J-S04035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 NIKITA REBECKA VALENCIA                :
                                        :
                   Appellant            :   No. 976 MDA 2018

            Appeal from the Judgment of Sentence May 9, 2018
   In the Court of Common Pleas of Lycoming County Criminal Division at
                     No(s): CP-41-CR-0000433-2016

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 NIKITA REBECKA VALENCIA                :
                                        :
                   Appellant            :   No. 977 MDA 2018

            Appeal from the Judgment of Sentence May 9, 2018
   In the Court of Common Pleas of Lycoming County Criminal Division at
                     No(s): CP-41-CR-0000986-2017

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 NIKITA R. VALENCIA                     :
                                        :
                   Appellant            :   No. 978 MDA 2018

            Appeal from the Judgment of Sentence May 9, 2018
   In the Court of Common Pleas of Lycoming County Criminal Division at
                     No(s): CP-41-CR-0001526-2017


BEFORE:   SHOGAN, J., OTT, J., and STEVENS*, P.J.E.

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S04035-19



MEMORANDUM BY STEVENS, P.J.E.:                       FILED MARCH 18, 2019

       Appellant, Nikita Valencia, appeals from the judgment of sentence

entered on May 9, 2018, in the Court of Common Pleas of Lycoming County

following the revocation of her probationary sentences under three separate

docket numbers.       Appellant received an aggregate sentence of two to six

years’ incarceration, which she contends represented an abuse of the court’s

sentencing discretion.      Appellant also contends she entered an unknowing

waiver of a pre-sentence investigation after being wrongly advised in open

court that she was eligible for a Lycoming County Treatment Court program.

Contemporaneous with this appeal, Appellant’s counsel has filed a petition to

withdraw from representation and an Anders brief.             See Anders v.

California, 386 U.S. 738 (1967); Commonwealth v. McClendon, 434 A.2d

1185 (Pa. 1981).       Because this appeal is untimely, however, we have no

jurisdiction to entertain it, and must quash the appeal.

       The trial court’s Pa.R.A.P. 1925(a) opinion provides an apt recitation of

facts and procedural history that we adopt as our own. For our purposes, we

observe that Appellant was sentenced on May 9, 2018 at three trial court

docket numbers, following the revocation of her probation. On June 11, 2018,

Appellant filed a single notice of appeal bearing all three trial court docket

numbers.1

____________________________________________


1Because we quash this appeal as untimely filed under Pa.R.A.P. 903(a), we
need not address whether quashal was required pursuant to Commonwealth



                                           -2-
J-S04035-19



        The last day of the 30-day appeal period, therefore, was Friday, June 8,

2018. See Pa.R.A.P. 903(a) (notice of appeal must be filed within 30 days

of entry of order being appealed). The instant appeal, however, was not filed

until Monday, June 11, 2018—three days beyond the expiration of the appeal

period.

        It is well settled that the timeliness of an appeal implicates our

jurisdiction and may be considered sua sponte. Jurisdiction is vested in the

Superior Court upon the filing of a timely notice of appeal. Commonwealth

v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011) (citations omitted).

Moreover, this Court may not extend the time for filing a notice of appeal.

Pa.R.A.P. 105(b); Commonwealth v. Moir, 766 A.2d 1253 (Pa. Super.

2000).2

        This appeal is untimely and we have no jurisdiction to entertain the

merits therein. Accordingly, we quash this appeal.

        Appeal quashed. Petition for leave to withdraw as counsel dismissed as

moot.


____________________________________________


v. Walker, 185 A.3d 969, 971 (Pa. 2018) (holding “prospectively, where a
single order resolves issues arising on more than one docket, separate notices
of appeal must be filed for each case.”), which was filed prior to the trial court’s
order in the case sub judice.

2 We note, further, that the record contains no evidence of extraordinary
circumstances, such as a court holiday or closing or a breakdown in the
operations of the court, that would excuse Appellant’s untimely filing. See
Commonwealth v. Burks, 102 A.3d 497, 500 (Pa.Super. 2014).


                                           -3-
J-S04035-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/18/2019




                          -4-
                                                                     Circulated 02/28/2019 03:06 PM




          IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA



  COMMONWEALTH                                   No's. CP-41-CR-986-2017 /
                                                        CP-41-CR-433-2016
                                                        CP-41-CR-1526.-2017 �              --<
    vs.
                                                                                                 ''
                                                                                   ·-.:�
 NIKITA VALENCIA,
      Appellant                                  1925(a) Opinion                     ."J




                          OPINION IN SUPPORT OF ORDER IN
                         COMPLIANCE WITH RULE 1925(a} OF
                       THE RULES OF APPELLATE PROCEDURE

                This opinion is written in support of the court's order dated March 22, 2018

 and May 9, 2018.

               By way of background, Nikita Valencia (hereinafter "Appellant") pled guilty

to Count 1 robbery, a felony of the third degree, under 433-2017 and Count 1, retail theft, a

felony of the third degree, under 986-2017.

