J-S12006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PRESTON H. AVERY

                            Appellant                No. 1819 EDA 2015


                   Appeal from the Order Dated May 15, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0003190-2010
                                          CP-15-CR-0003513-2010


BEFORE: MUNDY, J., OLSON, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                             FILED MARCH 04, 2016

        Appellant, Preston H. Avery, appeals from the May 15, 2015 order,

confirming Appellant remained subject to the portion of his August 16, 2011

aggregate judgment of sentence that imposed a four-year term of probation

consecutive to the incarceration portion of his sentence, which he has

recently completed. Additionally, counsel has filed a petition to withdraw her

representation together with an Anders brief.1       After careful review, we

quash the appeal as interlocutory and dismiss counsel’s petition to withdraw.

        On August 8, 2010, Appellant was charged with various offenses at

criminal docket CR-3190-2010 in connection with a sexual assault, and
____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
    See Anders v. California, 386 U.S. 738 (1967).
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various offenses at CR-3513-2010 in connection with a physical altercation

with police officers who were responding to the first incident.    In a prior

appeal, this Court summarized the procedural history of these cases as

follows.

                 On April 22, 2011, Appellant filed an omnibus
           pretrial motion, including a request to sever the
           charges. The court granted the motion for severance
           on June 24, 2011, ordering separate trials for the
           charges at Nos. 3190 and 3513 of 2010. Appellant,
           however, did not proceed to trial. On August 16,
           2011, Appellant executed a written guilty plea
           colloquy.    That same day, Appellant entered a
           negotiated guilty plea to one (1) count of indecent
           assault at No. 3190 of 2010. Appellant also pled
           guilty to two (2) counts of aggravated assault and
           one (1) count of simple assault at No. 3513 of 2010.
           Following an oral colloquy, the court accepted
           Appellant’s pleas.

                  Immediately thereafter, the court sentenced
           Appellant in conformance with the plea agreement.
           At No. 3513 of 2010, the court sentenced Appellant
           to one (1) to two (2) years’ imprisonment for one
           count of aggravated assault. The court sentenced
           Appellant to a consecutive term of one (1) to two (2)
           years’ imprisonment for the second count of
           aggravated assault, and a consecutive term of two
           (2) years’ probation for the simple assault
           conviction.    At No. 3190 of 2010, the court
           sentenced Appellant to two (2) years’ probation,
           consecutive to the sentences imposed at No. 3513 of
           2010. Thus, the court imposed an aggregate term of
           two (2) to four (4) years’ imprisonment, followed
           by four (4) years’ probation. Appellant did not
           file post-sentence motions or a notice of appeal.

Commonwealth v. Avery, 64 A.3d 8 (Pa. Super. 2012) (unpublished

memorandum) (emphasis added).         Appellant filed a timely first PCRA


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petition on September 23, 2011, which the trial court dismissed on May 2,

2012. On appeal, this Court affirmed.2 Id. On March 11, 2014, Appellant

filed a pro se motion to vacate his guilty pleas, which the trial court

dismissed on April 25, 2014.3

       Subsequently, Appellant served out the maximum term of the

incarceration portion of his sentence and was released.4 On March 31, 2015,

the Chester County Department of Probation and Parole filed a petition to

find probation/parole violation (VOP), alleging, “Appellant refuses to comply

with the Court Order dated August 16, 2011, directing him to be supervised

by Chester County Probation for a period of 4 years consecutive to the state

sentence.”     Petition to Find Probation/Parole Violation, 3/31/15, at 2 ¶ 3.

The trial court conducted a hearing on the VOP motion on May 1, 2015.

During the hearing, Appellant appeared pro se with Attorney Nathan

____________________________________________
2
  In his appeal from the denial of his PCRA petition, Appellant challenged the
failure to merge certain offenses for sentencing, the severance of his
charges, and certain continuance requests granted by the trial court to the
Commonwealth.
3
  It is unclear from the record provided to this Court whether Appellant’s
motion was treated as a second PCRA petition. We note the certified record
transmitted to this Court is woefully incomplete and contains no documents
or transcripts entered prior to February 15, 2015. Had the instant appeal
been from a final order and properly before us, we would be severely
hampered in conducting a meaningful review. However, the record is
sufficient for us to determine the threshold jurisdictional issue we raise sua
sponte.
4
   The record is similarly unclear about precisely when Appellant was
released.


