J. A21043/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                 : IN THE SUPERIOR COURT OF
                                              :       PENNSYLVANIA
                  Appellant                   :
                                              :
                     v.                       :
                                              :
JAMES BREECE                                  : No. 2377 EDA 2013

      Appeal from the Judgment of Sentence Entered December 19, 2012,
                 in the Court of Common Pleas of Bucks County,
               Criminal Division at No(s): CP-09-CR-005416-2009

BEFORE: BOWES, OTT, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                FILED SEPTEMBER 23, 2014

        The Commonwealth of Pennsylvania (the Commonwealth) appeals

from the judgment of sentence entered on December 19, 2012, which

modified the term of probation for James Breece (Breece).1 We affirm.

        On June 18, 2009, Breece was charged with six counts each of

indecent assault without consent and corruption of minors.2 These charges

stemmed from incidents of sexual abuse perpetrated by Breece upon minor

victims when they were between the ages of seven and twelve, and occurred

between 1978 and 1988. On October 11, 2009, Breece pled nolo contendere

to all counts.   At that time, Breece was 69 years old.     On December 16,

1
  The Commonwealth purports to appeal from the order signed on July 16,
2013, and entered on July 17, 2013, which denied its petition for
reconsideration filed after the judgment of sentence that was entered on
December 19, 2012. However, this appeal lies properly from the judgment
of sentence itself, and we have amended the caption accordingly.
2
    18 Pa.C.S. § 3126(a)(1) and 18 Pa.C.S. § 6301(a), respectively.

*Retired Senior Judge assigned to the Superior Court.
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2009, Breece was sentenced




12/16/2009, at 2.

        Breece completed his minimum sentence, and was paroled on

December 1, 2010. After completing his parole, Breece began his term of

probation in November 2011. On November 19, 2012, Breece presented to

the trial court a petition to terminate probation and sexual offender

supervision.3 He requested a hearing date prior to the effective date of the



and Notification Act (SORNA), codified at 42 Pa.C.S. §§ 9799.10-9799.41.4

        A hearing took place on December 19, 2012, after which, the trial



term of probation by decreasing it from 22 years to 11 years. On December




3
    That petition is not included in the certified record.
4
   The General Assembly enacted SORNA on December 20, 2011, and
amended it on July 5, 2012. SORNA became effective on December 20,
2012. Under SORNA, indecent assault is a Tier 1 offense (42 Pa.C.S.
§ 9799.14(b)(6)); thus, Breece is required to register as a sexual offender
with the State Police for 15 years. 42 Pa.C.S. § 9799.15(a)(1). Accordingly,
Breece presented a petition to request that the trial court terminate his
supervision so that he would not have to comply with these new sexual
offender registration requirements.



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           5
               A hearing on that petition was held on June 7, 2013. On July

17, 2013, the trial court entered an order denying that petition. The

Commonwealth filed a notice of appeal, and both the Commonwealth and

the trial court complied with Pa.R.A.P. 1925.




5
    Pa.R.Crim.P. 721(A)(1) provides that the Commonwealth may file a
                                                                   ts

challenged the sentence imposed by the trial court, we conclude it is still
governed by Pa.R.Crim.P. 721 - Procedures for Commonwealth Challenges to
Sentence; Sentencing Appeals.

      Where the Commonwealth files a motion to modify sentence within 10
days of the judgment of sentence, the Rule provides the following:

       If the defendant has not filed a post-sentence motion, the judge
       shall not vacate sentence but shall decide the Commonwealth's
       motion within 120 days of the filing of the motion. If the judge
       fails to decide the Commonwealth's motion within 120 days, the
       motion shall be deemed denied by operation of law.

Pa.R.Crim.P. 721(C)(2). In this case, the Commonwealth filed its motion
within 10 days. Accordingly, the trial court had 120 days, or until April 18,
2013, in which to dispose of the motion. As the trial court did not dispose of
the motion by that date, the clerk of courts should have entered an order
deeming the Commonweal

That did not occur.  Under similar circumstances, this Court has held that
                                                        ting that the post-
sentence motion is denied by operation of law and notify the defendant of
same, a breakdown in the court system has occurred and [this Court] will
                                                       Commonwealth v.
Perry, 820 A.2d 73
appeal, which was filed well-outside this timeframe, is timely due to the
breakdown in the court system.


