J-A24008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

RICHARD HARRIS

                         Appellant                   No. 3109 EDA 2015


        Appeal from the Judgment of Sentence September 18, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0012999-2008


BEFORE: BOWES, OTT AND SOLANO, JJ.

MEMORANDUM BY BOWES, J.:                          FILED JANUARY 18, 2017

      Richard Harris appeals from the aggregate judgment of sentence of

twenty-three to forty-six months imprisonment imposed after he was found

in violation of probation. We affirm.

      On June 27, 2008, Appellant attempted to take money from a cash

register at a hotel in Philadelphia. When confronted by the hotel manager,

Appellant displayed a firearm and stated he would “come back any time I

want.” The police were called and Appellant was arrested shortly thereafter.

Appellant was charged with, inter alia, robbery, possession of a weapon by a

prohibited person, terroristic threats, and simple assault. On May 27, 2009,

Appellant proceeded to a non-jury trial and was found guilty of simple

assault and terroristic threats. He was acquitted at all other counts.
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       On August 6, 2009, Appellant was sentenced to eleven and one-half to

twenty-three months of incarceration, plus three years probation, for the

terroristic threats conviction.         At simple assault, the court imposed a

consecutive period of two years probation.         Appellant was granted parole,

and, on May 28, 2010, the probation office commenced supervision.

       On May 28, 2011, Appellant was arrested in New Jersey for possession

of drugs, which led to a March 23, 2012 conviction.               Appellant was

sentenced to a period of probation, which he violated, ultimately leading to

revocation and three years incarceration in that state.              Appellant’s

incarceration terminated August 11, 2015, and he was extradited to

Philadelphia on August 28, 2015, for purposes of the instant violation of

probation (hereinafter “VOP”) proceedings.

       The Commonwealth initiated VOP proceedings on September 1, 2015.

A Gagnon I hearing1 took place September 8, 2015, the transcript of which

is not in the certified record. On September 18, 2015, a Gagnon II hearing

was held, wherein the trial court incorporated, without objection, the

Gagnon II report prepared by Philadelphia County Probation Officer

____________________________________________


1
 Gagnon v. Scarpelli, 411 U.S. 778 (1973) (defendant accused of violating
probation is entitled to two hearings: 1) a pre-revocation hearing to
determine probable cause of a violation; and 2) a revocation hearing to
establish violation and determine whether revocation is warranted).




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Kimberly Kalbach, who was not present at the hearing.           The trial court’s

comments indicated that Officer Kalbach was present the previous day and

provided information2 to the parties.

       THE COURT: . . . . Ms. Kalvach [sic], who was the out-of-county
       probation officer [sic] under Interstate Contact, appeared
       yesterday and gave the [c]ourt a summary, but the summary
       did not include the most recent information which was provided
       by e-mail yesterday following appearing [sic], which I provided
       copies to both counsel which indicate that Ms. Kalvach [sic]
       spoke with Atlantic County Probation and all the matters are
       complete with them.

N.T., 9/18/15, at 5-6. The Assistant District Attorney conceded that Officer

Kalbach was unaware of Appellant’s incarceration until shortly before the

hearing.3

       Appellant objected to the timeliness of the VOP hearing, since the

underlying conduct occurred May 28, 2011, and the conviction occurred on

March 23, 2012.        The trial court denied the objection by relying on Officer

Kalbach’s Gagnon II report, which reveals the following facts.            Officer

Kalbach unsuccessfully attempted to contact Appellant on June 2, 2010. On

June 4, 2010, Officer Kalbach learned that Appellant was in a psychiatric

hospital in New Jersey, and continued to track his progression through

various facilities. She asked New Jersey authorities to supervise Appellant,

____________________________________________


2
    It is not clear if this summary was of record.
3
   Apparently, the Philadelphia County District Attorney’s Extradition Unit
initiated the proceedings. N.T., 9/18/15, at 14.



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but that request was refused since the facilities were not permanent

addresses. On December 13, 2010, Appellant was accepted for placement in

a boarding home, and New Jersey apparently accepted full case supervision

as of February 3, 2011.4 A note in the report states that Officer Kalbach was

informed, on July 18, 2012, of Appellant’s March 23, 2012 conviction. The

report also contains other information received from New Jersey probation

officials regarding Appellant’s movements, but it does not indicate when that

information was received.5

        Based on this evidence, the trial court determined that Appellant

violated probation as of May 28, 2011, revoked his probationary sentence,

and imposed the aforementioned judgment of sentence.              On October 8,

2015,        Appellant   filed   an   untimely   post-sentence   motion   seeking

reconsideration of sentence. This timely appeal followed. Appellant raises

the following errors.

