J-S68013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

MARK DARRYL MARSHALL,

                          Appellant                  No. 200 EDA 2015


    Appeal from the Judgment of Sentence Entered December 22, 2014
           In the Court of Common Pleas of Montgomery County
           Criminal Division at No(s): CP-46-CR-0007046-2006


BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED DECEMBER 29, 2015

      Appellant, Mark Darryl Marshall, appeals from the judgment of

sentence of 18 to 48 months’ incarceration, imposed after the court revoked

his term of probation based on a technical violation. On appeal, Appellant

claims the evidence was insufficient to support the revocation of his

probation.    He also challenges both the discretionary aspects, and the

legality, of the new term of incarceration imposed by the court. After careful

review, we affirm.

      The trial court set forth the facts and procedural history of Appellant’s

case, as follows:

         [Appellant] entered a guilty plea to Aggravated Assault on
      June 12, 2008[,] and on the same day this Court sentenced him
      to time served1 to 23 months in prison. He also received a five-
      year consecutive probationary period. He violated his probation
      on September 2, 2009, and thereafter on February 23, 2011,
      [he] stipulated to those violations. The Court sentenced him on
J-S68013-15


     June 10, 2011 to serve 18 – 48 months[’] incarceration and one-
     year [of] consecutive special probation.
        1
          Commitment to date from August 26, 2005. The charges
        arose from [Appellant’s] assault on a hospital worker on
        August 26, 2005, while he was being institutionalized at
        the Norristown State Hospital under a civil commitment.

            On May 23, 2014, following a Gagnon2 I Hearing, this
     Court found there was probable cause to believe that [Appellant]
     committed another violation of probation.           Thereafter, a
     contested Gagnon II Hearing was held on July 1, 2014, in which
     [Appellant] was indeed found in violation of his probation for not
     taking required medication. After revoking his probation, we
     ordered a Pre-Sentence Investigation Report (PSI) and
     remanded [Appellant] to the Montgomery County Correctional
     Facility (MCCF) pending sentencing.        For various reasons,
     sentencing was scheduled and continued on July 31, 2014;
     September 10, 2014; September 18, 2014; and September 20,
     2014. [Appellant] was ultimately sentenced on December 22,
     2014 to serve 18 – 48 months of total confinement at a State
     Correctional Institution.
        2
            Gagnon v. Scarpelli, 411 U.S. 778 (1973).

          [Appellant] filed at [sic] timely Post-Sentence Motion on
     December 29, 2014, which was denied on January 5, 2015. A
     counseled Notice of Appeal was filed on January 9, 2015.
     [Appellant] subsequently complied with this Court’s directive
     that he produce and serve a Concise Statement of Matters
     Complained of on Appeal within 21 days … in accordance with
     Pennsylvania Rule of Appellant Procedure 1925(b).

Trial Court Opinion (TCO), 3/3/15, at 1-2.

     Appellant presents three issues for this Court’s review:

     1. The evidence was insufficient as a matter of law to find
     [A]ppellant in violation of his probation.

     2. Whether the trial court erred in failing to sentence [A]ppellant
     within 90 days of his conviction pursuant to Rule 704 of the
     Rules of Criminal Procedure.

     3. Whether the trial court erred in sentencing [A]ppellant to an
     illegal sentence.

                                    -2-
J-S68013-15


       4. Whether the trial court abused its discretion when it found
       Appellant in violation of his probation and further abused its
       discretion when it sentenced Appellant following the revocation
       of his special probation, to a term of one and one half (1½) to
       four (4) years of total confinement in a state correctional
       institution.

Appellant’s Brief at 8.

       Appellant first challenges the sufficiency of the evidence supporting the

court’s decision to revoke his term of probation. Our review of the record

reveals that Appellant did not present this claim in his Pa.R.A.P. 1925(b)

statement, despite the trial court’s explicitly informing him “that any issue

not properly included in the [s]tatement of [e]rrors timely filed and served

shall be deemed waived.” Trial Court Order, 1/16/15.1        Consequently, we

deem Appellant’s first issue waived for our review.             See Pa.R.A.P.

