J-S70018-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                 Appellee               :
                                        :
           v.                           :
                                        :
JEREMY BAILEY,                          :
                                        :
                 Appellant              :   No. 1885 EDA 2014

           Appeal from the Judgment of Sentence May 21, 2014,
               Court of Common Pleas, Philadelphia County,
            Criminal Division at No(s): CP-51-CR-0004233-2007
                       and CP-51-CR-0020375-2011

BEFORE: DONOHUE, LAZARUS and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED DECEMBER 04, 2015

     Appellant, Jeremy Bailey (“Bailey”), appeals from the judgment of

sentence entered on May 21, 2014 by the Court of Common Pleas of

Philadelphia County, Criminal Division. We affirm.

     As this appeal stems from the numerous revocations of Bailey’s parole

and probation, an overview of the facts underlying his various convictions is

unnecessary. We summarize the relevant procedural history of this case as

follows. On June 3, 2008, Bailey pled guilty to aggravated assault, criminal

conspiracy, and possessing an instrument of crime at docket number CP-51-

CR-0004233-2007 (“2008 convictions”). On August 12, 2008, the trial court

sentenced Bailey to time served to twenty-three months of incarceration

followed by five years of probation on the aggravated assault charge and to

a concurrent term of time served to twenty-three months of incarceration



*Retired Senior Judge assigned to the Superior Court.
J-S70018-15


followed by five years of probation on the possessing an instrument of crime

charge. Bailey did not file an appeal.

      On June 27, 2011, Bailey pled guilty to possession of a controlled

substance at docket number MC-51-CR-0020375-2011 (“2011 conviction”).

The trial court sentenced Bailey to six to twenty-three months of

incarceration. The same day, the trial court found Bailey in violation of his

parole and anticipatory violation of his probation for his 2008 convictions.

The trial court sentenced Bailey to the remaining balance of his sentence for

his 2008 convictions, concurrent with the sentence for his 2011 conviction,

followed by five years of probation. On February 27, 2012, the trial court

granted Bailey’s request for early parole.

      On September 20, 2012, after determining that Bailey was in technical

violation of his probation and parole, the trial court revoked his probation for

his 2008 convictions and his parole for his 2011 conviction. On November

14, 2012, the trial court sentenced Bailey to three to twenty-three months of

incarceration with immediate parole, followed by two years of probation for

violating the probation for his 2008 convictions. For violating the parole of

his 2011 conviction, the trial court sentenced Bailey to a concurrent term of

three to twelve months of incarceration with immediate parole.

      On May 14, 2013, Bailey was again arrested, this time charged with

theft by unlawful taking, possession of firearm prohibited firearms not to be

carried without a license; carrying firearms in public in Philadelphia, and



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receiving stolen property.   On May 22, 2013, the Commonwealth filed a

motion for a violation of probation hearing.   On March 10, 2014, the trial

court held a violation of probation hearing, at the conclusion of which it

found Bailey in violation of his probation for his 2008 convictions. On May

21, 2014, the trial court revoked his probation and parole for his 2008

convictions and sentenced him to eleven and a half to twenty-three months

of incarceration, followed by ten years of probation. The same day, the trial

court terminated Bailey’s parole for his 2011 conviction, but did not impose

a sentence with respect to the 2011 conviction.

      On June 17, 2014, Bailey filed a timely notice of appeal. On July 30,

2014, the trial court ordered Bailey to file a concise statement of the errors

complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules

of Appellate Procedure.    On August 20, 2014, Bailey’s appointed counsel

filed a statement of intent to file an Anders/McClendon brief pursuant Rule

1925(c)(4). On November 25, 2014, Bailey’s appointed counsel filed in this

Court a “Petition to Vacate Briefing Schedule and to Remand for Filing of

Statement of Errors and Lower Court Opinion Pursuant to Rule 1925.” On

December 18, 2014, this Court granted Bailey’s petition and remanded the

case to the trial court for Bailey to file a Rule 1925(b) statement.       On

December 24, 2014, Bailey filed his Rule 1925(b) statement.

