J-S20025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

JOHNNY RAY LOGSDON, JR.

                         Appellant                  No. 1251 WDA 2015


             Appeal from the Judgment of Sentence July 1, 2015
              In the Court of Common Pleas of Jefferson County
             Criminal Division at No(s): CP-33-CR-0000387-2013


BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                           FILED MARCH 29, 2016

     Appellant, Johnny Ray Logsdon, Jr., appeals from the judgment of

sentence entered on April 28, 2015 following the revocation of his probation.

We affirm.

     The certified record establishes the following factual and procedural

history. On March 5, 2014, the trial court sentenced Appellant to five years’

probation after accepting his guilty plea to one count of unauthorized use of

an access device (18 Pa.C.S.A. § 4106(a)). While serving this probationary

sentence, Appellant was convicted of new charges, including possession of a

controlled substance (35 P.S. § 780-113(a)(16)) and presenting false

identification to law enforcement officers (18 Pa.C.S.A. § 4914).    The trial

court found Appellant to be in violation of the terms of his probation and, on

August 12, 2014, modified his probationary sentence to include 60 days’


*Retired Senior Judge assigned to the Superior Court.
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incarceration in the Jefferson County Jail. Pursuant to the terms of the trial

court’s August 12, 2014 order, Appellant was to serve his sentence

“beginning August 22 through August 24, 2014 and each weekend thereafter

until his sentence [was] complete.” Trial Court Order, 8/12/14.

       On April 20, 2015, while on work release, Appellant tested positive for

opiates in violation of the conditions of his probation and the terms of his

work release.      Because of this violation, the trial court, on July 1, 2015,

docketed an order that revoked Appellant’s probation and sentenced him to

three and one-half to seven years’ imprisonment in a state correctional

facility, with credit for time served.         Gagnon Order, 7/2/15.   On July 15,

2015, Appellant filed a motion for reconsideration of his sentence, which the

court denied on that same date. Appellant filed a notice of appeal on July

30, 2015.1

       Appellant presents one issue for our review:

       Whether the trial court abused its discretion when it revoked
       Appellant’s probation and resentenced him to serve a sentence
       of incarceration in [a] [s]tate [c]orrectional [i]nstitution for a
       minimum of three and one-half (3½) years to a maximum of
       seven (7) years for [A]ppellant’s violation of probation[?]

Appellant’s Brief at 6.

____________________________________________


1
  On July 31, 2015, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(a).     On August 11, 2015, Appellant filed his concise
statement. The trial court issued its Rule 1925(a) opinion on September 25,
2015.



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       Appellant’s lone issue challenges the discretionary aspects of his

sentence.2     See Commonwealth v. Haynes, 125 A.3d 800, 806 (Pa.

Super. 2015). Pursuant to statute, Appellant does not have an automatic

right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A.

§ 9781(b).     Instead, Appellant must petition this Court for permission to

appeal the discretionary aspects of his sentence.        Id.   As this Court has

explained, in order to reach the merits of a discretionary aspects claim,

       [w]e conduct a four-part analysis to determine: (1) whether
       [the] appellant has 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. [708]; (3) whether [the] appellant’s brief has a
       fatal defect, 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. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation

omitted).

       On July 30, 2015, Appellant filed a timely notice of appeal to the

judgment of sentence issued on July 1, 2015. See Pa.R.A.P. 903(a) (“notice

of appeal required by Rule 902 (manner of taking appeal) shall be filed

within 30 days after the entry of the order from which the appeal is taken”);

Pa.R.Crim.P. 708(E) (motion to modify revocation sentence does not toll

30-day appeal period).         In addition, Appellant included within his brief a
____________________________________________


2
  By now, it is well-settled that a challenge to the discretionary aspects of a
revocation sentence represents a cognizable issue on appeal.               See
Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc).



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statement pursuant to Pa.R.A.P. 2119(f). Hence, Appellant satisfied the first

and third prongs of the foregoing test.

      The fourth prong of the foregoing test asks whether the appellant

raises a substantial question as to whether his sentence is appropriate under

the Sentencing Code. “An appellant must, pursuant to [Pa.R.A.P.] 2119(f),

articulate the manner in which the sentence violates either a specific

provision of the sentencing scheme set forth in the Sentencing Code or a

particular   fundamental     norm    underlying   the    sentencing   process.”

Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006)

(internal citations and quotations omitted). Whether a substantial question

exists focuses “on the reasons for which the appeal is sought, in contrast to

the facts underlying the appeal, which are necessary only to decide the

appeal on the merits.” Id.