1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in

accordance with the provisions of this paragraph (b)(4) are waived.”);

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“From this date

forward, in order to preserve their claims for appellate review, Appellants

must comply whenever the trial court orders them to file a Statement of

Matters Complained of on Appeal pursuant to Rule 1925.          Any issues not

raised in a 1925(b) statement will be deemed waived.”).


____________________________________________


1
  Because Appellant did not set forth this issue in his concise statement, the
trial court did not address it in its opinion. Thus, we have no analysis from
the trial court regarding the evidentiary support for its finding that Appellant
violated a condition of his probation.



                                           -3-
J-S68013-15



      Likewise, we deem Appellant’s second issue waived for this same

reason.   Appellant did not assert in his Rule 1925(b) statement that the

court erred by not conducting his sentencing proceeding within 90 days of

the revocation of his probation, as required by Pa.R.Crim.P. 704(A)(1)

(“Except as provided by Rule 702(B), sentence in a court case shall

ordinarily be imposed within 90 days of conviction or the entry of a plea of

guilty or nolo conendere.”).      While Appellant maintains that this claim

constitutes a non-waivable challenge to the legality of his sentence, he cites

no authority to support this claim.     As this Court has stated, “[a] general

definition of an illegal sentence is one that exceeds the jurisdiction or power

of the sentencing court to impose.”      Commonwealth v. Tobin, 89 A.3d

663, 668 (Pa. Super. 2014). “The two most basic and classic examples of

an illegal sentence are sentences that exceed the statutory maximum and a

sentence imposed by a court without jurisdiction.” Id. We have found no

case law indicating that a violation of Rule 704(A)(1) implicates the trial

court’s jurisdiction to proceed with sentencing, and Appellant’s claim does

not involve an argument that his sentence exceeded the statutory

maximum. Moreover, our Supreme Court has indicated that a challenge to

an untimely sentencing hearing constitutes a due process issue that must be

preserved.    See Commonwealth v. Anders, 725 A.2d 170, 173 (Pa.

1999).    Accordingly, Appellant has not convinced us that his assertion

implicates the legality of his sentence and, thus, his failure to raise this claim




                                      -4-
J-S68013-15



in his Rule 1925(b) statement waives it for our review. See Lord, 719 A.2d

at 309.2

       In Appellant’s third issue, he maintains that the sentence imposed

upon revocation of his probation is illegal because it results in him serving a

total term of incarceration that exceeds the statutory maximum of 10 years

for the offense of aggravated assault.           Clearly, this claim implicates the

legality of his sentence; thus, while Appellant did not raise this assertion in

his Rule 1925(b) statement, it is not waived for our review.                   See

Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013) (“[A]

sentence that exceeds the statutory maximum is illegal.”) (citation omitted);

Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008)

(“[C]laims pertaining to the legality of sentence are non-waivable, may be

leveled for the first time on appeal, and our jurisdiction need not be invoked

in a Pa.R.A.P. 2119(f) statement.”) (citation omitted).

       Before addressing the merits of Appellant’s claim, we note that,

       as a general rule, upon revocation, the sentencing alternatives
       available to the court shall be the same as the alternatives
       available at the time of initial sentencing…. Normally, the trial
____________________________________________


2
  In any event, we note that our Supreme Court has held that a defendant is
only entitled to discharge of the charges against him based on a violation of
Rule 704(A)(1) where he “can demonstrate that the delay in sentencing
prejudiced him.” See Anders, 725 A.2d at 173.           Appellant offers no
discussion of how he was prejudiced by the delay in this case. Accordingly,
even had Appellant not waived this claim, we would conclude it is meritless.




                                           -5-
J-S68013-15


     court is limited only by the maximum sentence that it could have
     imposed originally at the time of the probationary sentence.