        I.      [Appellant]’s probation violation hearing was untimely and
                violated Pa.R.Crim.P. 708(B)(1), when the court held this
                hearing over three years after the violation and long after
                Appellant’s probation would have expired.


____________________________________________


4
  See 61 Pa.C.S. §§ 7111-7122 (Interstate Compact for the Supervision of
Adult Offenders Act).
5
    Since Officer Kalbach, by the Commonwealth’s own concession, was
unaware of Appellant’s incarceration until shortly before the VOP hearing, it
is plausibly inferred that this information was obtained in the course of
preparing the Gagnon II report.



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      II.    The lower court erred and abused its discretion when it
             sentenced Appellant, without accurate and sufficient
             information, to a manifestly excessive violation of
             probation sentence, twenty-three to forty-six months, and
             where the court failed to consider [Appellant]’s personal
             history and rehabilitative needs and improperly considered
             [Appellant]’s mental illness as an aggravating factor.

Appellant’s brief at 4.

      In an appeal from a sentence imposed after the court has revoked

probation, we can review “the validity of the revocation proceedings, the

legality of the sentence imposed following revocation, and any challenge to

the discretionary aspects of the sentence imposed.”              Commonwealth v.

Wright, 116 A.3d 133, 136 (Pa.Super. 2015).

      Appellant’s first claim challenges the timeliness of the proceeding.

Rule of Criminal Procedure 708(B)(1) states that a probation revocation

must be held as “speedily as possible,” which we have interpreted to require

a hearing within a reasonable amount of time. Commonwealth v. Woods,

965 A.2d 1225, 1227 (Pa.Super. 2009).             There is no presumptive time

period in which the hearing must take place.             Id.      Timeliness of the

proceeding    implicates   its   validity   and   presents   a    question   of   law.

Commonwealth v. Infante, 888 A.2d 783, 790 (Pa. 2005). Therefore, our

review is de novo. Id.

      If, as herein, there is a delay in the proceeding, the period of delay is

calculated from the date of conviction or entry of guilty plea to the date of

the violation hearing.     Commonwealth v. Clark, 847 A.2d 122, 124


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(Pa.Super. 2004).       In examining the reasonableness of the delay, we

examine three factors: the length of the delay; the reasons for the delay;

and   the   prejudice    resulting   to   the   defendant   from   the   delay.

Commonwealth v. Christmas, 995 A.2d 1259, 1263 (Pa.Super. 2010).

We look to the circumstances surrounding the delay to determine whether

the Commonwealth acted with due diligence in scheduling the hearing. Id.

at 1263. The Commonwealth bears the burden of proof and must establish

the violation by a preponderance of the evidence. Wright, supra. If the

Commonwealth has failed to meet its burden in justifying the delay, we must

determine whether that delay has prejudiced Appellant.

      The trial court found that the Commonwealth was not at fault for any

delay, since the information provided by New Jersey to Officer Kalbach was

faulty. It observed:

      This [c]ourt did not err when it denied [Appellant]’s objection
      based upon the timeliness of the hearing. As this [c]ourt noted,
      Kalbach had received only sporadic and faulty information from
      New Jersey authorities and apparently was unaware that
      Defendant had been incarcerated until shortly before the instant
      hearing due to the faulty information that she had received from
      New Jersey. Moreover, [Appellant] did not maintain a consistent
      address while he was in New Jersey and had absconded from
      New Jersey supervision on July 17, 2012, which was the last
      information Kalbach had received from New Jersey authorities as
      to [Appellant]’s status and location.       Thus, the delay in
      scheduling [Appellant]’s revocation hearing was not caused by a
      lack of due diligence on the part of the Commonwealth, but by
      faulty information received from New Jersey authorities which
      indicated incorrectly that [Appellant] had been on absconding
      status since July 2012. Once [Appellant]’s correct whereabouts
      were made known to the Commonwealth, the instant revocation
      hearing was promptly scheduled. Therefore, this [c]ourt did not

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       err when it denied [Appellant]’s objection based on the
       timeliness of the hearing as the delay was not caused through
       the fault of the Commonwealth.

Trial Court Opinion, 11/30/15, at 6.

