J-S08006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

TIMOTHY KEPHART

                            Appellant               No. 218 WDA 2016


         Appeal from the Judgment of Sentence dated January 8, 2016
              In the Court of Common Pleas of Clearfield County
             Criminal Division at No(s): CP-17-CR-0000106-2015

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.

MEMORANDUM BY SOLANO, J.:                            FILED JUNE 07, 2017

        Appellant Timothy Kephart appeals from the judgment of sentence of

seven to twenty years’ incarceration, imposed after he pleaded guilty to 96

counts of theft by failure to make required disposition of funds received.1

Appellant challenges the discretionary aspects of his sentence. We affirm.

        Appellant ran two trucking companies: (1) Dart Trucking, located in

Columbiana, Ohio; and (2) Kephart Trucking, located in Bigler, Pennsylvania.

Appellant’s criminal acts with respect to Dart Trucking resulted in federal

prosecution. The federal district court convicted Appellant of conspiracy to




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1
    18 Pa.C.S. § 3927(a).
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commit bank fraud and bank fraud for check-kiting.2             On September 30,

2013, he received a federal sentence of 46 months of incarceration.

       The charges in the instant case relate to Appellant’s misuse of Kephart

Trucking    employees’      health   insurance   and   401(k)   contributions.   The

Commonwealth charged Appellant with 584 theft-related offenses for

withholding Kephart Trucking employees’ 401(k) and medical insurance

contributions and directing those funds into the company’s general account.

On June 10, 2015, Appellant executed an open plea agreement, pleading

guilty to 96 counts of theft by failure to make required disposition of funds

as follows:

             36 counts – third degree felony (401k);

             40 counts – first-degree misdemeanor (401k);

             2 counts – second-degree misdemeanor (401k); and

             18 counts – first-degree misdemeanor (medical insurance).3

On June 15, 2015, the trial court conducted an oral plea colloquy. At that

hearing, both parties agreed that a separate hearing would be necessary to


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2
  Check kiting is the “improper manipulation of accounts to allow the account
holder to draw on funds that it did not in fact possess.”            Pioneer
Commercial Funding Corp. v. Am. Fin. Mortg. Corp., 855 A.2d 818, 823
(Pa. 2004) (footnote omitted), cert. denied, 544 U.S. 978 (2005).
3
   Theft is usually a third-degree felony when the amount involved exceeds
$2,000; a first-degree misdemeanor when the amount involved is between
$200 and $2,000; and a second-degree misdemeanor when the amount
involved is between $50 and $200. See 18 Pa.C.S. § 3903.



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resolve issues involving restitution. The Commonwealth subsequently filed

an amended information consistent with the plea agreement.

      On July 31, 2015, the trial court held a sentencing/restitution hearing.

Several employees testified about how Appellant’s actions affected them.

Appellant also testified.     The Commonwealth submitted 32 letters from

victims and their family members, and Appellant submitted letters written on

his behalf. At the conclusion of the hearing, the court imposed a sentence of

six months to two years’ incarceration for each of the first sixteen counts, to

be served consecutively to one another, for a total of eight to thirty-two

years.   The terms imposed for the remaining counts were to be served

concurrently.   Further, the state sentence was to be consecutive to

Appellant’s federal sentence. The trial court also ordered Appellant to pay

restitution to several former employees.

      On   August   10,     2015,   Appellant   filed   a    post-sentence   motion

challenging the restitution order and the length and consecutive nature of

his prison sentences.     The court scheduled a hearing for November 17,

2015, but no testimony was taken because the parties stipulated that seven

former employees would testify that they incurred unpaid medical expenses

as a result of having their insurance cancelled.            The court ordered both

parties to submit briefs on “any outstanding issues involving [Appellant]’s

Postsentence Motion.”     Order, 11/17/15.      The Commonwealth submitted a

brief, but Appellant did not. On January 8, 2016, the trial court granted the


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post-sentence motion, eliminating the restitution requirement and reducing

the prison sentence to seven to twenty years.       The court found that the

Commonwealth had not met its burden of proving a basis for restitution.

