J-S60005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

HARVEY PATRICK SHORT,

                            Appellant                No. 3496 EDA 2015


           Appeal from the Judgment of Sentence October 20, 2015
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0001152-2011


BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED October 6, 2016

       Appellant, Harvey Patrick Short, appeals from the judgment of

sentence entered on October 20, 2015, following the revocation of his

probation. We affirm.

       The trial court set forth the relevant facts and procedural background

of this matter as follows:

             On May 9, 2011[, Appellant] entered a nolo contendere
       plea to the charge of Robbery. The Court sentenced [Appellant]
       to 18 to 36 months imprisonment in a state correctional facility
       followed by 7 years consecutive state probation. [Appellant]
       maxed out his jail time and was released on probation on
       February 26, 2014. On August 31, 2015[, Appellant] plead
       guilty in a new case to Criminal Attempt, Theft from Motor
       Vehicle and Criminal Mischief. He was sentenced to time served

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       to 23 months confinement along with a year of probation on that
       case.

       On October 20, 2015 after a Gagnon II hearing,[1] the Court
       found [Appellant] guilty of violating the terms of his probation
       and sentenced him to one to four years in a state correctional
       facility. [Appellant] filed a timely appeal.   In his rambling
       1925(b) statement [Appellant] alleges numerous procedural
       defects which he asserts entitles him to have his sentence
       vacated. [Appellant’s] contentions lack merit.



____________________________________________


1
    This Court has explained Gagnon hearings as follows:

       In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36
       L.Ed.2d 656 (1973), the United States Supreme Court held that
       a defendant accused of violating the terms of his probation is
       entitled to two hearings prior to formal revocation and re-
       sentencing.

              When a parolee or probationer is detained pending a
              revocation hearing, due process requires a
              determination at a pre-revocation hearing, a
              Gagnon I hearing, that probable cause exists to
              believe that a violation has been committed. Where
              a finding of probable cause is made, a second, more
              comprehensive hearing, a Gagnon II hearing, is
              required before a final revocation decision can be
              made.

       Commonwealth v. Sims, 770 A.2d 346, 349 (Pa.Super.2001).
       The Gagnon II hearing requires two inquiries: (1) whether the
       probationer has in fact violated one of the conditions of his
       probation, and, if so, (2) should the probationer “be recommitted
       to prison or should other steps be taken to protect society and
       improve chances of rehabilitation.” Id. (quoting Gagnon, supra
       at 784, 93 S.Ct. 1756).

Commonwealth v. Heilman, 876 A.2d 1021, 1026-1027 (Pa. Super.
2005).



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Trial Court Opinion, 1/19/16, at 1-2 (internal footnote omitted) (footnote

added).

       While it appears that Appellant was represented by counsel throughout

the revocation and resentencing process, Appellant filed a pro se post-

sentence motion to modify sentence on October 28, 2015.             It is not clear

from   the   record   if   this   motion   was   forwarded   to   counsel.    See

Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) (holding that

where a criminal defendant is represented by counsel, “the proper response

to any pro se pleading is [for the court] to refer the pleading to counsel, and

to take no further action on the pro se pleading unless counsel forwards a

motion”).    However, there is no counseled post-sentence motion in the

record and no order disposing of a post-sentence motion.

       On November 18, 2015, Appellant filed a timely pro se notice of

appeal.   That same day, the trial court ordered Appellant to file a concise

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

The docket indicates that the trial court served this order on Appellant’s

counsel of record, Attorney Dawn Sutphin.          Appellant filed his Pa.R.A.P.

statement pro se on November 30, 2015. Ultimately on February 10, 2016,

the trial court appointed current counsel, Attorney Joseph Lesniak, to

represent Appellant in the instant appeal; however, Attorney Lesniak did not

seek permission to file a post-sentence motion nunc pro tunc or pursue a

motion to file an amended Pa.R.A.P. 1925(b) statement.


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      In this appeal, Appellant presents a single issue in his counseled brief:

      Whether the trial court erred because the record failed to
      indicate any cognizance or consideration of the statutory
      sentencing criteria, rendering the sentence illegal, and harsh and
      excessive under the circumstances?

