J-S75013-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

KEVIN PATTERSON

                         Appellant                   No. 3115 EDA 2013


          Appeal from the Judgment of Sentence October 2, 2013
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-081631-2005


BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                        FILED FEBRUARY 13, 2015

      Appellant, Kevin Patterson, appeals from the October 2, 2013

judgment of sentence of seven and one-half to 20 years’ incarceration,

imposed following a violation of probation hearing. After careful review, we

affirm.

      The trial court has set forth the relevant factual and procedural history

as follows.

                        [Appellant] and his cohorts robbed a
                  Friendly’s restaurant in Northeast Philadelphia
                  wearing masks and carrying a shotgun, a
                  handgun, and a revolver.        They ordered
                  employees and customers to the floor and took
                  money and other items from the restaurant,
                  employees, and patrons.        Police arrested
                  [Appellant and his co]defendants as they were
                  fleeing from the crime scene.
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                     On January 11, 2010, [Appellant]
               entered into a negotiated guilty plea and was
               sentenced on each of 4 counts of felony-one
               robbery to 4 to 10 years[’] incarceration (all
               sentences to be served concurrently) (18
               Pa.C.S. § 3701); he was also sentenced to 10
               years[’] probation on each of 4 counts of
               criminal conspiracy to commit robbery (all to
               be served concurrent to each probation and to
               his incarceration sentences for robbery) (18
               Pa.C.S. § 903), and he was sentence[d] to 84
               months concurrent probation for carrying a
               loaded firearm without a license (18 Pa.C.S.
               §6106).

                      Postmarked January 3, 2011, [Appellant]
               filed a Petition pursuant to the Post Conviction
               Relief Act, 42 Pa.C.S. § 9541 et seq. On
               September 14, 2012, PCRA counsel David
               Rudenstein, Esquire, filed an “Amended Post
               Conviction Relief Act Petition.” On January 14,
               2013, the Commonwealth filed its Motion to
               Dismiss. On April 2, 2013, th[e PCRA court]
               sent     [Appellant]    notice    pursuant    to
               Pa.R.Crim.P. 907, informing him that the
               issue[s] raised in his PCRA Petition [were]
               without merit. On May 1, 2013, th[e PCRA]
               court formally dismissed [Appellant]’s PCRA
               Petition.

                     On May 8, 2013, [Appellant] filed a
               Notice of Appeal, represented by PCRA
               counsel.

          [PCRA Court Opinion, 6/16/13, at 1-2.] On May 29,
          2013, [the trial c]ourt found [Appellant] to be in
          technical violation of his probation and ordered a
          presentence investigation report prior to sentencing
          [Appellant].




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                   On June 16, 2013, th[e PCRA c]ourt filed its
              PCRA Opinion in relation to [Appellant]’s May 8,
              2013 appeal, stating [Appellant]’s PCRA Petition was
              properly determined to be without merit.[1]

                   On October 2, 2013, t[he trial c]ourt sentenced
              [Appellant] for his violation of probation (VOP) to 7
              and ½ to 20 years[’] incarceration plus 7 years[’]
              probation.

Trial Court Opinion, 2/25/14, at 1-3.

       Thereafter, on October 16, 2013, Appellant’s counsel filed a motion to

reconsider titled “Petition to Vacate and Reconsider Sentence Nunc Pro

Tunc.” However, said motion did not formerly request nunc pro tunc relief.

Nevertheless, that same day, the trial court denied Appellant’s motion for

reconsideration and his request for nunc pro tunc relief.

       On October 31, 2013, Appellant filed a timely notice of appeal.     On

November 7, 2013, the trial court ordered Appellant to file, within 21 days, a

concise statement of errors complained of on appeal in accordance with

Pennsylvania Rule of Appellate Procedure 1925(b). On November 21, 2013,

counsel for Appellant filed a motion for extension of time to file a 1925(b)

statement, upon receipt of the notes of testimony. The certified record and


____________________________________________


1
  Appellant filed an appeal with this Court. On February 21, 2014, a panel of
this Court affirmed the PCRA court’s decision, and on October 21, 2014, our
Supreme Court denied Appellant’s petition for allowance of appeal.
Commonwealth v. Patterson, 97 A.3d 810 (Pa. Super. 2014)
(unpublished memorandum), appeal denied, 101 A.3d 102 (Pa. 2014).




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the docket are devoid of any trial court response to said motion. Thereafter,

on December 2, 2013, Appellant filed a timely Rule 1925(b) statement. 2

       On appeal, Appellant raises the following issue for our review.

              Was not the sentence of seven and one-half to
              twenty years[’] incarceration followed by seven
              years[’] probation excessive and unreasonable?

Appellant’s Brief at 4.

       Our review is guided by the following.

