
             [appellant] in direct violation of probation, and
             revoked his probation. The [trial court] ordered a
             pre-sentence investigation (PSI) report in advance of
             sentencing.

                   [Footnote 5] Continuances occurred on:
                   February 11, 2015; July 1, 2015;
                   November 12, 2015; May 11, 2016; and
                   July 22, 2016.

             At the conclusion of his VOP sentencing hearing on
             January 5, 2017, [appellant] was sentenced to 3 to
             7 years on the initial aggravated assault charge and a
             consecutive 3 to 7 years on the criminal conspiracy
             charge, resulting in an aggregate sentence of 6 to
             14 years[’] incarceration for the direct violation of
             probation. [Appellant] filed a motion to reconsider on
             January 17, 2017, which was denied on March 29,
             2017.

             On    April   25,   2017,    [appellant]   filed   an
             untimely[Footnote 6] direct appeal to the Superior
             Court of Pennsylvania at 1634 EDA 2017.           On
             December 11, 2017, the Superior Court dismissed
             [appellant’s] direct appeal as untimely.       In the
             interim, [appellant] filed a [Post Conviction Relief
             Act2] petition on December 4, 2017, seeking
             restoration of his direct appellate rights nunc pro


2   42 Pa.C.S.A. §§ 9541-9546.


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                tunc. The [trial court] granted [appellant’s] petition
                on January 17, 2018.

                      [Footnote 6] Pursuant to Pa.R.Crim.P.
                      720(A)(3), in the event [appellant] fails to
                      file a post-sentence motion within 10 days
                      of sentencing, [appellant’s] notice of
                      appeal must be filed within 30 days of
                      sentencing.     In this case, [appellant]
                      failed to file a post-sentence motion
                      within 10 days, thus rendering his notice
                      of appeal on April 25, 2017 untimely.

                On February 7, 2018, [appellant] timely filed the
                instant appeal. On February 12, 2018, the [trial
                court] filed and served on [appellant] an order
                pursuant to Rule 1925(b) of the Pennsylvania Rules of
                Appellate Procedure, directing [appellant] to file and
                serve a statement of errors complained of on appeal
                within twenty-one days of the [trial court’s] order. On
                March 2, 2018, [appellant] timely filed his 1925(b)
                statement.

Trial   court    opinion,   8/15/18   at 1-3    (footnotes   1-3     and   extraneous

capitalization omitted). On August 15, 2018, the trial court filed an opinion

pursuant to Pa.R.A.P. 1925(a).

        Appellant raises the following issues for our review:

                1.    Was [a]ppellant’s cumulative sentence of 6 to
                      14 years[’] incarceration for a violation or [sic]
                      probation an abuse of the trial court’s
                      discretion?

                2.    Was [a]ppellant prejudiced by the lower court’s
                      failure to sentence him in a timely manner in
                      accordance with Pa.R.Crim.P. 708?

Appellant’s brief at 4.




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     In his first issue, appellant contends that the trial court abused its

discretion by imposing a manifestly excessive sentence.       (Id. at 9.)   Put

another way, appellant raises a challenge to the discretionary aspects of his

sentence.

            Challenges to the discretionary aspects of sentence
            are not appealable as of right. Commonwealth v.
            Leatherby, 116 A.3d 73, 83 (Pa.Super. 2015).
            Rather, an appellant challenging the sentencing
            court’s discretion must invoke this Court’s jurisdiction
            by (1) filing a timely notice of appeal; (2) properly
            preserving the issue at sentencing or in a motion to
            reconsider and modify the sentence; (3) complying
            with Pa.R.A.P. 2119(f), which requires a separate
            section of the brief setting forth “a concise statement
            of the reasons relied upon for allowance of appeal with
            respect to the discretionary aspects of a sentence[;]”
            and (4) presenting a substantial question that the
            sentence appealed from is not appropriate under the
            Sentencing Code. Id. (citation omitted).

