J-S08024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 KEITH M. MILLS                           :
                                          :
                    Appellant             :   No. 3476 EDA 2017


        Appeal from the Judgment of Sentence, September 28, 2017,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division at No(s): CP-51-CR-0005653-2016


BEFORE:    BENDER, P.J.E., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                         FILED APRIL 29, 2019

      Keith Mills appeals from the judgment of sentence imposed following

revocation of his parole and probation. Mills contends that his sentence

exceeded the remaining time he had left to serve on his original sentence,

i.e., back time, and as a result, the trial court abused its discretion in

sentencing him. Upon review, we affirm.

      The trial court summarized the pertinent facts and procedural history of

this case as follows:

       On May 11, 2017, [Mills] pled guilty to one count each of
      Alteration of Destruction of Vehicle Identification Number [18
      Pa.C.S.A. § 7703], Disposition of Vehicle or Vehicle Part with
      Altered Vehicle Identification Number [18 Pa.C.S.A. § 7704] and
      Receiving Stolen Property [18 Pa.C.S.A. § 3925]. In accordance
      to the negotiated plea, a concurrent sentence of nine (9) to
      twenty-three (23) months of incarceration to be served on house
      arrest followed by one year of probation was imposed on each



____________________________________
* Former Justice specially assigned to the Superior Court.
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      charge.     One Thousand Five Hundred ($1,500.00) Dollars
      restitution was also ordered. No appeal was taken.

             On August 24, 2017, this [c]ourt granted [Mills’] motion to
      modify house arrest thereby permitting [Mills] to leave the house
      for work Monday through Friday from 8:00 am to 5:00 pm. On or
      about August 28, 2017, this Court was notified that [Mills] had
      violated probation [by testing positive for illegal drugs on four
      separate occasions and by failing to provide required
      documentation about his businesses]. Following a hearing on
      September 28, 2017, [Mills] was found to be in violation of parole
      and probation. [Mills’ parole was revoked.] Probation was [also]
      revoked and [Mills] was sentenced to [concurrent terms] of two
      (2) to five (5) years of incarceration followed by two (2) years of
      probation [for disposition of a vehicle or vehicle part with altered
      vehicle serial number and theft by receiving stolen property; no
      sentence was imposed for alteration or destruction of vehicle
      identification number].

                                      ***

             On October 6, 2017, a Petition to Reconsider Sentence was
      filed. On October 18, 2017, the motion for reconsideration was
      denied. On October 23, 2017, [Mills] filed a timely notice of
      Appeal. A Statement of Errors Complained of on Appeal pursuant
      to Pa.R.A.P. Rule 1925(b) was ordered on October 30, 2017. On
      November 16, 2017, a Statement of Errors Complained of on
      Appeal was filed.

Trial Court Opinion, 6/12/18, at 1-2 (footnotes omitted). The trial court issued

an opinion in accordance with Pa.R.A.P. 1925(a).

      On appeal, Mills raises the following issue:

      I.    Whether Mills’ sentence for violation of probation which
            exceeded his backtime constitutes an abuse of discretion.

See Mills’ Brief at 4.

      Mills contends that the trial court’s sentence imposed following the

revocation of his parole and probation, “was illegal, excessive, and an abuse



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of discretion.” Mills’ Brief at 7.   His claim concerns both the legal and

discretionary aspects of his sentence. We first address the legality of Mills’

sentence.

      “A claim that implicates the fundamental legal authority of the court to

impose a particular sentence constitutes a challenge to the legality of the

sentence.” Commonwealth v. Catt, 994 A.2d 1158, 1160 (Pa. Super. 2010)

(en banc ). “If no statutory authorization exists for a particular sentence, that

sentence is illegal and subject to correction. An illegal sentence must be

vacated.” Id. (quoting Commonwealth v. Watson, 945 A.2d 174, 178–79

(Pa. Super. 2008)).      Likewise, a sentence that exceeds the statutory

maximum is illegal. Commonwealth v. Bradley, 834 A.2d 1127 (Pa. Super.

2003). If a court “imposes a sentence outside of the legal parameters

prescribed by the applicable statute, the sentence is illegal and should be

remanded for correction.” Commonwealth v. Vasquez, 744 A.2d 1280,

1284 (Pa. 2000). “Issues relating to the legality of a sentence are questions

of law . . . .” Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa. Super.

