J-S39023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

JAMIAN RYAN CLIPPER,

                            Appellant                     No. 1041 MDA 2015


             Appeal from the Judgment of Sentence May 21, 2015
              in the Court of Common Pleas of Lycoming County
              Criminal Division at Nos.: CP-41-CR-0000101-2012
                           CP-41-CR-0000408-2012
                           CP-41-CR-0001256-2012
                           CP-41-CR-0002122-2012


BEFORE: STABILE, J., PLATT, J.*, and STRASSBURGER, J.*

MEMORANDUM BY PLATT, J.:                                    FILED JUNE 06, 2016

        Appellant, Jamian1 Ryan Clipper, appeals from the sentence imposed

following    revocation     of   his   probation   and   intermediate   punishment.

Specifically, he challenges the discretionary aspects of his sentence.          We

affirm.

        We take the factual and procedural history in this matter from the

January 12, 2016 opinion of the trial court and our review of the certified

record.     On August 27, 2012, Appellant pleaded guilty to several theft,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Although the Trial Court Opinion and Appellant’s brief refer to Appellant as
“Jamien”, our review of the certified record reflects that Appellant’s first
name is alternatively spelled “Jamian”.
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criminal trespass, and controlled substance offenses at Information numbers

100-2012, 101-2012, 408-2012, and 1256-2012. He was sentenced to an

aggregate sentence of three years of intermediate punishment followed by

four years of probation.

      On January 7, 2013, Appellant pleaded guilty to possession of a

controlled substance (heroin) and possession of drug paraphernalia at

Information number 2122-2012.          He was sentenced to one year of

intermediate punishment followed by twelve months of probation, to be

served consecutively to any sentences he was currently serving.

      In September 2013, the court issued a bench warrant after Appellant

absconded from supervision. Appellant was arrested on the warrant and, on

May 6, 2014, he admitted to violating the conditions of his supervision. The

court ordered him to be transported to SCI Camp Hill for a State

Intermediate Punishment (SIP) program evaluation.        Appellant voluntarily

withdrew from the SIP program, after which the court scheduled a

resentencing hearing for September 15, 2014. On September 15, the court

issued an order continuing the hearing so that Appellant could obtain certain

inpatient treatment records.

      On December 16, 2014, at the continuation of the resentencing

hearing, “the [trial] court found that Appellant violated the conditions of his

intermediate punishment and probation by failing to report as directed, by

using controlled substances, by med[-]seeking at different institutions, and

by not complying with the directives of the [a]dult [p]robation [o]ffice with

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respect to follow-up and treatment.”     (Trial Court Opinion, 1/12/16, at 3).

The court revoked Appellant’s probation under Information number 101-

2012, and sentenced him to twelve months of imprisonment in county

prison, work crew/work release eligible, with credit for time served; and

provided that Appellant could be “released prior to serving the entirety of his

sanction if he was re-admitted to the Keep it Green Recovery House in York,

Pennsylvania, or to the Lycoming County Re-entry Program.”               (Order,

12/16/14, at unnumbered page 1).         The court noted that the remaining

sentences Appellant was serving would run consecutively to that sentence.

      In its December 16, 2014 order, the court also advised Appellant that:

“in light of his substantial addiction related problems in the past, should [he]

relapse and/or not comply with the terms and conditions of his probation

and supervision, the [c]ourt will be left with no choice but to impose a

lengthy state prison sentence.” (Id. at unnumbered page 2).

      Nevertheless, Appellant continued to violate.     On May 21, 2015, the

court held a hearing on Appellant’s numerous violations of the terms of his

intermediate punishment and probation.          There, the court found that

Appellant “violated the conditions of his [i]ntermediate [p]unishment and

probation by being removed from the American Rescue Workers, by failing

to complete treatment programs, by yet again using controlled substances,

by failing to report as directed, and by failing to comply with the directives of

his adult probation officer.”   (Order, 5/27/15, at unnumbered page 1).        It

found that Appellant had taken part in numerous treatment programs for his

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substance abuse and mental health issues; however, Appellant continued to

use heroin.

     The trial court noted that it had advised Appellant that if he continued

not to comply with the terms of probation, it would “be left with no choice

but to impose a lengthy prison sentence” and concluded that “a state prison

sentence is not only advisable, but mandated in order to protect [Appellant]

from himself, and to protect the community from [his] continued substance

use. All other avenues as set forth above have failed.” (Id. at unnumbered

page 2).      The court revoked Appellant’s intermediate punishment and

probation sentences and re-sentenced him to an aggregate sentence of not

less than three and one-half years nor more than seven years of

incarceration in a state correctional institution.   The court found that

Appellant was RRRI eligible.

     Appellant did not object at sentencing or file a post-sentence motion.

He filed a timely notice of appeal on June 15, 2015, and, pursuant to the

trial court’s order, he filed a timely concise statement of errors complained

of on appeal on July 13, 2015. See Pa.R.A.P. 1925(b). The trial court filed

its opinion on January 12, 2016. See Pa.R.A.P. 1925(a).

     Appellant raises one issue on appeal:

     I.  Whether the [trial] court abused its discretion at []
     Appellant’s probation revocation hearing by imposing a
     manifestly excessive and unduly harsh sentence[?]




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(Appellant’s Brief, at 4).2

       Appellant’s issue challenges the discretionary aspects of his sentence

imposed following the revocation of his probation. This Court has recognized

that its scope of review includes the discretionary aspects of a sentence

following revocation of probation yet there is no automatic right to appeal

such sentence.      See Commonwealth v. Cartrette, 83 A.3d 1030, 1042

(Pa. Super. 2013) (en banc); Commonwealth v. Pass, 914 A.2d 442, 445-

46 (Pa. Super. 2006). However, an appeal is more appropriately considered

a petition for allowance of appeal, which may be considered on its merits if

an appellant preserves his issue by raising it during sentencing hearing or in

post-sentence motion, and complies with the requirements of Pa.R.A.P.

2119(f), by setting forth “a concise statement of the reasons relied upon for

allowance of appeal with respect to the discretionary aspects of his sentence

. . . [and] show[ing] that there is a substantial question that the sentence

imposed is not appropriate under the Sentencing Code.” Id. at 446 (citation

omitted); see id. at 446 n.8.

       Notably, “[t]o preserve an attack on the discretionary aspects of

sentence, an appellant must raise his issues at sentencing or in a post-

sentence motion. Issues not presented to the sentencing court are waived


____________________________________________


2
  The Commonwealth did not file a brief in this matter, but rather submitted
a letter stating that it would be relying on the trial court’s January 12, 2016
opinion. (See Letter from Lycoming County Office of District Attorney, dated
March 21, 2016).



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and cannot be raised for the first time on appeal.”      Commonwealth v.

Malovich, 903 A.2d 1247, 1251 (Pa. Super. 2006) (citations omitted)

(finding challenge to discretionary aspect of sentence following revocation of

probation where appellant did not file post-sentence motion or raise issue

before court at sentencing hearing); see also Pa.R.A.P. 302(a) (“Issues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.”).

      Here Appellant failed to preserve his issue either by objecting to the

sentence or by filing a timely post-sentence motion. (See Trial Ct. Op., at

5-6). Accordingly, he has waived his claim. See Malovich, supra at 1251;

Pa.R.A.P. 302(a).

      Because Appellant failed to preserve his discretionary sentencing claim

for our review, we are unable to review the issue raised on appeal.      See

Pass, supra at 445-46. We therefore affirm the judgment of sentence.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2016




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