              [T]he proper standard of review when considering
              whether       to  affirm    the    sentencing     court’s
              determination is an abuse of discretion. [A]n abuse
              of discretion is more than a mere error of judgment;
              thus, a sentencing court will not have abused its
              discretion unless the record discloses that the
              judgment exercised was manifestly unreasonable, or
              the result of partiality, prejudice, bias, or ill-will. …
              An abuse of discretion may not be found merely
              because an appellate court might have reached a
              different conclusion, but requires a result of manifest
              unreasonableness, or partiality, prejudice, bias, or
              ill-will, or such lack of support so as to be clearly
              erroneous.


____________________________________________


2
  Appellant’s Rule 1925(b) statement was due 21 days from the date of the
trial court’s order, or on November 28, 2013. However, November 28,
2013, was Thanksgiving Day and the trial court’s filing offices were closed on
Thursday November 28 and Friday November 29, 2013 in observance of the
holiday. When computing the time for filing, if the “last day of any such
period shall fall on Saturday or Sunday, or on any day made a legal holiday
by the laws of this Commonwealth or of the United States, such day shall be
omitted from the computation.” 1 Pa.C.S.A. § 1908. Therefore, Appellant
had until Monday December 2, 2013 to timely file his 1925(b) statement.
Accordingly, Appellant’s concise statement was timely.



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Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012)

(citation omitted).

      Likewise, we review a sentence imposed following the revocation of

probation for an error of law or an abuse of discretion. Commonwealth v.

Ahmad, 961 A.2d 884, 888 (Pa. Super. 2008).                As the revocation of a

sentence of probation is within the sound discretion of the trial court, “our

review is limited to determining the validity of the 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.” Id.

                  [W]e must accord the sentencing court great
            weight as it is in the best position to view the
            defendant’s character, displays of remorse, defiance
            or indifference, and the overall effect and nature of
            the crime. … [A] sentence should not be disturbed
            where it is evident that the sentencing court was
            aware of sentencing considerations and weighed the
            considerations in a meaningful fashion.

Id. at 887 (citations and quotation marks omitted).

      Appellant’s     challenge   that    his   sentence    was   excessive   and

unreasonable implicates the trial court’s discretion in sentencing.

            It is well settled that, with regard to the
            discretionary aspects of sentencing, there is no
            automatic right to appeal. [Therefore, b]efore we
            reach the merits of this issue, we must engage in a
            four part analysis to determine: (1) whether the
            appeal is timely; (2) whether Appellant preserved his
            issue; (3) whether Appellant’s brief includes a
            concise statement of the reasons relied upon for
            allowance of appeal with respect to the discretionary
            aspects of sentence; and (4) whether the concise
            statement raises a substantial question that the

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            sentence is appropriate under the sentencing code.
            The third and fourth of these requirements arise
            because Appellant’s attack on his sentence is not an
            appeal as of right. Rather, he must petition this
            Court, in his concise statement of reasons, to grant
            consideration of his appeal on the grounds that there
            is a substantial question. [I]f the appeal satisfies
            each of these four requirements, we will then
            proceed to decide the substantive merits of the case.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

      Instantly, Appellant filed a timely notice of appeal, however, upon

review, we conclude that Appellant has failed to preserve his issues for

review.   Pennsylvania Rule of Criminal Procedure 708 governs the rules

applicable to challenging a sentence imposed following a violation of

probation determination.    Specifically, the rule provides for the timing of

filing a motion to modify a sentence, as follows.

            Rule 708. Violation of Probation, Intermediate
            Punishment, or Parole: Hearing and Disposition

                                      …

            (E) Motion to Modify Sentence

            A motion to modify a sentence imposed after a
            revocation shall be filed within 10 days of the date of
            imposition. The filing of a motion to modify sentence
            will not toll the 30-day appeal period.


Pa.R.Crim.P. 708(E).

      Further, the comments to Rule 708 note the following.




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              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. See Commonwealth v.
              Jarvis, 444 Pa. Super. 295, 663 A.2d 790, 791-2,
              n.1 (1995). As a general rule, the motion to modify
              sentence under paragraph (E) gives the sentencing
              judge the earliest opportunity to modify the
              sentence.

Id. at cmt.

       Instantly, Appellant’s Rule 708(E) motion was filed on October 16,

2013, 14 days after the trial court imposed its sentence.            Therefore,

Appellant’s motion was patently untimely.3       Nevertheless, our inquiry does

not end there. Appellant is not required to file a motion to modify sentence if

the issues he wishes to challenge on appeal were preserved at sentencing.

A review of the sentencing transcript reveals that Appellant has failed to

preserve his discretionary aspects of sentencing challenge. Additionally, we

note that Appellant’s brief does not purport to have preserved Appellant’s

claim at sentencing.

       Based on the foregoing, we conclude Appellant has waived his sole

issue on appeal. Accordingly, the trial court’s October 2, 2013 judgment of

sentence is affirmed.
____________________________________________


3
  As previously noted, Appellant requested nunc pro tunc relief in his motion
to reconsider his sentence, but said relief was denied by the trial court.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/2015




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