               On August 4, 2017, the court imposed split sentences on both offenses. With

respect to robbery under 433-2016, the court sentenced Appellant to a term of county

incarceration the minimum of which was six (6) months and the maximum of which was one

(1) year to be followed by an additional consecutive two (2) years of probation. Appellant had

credit for six (6) months and was paroled. With respect to retail theft under 986-2017, the

court sentenced Appellant to a term of county incarceration, the minimum of which was sixty

(60) days and the maximum of which was six (6) months plus an additional consecutive one



                                                                                                      1
  (1) year of probation. Again, Appellant had credit for time served and was paroled. This

  sentence was to run consecutive to 433-2016 for an aggregate sentence of six (6) months and

  sixty (60) days, time served, to eighteen (18) months to be followed by three (3) years'

  probation.

                  On September 8, 2017, the police charged Appellant with a new retail theft

  offense, which she allegedly committed on September 7, 2017.

                 Shortly thereafter, on September 14, 2017, Appellant was before the court on a

 parole and probation violation hearing for allegedly committing the riew retail theft offense,

 her sixth in all. No bail was set. However, by Order of court dated December 7, 2017,

 Appellant was directed to be transported to the State Correctional Institution at Muncy for a

 sixty-day diagnostic evaluation.

                 On March 16, 2018, Appellant pled guilty to the new retail theft offense, a

 felony of the third degree, under 1526-2017. The court sentenced Appellant to a term of

 county incarceration, the minimum of which was six (6) months and the maximum of which

was twelve (12) months. The sentence was immediately effective and Appellant had credit

for time served from September 7, 2017 to March 15, 2018.

                Appellant was before the court on March 22, 2018 for her final hearing on the

parole and probation violations under 986-2017 and 433-2016. Because Appellant was

convicted under 1526-2017 for an offense she committed while serving her sentences under

986-2017 and 433-2016, the court revoked Appellant's probation and resentenced her to state

incarceration. The court, however, did not revoke her parole on the county incarceration

portion of her split sentences.


                                                                                               2
                     Following the March 22, 2018 hearing, the court paroled Appellant from her

     county sentence under 1526-2017 to the state sentence that was being imposed under 986-

     2017 and 433-2016. Under 433-2016, Appellant's probationary sentence was revoked and

     with respect to Count 1, robbery, a felony of the third degree, the court sentenced Appellant

     to a term of state incarceration, the minimum of which was one and a half (1 Yz) and the

     maximum of which was three (3) years. Under 986-2017, the court revoked Appellant's

     probation and with respect to Count 1, retail theft, a felony of the third degree, the court

     sentenced Appellant to serve a consecutive period of state incarceration, the minimum of

    which was six (6) months and the maximum of which was three (3) years. The total aggregate

    period of state incarceration was a minimum of two (2) years and a maximum of six (6)

    years.

                    Appellant filed a motion to reconsider the probation violation on March 27,

    2018, which was summarily denied by order of court dated April 5, 2018. However, on May

    9, 2018, the court amended its order to correct obvious clerical and substantive errors. The

    court's original order dated March 22, 2018 required correction and clarification because it

    inconsistently stated that Appellant was paroled from her county sentence under 1526-2017,

    that the sentences under 433-2017 and 986-2017 were consecutive to 1526-2017, and the

total aggregate sentence was two and one half (2 Yz) years to seven (7) years' incarceration.1

In the May 9, 2018 order, the court clarified that it had paroled Appellant from all of her

county incarceration sentences to her aggregate state sentence of two (2) to six (6) years'


1
  The Department of Corrections brought the issue to the court's attention. The court could not simultaneously
parole Appellant from the sentence under 1526-2017 and aggregate it with the new state sentence. If the
sentences aggregated as stated in the original order, the court would lack jurisdiction to parole Appellant under
1526-2017 and the parole authority would be with the Pennsylvania Board of Probation and Parole.
                                                                                                                    3
  incarceration which was imposed following the revocation of her probationary sentences

  under 433-2017 and 986-2017. The effective date of the state sentence was March 22, 2018

 with credit for time served from March 16, 2018 through March 21, 2018.

                 Appellant filed an appeal on June 11, 2018. By order of court dated June 20,

 2018, the court directed that Appellant file a concise statement of errors complained of on

 appeal.

                On July 23, 2018, Appellant filed her concise statement. Appellant asserted

 that the court "abused its discretion in imposing a sentence" of two (2) to six (6) years'

 incarceration and that she "was wrongly advised in open court that she was not eligible for a

 Lycoming County Treatment Court program."

                Appellant's arguments are without any basis or merit whatsoever. The court

thoroughly considered all of the relevant factors in imposing its sentence.