                                   ***

     Additionally, credit for time served is governed by statute as
     follows:

       § 9760. Credit for time served

       After reviewing the information submitted under section
       9737 (relating to report of outstanding charges and
       sentences) the court shall give credit as follows:

       (1) Credit against the maximum term and any minimum
       term shall be given to the defendant for all time spent in
       custody as a result of the criminal charge for which a
       prison sentence is imposed or as a result of the conduct on
       which such a charge is based. Credit shall include credit for
       time spent in custody prior to trial, during trial, pending
       sentence, and pending the resolution of an appeal.

       (2) Credit against the maximum term and any minimum
       term shall be given to the defendant for all time spent in
       custody under a prior sentence if he is later reprosecuted
       and resentenced for the same offense or for another
       offense based on the same act or acts. This shall include
       credit in accordance with paragraph (1) of this section for
       all time spent in custody as a result of both the original
       charge and any subsequent charge for the same offense or
       for another offense based on the same act or acts.

       (3) If the defendant is serving multiple sentences, and if
       one of the sentences is set aside as the result of direct or
       collateral attack, credit against the maximum and any
       minimum term of the remaining sentences shall be given
       for all time served in relation to the sentence set aside
       since the commission of the offenses on which the
       sentences were based.

       (4) If the defendant is arrested on one charge and later
       prosecuted on another charge growing out of an act or
       acts that occurred prior to his arrest, credit against the
       maximum term and any minimum term of any sentence
       resulting from such prosecution shall be given for all time



                                   -6-
J-S68013-15


         spent in custody under the former charge that has not
         been credited against another sentence.

      42 Pa.C.S.A. § 9760. [A] defendant shall be given credit for any
      days spent in custody prior to the imposition of sentence, but
      only if such commitment is on the offense for which sentence is
      imposed.      In the context of sentencing after probation
      revocation, the court must give due consideration to the time the
      defendant has spent serving probation, but the court is not
      required to credit the defendant with any time spent on
      probation. Likewise, the defendant is not automatically granted
      credit for time served while incarcerated on the original sentence
      unless the court imposes a new sentence that would result in the
      defendant serving time in excess of the statutory maximum.

Id. at 365, 366-67 (internal citations and quotation marks omitted).

      Here, by Appellant’s calculations, he “served at least six years and ten

months[’ incarceration] on this file prior to the current sentencing….”

Appellant’s Brief at 43.   Thus, according to Appellant, the court’s present,

maximum sentence of 48 months’ brings his total term of incarceration for

the offense of aggravated assault to approximately 10 years and 10 months,

thereby exceeding the 10-year statutory maximum for that crime. See id.

at 43-44.

      However, the Commonwealth points out that Appellant’s calculations

improperly include “322 days that he spent in pre-sentencing[,] inpatient

psychiatric treatment pursuant to his civil commitment.”      Commonwealth’s

Brief at 19.     Our review of the record confirms the Commonwealth’s

assertion.   Specifically, Appellant initially pled guilty to aggravated assault

on June 12, 2008, and was given a sentence of time served to 23 months’

incarceration, with a five year consecutive term of probation.       The court

gave Appellant credit for time served beginning on August 26, 2005, the

                                      -7-
J-S68013-15



date on which he was institutionalized under a civil commitment. See TCO

at 1 n.1; N.T. Plea and Sentencing, 6/12/08, at 9. Consequently, Appellant

received credit for 23 months spent ‘in custody’ at Norristown State Hospital

from August 26, 2005 until July 26, 2007. For the 322 days between July

26, 2007     (when Appellant ‘maxed out’           his   23   month sentence       of

incarceration) and the entry of his guilty plea on June 12, 2008, Appellant

was not serving a sentence of incarceration; instead, he was serving his

term   of   probation   and   was   concurrently    institutionalized   on   a   civil

commitment.

