J-S58039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

STEVEN L. WISE

                            Appellee               No. 609 MDA 2015


             Appeal from the Judgment of Sentence March 4, 2015
               In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0001918-2013


BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*

JUDGMENT ORDER BY GANTMAN, P.J.:               FILED NOVEMBER 04, 2015

        Appellant, the Commonwealth of Pennsylvania, appeals from the

judgment of sentence imposed upon Appellee, Steven L. Wise, following

revocation of Appellee’s intermediate punishment program (“IPP”) sentence.

On August 14, 2014, Appellee entered a negotiated plea of nolo contendere

to driving under the influence of alcohol or a controlled substance (“DUI”)

and driving while operating privilege is suspended or revoked.1   That day,

the court sentenced Appellee in accordance with the negotiated plea

agreement and imposed a 60-month IPP sentence for Appellee’s DUI

conviction; the court imposed a concurrent term of 60 days’ imprisonment

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1
    75 Pa.C.S.A. §§ 3802(a)(1); 1543(b)(1).


_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S58039-15


for Appellee’s remaining conviction.           A condition of the plea agreement

provided that if Appellee violated the terms of his IPP sentence and became

subject to resentencing, the new sentence imposed would be a state

sentence. On January 9, 2015, Appellee stipulated that he violated a term

of his IPP sentence by bringing legal papers into jail following his return from

work release on November 20, 2014.2 The court revoked Appellee’s original

IPP sentence and held resentencing hearings on February 18, 2015 and

March 4, 2015, at which time the parties discussed whether the court was

bound to impose a state sentence for Appellee’s technical violation based on

the language of the plea agreement.              Following the hearing on March 4,

2015, the court declined to impose a state sentence given the nature of this

violation and re-imposed a 60-month IPP sentence for Appellee’s DUI

conviction, with credit for time served. On April 2, 2015, the Commonwealth

timely filed a notice of appeal and a voluntary concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

       On appeal, the Commonwealth presents its issue as a challenge to the

court’s sentencing discretion.       Preliminarily, objections to the discretionary

aspects of a sentence are waived if they are not raised at the sentencing

hearing or in a timely filed post-sentence motion.             Commonwealth v.

Hartman, 908 A.2d 316 (Pa.Super. 2006). See also Pa.R.Crim.P. 708(E)
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2
  The two pieces of paper at issue were court documents in other inmates’
cases, which were public record.



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(stating motion to modify sentence imposed after revocation shall be filed

within 10 days of date of imposition).           Instantly, the court resentenced

Appellee on March 4, 2015.           The Commonwealth did not object following

imposition of sentence or file a timely post-sentence motion challenging the

discretionary aspects of the court’s sentence.             See id.     Thus, the

Commonwealth’s issue is waived.3 Accordingly, we affirm.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/4/2015




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3
  To the extent the Commonwealth argues the new sentence violates the
plea bargain and/or the coordinate jurisdiction rule, we observe Section
9771, which states: “Upon revocation the sentencing alternatives available
shall be the same as were available at the time of initial sentencing….” 42
Pa.C.S.A. § 9771(b). See also Commonwealth v. Wallace, 582 Pa. 234,
870 A.2d 838 (2005) (holding that, upon revocation, court is 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. Partee, 86 A.3d 245 (Pa.Super. 2014)
(stating same).



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