J-S38037-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,        :     IN THE SUPERIOR COURT OF
                                     :          PENNSYLVANIA
                     Appellee        :
                                     :
          v.                         :
                                     :
MAURICE POWELL,                      :
                                     :
                     Appellant       :     No. 372 EDA 2014

     Appeal from the Judgment of Sentence Entered October 9, 2013,
           In the Court of Common Pleas of Delaware County,
            Criminal Division, at No. CP-23-CR-0006939-2011.

COMMONWEALTH OF PENNSYLVANIA,        :     IN THE SUPERIOR COURT OF
                                     :          PENNSYLVANIA
                     Appellee        :
                                     :
          v.                         :
                                     :
MAURICE POWELL,                      :
                                     :
                     Appellant       :     No. 400 EDA 2014

     Appeal from the Judgment of Sentence Entered October 9, 2013,
           In the Court of Common Pleas of Delaware County,
            Criminal Division, at No. CP-23-CR-0006875-2011.

COMMONWEALTH OF PENNSYLVANIA,        :     IN THE SUPERIOR COURT OF
                                     :          PENNSYLVANIA
                     Appellee        :
                                     :
          v.                         :
                                     :
MAURICE POWELL,                      :
                                     :
                     Appellant       :     No. 402 EDA 2014

     Appeal from the Judgment of Sentence Entered October 9, 2013,
           In the Court of Common Pleas of Delaware County,
            Criminal Division, at No. CP-23-CR-0007295-2010.
J-S38037-14



BEFORE: FORD ELLIOTT, P.J.E., BOWES and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED SEPTEMBER 17, 2014

        Appellant, Maurice Powell, appeals nunc pro tunc from three separate

judgments of sentence that were entered on October 9, 2013, following the

revocation of his parole.1 After review, we affirm.

        The relevant facts of this case were set forth by the trial court as

follows:

              The pertinent history of this appeal begins on October 9,
        2013, when this Court held a Gagnon II[2] hearing. Appellant
        appeared via video conference and stipulated, through his
        attorney, to waiving his physical presence and to the time, date,
        place, and notice of the hearing. N.T., 10/9/2013, p. 3.

        placed in an in-patient rehabilitation center in lieu of receiving a
        prison sentence. This request was based pri
        most recent drug and alcohol evaluation that recommended
        Appellant would benefit from in-patient treatment. N.T., p.4.


        Dawn McDonald, disagreed with the request for inpatient
        tr
        that, while under her supervision, Appellant has been evaluated
        twice. N.T., p. 5. Both times it was recommended that he receive
        intensive out-patient treatment. The first time, Appellant failed
        to enroll in any program. N.T., p. 5. The second time, after
        appearing in front of The Honorable Judge Nilon, Appellant was
        ordered to complete Prep 1. After successful completion,
        Appellant was ordered to enroll in out-patient treatment, which


1
  The appeals were docketed at Pennsylvania Superior Court docket numbers
372 EDA 2014, 400 EDA 2014, and 402 EDA 2014. On March 25, 2014,
these separate appeals were consolidated by stipulation of the parties
pursuant to Pa.R.A.P. 513.
2
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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J-S38037-14



     he again failed to do. N.T., p. 5. Then, in 2010, Appellant was
     again evaluated at George W. Hill Correctional Facility. The
     evaluation recommended short term residential in-patient
     treatment. Appellant was paroled to Conawago Place and left;
     thereby failing to complete the program. N.T., p. 5.

          This Court agreed with Ms. McDonald that Appellant has
     shown no signs that he was amendable [sic] to successfully
     completing treatment.1 N.T., p. 6. This Court told Appellant
                                                     taxpayers of




          1
           The Court also considered the Gagnon II Hearing
          Report.

           This Court followed the recommendation provided by Ms.
     McDonald and sentenced Appellant as follows: On transcript
     7295-2010, Appellant was found in violation of his parole and
     parole was revoked, Appellant received full back time of 218
     days to be served in Delaware County Prison (DCP) and released
     on the maximum date. N.T., p. 7. On transcript 6939-2011,
     Appellant was found in violation of his parole, parole revoked,
     and sentenced to full back time of 508 days to be served in DCP,
     with release on the maximum date. N.T., p. 7[.] Lastly, on
     transcript 6875-2011, Appellant was found in violation of his
     parole, parole revoked, and sentenced to full back time of 501
     days to be served in DCP with release on the maximum date.
     N.T., p. 8. The new sentences were ordered to run concurrent to
     one another;
     recent case on transcript 2400-2013.2
          2
            This Court did not run the sentences concurrent, as
          requested, because of the severity of the new case
          where defendant was charged [with] arson and
          recklessly endangering another person.