      In his Rule 2119(f) statement, Appellant argues that his sentence is

unreasonable because it constituted too severe a punishment in light of the

nature of his probation violation.    Appellant also claims that the court’s

explanation for the sentence did not justify its severity. We read Appellant’s

contentions as alleging that the court failed to consider the sentencing

factors delineated in 42 Pa.C.S.A. § 9721(b).           As such, we hold that

Appellant raises a substantial question. See Cartrette, 83 A.3d 1042-1043

(claim that trial court's sentence is inconsistent with gravity of probation

violation, the need for public protection, or defendant’s rehabilitative needs


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is tantamount to assertion that sentencing court did not consider the

appropriate sentencing factors delineated in 42 Pa.C.S. § 9721(b), which

raises a substantial question).

      We now consider the second prong of the foregoing test; i.e., whether

Appellant properly preserved his discretionary sentencing challenge before

the trial court. In this case, Appellant failed to object to the discretionary

aspects of his sentence at the July 1, 2015 resentencing hearing. See N.T.,

7/1/15, at 2-4. However, on July 15, 2015, Appellant filed a post-sentence

motion seeking modification of his sentence.      The trial court denied the

motion on that same date. Under Pa.R.Crim.P. 708(E), “A motion to modify

a sentence imposed after a revocation shall be filed within 10 days of the

date of imposition.”     Pa.R.Crim.P. 708(E).   Thus, Appellant’s motion for

modification was due on or before Monday, July 13, 2015. See 1 Pa.C.S.A.

§ 1908 (computation of time). Because Appellant did not seek modification

of his sentence until July 15, 2015, his discretionary sentencing challenge is

waived since his post-sentence motion was untimely and, therefore, was not

properly preserved before the trial court. Nonetheless, even if we were to

reach the merits of Appellant’s discretionary sentencing claim, we conclude

that he is not entitled to relief.

      Appellant argues that his maximum sentence for a technical violation

is manifestly unreasonable. Specifically, he claims that the trial court failed




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to explain why a lesser sentence would not have been sufficient to vindicate

the court’s authority.

      “Sentencing is a matter vested in the sound discretion of the

sentencing judge, and a sentence will not be disturbed on appeal absent a

manifest abuse of discretion.” Commonwealth v. Clarke, 70 A.3d 1281,

1287 (Pa. Super. 2013) (citation omitted).       The sentencing court must

“follow the general principle that the sentence imposed should call for

confinement that is consistent with the protection of the public, the gravity

of the offense as it relates to the impact on the life of the victim and on the

community, and the rehabilitative needs of the defendant.”       42 Pa.C.S.A.

§ 9721(b).    In addition, in all cases where the court “resentences an

offender following revocation of probation …, the court shall make as a part

of the record, and disclose in open court at the time of sentencing, a

statement of the reason or reasons for the sentence imposed.” Id.

      In its Rule 1925(a) opinion, the trial court offered the following

explanation for imposing its sentence of three and one-half to seven years’

total confinement following Appellant’s probation violation.

      Pursuant to 42 Pa.C.S.A. § 9771(c), a sentence of total
      incarceration is warranted if it is deemed to be necessary to
      vindicate the authority of the court. As the [trial c]ourt stated
      on the record, that was the case here. [Appellant] was on work
      release – an opportunity many inmates do not enjoy – when he
      violated his probation by ingesting opiates. What he thereby
      accomplished was to convince the [c]ourt that he had no respect
      or concern for its authority. He had already violated his original
      probationary sentence and was serving weekends in the county
      jail because of it. That lesser penalty clearly did not make the

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      desired impression, though. Something more was required. And
      something more is what the [c]ourt gave [Appellant] on July 1,
      2015.
      As well as addressing the nature of the violation itself, the [trial
      c]ourt advised [Appellant] that it [] reviewed the presentence
      investigation   report    and      [considered]    his   individual
      circumstances in fashioning his sentence. In doing so, [the trial
      court] adequately articulated its reasons for the sentence, which,
      incidentally, included the boot camp recommendation he
      requested.

Trial Court Opinion, 9/25/15, at 1-2.

      We perceive no abuse of discretion in the sentence imposed by the

trial court.   Indeed, the record reflects that the court considered the

sentencing code, the circumstances of Appellant’s probation violation, a

presentence investigation report, and the individual character of the

offender. N.T., 7/1/15, at 3. Apart from boilerplate characterizations of the

sentence as “harsh” and “excessive,” Appellant does not challenge the

factual findings rendered by the court or allege that the court overlooked or

ignored relevant factors pertaining to the discretionary aspects of his

sentence. Significantly, Appellant points to no evidence that the trial court

harbored any bias, ill will, or prejudice towards him. We also bear in mind

that the court confronted a situation in which Appellant committed a second

probation violation.     As the trial court determined, Appellant’s repeat

violation   manifested   a   direct   affront   to   the   court’s   authority   and

demonstrated Appellant’s inability or unwillingness to refrain from criminal

activity, even while under judicial supervision.      In such circumstances, we




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see no grounds for finding an abuse of discretion that allows us to disturb

the trial court’s sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/2016




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