The court further explained that it reduced the maximum sentence because

the original maximum was based on the court’s desire to ensure Appellant

paid the full amount of restitution; once the restitution was eliminated, the

court no longer believed that such a long maximum was necessary. Trial Ct.

Op., 1/8/16, at 12.          After the court imposed the modified sentence,4

Appellant did not file another post-sentence motion.

       On February 5, 2016, Appellant filed a timely notice of appeal. In his

brief, Appellant raises one issue:

       While the trial court had discretion to issue consecutive
       sentences for counts 1 thru 14, the trial court’s discretion was
       not unfettered. The trial court abused its discretion by making
       the sentences for counts 1 thru 14 run consecutively for an
       aggregate sentence of 7 to 20 years in prison. The trial court’s 7
       to 20 year aggregate sentence, although within the sentencing
       guidelines, is excessive and clearly unreasonable. The trial
       court’s 7 to 20 year sentence, therefore, violates the Sentencing
       Code and its guidelines. U.S. Const. Amdts. VI, VIII, XIV; Pa.
       Const. Art. 1 § 9.

Appellant’s Brief at 6.5




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4
  Defendant agreed that he could be re-sentenced in absentia because he
was in federal custody. Trial Ct. Op., 1/8/16, at 12.
5
  Appellant has filed an application to file a reply brief.    We grant that
application.


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         Appellant’s challenge is to discretionary aspects of his sentence. This

Court has explained:

         Challenges to the discretionary aspects of sentencing do not
         entitle an appellant to appellate review as of right. Prior to
         reaching the merits of a discretionary sentencing issue:

              We conduct a four part analysis to determine: (1)
              whether appellant has filed a timely notice of appeal;
              (2) whether the issue was properly preserved at
              sentencing or in a motion to reconsider and modify
              sentence; (3) whether 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).

         Objections to the discretionary aspects of a sentence are
         generally waived if they are not raised at the sentencing hearing
         or raised in a motion to modify the sentence imposed at that
         hearing.

Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006)

(brackets, quotation marks, and some citations omitted), appeal denied,

909 A.2d 303 (Pa. 2006).

         Appellant filed a timely notice of appeal and his brief contains a Rule

2119(f) statement of reasons relied upon for allowance of an appeal. See

Appellant’s Brief at 31-33. However, Appellant did not properly preserve his

issue.

         Where a defendant’s post-sentence motion is granted and a new

sentence is imposed, the defendant must preserve any claim regarding the

modified sentence, either through a second post-sentence motion or at the

time of resentencing. In Commonwealth v. Broadie, 489 A.2d 218, 220

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(Pa. Super. 1985), appeal denied, 170 WD 1985 (Pa. Oct. 21, 1985), we

explained the value of a new post-sentence motion:

     A modified sentence constitutes a new sentence from the date of
     which the time for filing a notice of appeal will begin to run
     anew.     The same reasons that supported the filing of a
     modification motion in regard to the original sentence support
     the filing of such a motion for the new sentence. If the party
     who filed the original motion is still dissatisfied with the
     sentence, a second motion gives the sentencing court the first
     opportunity to modify the new sentence.

Id. (citation to former rule omitted); see Commonwealth v. Levy, 83 A.3d

457 (Pa. Super. 2013) (failure to file new motion after resentencing waived

right to appeal).   Nevertheless, a defendant need not file a post-sentence

motion if he or she has otherwise preserved the challenge at the sentencing

hearing.    See Commonwealth v. Jarvis, 663 A.2d 790, 792 n.4 (Pa.

Super. 1995). As the Comment to Pa.R.Crim.P. 720 explains:

           Once a sentence has been modified or reimposed pursuant
           to a motion to modify sentence . . . , a party wishing to
           challenge the decision on the motion does not have to file
           an additional motion to modify sentence in order to
           preserve an issue for appeal, as long as the issue was
           properly preserved at the time the sentence was
           modified or reimposed.

