J-S34004-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

SOMWANG LADS KAKHANKHAM,

                         Appellant                   No. 1319 MDA 2014


           Appeal from the Judgment of Sentence May 22, 2014
              In the Court of Common Pleas of Perry County
           Criminal Division at No(s): CP-50-CR-0000312-2009


BEFORE: BOWES, OTT and STABILE, JJ.

MEMORANDUM BY BOWES, J.:                              FILED JUNE 22, 2015

      Somwang Lads Kakhankham appeals from the judgment of sentence of

four to eight years imprisonment that was imposed after he violated the

terms of a probationary sentence. We affirm.

      On June 26, 2009, Appellant was charged with causing a catastrophe,

arson, burglary, criminal trespass, conspiracy, criminal mischief, and

reckless endangerment. He was accused of the following. At approximately

2:30 a.m. on May 19, 2009, Appellant, accompanied by six other actors,

broke into Amity Inn Hall located on 6 River Road, Duncannon, Watts

Township, with the intent of burglarizing it.     He knew that he was not

permitted to be on the premises, and Amity Inn Hall was not open to the

public at the time. Appellant and his co-conspirators set the building on fire,
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and the fire caused an explosion, which resulted in massive damage to the

building and required the response of thirteen fire departments and

emergency response units.

     On October 16, 2009, Appellant tendered a guilty plea to criminal

trespass, arson, and criminal mischief.     On December 3, 2009, he was

sentenced to time served to two years less one day imprisonment and a

concurrent seven year probationary term. No direct appeal was filed.

     Thereafter, Appellant was charged with violating his probation.       On

May 22, 2014, the trial court found that Appellant violated his probation

since he was “convicted of one (1) count Delivery of Drug Resulting in Death

and one (1) count Manufacture, Deliver or Possession with Intent [to

Deliver] in Cumberland County[.]” Order of Court, 5/22/14, at 1. Appellant

was sentenced on the criminal trespass offense, which was a second-degree

felony, to four to eight years imprisonment consecutive to the sentence

imposed in Cumberland County. Id.

     Appellant filed a post-sentence motion.    He asked that this sentence

be imposed concurrently with the Cumberland County sentence or be

reduced because it was excessive given that a standard range sentence was

restorative sanctions to nine months imprisonment. Additionally, Appellant

asked for credit for time served.     On July 10, 2014, the court granted

Appellant credit for time served, but refused to otherwise disturb the

sentence.   This appeal followed.   Appellant raises one issue: “did the trial

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court    abuse   it’s    [sic]   discretion    in   re-sentencing   defendant   to   an

incarcerative [sic] state correctional institution sentence of four years,

maximum eight years when the defendant’s prior score was 0 and the

standard range was restorative sanctions to nine months?” Appellant’s brief

at 7.

        Initially, we address a procedural problem.          A post-sentence motion

does not extend the time period for taking a direct appeal in the probation-

violation setting.      Pa.R.Crim.P. 708(E) (“The filing of a motion to modify

sentence will not toll the 30–day appeal period.”). Thus, Appellant’s post-

sentence motion did not postpone the thirty-day time frame for taking an

appeal from the May 22, 2014 sentence. Commonwealth v. Burks, 102

A.3d 497 (Pa.Super. 2014); Commonwealth v. Parlante, 823 A.2d 927

(Pa.Super. 2003).        Appellant did not file this appeal until July 30, 2014,

which would render it untimely as to the May 22, 2014 sentence.

        However, Appellant was informed incorrectly that he could file an

appeal after his post-sentence motion was denied. N.T. Hearing, 7/10/14,

at 5. The appeal was filed within thirty days of the July 10, 2014 denial of

his post-sentence motion. Since Appellant was given a mistaken explanation

of his post-sentence rights and told that he could appeal after denial of the

motion, we conclude that a breakdown in the operation of the court occurred

and decline to quash the appeal.              Parlante, supra; Commonwealth v.

Coolbaugh, 770 A.2d 788 (Pa.Super. 2001).

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      In an appeal from a sentence imposed after the court has revoked

probation, we can review the validity of the revocation proceedings, the

legality of the sentence imposed following revocation, and any challenge to

the discretionary aspects of the sentence imposed.        Commonwealth v.

Cartrette, 83 A.3d 1030, 1033 (Pa.Super. 2013) (en banc). Since Appellant

was convicted of another crime, his probation properly was revoked and, the

court was authorized to impose a jail term.       42 Pa.C.S. § 9771(c) (total

confinement can be imposed after a defendant’s probation is revoked if “(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 court.”).

      Appellant claims that the trial court imposed an excessive sentence

since the standard range sentence for criminal trespass was probation to

nine months incarceration and since the four to eight year term was “well

outside the standard range of probation to nine months.” Appellant’s brief

at 10.   We observe that, “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 court is limited only by the

maximum sentence that it could have imposed originally at the time of the

probationary sentence.”       Commonwealth v. Infante, 63 A.3d 358, 365

(Pa.Super. 2013) (citations omitted).     The sentence herein was within the

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maximum for a second-degree felony, which is ten years. 18 Pa.C.S. § 1103

(2) (“[A] person who has been convicted of a felony may be sentenced to

imprisonment as follows: . . . . In the case of a felony of the second degree,

for a term which shall be fixed by the court at not more than ten years.”)

      Additionally, it is settled that, “The sentencing guidelines do not apply

to sentences imposed as a result of probation or parole revocation,

accelerated rehabilitative disposition, disposition in lieu of trial, direct or

indirect contempt of court, nor violations of protection from abuse orders.”

204 Pa.Code § 303.1(b).       Thus, we cannot disturb the sentencing court’s

decision based upon Appellant’s allegation that the four-to-eight year term

constituted   a   deviation   from   the   guidelines.   Coolbaugh,    supra;

Commonwealth v. Ware, 737 A.2d 251 (Pa.Super. 1999).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2015




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