Appellant’s Brief at 5 (full italicization omitted).

      Our standard of review is well settled:

             When we consider an appeal from a sentence imposed
      following the revocation of probation, our review is limited to
      determining the validity of the probation revocation proceedings
      and the authority of the sentencing court to consider the same
      sentencing alternatives that it had at the time of the initial
      sentencing. 42 Pa.C.S. § 9771(b). Commonwealth v. Fish,
      752 A.2d 921, 923 (Pa. Super. 2000). 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. McNeal, 120 A.3d 313, 322 (Pa. Super. 2015) (internal

quotation marks omitted).

      On review, it appears that Appellant’s issue is, in fact, two issues.

Appellant challenges both the legality and the discretionary aspects of his

sentence following the revocation of probation.        We point out that no

argument concerning the legality of the sentence is developed in Appellant’s

brief; however, because the legality of a sentence is non-waivable and may

be addressed by this Court sua sponte, Commonwealth v. Watley, 81

A.3d 108, 118 (Pa. Super. 2013), we shall, in an abundance of caution,

address the legality of Appellant’s sentence.




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      “When we address the legality of a sentence, our standard of review is

plenary and is limited to determining whether the trial court erred as a

matter of law.” Commonwealth v. Bowers, 25 A.3d 349, 352 (Pa. Super.

2011) (citation omitted). “A challenge to the legality of a sentence may be

raised as a matter of right, is not subject to waiver, and may be entertained

as long as the reviewing court has jurisdiction.” Id. (citation omitted). “If

no statutory authorization exists for a particular sentence, that sentence is

illegal and subject to correction. An illegal sentence must be vacated.” Id.

(citation omitted).

      Here, Appellant was convicted of robbery graded as a felony of the

first degree. As noted above, the trial court sentenced Appellant to a term

of eighteen to thirty-six months of incarceration followed by seven years of

probation. At the time of resentencing following revocation of probation, the

sentencing court is limited only by the maximum sentence it could have

ordered   at    the   time   it   imposed   in   the   sentence   of   probation.

Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001).

Additionally,

      Subsequent to revocation of probation, the sentencing court has
      available to it all the options permissible at the time of initial
      sentencing, giving due consideration “to the time spent serving
      the order of probation.” 42 Pa.C.S. § 9771(b). As long as the
      new sentence imposed does not exceed the statutory maximum
      when factoring in the incarcerated time already served, the
      sentence is not illegal.




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Commonwealth v. Crump, 995 A.2d 1280, 1285 (Pa. Super. 2010)

(citation omitted).        A first-degree felony carries a statutory maximum

sentence of twenty years. 18 Pa.C.S. § 1103(1). Thus, because Appellant

had already served three years of imprisonment, the trial court could have

imposed the statutory maximum sentence of eight and one-half to

seventeen years of incarceration. Therefore, the imposition of a twelve-to-

forty-eight-month sentence at the time of revocation was well within the

statutory limits. Accordingly, Appellant’s sentence was legal, and there was

no error of law.

      Next, Appellant argues that his sentence was excessive and that the

sentencing court failed to consider factors set forth in 42 Pa.C.S. § 9771

concerning sentences imposed following the revocation of probation. These

issues are challenges to the discretionary aspects of Appellant’s sentence.

Commonwealth          v.    Malovich,   903    A.2d   1247   (Pa.   Super.   2006);

Commonwealth v. Lutes, 793 A.2d 949 (Pa. Super. 2002).

      As this Court clarified in Commonwealth v. Cartrette, 83 A.3d 1030

(Pa. Super. 2013), our scope of review following the revocation of probation

is not limited solely to determining the validity of the probation revocation

proceedings and the authority of the sentencing court to consider the same

sentencing alternatives that it had at the time of the initial sentencing.