Commonwealth v. Padilla-Vargas, 204 A.3d 971, 975 (Pa.Super. 2019).

     Here, appellant failed to include a separate section of his brief setting

forth a concise statement of the reasons relied upon for allowance of appeal

with respect to the discretionary aspects of a sentence and the Commonwealth

raised an objection. (Commonwealth’s brief at 5-6.) Accordingly, appellant

waives his first issue on appeal. See Commonwealth v. Kiesel, 854 A.2d

530, 533 (Pa.Super. 2004) (holding that an appellate court is precluded from

conducting appellate review if the Commonwealth objects to the omission of

a Rule 2119(f) statement).




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      In his second issue, appellant contends that appellant suffered prejudice

due to the trial court’s untimely revocation of probation and sentencing.

(Appellant’s brief at 11-12.)    Appellant’s entire argument pertaining to

prejudice is as follows: “Appellant was prejudiced by the delay because he

was unable to present witnesses on his behalf and suffered unnecessary

incarceration.” (Id. at 12.)

            [Pennsylvania Rule of Criminal       Procedure]   708
            provides in relevant part:

            (B)   Whenever     a   defendant    has   been
                  sentenced to probation or intermediate
                  punishment, or placed on parole, the
                  judge shall not revoke such probation,
                  intermediate punishment, or parole as
                  allowed by law unless there has been:

                  (1)   a hearing held as speedily as
                        possible   at    which    the
                        defendant is present and
                        represented by counsel; and

                  (2)   a finding of record that the
                        defendant violated a condition
                        of probation, intermediate
                        punishment, or parole.

            Pa. R.Crim.P. 708(B)(1), (2).

            The language “speedily as possible” has been
            interpreted to require a hearing within a reasonable
            time. Commonwealth v. Saunders, [] 575 A.2d
            936, 938 ([Pa.Super.] 1990). Rule 708 does not
            establish a presumptive period in which the
            Commonwealth must revoke probation; but instead,
            the question is whether the delay was reasonable
            under the circumstances of the specific case and
            whether the appellant was prejudiced by the delay.
            Commonwealth v. McCain, [] 467 A.2d 382, 383


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            ([Pa.Super.] 1983). The relevant period of delay is
            calculated from the date of conviction or entry of
            guilty plea to the date of the violation hearing. Id.

            In evaluating the reasonableness of a delay, the court
            examines three factors: the length of the delay; the
            reasons for the delay; and the prejudice resulting to
            the defendant from the delay. Saunders, supra.
            The court must analyze the             circumstances
            surrounding the delay to determine if the
            Commonwealth acted with diligence in scheduling the
            revocation hearing. Commonwealth v. Bischof, []
            616 A.2d 6, 8 ([Pa.Super.] 1992). Prejudice in this
            context compromises the loss of essential witnesses
            or evidence, the absence of which would obfuscate the
            determination of whether probation was violated, or
            unnecessary      restraint   of   personal     liberty.
            Commonwealth v. Marchesano, [] 544 A.2d 1333,
            1336 ([Pa.] 1988).

Commonwealth v. Clark, 847 A.2d 122, 123-124 (Pa.Super. 2004).

      Here, appellant pled guilty to PWID in Delaware County on June 30,

2015. The trial court did not hold appellant’s VOP hearing until October 7,

2016. The record, however, reflects that appellant was incarcerated for the

entire period of the delay as a result of the PWID conviction. (See trial court

opinion, 8/15/18 at 2.) Moreover, appellant did not dispute that he violated

his probation. (Notes of testimony, 10/7/16 at 6.) Therefore, we find that

appellant was not prejudiced due to an inability to present witnesses on his

behalf, nor did he suffer any prejudice due to a loss of personal liberty. See

Commonwealth v. Christmas, 995 A.2d 1259, 1264 (Pa.Super. 2010),

appeal denied, 53 A.3d 756 (Pa. 2012).        Accordingly, appellant’s second

issue is without merit.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 8/15/19




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