      On appeal, Bailey raises the following issues for our review:




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             1. With regard[] to [the 2011 conviction], where
             [Bailey] was originally sentenced to a term of
             incarceration and no term of probation, then found in
             violation of his parole and sentenced to an entirely
             new term of incarceration, and then again found in
             violation of supervision, was not the most recent
             sentence illegal and the revocation of that sentence
             based upon insufficient evidence           since the
             Commonwealth failed to prove that the defendant
             was lawfully under supervision at the time of the
             most recent alleged violations of supervision?

             2. With regard[] to [the 2008 convictions], did not
             the lower court consider an impermissible factor
             (i.e., that [Bailey] violated supervision in [the 2011
             conviction] where the sentence in that case was
             illegal and insufficient evidence was presented to
             prove a violation of that sentence) in fashioning the
             most recent revocation sentence for [the 2008
             convictions], and does not the recognition that the
             lower court erred in finding [Bailey] in violation of his
             supervision in [the 2011 conviction] upset the
             sentencing scheme such that resentencing is
             required for [the 2008 convictions]?

Bailey’s Brief at 4.

      We begin by acknowledging the following standard of review of a trial

court’s decision to revoke a defendant’s parole:

                [T]he purposes of a court’s parole-revocation
             hearing – the revocation court’s tasks – are to
             determine whether the parolee violated parole and, if
             so, whether parole remains a viable means of
             rehabilitating the defendant and deterring future
             antisocial conduct, or whether revocation, and thus
             recommitment, are in order. The Commonwealth
             must prove the violation by a preponderance of the
             evidence and, once it does so, the decision to revoke
             parole is a matter for the court’s discretion. In the
             exercise of that discretion, a conviction for a new
             crime is a legally sufficient basis to revoke parole.



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                Following parole revocation and recommitment,
             the proper issue on appeal is whether the revocation
             court erred, as a matter of law, in deciding to revoke
             parole and, therefore, to recommit the defendant to
             confinement.

Commonwealth v. Kalichak, 943 A.2d 285, 290-91 (Pa. Super. 2008)

(citations omitted).

        For his first issue on appeal, Bailey argues that the trial court erred

when it most recently revoked his parole for his 2011 conviction on May 21,

2014.    See Bailey’s Brief at 10-14.   Bailey contends that the sentence he

received on November 14, 2012, which was the first time the trial court

revoked his parole      for   his 2011 conviction, was illegal.       See id.

Consequently, Bailey asserts that because the November 14, 2012 sentence

was illegal, the Commonwealth could not sustain its burden of proving that

he was under supervision for his 2011 conviction when he committed the

crimes that led to the May 21, 2014 revocation. See id.

        We conclude that this argument does not entitle Bailey to relief.

Bailey is correct that when the trial court revoked his parole for his 2011

conviction on November 14, 2012, the trial court could only recommit him to

serve the remaining unserved portion of his original sentence in that case.

See Commonwealth v. Melius, 100 A.3d 682, 686 (Pa. Super. 2014).1




1
  In Melius, our Court explained the following regarding the revocation of
parole:


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However, the sentence that the trial court imposed on May 21, 2014 of

eleven and a half to twenty-three months of incarceration followed by ten

years of probation stemmed from the revocation of his probation for his

2008 convictions.    The trial court did not impose that sentence for the

revocation of his parole for his 2011 conviction.

      The certified record reflects that on September 20, 2012, the trial

court revoked Bailey’s probation for his 2008 convictions and his parole for

his 2011 conviction.    On November 14, 2012, the trial court sentenced

Bailey to three to twenty-three months of incarceration with immediate

parole, followed by two years of probation on his 2008 convictions.     See

Trial Court Order (2008 convictions), 11/14/12.        The trial court also

sentenced Bailey on his 2011 conviction to a concurrent term of three to


            “[A] parole revocation does not involve the
            imposition of a new sentence.” [Kalichak, 943 A.2d
            at 290] (citing Commonwealth v. Mitchell, [] 632
            A.2d 934, 936 ([Pa. Super.] 1993)). “Rather, the
            only option for a court that decides to revoke parole
            is to recommit the defendant to serve the already-
            imposed, original sentence.         At some point
            thereafter, the defendant may again be paroled.”
            Id. (internal citations and footnote omitted); see
            also Commonwealth v. Galletta, 864 A.2d 532,
            538 (Pa. Super. 2004) (finding that in a violation of
            parole, the court is not free to impose a new
            sentence); Commonwealth v. Ware, 737 A.2d
            251, 253 (Pa. Super. 1999) (holding that “upon
            revocation of parole, the only sentencing option
            available is recommitment to serve the balance of
            the term initially imposed”).

