J-S53044-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                        v.

RALPH MICHAEL LUCHETTA

                                Appellant                      No. 70 MDA 2016


             Appeal from the Judgment of Sentence December 14, 2015
        in the Court of Common Pleas of Schuylkill County Criminal Division
                         at No(s):CP-54-CR-0000645-2014

BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                        FILED SEPTEMBER 27, 2016

         Appellant, Ralph Michael Luchetta, appeals from the judgment of

sentence entered in Schuylkill County Court of Common Pleas following the

trial    court’s   revocation   of   his   probation/parole.      He   challenges   the

discretionary aspects of his revocation of probation sentence. We affirm.

         The trial court summarized the facts and procedural posture of this

case as follows:

               [Appellant] has appealed an Order of Court dated
            December 14, 2015 entered after a Revocation Hearing at
            which [Appellant] stipulated to violating the terms and
            conditions of his Re-Probation/Parole.      He was Re-
            Sentenced on the Re-Probation sentence to a period of
            incarceration of 18½ months to 37 months at a SCI,
            consecutive to his Parole sentence of 11½ months to 23
            months. Thus, the cumulative sentence is 2½ to 5 years.


*
    Former Justice specially assigned to the Superior Court.
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       He was given 645 days credit for time served.     This was
       his second revocation.

          [Appellant] was originally sentenced on November 12,
       2014 to a period of 11½ months to 23 months, followed by
       a five (5) years’ Probation on a charge of Aggravated
       Assault. The assault involved his sister. He stabbed her in
       her left thoracic area. He pled Guilty to one (1) count of
       Aggravated Assault on November 12, 2014 pursuant to a
       Negotiated Plea Agreement. All other counts were nol
       prossed.     [Appellant’s] sentence included a Mental
       Health/Mental Retardation evaluation and follow-up
       treatment.

          On January 17, 2015, [Appellant] was paroled on his
       Parole sentence. On June 15, 2015, his Probation/Parole
       was revoked for violation thereof at a Revocation Hearing,
       because [Appellant] violated the conditions thereof by
       possessing dangerous weapons and not having an
       appropriate residence.    After revocation of his Parole
       sentence, his new maximum date was February 6, 2016.
       He was Re-Probated to a five (5) year term on his
       Probation sentence. [Appellant] was Re-Paroled effective
       October 27, 2015 to a Rehabilitation facility. He didn’t
       complete his treatment and left the facility in violation of
       the terms of his Probation/Parole.       He had left the
       treatment facility after only one (1) day.              The
       Commonwealth then filed a Motion to Revoke his Re-
       Parole/Re-Probation at which the above mentioned history
       was established at the Revocation Hearing on December
       14, 2015.

          At the Re-Probation/Parole Hearing, Robert Houston,
       Schuylkill County Adult Probation Officer testified.
       [Appellant] had to be handcuffed during the proceeding.
       Mr. Houston testified that [Appellant] had mental health
       problems that could be addressed at SCI Waymart. The
       Schuylkill County Adult Probation Office had no other
       options given [Appellant’s] lack of cooperation in receiving
       mental health treatment. [Appellant] also testified. His
       demeanor was angry and hostile. He was critical of Mr.
       Houston.      Mr. Houston was clearly frustrated by
       [Appellant’s] refusal to cooperate with his mental health
       treatment. [Appellant] admitted he has mental health


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          issues, but presented the Court with no viable alternative
          to a State Sentence where he would receive appropriate
          treatment.     So the Re-Re-Sentence was ultimately
          imposed.

Trial Ct. Op., 1/20/16, at 1-2 (citation omitted).             This timely appeal

followed.1

      Appellant raises the following issue for our review: “Whether the

sentence imposed was excessive to the degree that it amounted to an abuse

of discretion?” Appellant’s Brief at 4. Appellant’s Brief contains a Pa.R.A.P.

2119(f) concise statement of the reasons relied upon for allowance of

appeal. Id. at 7. Appellant contends in the 2119(f) statement that “[t]he

lengthy   sentence   imposed    by   the   [t]rial   [c]ourt   goes   against   the

rehabilitative nature of the Sentencing Code, as Appellant was denied the

opportunity to participate in supervision at the county level.” Id. at 7.

