J-S62011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellee

                    v.

DILLON MICHAEL BOREMAN

                          Appellant                No. 1469 MDA 2015


            Appeal from the Judgment of Sentence July 28, 2015
               In the Court of Common Pleas of Perry County
            Criminal Division at No(s): CP-50-CR-0000044-2013
                                        CP-50-CR-0000045-2013
                                        CP-50-CR-0000046-2013
                                        CP-50-CR-0000444-2012
                                        CP-50-CR-0000445-2012
                                        CP-50-CR-0000446-2012
                                        CP-50-CR-0000447-2012
                                        CP-50-CR-0000448-2012
                                        CP-50-CR-0000449-2012
                                        CP-50-CR-0000450-2012


BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                       FILED AUGUST 29, 2016

      Dillon Michael Boreman (“Appellant”) appeals from the judgment of

sentence entered in the Perry County Court of Common Pleas following the

revocation of his State Intermediate Punishment (“SIP”) sentence.       We

affirm.

      The trial court set forth the relevant facts and procedural history of

this appeal as follows:

          On May 13, 2013, Appellant entered guilty pleas on…ten
          (10) docket numbers.1 On that date, Appellant entered a
          guilty plea in:
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          a) CR-444-2012, to one count of burglary, a felony
          of the second degree, in violation of [18 Pa.C.S. §]
          3502(a)(4), agreement with the Commonwealth is
          that [Appellant] serve a two month minimum
          sentence;

          b) CR-445-2012, to one count of burglary, a felony
          of the second degree, in violation of [18 Pa.C.S. §]
          3502(a)(4), agreement with the Commonwealth is
          that [Appellant] serve a two month minimum
          sentence;

          c) CR-446-2012, to one count of burglary, a felony
          of the second degree, in violation of [18 Pa.C.S. §]
          3502(a)(4), agreement with the Commonwealth is
          that [Appellant] serve a two month minimum
          sentence;

          d) CR-447-2012, to one count of theft, a
          misdemeanor of the first degree, in violation of [18
          Pa.C.S.    §] 3921(a),     agreement     with    the
          Commonwealth is that [Appellant] serve a term of
          probation;

          e) CR-448-2012, to one count of possession of a
          firearm, a felony of the second degree, in violation of
          [18 Pa.C.S. §] 6105(a)(1), the court ordered a
          presentence investigation report;

          f) CR-448-2012, to one count of theft by unlawful
          taking, a misdemeanor of the second degree, in
          violation of [18 Pa.C.S. §] 3921(a), agreement with
          the Commonwealth is that [Appellant] serve a
          probationary sentence;

          g) CR-449-2012, to two counts of burglary, felonies
          of the second degree, in violation of [18 Pa.C.S. §]
          3502(a)(4); agreement with the Commonwealth is
          that [Appellant] serve a two month minimum
          sentence on each count-there is no agreement as to
          concurrency;




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          h) CR-450-2012, to one count of burglary, a felony
          of the second degree, in violation of [18 Pa.C.S. §]
          3502(a)(4), agreement with the Commonwealth is
          that [Appellant] serve a two month minimum
          sentence;

          i) CR-044-2013, to one count of theft, a
          misdemeanor of the second degree, in violation of
          [18 Pa.C.S. §] 3921(a); agreement with the
          Commonwealth is that [Appellant] will serve a
          probationary sentence;

          j) CR-045-2013, to one count of burglary, a felony of
          the second degree, in violation of [18 Pa.C.S. §]
          3502(a)(4), agreement with the Commonwealth is
          that [Appellant] will serve a two month minimum
          sentence; and

          k) CR-046-2013, to one count of theft, a felony of
          the third degree, in violation of [18 Pa.C.S. §]
          3502(a)(4), agreement with the Commonwealth is
          that [Appellant] serve a two month minimum
          sentence.
              1
                The agreement between the Commonwealth
              and [Appellant] was that the [sentences of
              incarceration] run consecutive to each other.

       On October 3, 2013, the Appellant appeared for sentencing
       on all ten (10) docket numbers. On this date, the [c]ourt
       sentenced Appellant to the [SIP] Program for a total of two
       (2) years on each of the charges, with all sentences
       running concurrent to each other.2
          2
            Appellant would have completed his two year SIP
          sentence on October 3, 2015.

       On May 18, 2015, the court received a letter from the
       Department of Corrections, expelling Appellant from the
       SIP Program on February 13, 2015 for a lack of meaningful
       participation, evidenced by multiple relapse[s] and
       behavioral infractions. As a result, the court held an SIP
       revocation/resentencing hearing on July 28, 2015. On that
       date, Appellant was resentenced to a total of forty-six (46)

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        to one-hundred-eight (108) months[’] incarceration in a
        State Correctional Institution (“SCI”). The court’s order
        states that “the [sentences of incarceration] are below the
        standard     range    due     to   agreement     with   the
        Commonwealth.”         Appellant received credit from
        September 20, 2012 through April 14, 2014 (572 days),
        and February 13, 2015 through July 28, 2015 (166 days),
        totaling 738 days of credit (or 2 years and 8 days).