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      On appeal, the Commonwealth challenges the discretionary aspects of
                  6



the                                       Commonwealth v. Crump, 995

A.2d 1280, 1282 (Pa. Super. 2010).     To preserve properly a discretionary

sentencing issue, the Commonwealth must raise the claim at sentencing or

in a post-sentence motion and in a court-ordered Pa.R.A.P. 1925(b) concise

statement. Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa. Super. 2012).

                       eal is permitted only after this Court determines that

there is a substantial question that the sentence was not appropriate under

                        Crump, 995 A.2d at 1282.        The Commonwealth

                                                                 a plausible

argument that the sentence violates a provision of the sentencing code or is

                                                                Naranjo, 53



provide a separate statement specifying where the sentence falls in the

sentencing guidelines, what provision of the sentencing code has been

violated, what fundamental norm the sentence violates, and the manner in

                           Id.




6
  The Commonwealth also raised an issue asserting that the trial court erred
                    sentence more than two years after he was originally
sentenced. However, at oral argument, the Commonwealth abandoned this

terminate continued supervision or lessen or increase the conditions upon
                                                           9771(a).

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      Instantly, the Commonwealth raised this issue in a timely-filed motion

for reconsideration, and again in its Pa.R.A.P. 1925(b) statement. However,

the Commonwealth does not present a separate statement pursuant to

                                                                            s of

a sentence in a criminal matter shall set forth in his brief a concise

statement of the reasons relied upon for allowance of appeal with respect to

the discretionary aspects of a sentence. The statement shall immediately

precede the argument on the merits with respect to the discretionary




                                -18.   The Commonwealth argues that had

Breece committed these crimes more recently, the identical conduct would

result in additional charges with higher offense gravity scores. Id. at 18.



his treatment provider and continued to volunteer at a home for troubled

boys until his incarceration. Id. at 19.

      The Commonwealth has not persuaded this Court that either of these



                                           a provision of the sentencing code or

                                                                      Naranjo,

supra.   The Commonwealth has not directed us to any case involving a




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probation.7

     Even assuming, arguendo, the Commonwealth has presented a



decrease the term of probation was an abuse of

challenge to the discretionary aspects of sentencing, we evaluate the court's

                                                           Commonwealth v.

Stokes, 38 A.3d 846, 858 (Pa. Super. 2011).

     The trial court set forth the following rationale for its decision.

            At the hearing, we found it significant that Breece testified
     that he had been participating in therapy with Ken Singer since
     he was charged with these offenses in addition to sex offender
     supervision ordered by the probation department; he admitted
     his offenses to his wife and other family members; he had the
     support of a church community (which is fully aware of the
     convictions); and he had continued contact with [his son, who
     was one of the victims in this case, as well as his grandchildren].
     Furthermore, we took into consideration that the crimes charged
     occurred twenty-five (25) to thirty-five (35) years ago; that
     [Breece] was, at the time of the Petition to Terminate
     Supervision, seventy-two years of age; his health issues,
     including high blood pressure, emphysema, sleep apnea, and
     allergies; that his only violation of supervision was a technical
     violation for joining a church without first notifying the probation
     department of the location of the church and that the violation
     was handled in house by his current probation officer; and the

     conviction but would be subject to much more stringent
     reporting requirements under SORNA for the remainder of his
     life.

Trial Court Opinion, 11/15/2013 at 11.


7
  It is unlikely that there would be any case in which a defendant filed a
notice of appeal from a decision to decrease his or her term of probation.

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       Under this modified term of probation, Breece likely will be on

probation for the majority of the remainder of his life.   Moreover, he is

subject to stringent reporting requirements under SORNA. Accordingly, we

cann

probation was an abuse of discretion.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/23/2014




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