                                                          -sentencing
     rights. The notes of testimony show that Appellant wanted to file
     an appeal and that the Officer of the Public Defender, who was
     representing Appellant, would in fact pass the information off to


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J-S38037-14



      their appellate unit and would have them contact Appellant.
      N.T., p. 13.

            On 1/2/2014, after the thirty days to appeal had past, this
      Court received a pro se motion from Appellant indicating that he
      never heard from his attorney and that he never received any
      statement that an appeal was filed. The motion was for new
      counsel as well as the right to file an appeal. After inquiring into

      ever filed on behalf of Appellant, despite the agreement to
      handle the appeal at the Gagnon II hearing. On 1/10/2014, this
      Court held a hearing on the motion. At the hearing, the Public

      but agreed that she never filed anything on behalf of Appellant
      despite agreeing to do so.


      motion and appointed Thomas Dreyer, Esquire, as new counsel

      appeal nunc pro tunc from the Gagnon II hearing. On January

      January 27, 2014, this Court ordered Appellant to file a 1925(b)
      Statement of Matters Complained of on Appeal. Appellant filed a
      timely 1925(b) on February 18, 2014.

Trial Court Opinion, 2/24/14, at 2-4.



consideration:

      1. Whether the trial court erred in failing to comply with
                                                    -patient drug
      rehabilitation facility in lieu of jail?

      2. Whether the trial court violated Pa.R.Crim.P. 708(D)(2) by
      failing to state on the record the reasons for the sentence
      imposed?




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J-S38037-14



                                             llenge the discretionary aspects

of his sentence, such challenges are unavailable in parole revocation cases.

Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008).



is whether the revocation court erred, as a matter of law, in deciding to



Id. (citing Commonwealth v. Mitchell, 632 A.2d 934, 936 (Pa. Super.

1993)). Accordingly, an appeal of a parole revocation is not an appeal of the

discretionary aspects of sentence. Id.3

     Here, however, Appellant presents no argument that the trial court

erred in revoking his parole. Rather, in the argument section of his brief,

Appellant focuses on the issues listed above that present challenges to the




3
  Compare Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013)
(holding that an appellant may raise a challenge to the discretionary aspects
of a sentence imposed following the revocation of probation and that this

case, we are not faced with a challenge to a new sentence following the
revocation of probation. Here, there was a revocation of parole. An order
revoking parole, as opposed to probation, does not impose a new sentence
rather, it requires the appellant to serve the balance of a valid sentence
previously imposed. Mitchell
recommittal is just that                                       Id. (citation
omitted). When parole is revoked, the court is not free to impose a new
sentence. Id.



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J-S38037-14



challenges are not available in parole revocation cases. Kalichak, 943 A.2d

at 293. Therefore, Appellant is entitled to no relief.

      Additionally

that the trial court erred as a matter of law in deciding to revoke parole, we

would conclude there was no error. It is undisputed that Appellant violated

his parole by failing to complete drug and alcohol rehabilitation and by

committing the new crimes of arson and recklessly endangering another

person.   N.T., Gagnon II Hearing, 10/9/13, at 7-9.       Appellant has been

afforded previous opportunities for drug rehabilitation, and the fact that

Appell



than order treatment in lieu of confinement. Id. at 5-7. Moreover, the trial



new convictions provide ample reasons for recommitment.         Id. at 5-11.

Accordingly, because there is no dispute that Appellant violated his parole,

there was no error in the trial court revoking Appella

recommitting him. Kalichak, 943 A.2d at 291; 42 Pa.C.S.A. § 9776.

      For the reasons set forth above, we conclude that Appellant failed to



affirm the judgments of sentence entered on October 9, 2013.

      Judgments of sentence affirmed.




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J-S38037-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/17/2014




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