        Appellant filed an appeal with the Superior Court and by
        order dated August 31, 2015, this court directed that he
        file a concise statement of matters complained on appeal.
        On February 8, 2016, Appellant filed his statement.

Trial Court Pa.R.A.P. 1925(a) Opinion, filed February 29, 2016 at A-1-3

(unnecessary capitalization omitted).

     Appellant raises the following issues for our review:

        1.   WHETHER     THE   SENTENCING    COURT  HAD
        JURISDICTION AND/OR AUTHORITY AND/OR ABUSED ITS
        DISCRETION BY SENTENCING APPELLANT TO FORTY-SIX
        (46) TO ONE HUNDRED EIGHT (108) MONTHS[’]
        INCARCERATION     WHEN    APPELLANT’S   ORIGINAL
        SENTENCE ON OCTOBER 13, 201[3] PROVIDED FOR A
        “TOTAL PERIOD OF TWO YEARS IN THE STATE
        INTERMEDIATE PUNISHMENT PROGRAM” AND WHEN
        APPELLANT WAS RESENTENCED ON JULY 28, 2015, HE
        HAD SERVED TWO YEARS AND EIGHT DAYS, A PERIOD OF
        TIME IN EXCESS OF TWO YEARS?

        2. WHETHER THE SENTENCING COURT ABUSED ITS
        DISCRETION BY RESENTENCING [APPELLANT] TO FORTY-
        SIX (46) TO ONE HUNDRED EIGHT (108) MONTHS[’]
        INCARCERATION ON JULY 28, 2015, WHEN HIS ORIGINAL
        SENTENCES WERE BASED ON AN AGREEMENT WITH THE
        COMMONWEALTH      WITH  A   SPECIFIC  SENTENCING
        STRUCTURE (SEE MAY 13, 2013 ORDER), AND WHEN
        APPLIED AT HIS RESENTENCING, THE ONLY CHARGE FOR
        WHICH HE WOULD NOT HAVE COMPLETED HIS MAXIMUM
        SENTENCE WITH HIS CREDIT DUE AT RE-SENTENCING ON
        JULY 28, 2015 IS, POTENTIALLY, THE CHARGE FOR
        VIOLATING TITLE 18 § 6105(A)(1), A SECOND DEGREE

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         FELONY FOR ONE COUNT POSSESSION OF A FIREARM IN
         CP-50-CR-0000448-2012 WHICH WOULD HAVE RESULTED
         IN A [THIRTY] (30) TO SIXTY (60) MONTH PERIOD OF
         INCARCERATION WITH SEVEN HUNDRED THIRTY-EIGHT
         (738) DAYS CREDIT AGAINST THIS SENTENCE?

         3. WHETHER THE SENTENCING COURT ABUSED ITS
         DISCRETION IN SENTENCING APPELLANT TO FORTY-SIX
         (46) TO ONE-HUNDRED EIGHT (108) MONTHS[’]
         INCARCERATION ON JULY 28, 2015 WHEN PURSUANT TO
         THE PLEA AGREEMENT ENTERED INTO ON MAY 13, 2013
         WITH THE COMMONWEALTH PROVIDED FOR AN AGREED
         UPON MINIMUM INCARCERATIVE SENTENCE OF 16
         MONTHS     AND  AT  THE   TIME   OF  APPELLANT’S
         RESENTENCING HE HAD SERVED TWO (2) YEARS AND
         EIGHT (8) DAYS?

Appellant’s Brief at 20-21.

      “Generally, in reviewing an appeal from a judgment of sentence

imposed after the revocation of probation, this Court’s scope of review

includes the validity of the hearing, the legality of the final sentence, and if

properly raised, the discretionary aspects of the appellant’s sentence.”

Commonwealth v. Kuykendall, 2 A.3d 559, 563 (Pa.Super.2010) (citing

Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa.Super.2006)). “[I]n

evaluating the revocation of [an] SIP sentence, we ordinarily… apply that

[same] scope of review.” Id.

      Appellant’s combined issues challenge both the legality and the

discretionary aspects of his sentence.    For purposes of disposition, we will

first discuss his combined issues as they relate to the legality of his

sentence.

         “A challenge to the legality of a sentence...may be
         entertained as long as the reviewing court has

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         jurisdiction.” Commonwealth v. Borovichka, 18 A.3d
         1242, 1254 (Pa.Super.2011) (citation omitted). It is also
         well-established that “[i]f no statutory authorization exists
         for a particular sentence, that sentence is illegal and
         subject to correction.” Commonwealth v. Rivera, 95
         A.3d 913, 915 (Pa.Super.2014) (citation omitted). “An
         illegal sentence must be vacated.” Id. “Issues relating to
         the legality of a sentence are questions of law[.] ... Our
         standard of review over such questions is de novo and our
         scope of review is plenary.” Commonwealth v. Akbar, 91
         A.3d 227, 238 (Pa.Super.2014) (citations omitted).

Commonwealth v. Wolfe, 106 A.3d 800, 801–02 (Pa.Super.2014), aff'd,

No. 68 MAP 2015, 2016 WL 3388530 (Pa. June 20, 2016).