Pa.R.Crim.P. 720 cmt. (emphasis added); see Final Report of Criminal Rules

Comm., 27 Pa.B. 4549, 4558 (Aug. 22, 1997), reprinted at http://

www.pabulletin.com/secure/data/vol27/27-36/1446.html        (explaining   that




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emphasized qualifier at end of sentence was “a logical extension of the

holding in Commonwealth v. Jarvis”).6

       Here, Appellant filed a post-sentence motion after the court imposed

the initial sentence of eight to thirty-two years, plus restitution. However,

there is no indication in the record that Appellant raised his current

sentencing claim at the time he was re-sentenced7 or in a subsequent post-

sentence motion.8 Because he failed to preserve his claim with regard to the

new sentence, he waived it. See Levy, 83 A.3d at 467; Broadie, 489 A.2d

at 220.

       Even if Appellant had properly preserved his claim, he would not be

entitled to review because the question he seeks to raise is not a substantial

question, and he therefore fails to satisfy the fourth prerequisite for our

review.9 This Court has explained:

       A court’s exercise of discretion in imposing a sentence
       concurrently or consecutively does not ordinarily raise a
       substantial question. Rather, the imposition of consecutive
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6
  The 1997 amendments were made to Rule 1410 before that rule was
renumbered as Rule 720 in 2000.
7
  Appellant may not have been able to raise a challenge at the time he was
re-sentenced, given that he agreed to be re-sentenced in absentia.
8
   Indeed, Appellant expressly states he did not file a post-sentence motion
after his sentence was modified. See Am. Concise Statement of Errors,
5/31/16, at ¶ 10.
9
  The Sentencing Code, 42 Pa. C.S. § 9781(b), authorizes allowance of an
appeal “where it appears that there is a substantial question that the
sentence imposed is not appropriate under this chapter.”


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        rather than concurrent sentences will present a substantial
        question in only the most extreme circumstances, such as where
        the aggregate sentence is unduly harsh, considering the nature
        of the crimes and the length of imprisonment.

             To make it clear, a defendant may raise a
             substantial question where he receives consecutive
             sentences within the guideline ranges if the case
             involves circumstances where the application of the
             guidelines would be clearly unreasonable, resulting
             in an excessive sentence; however, a bald claim of
             excessiveness due to the consecutive nature of a
             sentence will not raise a substantial question.

Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (en

banc) (emphasis in original, and citations and quotation marks omitted),

appeal denied, 126 A.3d 1282 (Pa. 2015).

        In Commonwealth v. Dodge, 77 A.3d 1263, 1271-73 (Pa. Super.

2013), appeal denied, 91 A.3d 161 (Pa. 2014), this Court held that the

defendant raised a substantial question when he claimed that his aggregate

sentence of 40 years and 7 months to 81 years and 2 months of

incarceration was excessive based on the criminal conduct involved in his

case.    The defendant in Dodge had been convicted of forty counts of

receiving stolen property, two counts of burglary, two counts of criminal

trespass, and one count each of possession of a small amount of marijuana,

possession of drug paraphernalia, and unauthorized use of a motor vehicle.

Id. at 1266-67. We cautioned that although Dodge had raised a substantial

question in his particular case, a defendant does not raise a substantial

question “where the facts of the case [being reviewed] do not warrant the


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conclusion that there is a plausible argument that the sentence is prima facie

excessive based on the criminal conduct involved.” Id. at 1271.

      Here, Appellant was convicted of 96 counts of theft. While his crimes

were non-violent and his sentence is lengthy, his sentence is not nearly as

long as the 40-to-81-year sentence in Dodge.           Given the extent of

Appellant’s criminal conduct, we conclude that this case does not involve the

“most extreme circumstances” that would warrant a finding that he has

raised a substantial question. See Caldwell, 117 A.3d at 769.