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Shenker, of the Chester County Public Defender’s office present.5 During the

hearing, Appellant made certain objections based on sovereignty and

jurisdiction, which the trial court overruled. N.T., 5/1/15, at 31. Appellant

also noted that the written plea agreement was missing from the record and

that if the original could be located it would show that the probation portion

of his sentence did not comport with the agreement. Accordingly, Appellant

argued he was not properly subject to the probation. At the conclusion of

the hearing the trial court stated, “VOP is … continued and I’m going to issue

an opinion after I read through all the documents…. … If I issue an opinion

saying you are on probation, and then if you don’t comply with the

probation, then we’ll have a [VOP] hearing eventually.” Id. at 33. On May

15, 2015, the trial court issued an order determining that Appellant “is under

probation for a total of four (4) years in accordance with his negotiated

guilty plea.” Trial Court Order, 5/15/15, at 1.

    Appellant filed a pro se notice of appeal on June 16, 2015.6        The trial

court ordered Appellant to file a concise statement of errors complained of

____________________________________________
5
  Again, the record is insufficient to ascertain whether, in this case, Appellant
waived counsel and whether the trial court adhered to Pennsylvania Rule of
Criminal Procedure 121 (governing procedures a trial court must follow when
a defendant waives counsel).
6
  The docket reflects that the trial court’s May 15, 2015 order was mailed to
Appellant on May 18, 2015. See Pa.R.A.P. 108(a)(1) (providing that the day
of entry of an order is the date the clerk of courts mails or delivers the order
to the parties). Accordingly, Appellant’s notice of appeal was filed within 30
days of the entry of the order. See Pa.R.A.P. 903(a).


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on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).

Appellant timely complied on July 24, 2015.      The trial court filed its Rule

1925(a) opinion on September 22, 2015, wherein it referenced its opinion

accompanying its May 15, 2015 order as containing the reasons for its

determination. On July 23, 2015, this Court remanded the case to the trial

court for a determination of Appellant’s representation status and his

eligibility for court appointed counsel.     On October 19, 2015, current

counsel, having been appointed by the trial court, entered her appearance

on behalf of Appellant. On November 30, 2015, counsel filed a petition to

withdraw together with an Anders brief.

      We first address whether we have jurisdiction to entertain this appeal.

“A jurisdictional challenge is typically a threshold question, with review of

the substantive issues following a jurisdictional question only if the court is

found to possess jurisdiction.” Commonwealth v. Williams, 86 A.3d 771,

777 (Pa. 2014) (citation omitted).     “We may raise issues concerning our

appellate jurisdiction sua sponte.”   Commonwealth v. Gaines, 127 A.3d

15, 17 (Pa. Super. 2015) (en banc) (plurality) (citation omitted).

      It is long accepted that, absent specific authorization otherwise, an

appeal of right may lie only from a final order.       See Pa.R.A.P. 341(a)

(providing for appeals of right from final orders and defining a final order as

one disposing of all parties and all claims). In general, a criminal defendant

may only appeal from the judgment of sentence.           Commonwealth v.


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Swartz, 579 A.2d 978, 980 (Pa. Super. 1990). With respect to revocation

proceedings, we have stated the following.

            Pa.R.Crim.P. 708, which applies to probation
            revocation proceedings, implies that the right to
            appeal accrues after probation is revoked and
            sentence is imposed, at which time the defendant
            must be advised of his appellate rights. Generally,
            probation is revoked and sentence imposed at the
            same hearing. However, when … sentencing is
            delayed, absent exceptional circumstances the
            defendant’s right to appeal the revocation order
            accrues only after he is sentenced.

Commonwealth v. Heilman, 876 A.2d 1021, 1026 (Pa. Super. 2005)

(citations omitted).

      Instantly, the trial court continued the VOP hearing and has made no

determination   on     the   Commonwealth’s   motion   to   revoke   Appellant’s

probation. See N.T., 5/1/15, at 33. Furthermore, the trial court’s May 15,

2015 order is not a sentencing order.       It merely interpreted the existing

August 16, 2011 sentence, and its current applicability, as a threshold issue

upon which the issues presented at the VOP hearing were dependent. The

order did not dispose of all issues, as the questions of (1) whether Appellant

is in violation of his probation and (2) whether his probation should be

revoked, remain pending.        There being no final order in this case, we




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conclude this appeal is interlocutory and we lack jurisdiction to hear it. 7 We

are therefore compelled to quash the appeal.8

       Appeal quashed. Petition to withdraw dismissed as moot.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2016




____________________________________________
7
   To the extent Appellant attempts to challenge the August 16, 2011
sentence, his appeal is clearly untimely. See Pa.R.A.P. 903(c)(3) (stating,
“the notice of appeal shall be filed within 30 days of the imposition of the
judgment of sentence in open court”).
8
  Given our lack of jurisdiction to consider this appeal, we need not consider
counsel’s petition to withdraw, and accordingly, dismiss the petition as moot.


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