     In his first issue, Appellant argues that, because the original October

3, 2013 sentencing order provided that he was to serve a total period of two

years’ intermediate punishment and because he had already served over two

years’ when he was re-sentenced, the court lacked authority to re-sentence

him to anything other than time served. We disagree.

     Appellant’s October 3, 2013 sentencing order provided that Appellant

serve two years in the SIP program.      Appellant could have completed his

sentence on October 3, 2015, however, upon being apprised that Appellant

violated the terms of the SIP program, the court scheduled and conducted a

revocation hearing, after which Appellant’s participation in the SIP program

was revoked on July 28, 2015.      Thus, Appellant’s first issue is devoid of

merit.

     In his second and third issues, Appellant argues the court violated the

terms of his negotiated plea agreement when it re-sentenced him.          He


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claims the agreement provided that his minimum sentence would be sixteen

months, and that he had already served this time at sentencing.           He

concludes he should have been re-sentenced to time served with an

additional period of probation. Alternately, he argues that because he had

already served the sixteen-month minimum on his theft and robbery

convictions, the court should have only sentenced him for his possession of a

firearm conviction. Again, we disagree.

     The relevant statute provides:

        §   9774.   Revocation         of   State     intermediate
        punishment sentence

        (a) General rule.--The court may at any time terminate a
        sentence of State intermediate punishment pursuant to 61
        Pa.C.S.  Ch.    41    (relating to   State  intermediate
        punishment).

        (b) Revocation.--The court shall revoke a sentence of
        State intermediate punishment if after a hearing it
        determines that the participant was expelled from or failed
        to complete the program.

        (c) Proceedings upon revocation.--Upon revocation of
        a State intermediate punishment sentence, the sentencing
        alternatives available to the court shall be the same as the
        alternatives available at the time of initial sentencing. The
        attorney for the Commonwealth must file notice, at any
        time prior to resentencing, of the Commonwealth’s
        intention to proceed under an applicable provision of law
        requiring a mandatory minimum sentence.

42 Pa.C.S. § 9774.     Accordingly, if a court revokes a defendant’s SIP

sentence, it must re-sentence him. Commonwealth v. Kuykendall, 2 A.3d

559, 562 (Pa.Super.2010). Further:


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          As it is well established that the sentencing alternatives
          available to a court at the time of initial sentencing are all
          of the alternatives statutorily available under the
          Sentencing Code, these authorities make clear that at any
          revocation of probation hearing, the court is similarly free
          to impose any sentence permitted under the Sentencing
          Code and is not restricted by the bounds of a negotiated
          plea agreement between a defendant and prosecutor.

Commonwealth v. Wallace, 870 A.2d 838, 843 (Pa.2005) (footnotes

omitted).

       Here, the court revoked Appellant’s SIP sentence and re-sentenced

him to an aggregate 46-108 months’ incarceration. Specifically, the court

sentenced Appellant to consecutive periods of incarceration of 2-6 months

for each of his burglary and theft convictions on Docket Nos. 444, 445, 446,

449, 450, 45 and 46, plus a consecutive period of incarceration of 30 to 60

months for his possession of a firearm conviction.        The court then gave

Appellant credit for time served. The court was not required to adhere to

the plea agreement upon re-sentencing Appellant,1 and it was not required

to give him credit for time he spent in the SIP program before it revoked his

SIP sentence.2


____________________________________________


1
  Although the court was not required to adhere to the plea agreement, it
imposed a sentence within the boundaries of the agreement.
2
  See Commonwealth v. Kuykendall, 2 A.3d 559, 565 (Pa.Super.2010)
(“In exchange for admittance into SIP, the defendant surrenders his
statutory right to credit for time served while housed in a county correctional
institution or non-Pennsylvania state correctional facility. Revocation and re-
(Footnote Continued Next Page)


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      To the extent Appellant’s issues challenge the discretionary aspects of

his sentence, we observe that challenges to the discretionary aspects of

sentencing do not entitle a petitioner to review as of right. Commonwealth

v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011).              Before this Court can

address such a discretionary challenge, an appellant must invoke this Court’s

jurisdiction by satisfying the following four-part test:

      (1) whether appellant has filed a timely notice of appeal, see
      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, see Pa.R.Crim.P. [720]; (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.

Id.

      Although Appellant filed a timely notice of appeal and included a

Pa.R.A.P. 2119(f) statement in his brief, he failed to object at sentencing or

otherwise preserve his issue in a timely post-sentence motion.             Thus,

Appellant has failed to invoke this Court’s jurisdiction for his discretionary

aspects of sentencing claims.             See id.; see also Commonwealth v.

Cartrette, 83 A.3d 1030, 1042 (Pa.Super.2013) (holding Appellant waived

challenge to discretionary aspects of sentence following revocation of SIP




                       _______________________
(Footnote Continued)

sentencing do not constitute a second punishment, but provide a necessary
incentive to the defendant to complete the program.”).




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sentence by failing to object at sentencing or preserve issue in post-

sentence motion).

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2016




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