2008), appeal denied, 955 A.2d 356 (2008). As with all questions of law on

appeal, our “standard of review is de novo and our scope of review is plenary.”

Id.

      In support of the claim that his sentence was illegal, Mills argues that at

the time of his violation, he was on parole. As a result, the trial court should

only have recommitted Mills for the time remaining on his original sentence,

nine (9) to twenty-three (23) months, for violating his parole. Mills’ Brief at

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8. Because the court sentenced him to more than that, he claims his sentence

was illegal.1 Mills’ Brief at 6. We disagree.

       Mills correctly argues that, upon revocation of parole, the only option

available to the court is recommitment to serve the balance of the term initially

imposed.     Commonwealth v. Kalichak, 943 A.2d 285, 290 (Pa. Super.

2008); Commonwealth v. Ware, 737 A.2d 251, 253 (Pa. Super. 1999).

There is no authority for imposing a new sentence with a minimum and

maximum. Ware, 737 A.2d at 253 (citing Commonwealth v. Mitchell, 632

A.2d 934, 936 (Pa. Super. 1993)). However, as in Ware, this matter did not

involve only revocation of Mills’ parole. Importantly, the sentence imposed

here was based also upon the revocation of Mills’ probation.2



____________________________________________


1 In parole revocation cases, our standard of review is limited to 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, 291 (Pa. Super. 2008). We, note, however, that
Mills does not challenge the revocation of his parole, but only the length of his
sentence. In fact, Mills conceded that he violated his supervision.
2 Generally, the imposition of a sentence following the revocation of probation
is vested with the sound discretion of the trial court. Absent an abuse of
discretion this Court will not disturb its conclusion. Commonwealth v.
Hoover, 909 A.2d 321, 322 (Pa. Super. 2006). Following probation violation
proceedings, this Court's scope of review is limited to verifying the validity of
the proceeding and the discretionary and legal aspects of the sentence
imposed. Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super.
2013).




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      Mills argues, however, that he could not have violated his probation

because the violation occurred while he was on parole; he had not yet started

serving his probation. Mills’ Brief at 9. He further argues, without citation to

any authority, that even under a theory of anticipatory revocation of

probation, he must have been in direct violation of probation, i.e. committed

a new offense, and not merely in violation for technical reasons. Id. Again,

we disagree.

      Although the violation occurred during Mills’ parole period, and he had

not yet begun to serve the probationary portion of his sentence, the court,

nonetheless, had the authority to revoke his probation. In Ware, this Court

reasoned:

      [F]or revocation purposes the term of probation include[s] the
      time beginning when probation was granted . . . . If, at any time
      before the defendant has completed the maximum period of
      probation, or before he has begun service of his probation,
      he should commit offenses of such nature as to demonstrate to
      the court that he is unworthy of probation and that the granting
      of the same would not be in subservience to the ends of justice
      and the best interests of the public, or the defendant, the court
      could revoke or change the order of probation. A defendant on
      probation has no contract with the court. He is still a person
      convicted of crime, and the expressed intent of the [c]ourt to have
      him under probation beginning at a future time does not ‘change
      his position from the possession of a privilege to the enjoyment of
      a right.’ Burns v. United States, 287 U.S. 216, 222 (1932).

Ware, 737 A.2d at 253-54 (quoting Commonwealth v. Dickens, 475 A.2d

141 (Pa. Super. 1984)) (emphasis in original).

      Moreover, contrary to Mills’ argument, the type of violation need not be

a direct violation, i.e., a criminal offense. It is well settled that probation may

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be revoked for conduct that does not constitute criminal behavior.         See

Commonwealth v. Ortega, 995 A.2d 879, 886 (Pa. Super. 2010).            Rather,

“‘[a] probation violation is established whenever it is shown that the conduct

of the probationer indicates the probation has proven to have been an

ineffective vehicle to accomplish rehabilitation and not sufficient to deter

against future antisocial conduct.’” Id. Taking these principles, in conjunction

with the principles espoused in Dickens, we conclude that Mills did not need

to commit a crime for the trial court to revoke his probation prior to its

commencement.

