J-S67038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JASON ERIC WALTERS,

                            Appellant                 No. 757 MDA 2015


             Appeal from the Judgment of Sentence March 31, 2015
               in the Court of Common Pleas of Lancaster County
               Criminal Division at No.: CP-36-CR-0004716-2009


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 09, 2015

        Appellant, Jason Eric Walters, appeals from the judgment of sentence

imposed after the revocation of his probation. We affirm.

        On January 15, 2010, Appellant entered a negotiated guilty plea to

burglary, terroristic threats, and simple assault.1 As explained by the trial

court in its June 16, 2015 opinion:

        [Appellant] received a sentence of nine (9) to twenty-three (23)
        months, followed by three (3) years of probation, on the charge
        of [b]urglary. The other counts merged with the [b]urglary
        count. [Appellant] was also required to complete drug and
        alcohol evaluation and treatment, refrain from alcohol
        possession or consumption at his place of employment and
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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3502(a), 2706(a)(1), and 2701(a)(1), respectively.
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     residence, complete a psychological/psychiatric evaluation,
     participate in the Domestic Violence Intervention Group or any
     alternate counseling ordered by the probation officer, maintain
     full time employment, and have no contact with the victim.

            [Appellant] failed to attend mandated counseling and was
     discharged from Domestic Violence Intervention Group for failing
     to report to four group sessions; a capias was issued on
     December 30, 2010. On February 2, 2011, [Appellant] was
     found in violation of his parole. He was sentenced to the balance
     of his unexpired maximum and paroled immediately to
     detainers.    On July 7, 2011, [Appellant] was charged with
     [i]ndirect [c]riminal [c]ontempt and therefore violated his parole
     in that he had new charges; a capias was issued on July 28,
     2011. On August 25, 2011, [Appellant] was found in violation of
     his parole. He was sentenced to the unexpired balance after
     completion of the six month sentence that he was then serving;
     he would be eligible for parole at the expiration of three months.
     On January 3, 2013, [Appellant] [pleaded] guilty with a plea
     agreement to the crimes of criminal trespass, theft by unlawful
     taking, and criminal mischief; [Appellant] was also charged with
     [i]ndirect [c]riminal [c]ontempt on January 16, 2013. A capias
     was issued January 16, 2013. On March 21, 2013, [Appellant]
     was found in violation of his parole. His parole was revoked and
     he was sentenced to the unexpired balance of his maximum
     term, concurrent to the term he was currently serving. He
     would be eligible for parole without petition at the expiration of
     six months subject to his behavior.

            [Appellant’s] parole expired on January 1, 2014 and his
     probation became effective on that date.         [Appellant] then
     violated his probation by having abusive and threatening contact
     with his victim and by admitting to using cocaine on November
     18, 2014. A capias was issued on November 20, 2014. A
     probation violation hearing was held on December 29, 2014.
     [Appellant] stipulated to the violations and admitted that he sent
     text messages to the victim.        Accordingly, the [trial c]ourt
     revoked his [probation]. As there was a possibility of a state
     prison sentence, the [c]ourt directed the [a]dult [p]robation and
     [p]arole [o]ffice to prepare a pre-sentence investigation [(PSI)].
     On March 31, 2015, with the benefit of a [PSI], the [c]ourt
     sentenced [Appellant] to incarceration in a [s]tate [c]orrectional
     [i]nstitution for not less than one and one-half (1 1/2) nor more
     than four (4) years.

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              On April 2, 2015, [Appellant] used a “General Purpose
       Request Form” to send a [pro se] message to th[e] [c]ourt, in
       which it appear[ed] he [was] asking for a modification of
       sentence. In a [pro se] letter to th[e] [c]ourt, dated April 1,
       2015, [Appellant] included a section labeled “Petition
       Modification of Sentence.” On April 14, 2015, th[e] [c]ourt
       directed the [c]lerk of [c]ourts to accept [Appellant’s] petition,
       time-stamp it with the date of receipt, make a docket entry
       reflecting the date of receipt, place the document in the criminal
       file, [and] forward a copy to [Appellant’s] attorney and the
       Commonwealth attorney.[2] A notice of appeal was filed by
       [Appellant’s] attorney on April 30, 2015, prior to th[e] [c]ourt
       ruling on the motion to modify sentence.[3]

(Trial Court Opinion, 6/16/15, at 1-3).

       On May 1, 2015, the trial court ordered Appellant to file a Rule

1925(b) statement of errors complained of on appeal, which he timely did on

May 21, 2015. See Pa.R.A.P. 1925(b). On June 16, 2015, the court filed a

Rule 1925(a) opinion. See Pa.R.A.P. 1925(a).