                 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. In this context, an abuse of discretion is not shown merely by an
                 error in judgment, rather, the appellant must establish, by reference to the
                record, that the sentencing court ignored or misapplied the law, exercised its
                judgement for reasons of partiality, prejudice, bias or ill will, or arrived at a
                manifestly unreasonable decision.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014).

               When imposing a sentence, a sentencing court must consider the protection of

the public, the gravity of the offense in relation to the impact on the victim and community,

and the rehabilitative needs of the defendant. Commonwealth v. Fullin, 892 A.2d 843, 847

(Pa. Super. 2006).

               When the court revokes a sentence of probation, the sentencing alternatives


                                                                                                4
  available to the court are the same as were available at the time of the initial sentencing. 42

  Pa. C.S. § 9773 (b). While the court must consider the nature and circumstances of the

  offense and the history and characteristics of the defendant, the sentencing guidelines do not

  apply. 42 Pa. C.S.A. § 9781 (d); 204 Pa. Code.§ 303.1 (b); Commonwealth v. Reaves, 923

 A.2d 1119, 1129 (Pa. 2007).

                 Upon a revocation of probation, the court is precluded from imposing a

 sentence of total confinement unless, among other things, the defendant has been convicted

 of another crime. 42 Pa. C.S. § 9771 (c). Moreover, upon the revocation of probation, the

 court must also consider a defendant's conduct on probation and the length that defendant

 was serving supervision. 42 Pa. C.S. §9771(b), (d).

                The court thoroughly considered Appellant's history on supervision. The retail

 theft offense to which she pled guilty under 1526-2017 occurred on September 7, 2017, the

 same day she first met with her adult probation officer after being released on parole just one

month earlier on August 4, 2017.

                For the past seven years, Appellant's history on supervision had been abysmal.

Since being sentenced, in 2010 on a different charge and then being released on supervision,

Appellant committed at least seven different criminal offenses. During the same time period,

she absconded twice from supervision and committed numerous technical violations, such as

failing to report and failing to perform community service.

               During this same time period, numerous interventions were attempted, none of

which caused Appellant to stop committing crimes. She was incarcerated seven different

times for a total of more than three years. She was sent to SCI - Muncy for a diagnostic


                                                                                                5
  evaluation. She participated in the Lycoming County Reentry Services program. She

  participated as well in all of the other programs that were offered by the Lycoming County

  Adult Probation Office including assessments, treatments, community service and general

  supervision,

                  At the time of Appellant's hearing, she had hoped to be placed in the

 Lycoming County Mental Health Court program but was not eligible because of her robbery

 conviction. As the probation portion of both of her split sentence was being revoked, robbery

 was one of the offenses (and retail theft was the other) for which Appellant desired a Mental

 Health Court placement; robbery was not simply a conviction in her past. Furthermore, it did

 not appear to the court that Appellant was suffering from a serious mental health disorder.

 Her diagnosis from Muncy was anxiety disorder and intermittent explosive disorder, She

 displayed several criminogenic factors for re-offense, such as lack of remorse, poor insight

and a history of impulsivity. She also had a history of poor institutional adjustment, anger

management problems, failures on prior releases, failures of pre-incarceration programs, and

a history of treatment non-compliance. The reason behind her continued criminal behaviors

was aptly described as her "anger and resentment toward those she feels had been dealt a

better hand in life."

                 It is clear in this particular case that the court considered all of the relevant

sentencing factors including but not limited to Appellant's history and length under

supervision and perhaps most importantly, Appellant's failures to refrain from criminal

activity.

                 As the court clearly indicated in its sentencing order, Appellant violated the


                                                                                                     6
  considered Appellant's "history on supervision as well as the relevant sentencing factors." In

 the last seven to eight years Appellant had "undergone seven different periods of county

 incarceration totaling almost three years." The court also noted that Appellant had "been

 involved in county programming such as reentry and counseling," yet it had "not proved to be

 successful" in changing Appellant's behaviors. The court noted that while Appellant was in

 need of some treatment, county resources were no longer a viable alternative. The court

 concluded that "since [Appellant] was first placed on supervision she [had] absconded twice,

 committed a criminal mischief, committed robbery and a related offense, committed five

 separate retail theft offenses, and [had] technical violations."

                Society deserves to be protected from an individual such as Appellant, who

was provided numerous opportunities to rehabilitate herself but chose not to do so. Most

probably because of Appellant's failure to accept accountability, she has failed in connection

with completing her programming or complying with societal rules regarding criminal

behavior. Unfortunately, due to Appellant's continuing choices to engage in criminal activity,

a substantial period of state incarceration was the only viable option. Prior attempts to

address Appellant's behaviors at the county level all failed. Appellant was unable to refrain

from engaging in criminal activity for more than four or five weeks after she was paroled.

Appellant needed a "wake-up" call and society needed to be protected.



DATE: ------                                           By The Court,



                                                  'LU Marc F. Lovecchio, Judge

                                                                                                7