Melius, 100 A.3d at 686.


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twelve months of incarceration with immediate parole, see Trial Court Order

(2011 conviction), 11/14/12, which Bailey argues was an illegal sentence.

See Bailey’s Brief at 10-14.

      The certified record further reflects that on May 13, 2013, Bailey was

again arrested and charged with multiple firearms offenses, unauthorized

use of a motor vehicle, and other crimes in yet another case, which gave

rise to the instant revocation and re-sentencing proceedings that are the

subject of this appeal. As a result of this arrest, on May 21, 2014, the trial

court revoked Bailey’s probation and parole for his 2008 convictions and

sentenced him to eleven and a half to twenty-three months of incarceration,

followed by ten years of probation.         See Trial Court Order (2008

convictions), 5/21/14. On the same date, the trial court entered an order

terminating his parole for his 2011 conviction, but did not impose any

sentence on his 2011 conviction. See Trial Court Order (2011 conviction),

5/21/14.

      Therefore, assuming, arguendo, that the November 14, 2012 sentence

of three to twelve months of incarceration following the first revocation of

Bailey’s parole on his 2011 conviction was illegal, the alleged illegality of

that sentence had no bearing on the sentence that is the subject of this

appeal – the sentence of eleven and a half to twenty-three months of

incarceration, followed by ten years of probation for violating the probation

of his 2008 convictions. Moreover, because Bailey has finished serving the



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three to twelve month sentence from November 14, 2012 for violating the

parole of his 2011 conviction, Bailey’s challenge to the legality of that

sentence is moot. See Commonwealth v. King, 786 A.2d 993, 996 (Pa.

Super. 2001) (finding “appellant’s challenge to the legality of the sentence,

which    has   expired   and   which     bears   no   collateral   civil   or   criminal

consequences, is moot and will not be addressed by this Court.”).

Therefore, Bailey’s first issue fails.

        For his second issue on appeal, Bailey argues that the trial court

abused its discretion when it sentenced him to eleven and a half to twenty-

three months of incarceration, followed by ten years of probation for

violating the probation of his 2008 convictions. See Bailey’s Brief at 15-17.

Bailey contends that the trial court relied on an impermissible factor when it

re-sentenced him for his 2008 convictions because it took into consideration

the improper revocation of his parole for his 2011 conviction. See id.

        A claim that a trial court considered impermissible factors when

sentencing a defendant is a challenge to the discretionary aspects of

sentencing.    Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super.

2013), appeal denied, 91 A.3d 161 (Pa. 2014).              “The right to appellate

review of the discretionary aspects of a sentence is not absolute, and must

be considered a petition for permission to appeal.”            Commonwealth v.

Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014), appeal denied, 104

A.3d 1 (Pa. 2014).       This rule applies to our review of sentences imposed



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following the revocation of probation.      Commonwealth v. Kalichak, 943

A.2d 285, 289 (Pa. Super. 2008). “An appellant must satisfy a four-part test

to invoke this Court’s jurisdiction when challenging the discretionary aspects

of a sentence.” Id. We conduct this four-part test to determine whether,

            (1) the appellant preserved the issue either by
            raising it at the time of sentencing or in a post[-
            ]sentence motion; (2) the appellant filed a timely
            notice of appeal; (3) the appellant set forth a concise
            statement of reasons relied upon for the allowance of
            his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the
            appellant raises a substantial question for our
            review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted), appeal denied, 86 A.3d 231 (Pa. 2014).

      Here, Bailey failed to preserve his discretionary aspects of sentencing

claim by raising it at sentencing or in a post-sentence motion. Accordingly,

Bailey has failed to preserve his discretionary aspects of sentencing claim for

review. See id.; Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.

Super. 2013) (“[I]ssues challenging the discretionary aspects of a sentence

must be raised in a post-sentence motion or by presenting the claim to the

trial court during the sentencing proceedings.          Absent such efforts, an

objection to a discretionary aspect of a sentence is waived.”).       Therefore,

Bailey’s second issue does not entitle him to relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/4/2015




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