       The Commonwealth’s response to Appellant’s claim of unreasonable

delay is to largely deny any delay. The Commonwealth maintains that the

delay amounted to three weeks, arriving at that number by including only

the time period between extradition and the actual hearing.                      “[T]he

Commonwealth held [Appellant’s] revocation hearing three weeks after he

was extradited to Philadelphia following the completion of his three-year

incarceration in New Jersey.          Thus, his probation officer acted with due

diligence[.]” Commonwealth’s brief at 6 (emphasis in original).

       The trial court, on the other hand, finds that New Jersey provided

faulty information to the probation officer, and therefore appears to hold

that   the   Commonwealth         was    simply   not   responsible   for    Appellant’s

whereabouts.         Under     this   interpretation    the   delay   is    immaterial.6

“[R]evocation hearings must be held with reasonable promptness after a

probation officer is chargeable with knowing that probation has

been violated.”         Commonwealth v. Stancil, 524 A.2d 505, 506-07

(Pa.Super. 1987) (emphasis added).
____________________________________________


6
     Logically, due diligence is predicated on a duty to act.           If the
Commonwealth could rely on New Jersey’s information without independent
verification, as the trial court holds, then it was not required to schedule a
hearing.



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      Clark, supra establishes that the period of delay is calculated from

the date of conviction to the date of the violation hearing.          Thus, the

relevant period of delay is three years, five months, and twenty-six days

(March 23, 2012, to September 18, 2015).          The disjointed nature of the

record, which is subject to multiple interpretations regarding what the

Commonwealth knew and when, impedes effective appellate review.

However, we need not resolve the question of whether the Commonwealth is

at fault for the lengthy delay as we have determined, for the reasons that

follow, that Appellant cannot establish prejudice.

      “[W]here the Commonwealth provides no explanation for the delay,

the court should not attribute the delay to the defendant; instead, the court

should analyze whether the delay prejudiced the defendant.”         Christmas,

supra at 1263. We find that Appellant has not been prejudiced. Christmas

summarized what prejudice entails in the probation revocation hearing

context as

      something which would detract from the probative value and
      reliability of the facts considered, vitiating the reliability of the
      outcome itself. One specific purpose of our rule in requiring a
      prompt revocation hearing is to avoid such prejudice by
      preventing the loss of essential witnesses or evidence, the
      absence of which would contribute adversely to the
      determination. Another is to prevent unnecessary restraint of
      personal liberty. If a defendant is already incarcerated on
      the charges that triggered the probation revocation, he
      cannot claim the delay in holding his revocation hearing
      caused him any loss of personal liberty. Likewise, where a
      conviction on new charges conclusively establishes the

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        defendant's probation violation, the defendant cannot claim a
        delay in his VOP hearing prejudiced him because he lost
        favorable witnesses and evidence.

Christmas, supra at 1263–64 (citations omitted, emphasis added).

        The New Jersey conviction is conclusive proof of the probation

violation, thus Appellant cannot claim he lost favorable evidence or

witnesses.     Furthermore, while the period of delay herein is technically

almost three and one-half years, Appellant conceded at the hearing that he

was incarcerated in New Jersey in 2012 for violating his New Jersey

probation. “[T]here is reflected a resentence date of September 13, 2013

with that sentence being three years state prison with 297 days credit.”

N.T., 9/18/15, at 6.

        This 2012 incarceration is significant to our analysis. Subtracting 297

days from the September 13, 2013 resentencing date yields November 20,

2012, after which time Appellant remained continuously incarcerated in New

Jersey until he was extradited for the VOP proceeding.         We repeat that

Appellant’s Pennsylvania probation commenced May 28, 2010. Note, then,

that as of November 20, 2012, Appellant was in violation of his three-year

period of probation for the terroristic threat sentence. Therefore, the true

period of delay is the four-month period spanning July of 2012, which is the

earliest date the Commonwealth learned of the violation, to November 20,

2012.    We do not deem this delay prejudicial.     Moreover, since Appellant

was continuously incarcerated after that point, he cannot claim prejudice for


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the entire time he was incarcerated in New Jersey.       Christmas, supra at

1264.

        In determining Appellant was not prejudiced, we note that, even if the

Commonwealth had filed a probation detainer at some point during

Appellant’s incarceration, New Jersey was under no obligation to return

Appellant to Pennsylvania, as both jurisdictions are parties to the Interstate

Agreement Detainer Act (“IAD”).       The IAD does not apply to outstanding

probation violations.