      “[I]t is within our scope of review to consider challenges to the

discretionary aspects of an appellant’s sentence in an appeal following a

revocation of probation.”    Commonwealth v. Ferguson, 893 A.2d 735,

737 (Pa. Super. 2006). This Court has stated,

          discretionary aspects of [an appellant’s] sentence [ ] are
          not appealable as of right.            Rather, an appellant
          challenging the sentencing court’s discretion 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,

1
 We note Appellant was not ordered to file a Pa.R.A.P. 1925(b) statement of
errors complained of on appeal.



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            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. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some

citations omitted). “This Court determines whether an appellant has raised

a substantial question by examination of the appellant’s concise statement of

the reasons relied upon for allowance of appeal[.]”        Commonwealth v.

Faulk, 928 A.2d 1061, 1072 (Pa. Super. 2007).

         [T]he Rule 2119(f) statement must specify where the
         sentence falls in relation to the sentencing guidelines and
         what particular provision of the Code is violated (e.g., the
         sentence is outside the guidelines and the court did not
         offer any reasons either on the record or in writing, or
         double-counted factors already considered). Similarly, the
         Rule 2119(f) statement must specify what fundamental
         norm the sentence violates and the manner in which it
         violates that norm (e.g., the sentence is unreasonable or
         the result of prejudice because it is 500 percent greater
         than the extreme end of the aggravated range).

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en

banc).

     In Commonwealth v. Haynes, 125 A.3d 800 (Pa. Super. 2015),

appeal denied, 140 A.3d 12 (Pa. 2016), the appellant

         [i]n his Pa.R.A.P. 2119(f) statement, [the appellant]
         argues first that the trial court failed to consider his mental
         health issues and rehabilitative needs.          However, this
         Court has held on numerous occasions that a claim of
         inadequate consideration of such factors does not raise a


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            substantial question for our review. We point out that [the
            appellant] does not allege that the trial court was unaware
            of his mental health issues or his rehabilitative needs.

Id. at 807 (citations omitted).

         As a prefatory matter, we consider whether Appellant has preserved

the issue of the discretionary aspect of his sentence. In Commonwealth v.

Kalichak, 943 A.2d 285 (Pa. Super. 2008), this Court held that

            issues not preserved in the lower court may not be raised
            on appeal. Pa.R.A.P. 302(a). For example, when a court
            revokes probation and imposes a new sentence, a criminal
            defendant needs to preserve challenges to the
            discretionary aspects of that new sentence either by
            objecting during the revocation sentencing or by filing a
            post-sentence motion. Commonwealth v. Malovich, 903
            A.2d 1247, 1251 (Pa. Super. 2006); Pa.R.Crim.P. 708(D).

Id. at 289.

         In the case sub judice, Appellant did not preserve the issue in the trial

court.     He did not object during the revocation sentencing or file a post-

sentence motion.       See id.   However, at the time of sentencing, the trial

court did not comply with Pennsylvania Rule of Criminal Procedure 708,

which provides in pertinent part:

            (3) The judge shall advise the defendant on the record:

               (a) of the right to file a motion to modify sentence and
               to appeal, of the time within which the defendant must
               exercise those rights, and of the right to assistance of
               counsel in the preparation of the motion and appeal[.]

Pa.R.Crim.P. 708(D)(3)(a).




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        Instantly, the court did not advise Appellant of the right to file a

motion to modify sentence. See id. Therefore, we decline to find waiver for

failure to preserve the issue in the trial court.

        We examine Appellant’s Rule 2119(f) statement to determine whether

Appellant has raised a substantial question that the sentence appealed from

is not appropriate.   See Leatherby, 116 A.3d at 83; Faulk, 928 A.2d at

1072.      The 2119(f) statement does not advance an argument that the

sentence was inconsistent with a specific provision of the Sentencing Code or

that it was contrary to the fundamental norms which underlie the sentencing

process.    See id.   The claim that the court’s sentence did not take into

consideration his mental health and rehabilitative needs does not raise a

substantial question.      See Haynes, 125 A.3d at 807.         Furthermore,

Appellant does not claim the court was unaware of his mental health issues

or rehabilitative needs.      See id.     Appellant’s claim does not raise a

substantial question for our review. See id.; Leatherby, 116 A.3d at 83;

Goggins, 748 A.2d at 727.           Accordingly, we affirm the judgment of

sentence.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2016


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