      We reached a similar conclusion in Hoover, supra. There, this Court

rejected the defendant’s argument that, in order for the court to revoke his

probation before it commenced, he must have been committed a new criminal

offense. Instead, the trial court properly revoked the defendant’s probation

for being intoxicated while on work release, which was prohibited under the

terms of his probation. Although the defendant did not violate the law, he

violated the conditions of his probation. Hoover, 909 A.2d at 324.

      Likewise, contrary to Mills’ contention, his behavior was sufficient to

justify revocation of his probation even though it had not yet started.

Although Mills was not charged or convicted of any new crimes, he tested

positive for marijuana on several occasions and failed to provide required

documentation of his business activities, both of which violated the terms of

his probation.




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      Furthermore, the trial court found that Mills “has shown that probation

was an ineffective vehicle and of no deterrence to him” and specified the

reasons for its finding. Trial Court Opinion, 6/12/18, at 8. Therefore, the trial

court did not abuse its discretion when it revoked Mills’ probation.

      Once the court revoked Mills’ probation, the court had the same

sentencing options available that existed at the time of the original sentencing.

Ware, 737 A.2d at 254 (citing Commonwealth v. Smith, 669 A.2d 1008,

1011 (Pa. Super. 1996). The trial court stated:

      For the crimes of Alteration or Destruction of Vehicle Identification
      Number, Disposition of Vehicle or Vehicle Part with Altered Vehicle
      Identification Number and Receiving stolen Property, each of
      which carries an offense gravity score of five (5), the maximum
      penalty under the statute is seven (7) years. Here, [Mills] was
      sentenced under the maximum sentence allowed under the law.

Trial Court Opinion, 6/12/18, at 6.    The court clearly had the authority to

impose the sentence it did. The trial court noted: Mills “having violated the

conditions of his parole/probation, was placed in the same position that he

was in at the time of his original conviction, and this [c]ourt had the statutory

authority to sentence [Mills] to a term of total confinement up to seven

years on each of the charges to which he had plead guilty.”             Id. at 7

(emphasis added). The sentence imposed by the trial court was well within

the parameters permitted under the law.

      We observe, however, as we did in Ware, the procedure employed by

the court was to sentence Mills directly on the revocation of probation. We

observe, however, as we did in Ware, that the better approach would have

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been to specify that the sentence imposed required Mills to serve the

remainder of his back time on the parole violation, followed by a consecutive

sentence for revocation of probation which, when added to the back time

remaining from the original sentence, would equal or fall within the statutory

maximum. See Ware, 737 A.2d at 254. However, the trial court’s failure to

specify Mills’ sentence in these exact terms did not render the sentence illegal.

See id.     The court’s statements and sentencing scheme indicate that it

intended to impose a lengthier sentence of imprisonment for Mills’ probation

violation. Based on Mills’ behavior, the court had the authority to do so and

the resentencing was not illegal.    Consequently, as in Ware, we need not

remand for a clarification of Mills’ sentence because the intended result is

apparent.

      Next, we address Mills’ challenge to the discretionary aspect of his

sentence.    Mills argues that his sentence was unreasonably excessive

considering the circumstances surrounding his violation.       Specifically, Mills

argues that he was not convicted of another crime, but rather was only found

to be in technical violation of his probation for positive drugs tests. According

to Mills, rehabilitation through a drug treatment or other rehabilitative

program would be more appropriate for such a minor offense instead of

incarceration. Mills’ Brief at 8.

      An appellant challenging the discretionary aspects of a probation-

revocation sentence “has no absolute right to do so but, rather, must petition




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this Court for permission to do so.” Kalichak, 943 A.2d at 289. This Court

has explained:

      To reach 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, 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, 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. § 9781(b)].

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

      Here, as argued by the Commonwealth, Mills’ brief did not include a

concise statement of the reasons relied upon for allowance of appeal pursuant

to Pa.R.A.P. 2119(f). See Commonwealth’s Brief at 7, 9-10.           Where an

appellant fails to comply with Pa.R.A.P. 2119(f) and the Commonwealth

objects, the issue is waived for purposes of review.      Commonwealth v.

Montgomery, 861 A.2d 304, 308 (Pa. Super. 2004). Accordingly, Mills has

waived this issue for review.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/19




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