J-S60011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
               v.                        :
                                         :
                                         :
 DERRICK L. MCLAURIN                     :
                                         :
                    Appellant            :   No. 110 MDA 2018

    Appeal from the Judgment of Sentence Entered December 12, 2017
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0006745-2014



BEFORE:   SHOGAN, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY SHOGAN, J.:                       FILED OCTOBER 18, 2018

     Appellant, Derrick L. McLaurin, appeals from the judgment of sentence

entered on December 12, 2017, following the revocation of his parole and

probation. We affirm.

     The trial court summarized the factual and procedural history as follows:

            Appellant pled guilty on February 8, 2016 at docket 6745-
     CR-2014 to Count 1-unauthorized use of motor vehicle1 and Count
     2-receiving stolen property.2 Appellant was sentenced to pay the
     costs, fines and sentenced to a period of incarceration of not less
     than twenty eight (28) days nor more than eighteen (18) months.
     Appellant was given time credit of 28 days and ordered to pay
     restitution. Appellant’s supervision was transferred to Delaware.

           1   18 Pa.C.S.A. § 3928(a).

           2   18 Pa.C.S.A. § 3925(a).

          On September 26, 2017, Dauphin County Probation filed a
     Revocation Hearing Request form [sic] and a revocation hearing
     was held on December 12, 2017.3 At this hearing, the Appellant
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       did not contest the violations.        Transcript of Proceedings,
       Revocation Hearing, December 12, 2017, page 2 (hereinafter
       “N.T. at ___”). Probation Officer Tabitha Spangler testified that
       Appellant has not made a single payment towards fines, costs,
       and restitution (owed to a personal individual). N.T. at 4. The
       probation officer also testified that a capias was issued in
       September of 2016 and the Appellant did not make any contact
       nor did the Appellant report until he was picked up in September,
       2017. N.T. at 6. Following the revocation hearing, Appellant[’s
       parole] was revoked at Count 1 and [he was recommitted] to back
       time of fourteen (14) months and two (2) days of incarceration to
       be made immediately eligible for work release. N.T. at 6.[1]
       Additionally, if Appellant could pay off a large portion of fines,
       costs, and restitution, he would be eligible for parole. N.T. at 6-
       7.

              3  Dauphin County Adult Probation attached a notice
              of alleged violations. Appellant was represented by
              the Dauphin County Public Defender’s Office. These
              violations include failure to report, failure to make
              regular payments on fees, fines, costs and restitution,
              and failure to get prior approval before changing
              address. We further note that a bench warrant had
              been issued in September, 2016.

             Appellant filed a Petition to Modify Sentence on December
       21, 2017 and a rule was entered on the Commonwealth. Prior to
       the Commonwealth’s response, Appellant filed a Notice of Appeal
       to the Pennsylvania Superior Court on January 11, 2018. On
       January 24, 2018, this [c]ourt entered an order indicating that we
       lacked jurisdiction due to the subsequent appeal being filed. This
       [c]ourt issued a 1925(b) Order on January 12, 2018. After
       receiving no concise statement of matters complained of on
       appeal nor an extension of time to file a concise statement, this
       [c]ourt entered a statement in lieu of memorandum opinion on
       March 5, 2018. On March 22, 2018, the Pennsylvania Superior
       Court remanded the matter back down and ordered that a concise
       statement be filed within ten (10) days. On March 30, 2018,


____________________________________________


1 At count 2, the court revoked Appellant’s probation and resentenced him
“to another period of 6 months’ probation running concurrently with [c]ount
1.” N.T., 12/12/17, at 6.

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      Appellant filed a Concise Statement of Errors Complained of on
      Appeal Pursuant to Pa.R.A.P. 1925(b) . . . .

Trial Court Opinion, 4/4/18, at 1–3.

      Appellant raises the following issue on appeal:

      1. Was not the imposition of a [parole] violation sentence of
      fourteen months and 2 days back-time, concurrent to a six month
      probation period for violating parole, clearly unreasonable, so
      manifestly excessive as to constitute an abuse of discretion, and
      inconsistent with the protection of the public, the gravity of the
      offenses, and [Appellant’s] rehabilitative needs where the
      revocation conduct solely involved technical violations of
      parole/probation that occurred after [Appellant’s] release on
      parole[?]

Appellant’s Brief at 4 (full capitalization omitted).

      Appellant did not contest the parole violations at the parole-revocation

hearing held on December 12, 2017. N.T., 12/12/17, at 2. He contends on

appeal that the sentence imposed was excessive and constituted an abuse of

discretion. Appellant’s Brief at 17–18. Appellant avers that the violations he

committed “do not rise to the level of incarceration.” Id. at 17.

      Our review of a parole-revocation hearing and concomitant sentence is

well established:

      Unlike a probation revocation, a parole revocation does not
      involve the imposition of a new sentence. Commonwealth v.
      Mitchell, 429 Pa. Super. 435, 632 A.2d 934, 936 (1993). Indeed,
      there is no authority for a parole-revocation court to impose a new
      penalty. Id. Rather, the only option for a court that decides to
      revoke parole is to recommit the defendant to serve the already-
      imposed, original sentence. Id. . . .

            Therefore, the purposes of a court’s parole-revocation
      hearing—the revocation court’s tasks—are to determine whether
      the parolee violated parole and, if so, whether parole remains a

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      viable means of rehabilitating the defendant and deterring future
      antisocial conduct,     or   whether    revocation,   and    thus
      recommitment, are in order. Mitchell, 632 A.2d at 936, 937. . . .

            Following parole revocation and recommitment, the proper
      issue on appeal is whether the revocation court erred, as a matter
      of law, in deciding to revoke parole and, therefore, to recommit
      the defendant to confinement. Mitchell, 632 A.2d at 936.
      Accordingly, an appeal of a parole revocation is not an
      appeal of the discretionary aspects of sentence. Id.

             As such, a defendant appealing recommitment cannot
      contend, for example, that the sentence is harsh and excessive.
      [Commonwealth v.] Galletta, 864 A.2d [532,] 539 [(Pa. Super.
      2004)]. Such a claim might implicate discretionary sentencing but
      it is improper in a parole-revocation appeal. Id. Similarly, it is
      inappropriate for a parole-revocation appellant to challenge the
      sentence by arguing that the court failed to consider mitigating
      factors or failed to place reasons for [the] sentence on the record.
      Commonwealth v. Shimonvich, 858 A.2d 132, 135 (Pa. Super.
      2004). Challenges of those types again implicate the discretionary
      aspects of the underlying sentence, not the legal propriety of
      revoking parole. Id.

Commonwealth v. Kalichak, 943 A.2d 285, 290–291 (Pa. Super. 2008)

(emphasis added).

      As the Kalichak Court explained, “[T]he only option for a court that

decides to revoke parole is to recommit the defendant to serve the already-

imposed, original sentence.” Kalichak, 943 A.2d at 290. Here, Appellant’s

claim that his sentence was harsh and excessive invokes a challenge to the

discretionary aspects of sentencing, an issue that is not appropriate in an

appeal from a parole revocation sentence.       Id. at 291.    Accordingly, we

conclude Appellant has failed to present any viable claim for our review.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2018




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