       Appellant raises one question for this Court’s review:

       1.    Was the trial court’s sentence of one-and-a-half (1.5) to
       four (4) years of incarceration so manifestly excessive as to
       constitute too severe a punishment and clearly unreasonable
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2
  The pro se motion to modify the sentence is on the docket, but is not in
the certified record provided to this Court. (See Docket, No. CP-36-CR-
0004716-2009, at 15). However, because Appellant was represented by
counsel at the time, this filing is a legal nullity and, even if it was in the
original record, we would not review it. See Commonwealth v. Ali, 10
A.3d 282, 293 (Pa. 2010); Commonwealth v. Ellis, 626 A.2d 1137, 1139
(Pa. 1993) (“[T]here is no constitutional right to hybrid representation either
at trial or on appeal.”).
3
 “The filing of a motion to modify sentence will not toll the 30-day appeal
period.” Pa.R.Crim.P. 708(E). Therefore, counsel properly filed the notice of
appeal before the appeal period expired.



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      under the circumstances of this case, as it was not consistent
      with the protection of the public, the gravity of the offenses, and
      the rehabilitative needs of [Appellant] and the court did not
      impose an individualized sentence which took into consideration
      [Appellant’s] circumstances?

(Appellant’s Brief, at 4).

      Our standard of review of an appeal from a sentence imposed

following the revocation of probation is well-settled:           “Revocation of a

probation sentence is a matter committed to the sound discretion of the trial

court and that court’s decision will not be disturbed on appeal in the absence

of an error of law or an abuse of discretion.”        Commonwealth v. Colon,

102 A.3d 1033, 1041 (Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa.

2015) (citation omitted). Further, our scope of review includes consideration

of discretionary aspects of sentencing claims.         See Commonwealth v.

Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013).

      Instantly,   Appellant   argues   “that   the   sentence    was   manifestly

excessive and an abuse of the court’s discretion.” (Appellant’s Brief, at 10).

      Such a challenge to the discretionary aspects of a sentence is
      not appealable as of right. Rather, Appellant must petition for
      allowance of appeal pursuant to 42 Pa.C.S.A. § 9781.
      Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super.
      2004).

                  Before we reach the merits of this [issue], we
            must engage in a four part analysis to determine:
            (1) whether the appeal is timely; (2) whether
            Appellant preserved his issue; (3) whether
            Appellant’s brief includes a concise statement of the
            reasons relied upon for allowance of appeal with
            respect to the discretionary aspects of sentence; and
            (4) whether the concise statement raises a

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              substantial question that the sentence is appropriate
              under the sentencing code. The third and fourth of
              these requirements arise because . . . [Appellant]
              must petition this Court, in his concise statement of
              reasons, to grant consideration of his appeal on the
              grounds that there is a substantial question. Finally,
              if the appeal satisfies each of these four
              requirements, we will then proceed to decide the
              substantive merits of the case.

       Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super.
       2013)[, appeal denied, 77 A.3d 1258 (Pa. 2013)] (citations
       omitted); see also Commonwealth v. Kalichak, 943 A.2d
       285, 289 (Pa. Super. 2008) (“[W]hen 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.”).

Colon, supra at 1042-43.

       Instantly, although Appellant’s appeal is timely, he failed to preserve

his sentencing issue in the trial court by objecting during the proceeding or

by filing a post-sentence motion.4 Therefore, his issue is waived. See id.

       Moreover, even if properly preserved, Appellant’s issue would not

merit relief.    Appellant acknowledged that his original burglary conviction

carried a maximum sentence of twenty years’ incarceration.         (See Guilty

Plea Colloquy, 1/15/10, 3 ¶ 34). Additionally,

            Upon revoking probation, a sentencing court may choose
       from any of the sentencing options that existed at the time of
____________________________________________


4
 As previously observed, the pro se post-sentence motion filed by Appellant
while he was represented by counsel is a legal nullity. (See Trial Ct. Op., at
3); see also Ali, supra at 293; Ellis, supra at 1139.




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      the original sentencing, including incarceration. 42 Pa.C.S.A. §
      9771(b). “[U]pon revocation [of probation] . . . 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) (internal quotation marks and citations omitted).

Colon, supra at 1044.

      Therefore, the sentence imposed of not less than one-and-one-half nor

more than four years’ incarceration was well within “the maximum sentence

that [the court] could have imposed originally at the time of the

probationary sentence.” Id. (citation omitted).

      Further, the record reveals that Appellant stipulated that he violated

his probation. (See N.T. Probation Violation Hearing, 12/29/14, at 2). In

addition, at the sentencing hearing, the court considered Appellant’s age and

maturity, his work and education histories, his prior criminal record, his prior

parole and probation violations, a PSI, the penalties authorized by the

legislature, Appellant’s character and statements, and his mental health

issues.   (See N.T. Sentencing, 3/31/15, at 11-13).      Ultimately, the court

decided that “[i]ncarceration is warranted because a lesser sentence would

depreciate the seriousness of [Appellant’s] continued violations and the

seriousness of the threats made . . . towards [the victim][.]”      (Id. at 14;

see id. at 11-13). Upon consideration of the foregoing, Appellant’s issue,

even if properly preserved, would not merit relief.      We affirm Appellant’s

judgment of sentence.

      Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/9/2015




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