       Appellant presents no argument as to why he should receive credit for

those 322 days when he was not “in custody as a result of the criminal

charge for which a prison sentence is imposed or as a result of the conduct

on which such a charge is based.” 42 Pa.C.S. § 9760(1). Because Appellant

was institutionalized as a result of a civil commitment, and there is no

indication in the record that his commitment, or any extension thereof, was

the result of the criminal conduct at issue in this case, Appellant was not

entitled to credit for the 322 days between July 26, 2007 and June 12, 2008.

Additionally, while “the sentencing court at the time of re-sentencing must

give ‘due consideration’ to the time the defendant spent serving probation,”

the court “need not credit the defendant with any time spent on probation.”

Commonwealth v. Crump, 995 A.2d 1280, 1284 (Pa. Super. 2010).

Therefore, Appellant’s current, maximum sentence does not make his




                                      -8-
J-S68013-15



aggregate term of incarceration exceed the statutory maximum for the

offense of aggravated assault.

     In Appellant’s fourth and final issue, he challenges the discretionary

aspects of his sentence.

     Challenges to the discretionary aspects of sentencing do not
     entitle an appellant to review as of right. Commonwealth v.
     Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
     challenging the discretionary aspects of his sentence must
     invoke this Court's jurisdiction by satisfying a four-part test:

        We conduct a four-part analysis to determine: (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, 42 Pa.C.S.A. § 9781(b).

     Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.
     Super.2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
     Objections to the discretionary aspects of a sentence are
     generally waived if they are not raised at the sentencing hearing
     or in a motion to modify the sentence imposed.
     Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
     2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

     The determination of what constitutes a substantial question
     must be evaluated on a case-by-case basis. Commonwealth v.
     Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial
     question 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.” Sierra, supra at 912–13.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).




                                   -9-
J-S68013-15



      Here, Appellant has included a Rule 2119(f) statement where he raises

the following two challenges to his sentence.      First, he contends that “the

length of the sentence he received was excessive and did not fit the severity

of sentence that should have been imposed for the probation violations he

was accused of having engaged in.” Appellant’s Brief at 48. He then asserts

“that the trial court did not give due deference to the probation sentencing

factors enumerated under § 9771(c).” Id. Appellant does not explain what

factors the sentencing court failed to properly consider, or why the court’s

sentence was excessive for the probation violation he committed.

      The Commonwealth characterizes Appellant’s claims as essentially

amounting to an assertion “that the trial court did not weigh the mitigating

factors to craft a more lenient sentence.” Commonwealth’s Brief at 24. The

Commonwealth further asserts “that a claim that a court did not weigh the

factors as an appellant wishes does not raise a substantial question.” Id.

(citing Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014));

see also Commonwealth v. Petaccio, 764 A.2d 582, 587 (Pa. Super.

2000) (providing that “an allegation that a sentencing court failed to

consider or did not adequately consider certain factors does not raise a

substantial   question   that   the   sentence   was   inappropriate”).   Given

Appellant’s bald assertions and lack of explanation, the Commonwealth’s

interpretation of his claims is fair, and we agree that he has not raised a

substantial question for our review.




                                       - 10 -
J-S68013-15



      Nevertheless, we note that we would ascertain no error or abuse of

discretion in the court’s sentence. Initially, a large majority of Appellant’s

argument is simply a summary of the procedural history of his case, followed

by a word-for-word reiteration of his argument that there was insufficient

evidence that he violated a condition of his probation so as to warrant the

revocation of his probation.        See Appellant’s Brief at 50-65.     Again,

Appellant failed to raise in his Rule 1925(b) statement a challenge to the

sufficiency of the evidence to prove that he violated a condition of his

probation.   Therefore, we will not address this waived argument.          See

Pa.R.A.P. 1925(b)(4)(vii).

