J-A24023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ANTHONY BOWSER,

                            Appellant                  No. 2567 EDA 2013


       Appeal from the Judgment of Sentence Entered November 8, 2011
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0015974-2008


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                    FILED SEPTEMBER 12, 2014

        Appellant, Anthony Bowser, appeals from the judgment of sentence of



term of probation. We affirm.

        The trial court set forth the facts and procedural history of this case as

follows:

              On June 30, 2009, Appellant entered a negotiated guilty

                                                       rimes involved a
        controlled sale of marijuana where Appellant sold eight packets
        of marijuana to Police Officer Fitzgerald. The [c]ourt accepted

                                                                  ]ourt told
        Appellant at his sentencing that, in light of his extensive criminal
        background and the severity of the instant offense, he would

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        receive a sentence of [8] years should he violate the terms of his
        supervision.

              On October 1[8], 2011, Appellant appeared for a Gagnon
          [1]
        II violation hearing. Appellant [had been] arrested on July 8,
        2011, for possession of a controlled substance. Appellant had
        also missed six [probation] office visits, twice tested positive for
        benzodiazepines, tested positive for marijuana six times, and
        tested positive for opiates on one occasion. Appellant had
        enrolled in treatment at Parkside Recovery but only attended the
        intake meeting and was ultimately discharged due to his
        absences.

                Based on these technical violations,


        on the criminal use of a communication device to run concurrent.
        After a motion to reconsider the sentence, the sentence on
        [PWID] was reduced to [3½] to [7] years.

Trial Court Opinion (TCO), 2/18/14, at 1-2 (citations to the record omitted).2

        Appellant initially did not file an appeal from the imposition of his 3½

to 7 year aggregate sentence imposed on November 8, 2011. However, he

subsequently filed a petition for relief under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the restoration of his direct

appeal rights nunc pro tunc. The court granted that petition and Appellant

filed the instant appeal nunc pro tunc. Herein, he raises the following four

issues for our review:



____________________________________________


1
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).
2
    The trial court indicated Appellant had prior convictions that increased the

incarceration. See TCO at 4 n.2 (citing 35 Pa.C.S. § 780-115).



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     A. Is it an abuse of discretion for the court to sentence Appellant
     to a significant, almost maximum, sentence of confinement for
     technical violations of his probation, without consideration or
     application of [section] 9711(c) of the Sentencing Code, 42
     Pa.C.S.A. §[]9771(c)?

     B. Is it an abuse of discretion for the court to sentence Appellant
     to a substantial term of confinement for technical violations of
     probation, without allowing him credit for the time he served in
     custody for that same offense as part of his original sentence?

     C. Is it an abuse of discretion for the court to sentence Appellant
     for technical violations of probation, taking into consideration as


     any wrong doing?

     D. Is it an abuse of discretion for the court to sentence Appellant
     for technical violations of probation without giving him positive
     considerations for the time he was on the street       trouble free,
     and able to resist temptations for further wrong doing?



     Initially, we note that on September 24, 2013, the trial court issued an

order directing Appellant to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. On October 9, 2013, the court issued an




Appellant did not file his Rule 1925(b) statement until November 7, 2013,



opinion without any mention of the untimeliness of Appe

statement.




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J-A24023-14



      Recently, in Greater Erie Indus. Development Corp. v. Presque

Isle Downs, 88 A.3d 222 (Pa. Super. 2014), this Court stated that:


      merits of an untimely Rule 1925(b) statement based solely on

      raised issues. Under current precedent, even if a trial court
      ignores the untimeliness of a Rule 1925(b) statement and
      addresses the merits, those claims still must be considered

      concise statement of [errors] complained of on appeal pursuant
      to Rule 1925(b), the appellant must
      Hess v. Fox Rothschild, LLP, 925 A.2d 798, 803
      (Pa.Super.2007) (citing [Commonwealth v.] Castillo, 888
      A.2d [775,] 780 [(Pa. 2005)]) (emphasis in original); see
      Feingold v. Hendrzak, 15 A.3d 937, 940 (Pa.Super.2011).

Id. at 225.

      However, we went on in Greater Erie



Id.

        Rule 1925(b) order to ensure it satisfied the dictates of Rule

1925(b).      Id. at 225-226.   Then, we must ensure that the prothonotary



Id. at 226.     We stated that the failure of t

                                                          Id. at 226 (citing

In re L.M., 923 A.2d 505, 509-10 (Pa. Super. 2007)).



the dictates of Ru




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J-A24023-14



extending the Rule 1925(b) filing deadline did not satisfy the requirements

of Rule 1925(b). Most notably, that order did not infor




indication in the record that the prothonotary provided notice to Appellant of

the

document attached.           Under these circumstances, we decline to find



statement.

                                         ues regarding the discretionary aspects of

his sentence are waived because he did not raise them in a post-sentence



year sentence. See Commonwealth v. Bromley, 862 A.2d 598, 603 (Pa.



discretionary aspects of his sentence is waived if the [a]ppellant has not filed

a post-sentence motion challenging the discretionary aspects with the

                                     omitted).    We acknowledge that Appellant

filed a motion for reconsideration from the imposition of his initial 4 to 8

year term of incarceration.3 However, after the court granted that motion



____________________________________________


3
  While that motion is docketed, for some reason it is not contained in the
certified record.



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J-A24023-14



                                                                              PWID,

Appellant did not file a post-sentence motion for reconsideration.

       This Court faced similar circumstances in Commonwealth v. Levy,

83 A.3d 457 (Pa. Super. 2013).                 There, after Levy was sentenced, the

Commonwealth filed a motion for reconsideration, arguing that the term of

incarceration was too lenient.        Id. at 467.      The trial court agreed and re-



                                 Id. Because Levy did not raise his sentencing

challenges at the                                                  -sentence motion



discretionary aspects of sentencing issues waived.4 Id.

       We are compelled to reach the same conclusion in the instant case.

Appellant did not file a motion for reconsideration of the sentence imposed

on November 8, 2011. Accordingly, he has not preserved his challenges to

the discretionary aspects of his sentence.5

____________________________________________


4
  See also Commonwealth v. Bullock, 948 A.2d 818 (Pa. Super. 2008)
(stating the right to appeal a discretionary aspect of sentence is not absolute
and is waived if the appellant does not challenge it in post-sentence motions
or by raising the claim during the sentencing proceedings); Commonwealth
v. Lloyd, 878 A.2d 867 (Pa. Super. 2005) (finding the appellant waived his
challenge to his sentence where he failed to raise the issue at the sentencing
hearing or in his post-sentence motion).
5
    We acknowledge that the second issue raised by Appellant involves the

considered a non-waivable challenge to the legality of the sentence imposed.
(Footnote Continued Next Page)


                                           -6-
J-A24023-14


      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2014




                       _______________________
(Footnote Continued)

Commonwealth v. Davis, 852 A.2d 392, 399 (Pa. Super. 2004) (citation



discussion of this issue. Consequently, we are unable meaningfully review

served.



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