Rather, it also includes challenges to the discretionary aspects of the

sentence imposed.          Specifically, we unequivocally held that “this Court’s


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scope of review in an appeal from a revocation sentencing includes

discretionary sentencing challenges.” Cartrette, 83 A.3d at 1034. Further,

as we have long held, the imposition of sentence following the revocation of

probation is vested within the sound discretion of the trial court, which,

absent an abuse of that discretion, will not be disturbed on appeal.

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).

     It is well settled that there is no absolute right to appeal the

discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d

800, 805 (Pa. Super. 2006).     Rather, where an appellant challenges the

discretionary aspects of a sentence, the appeal should be considered a

petition for allowance of appeal.   Commonwealth v. W.H.M., 932 A.2d

155, 163 (Pa. Super. 2007).

     As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

     An appellant challenging the discretionary aspects of his
     sentence must invoke this Court’s jurisdiction by satisfying a
     four-part test:

           [W]e conduct a four-part analysis to determine: (1)
           whether 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 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).




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Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).

     Pennsylvania Rule of Appellate Procedure 302(a) provides that “issues

not raised in the lower court are waived and cannot be raised for the first

time on appeal.” Pa.R.A.P. 302(a). Objections to the discretionary aspects

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

hearing or in a motion to modify the sentence imposed. Moury, 992 A.2d at

170 (citing Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003)). In

addition, Pa.R.Crim.P. 708 provides that a motion to modify sentence must

be filed within ten days of the imposition of sentence following the

revocation of probation.       Pa.R.Crim.P. 708(D).   As the comment to

Pa.R.Crim.P. 708 explains:

     Issues properly preserved at the sentencing proceeding need
     not, but may, be raised again in a motion to modify sentence in
     order to preserve them for appeal. In deciding whether to move
     to modify sentence, counsel must carefully consider whether the
     record created at the sentencing proceeding is adequate for
     appellate review of the issues, or the issues may be waived.

Pa.R.Crim.P. 708 cmt.     Thus, an objection to a discretionary aspect of a

sentence is waived if not raised in a post-sentence motion or during the

sentencing proceedings.      See Commonwealth v. Parker, 847 A.2d 745

(Pa. Super. 2004) (holding challenge to discretionary aspect of sentence was

waived because appellant did not object at sentencing hearing or file post-

sentence motion).




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       Herein, the first requirement of the four-part test is met because

Appellant brought a timely appeal.             However, our review of the certified

record reflects that Appellant waived his challenge to the discretionary

aspects of his sentence by failing to raise the claim either at the sentencing

proceeding or by means of a post-sentence motion.                 As noted above,

Appellant filed a pro se post-sentence motion; however, because he was

represented by counsel, that pro se motion was of no effect.                   See

Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007)

(providing that a defendant’s pro se filings while represented by counsel are

legal nullities).2 Moreover, once current counsel was appointed, he did not

file a petition seeking permission to file a post-sentence motions nunc pro



____________________________________________


2
  Assuming, arguendo, that we were to find that Appellant’s pro se post-
sentence motion properly preserved his challenge to the discretionary
aspects of his sentence, we would conclude that no relief is due. In the pro
se motion filed on October 28, 2015, Appellant alleges that the trial court, in
violation of Pa.R.Crim.P. 708(D)(2), failed to state its reasons for the
sentence imposed. While this allegation could arguably be construed as
presenting a substantial question, were it considered in conjunction with the
standards set forth in 42 Pa.C.S. § 9721 (which was not raised), the issue is
meritless. The trial court, who was personally involved at different phases of
Appellant’s case, took care to evaluate the facts and Appellant’s history and
crafted a sentence that focused on Appellant’s mental health needs. N.T.,
10/20/15, at 8-12. Moreover, the sentencing court’s statement of reasons
for a sentence imposed after probation revocation need not be as lengthy or
elaborate as the reasons announced at the defendant’s initial sentencing
because the judge is already fully informed of the circumstances of the crime
and the nature of the defendant. Commonwealth v. Pasture, 107 A.3d
21, 28 (Pa. 2014).



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tunc. Accordingly, Appellant has not preserved this challenge, and we deem

this issue to be waived.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2016




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