        [T]he phrase “untried indictment, information or complaint” in
        Art. III refers to criminal charges pending against a prisoner. A
        probation-violation charge, which does not accuse an individual
        with having committed a criminal offense in the sense of
        initiating a prosecution, thus does not come within the terms of
        Art. III. Although the probation-violation charge might be based
        on the commission of a criminal offense, it does not result in the
        probationer's being “prosecuted” or “brought to trial” for that
        offense. Indeed, in the context of the Agreement, the probation-
        violation charge generally will be based on the criminal offense
        for which the probationer already was tried and convicted and is
        serving his sentence in the sending State.

Carchman v. Nash, 473 U.S. 716, 725 (1985).             This is precisely what

happened herein, as the probation violation is based on the criminal offense

for which Appellant was serving his sentence. While the purpose of the IAD

is to give an incarcerated defendant in one state the right to demand a

speedy disposition when a detainer is lodged in another state, the point

remains that no further proceedings would have occurred until New Jersey




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chose to release Appellant.7           Appellant fails to establish how he was

prejudiced by the Commonwealth’s failure to file a pro forma notice of

revocation that would not be acted upon until New Jersey released him, and

thus, he is not entitled to relief.

       We next address Appellant’s sentencing claims.         Our standard of

review is well-settled.

       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 judgment for reasons of partiality, prejudice, bias
       or ill[-]will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa.Super. 2007) (quoting

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super. 2006)).

       Appellant’s claims implicate the discretionary aspects of the sentence

imposed. Preliminarily, we note that these challenges are not automatically

reviewable as of right.        Commonwealth v. Disalvo, 70 A.3d 900, 902

(Pa.Super. 2013). Before we review such a claim on the merits, we
____________________________________________


7
   The Commonwealth refers to the Interstate Agreement Detainer Act in its
brief, stating that federal law prohibits any state from seeking extradition for
purposes of a probation revocation hearing. However, the IAD grants a right
to defendants; it does not impose a limitation on the States. We need not
discuss the nuances of whether and how the Commonwealth could have
extradited Appellant from New Jersey to Pennsylvania pursuant to some
other agreement, as it is sufficient to observe for purposes of prejudice that
Appellant had no right to demand extradition.




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      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 [see Pa.R.A.P. 2119(f)]; and
      (4) whether the concise statement raises a substantial question
      that the sentence is appropriate under the sentencing code. . . .

Id. (citation omitted). We decide the substantive merit of the claims only if

each requirement is satisfied. Id. This appeal was timely filed and includes

a separate statement of reasons as required by Pa.R.A.P. 2119(f).         We

separately address the remaining two requirements.

      We shall first discuss the substantial question prong. The presence of

a substantial question is determined on a case-by-case basis and exists only

when the appellant “advances a colorable argument that the sentencing

judge's actions were either: (1) inconsistent with a specific provision of the

Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process.”   Commonwealth v. Diehl, 140 A.3d 34, 44–45

(Pa.Super. 2016) (internal citations and quotation marks omitted).

      Appellant alleges two distinct substantial questions: that the sentence

imposed was manifestly excessive, and that it did not account for the

sentencing factors set forth in 42 Pa.C.S. § 9721(b).    A claim of manifest

excessiveness presents a substantial question.    Commonwealth v. Kelly,

33 A.3d 638, 640 (Pa. Super. 2011).

      The second allegation also presents a substantial question. However,

we note that 42 Pa.C.S. § 9721, the statute cited by Appellant, governs



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sentencing in general.     A VOP resentencing, however, is fundamentally

different in character from an initial sentencing procedure.

      The sentencing court's institutional advantage is, perhaps, more
      pronounced in fashioning a sentence following the revocation of
      probation, which is qualitatively different than an initial
      sentencing proceeding. At initial sentencing, all of the rules and
      procedures designed to inform the court and to cabin its
      discretionary sentencing authority properly are involved and play
      a crucial role. However, it is a different matter when a defendant
      reappears before the court for sentencing proceedings following
      a violation of the mercy bestowed upon him in the form of a
      probationary sentence. For example, in such a case, contrary to
      when an initial sentence is imposed, the Sentencing Guidelines
      do not apply, and the revocation court is not cabined by Section
      9721(b)'s requirement that “the sentence imposed should call
      for confinement that is consistent with the protection of the
      public, the gravity of the offense as it relates to the impact on
      the life of the victim and on the community, and the
      rehabilitative needs of the defendant.”

Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014). Last month, in

Commonwealth v. Derry, --- A.3d ---, 2016 WL 6776292 (Pa.Super. 2016),

we clarified the interplay between § 9721 and 42 Pa.C.S. § 9771, which

specifically governs sentencing following probation revocation.