      Appellant does also briefly contend, however, that the court erred by

imposing a sentence of incarceration where no subpart of 42 Pa.C.S. §

9771(c) was satisfied.       See Appellant’s Brief at 65, 67-68.   That statute

states, in pertinent part:

      (c) Limitation on sentence of total confinement.--The court
      shall not impose a sentence of total confinement upon revocation
      unless it finds that:

         (1) the defendant has been convicted of another crime; or

         (2) the conduct of the defendant indicates that it is likely
         that he will commit another crime if he is not imprisoned;
         or

         (3) such a sentence is essential to vindicate the authority
         of the court.

42 Pa.C.S. § 9771(c).




                                      - 11 -
J-S68013-15



      In explaining how the record supports the sentence it imposed, the

trial court stated:

             In fashioning our sentence, we considered the PSI,
      [Appellant’s] testimony, and the arguments of both counsel.
      (N.T. 12/22/14, p. 16). We found [Appellant] to be a low-
      functioning and high-risk inmate due to our history with him. He
      first came into contact with this Court in 2006 when he was
      charged with Aggravated Assault on a hospital worker at the
      Norristown State Hospital. Id. At that time, he possessed a
      lengthy record in terms of incarceration, and failed to cooperate
      in any significant degree with mental health treatment. Id. By
      the time he was sentenced in 2008 to time served to 23 months,
      he had already been [‘in custody’ at Norristown State Hospital]
      for almost two years. Id. at p. 17. He then began to serve his
      five-year probation period, however, he had a difficult time
      complying with mental health treatment and ultimately violated
      his probation. Id. As a result, his probation was revoked and
      he was re-sentenced to serve time at SCI Coal Township. While
      there, he quickly accumulated numerous violations of prison
      rules and failed to comply with any institutional requirements.
      Id. at pp. 17-18.

             Once he maxed out his state sentence at Coal Township,
      he was supervised by the state board of probation and parole.
      Id. Since they felt he was a risk to the community, he was
      directly supervised at the Friends Hospital, an inpatient unit.
      After his arrival there, he immediately refused to cooperate with
      any directives and did not take his required medications. Id. He
      began acting out and engaging in behavioral issues that
      presented a high risk of danger within the mental health facility.
      Id. at p. 19. The staff reported they did not feel safe with
      [Appellant] on the unit.       Id. at p. 20.      Thus, although
      [Appellant’s] instant violation of not taking his medication is
      technical in nature, this Court believes it to constitute a major
      violation. Id. Due to these reports, we believe [Appellant]
      cannot simply be released back into the community with mere
      hopes that he will not act out in an aggressive manor and
      assault another individual. Id. at 21.

             The fact that [Appellant] cannot control certain behaviors
      in a high-structured, inpatient facility, gives little hope to his
      ability to control such behaviors if he were to be released into

                                    - 12 -
J-S68013-15


      our community. Id. His extensive criminal record established
      that he presents a very high-risk both within the institutional
      community and within the community at large to commit
      another crime. Id. at p. 23. Moreover, his inability to cooperate
      and take his medication presents society with a legitimate fear
      that if released into the community, he will engage in the
      aggressive behavior that led to his incarceration in the first
      place.    Thus, we found it necessary to commit him to
      confinement within an institutional environment due to his high
      prognostic risks, low-functioning abilities, and his history of
      incarceration and institutionalization on this case, which began
      because he assaulted a state mental health hospital worker. Id.
      at p. 29.

TCO at 4-6 (footnote omitted).

      Our review of the record supports the court’s determination “that total

confinement is necessary under the circumstances because the conduct of

[Appellant] indicates that it is likely that he will commit another crime if he

is not totally confined.” Id. at 6 (citing 42 Pa.C.S. § 9771(c)(2)). We also

note our disagreement with Appellant’s cursory assertion that his sentence is

excessive, where the record demonstrates that the court considered all

required factors in fashioning his term of incarceration.     Thus, even had

Appellant presented a substantial question warranting our review, we would

conclude that the court did not abuse its discretion in imposing his sentence.

      Judgment of sentence affirmed.




                                    - 13 -
J-S68013-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2015




                          - 14 -