      We therefore conclude that Appellant does not meet the requirements

for review of the trial court’s exercise of discretion in sentencing him. We

nonetheless add that even if Appellant had met those requirements, he

would not be entitled to relief.     Appellant argues that his sentence is

unreasonable based on:

      (1) the non-violent nature of [Appellant]’s actions, (2) the
      Commonwealth’s failure to show that, outside of losing their jobs
      because Kephart Trucking ultimately shuttered its operations, no
      employees suffered financial harm in connection with the 401(k)
      and/or medical insurance contributions, (3) the fact that
      [Appellant] did not financially benefit from his actions, (4)
      [Appellant]’s acknowledgment of responsibility, (5) [Appellant]’s
      expression of remorse, (6) [Appellant]’s prior record score of
      zero, (7) the fact [Appellant] had previously paid restitution in
      excess of the amount owed by voluntarily surrendering the
      entirety of his own 401(k) account, and (8) the fact [Appellant]
      is currently serving a 46-month federal prison sentence on
      conduct related to the state court charges he pled guilty to and
      are part of a continual chain of events triggered by the 2008 to
      2010 financial crisis.




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Appellant’s   Brief    at   32-33.      Appellant        was     free   to   advance      these

considerations before the trial court, but they do not require that his

sentence be vacated on appeal.

      As we have frequently explained, “[s]entencing 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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted), appeal denied, 980 A.2d 607 (Pa. 2009). In this context, “[a]n

abuse of discretion is not merely an error of judgment, but if in reaching a

conclusion the law is overridden or misapplied or the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will,

as   shown    by      the   evidence    or       the   record,    discretion      is   abused.”

Commonwealth v. Flowers, 149 A.3d 867, 873 (Pa. Super. 2016) (quoted

citation omitted).

      The Sentencing Code, 42 Pa.C.S. § 9721(b), provides that a court

should impose a sentence of 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.” See Commonwealth. v. Walls, 926 A.2d 957, 962 (Pa.

2007). Here, the trial court explained its sentence as follows:

      In regard to the sentence, the Court took into account all factors
      that were both favorable to [Appellant] and favorable to the
      Commonwealth. The Court certainly recognized that [Appellant]
      had a good record during his period of both Federal and then

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       County incarceration. Also that [Appellant] has voluntarily taken
       responsibility for his actions and shown remorse.             Any
       arguments made by both the Commonwealth and the Defense at
       [the] time of sentencing were closely listened to by the Court
       and taken into account when the sentence was fashioned. The
       Court further notes that all sentences imposed were squarely
       within the standard range of the State Sentencing Guidelines.
       For example, on the first sixteen counts of Theft by Failure to
       Make Required Disposition of Funds Received, Felony of the Third
       Degree, upon which [Appellant] received his princip[al]
       sentence, the standard range under the Sentencing Guidelines
       was RS[10] to 9 [months]. The minimum period of incarceration
       imposed on each count was 6 months. Obviously, the real
       complaint of [Appellant] was that the 16 counts were run
       consecutive to each other. However, it is strictly within the
       discretion of the sentencing Judge to determine whether the
       sentence should be imposed consecutively or concurrently.

Trial Ct. Op., 1/8/16, at 10. The court also reasoned, “[a] defendant is not

entitled to receive a ‘volume discount’ for his criminal conduct by having his

sentence[s] run concurrently simply because they are a result of one larger

criminal transaction.” Id. at 11. The trial court noted that the restitution

Appellant paid from his personal 401(k) was mandated by the Federal Court,

and Appellant had previously tried to withdraw the money for himself. Trial

Ct. Supp. Op., 6/1/16, ¶ 1. Finally, the trial court disagreed with Appellant’s

assertion that this case was related to his federal case, which involved a

different trucking company in a different state. Id.


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10
   RS is an abbreviation for Restorative Sanctions. RS “suggests use of the
least restrictive, non-confinement sentencing alternatives described in 42
Pa.C.S. § 9753 (determination of guilt without further penalty), § 9754
(order of probation) and § 9758 (fine). 42 Pa.C.S. § 9721(c) (mandatory
restitution) is also included in RS.” 204 Pa. Code § 303.9(f).


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       We agree with the trial court’s reasoning.   Accordingly, we conclude

that the trial court did not abuse its discretion or commit an error of law in

imposing sentence. See Flowers, 149 A.3d at 873; Sheller, 961 A.2d at

190.

       Application to file a reply brief granted.     Judgment of sentence

affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/2017




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