      Section 9771(c) mandates a VOP court's consideration of
      additional factors at sentencing not addressed by Section
      9721(b). Consequently, a VOP court is not confined to only
      consider the factors set forth in Section 9721(b), that is, it is not
      cabined by Section 9721(b). Instead, a VOP court must also
      consider the dictates of Section 9771(c), given the unique
      aspects of VOP sentences not applicable when a court issues the
      initial sentence. In addition to issuing a sentence that is
      “consistent with the protection of the public, the gravity of the
      offense as it relates to the impact on the life of the victim and on
      the community, and the rehabilitative needs of the defendant
      [,]” a VOP court must also consider, for example, whether the
      sentence imposed is “essential to vindicate the authority of the
      court[,]” and must give “due consideration ... to the time spent

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     serving the order of probation.” 42 Pa.C.S. § 9771(c). Both of
     these concerns are unique to VOP sentencing hearings and may,
     in the end, weigh heavily on a court's consideration of an
     appropriate VOP sentence. But such additional considerations do
     not, as a necessary consequence, render the Section 9721(b)
     factors inapplicable for purposes of VOP sentences.

     There should be little doubt about the intent of the Pasture
     Court. The Court never explicitly stated that a claim alleging a
     VOP court's failure to consider Section 9721(b) factors no longer
     presents a substantial question for the purposes of discretionary
     sentencing review. . . .

     Accordingly . . . a VOP sentencing court must consider those
     factors, but must also consider factors set forth in Section
     9771(c), which are unique to VOP sentences. Therefore, we find
     that Appellant presents a substantial question for our review, to
     the extent that he challenges the sentencing court's failure to
     consider Section 9721(b) factors.

Id. at 5-6 (footnote and citations omitted).           Accordingly, we find that

Appellant has presented a substantial question for our review to the extent

he alleges a failure to consider the § 9721(b) factors in tandem with §

9771(c).

     However, we conclude that Appellant has failed to satisfy the

remaining prong of our discretionary appeal scheme as he failed to timely

file a post-sentence motion. “Issues challenging the discretionary aspects of

a sentence must be raised in a post-sentence motion or by presenting the

claim to the trial court during the sentencing proceedings. Absent such

efforts, an objection to a discretionary aspect of a sentence is waived.”

Commonwealth       v.   Kittrell,   19   A.3d   532,    538   (Pa.Super.   2011);

Pa.R.Crim.P. 708(E) (“A motion to modify a sentence imposed after a


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revocation shall be filed within 10 days of the date of imposition.”). Herein,

sentence was imposed September 18, 2015, and the post-sentence motion

was filed October 8, 2015, well outside the ten-day window. “An untimely

post-sentence    motion     does    not      preserve   issues   for   appeal.”

Commonwealth v. Wrecks, 931 A.2d 717, 719 (Pa.Super. 2007).

Accordingly, we may not grant the discretionary appeal.

      Nevertheless, we have reviewed the substantive merits and would

affirm judgment of sentence in any event. Appellant’s excessive sentencing

claim is unavailing, as he aggregates the three years of incarceration

imposed in New Jersey with the instant sentence, claiming “he will

essentially serve a total of five to seven years in custody as a result of this

drug possession.” This statement is incorrect. Appellant was sentenced to

incarceration as applied to the original convictions of simple assault and

terroristic threats, not as further punishment for the drug possession.

Appellant is not being further punished for drug possession and his

subsequent New Jersey probation violation. Instead, the court simply relied

upon those criminal acts in reconsidering the original leniency the court

bestowed.

      Appellant’s independent claim that the court improperly punished

Appellant for having mental health issues fares no better.       He draws our

attention to § 9721(b)’s requirement that the court must consider the

rehabilitative needs of the defendant, and claims that the trial court


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improperly    treated   Appellant’s   schizophrenia   as   a   basis   for   harsher

punishment instead of viewing it as a factor in fashioning a sentence that

accounts for Appellant’s rehabilitative needs.        This argument ignores the

countervailing argument, advanced by the Commonwealth, that Appellant’s

mental illnesses were not properly treated while he was at liberty. The trial

court accepted that argument, and referenced its belief that Appellant’s

mental health needs were best addressed by incarceration and treatment in

correctional facilities. Indeed, Appellant admitted during the hearing that he

self-medicated through illegal drugs and acted out when he was off

medication. N.T., 9/18/15, at 21. The trial court clearly considered the §

9721(b) factors in fashioning its sentence, and, had the issue been

preserved for our review, we would have declined to find an abuse of

discretion.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/18/2017




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