J-S31020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JIMMIE C. WILLIAMS

                            Appellant                No. 1128 MDA 2015


             Appeal from the Judgment of Sentence March 20, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0001256-2014


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

MEMORANDUM BY OTT, J.:                              FILED AUGUST 26, 2016

        Jimmie C. Williams appeals, nunc pro tunc, from the judgment of

sentence imposed March 20, 2015, in the Dauphin County Court of Common

Pleas, following the revocation of his probation and parole.1 The trial court

imposed a sentence of 18 to 60 months’ imprisonment upon the revocation

of his probation on one count of unlawful restraint, and directed him to serve


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*
    Retired Senior Judge assigned to the Superior Court.
1
   The notice of appeal indicates the order on appeal was entered by the trial
court on June 1, 2015. However, as we will discuss infra, the June 1, 2015,
filing was the order which restored his appellate rights nunc pro tunc; rather,
his revocation sentence was imposed on March 20, 2015. Therefore, we
direct the prothonotary to change the caption to reflect the appeal is from
the judgment of sentence imposed on March 20, 2015.
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the balance of his time – six months, 10 days’ imprisonment – for the

revocation of his parole on one count of simple assault.2         The same day,

Williams was sentenced in an unrelated matter to an aggregate term of 16

to 60 months’ imprisonment,3 which was imposed consecutively to the

probation revocation sentence at issue. On appeal, Williams challenges the

discretionary aspects of his sentence. For the reasons below, we affirm.

        The facts and procedural history of this appeal are as follows. On July

8, 2014, Williams entered a negotiated guilty plea to charges of simple

assault, unlawful restraint, and defiant trespass for the December 31, 2013,

domestic assault of his ex-girlfriend.           The Commonwealth alleged the

following facts during the plea colloquy:

        According to [the victim], [Williams] held her down by her wrists
        to the point where her movement was restrained and asked for
        sexual intercourse. After she denied this many times, he then
        attempted to pull her pants off but stopped after she fought him
        off, and this put her in fear of serious bodily injury.

N.T., 7/8/2014, at 3-4.4         The trial court accepted the plea, and sentenced

Williams to the negotiated term of six to 18 months’ imprisonment for simple
____________________________________________


2
    18 Pa.C.S. §§ 2902(a)(2) and 2701(a)(3), respectively.
3
  See Docket No. CP-22-CR-0000183-2015. Williams’ judgment of sentence
imposed in that case was affirmed by a panel of this Court on direct appeal.
See Commonwealth v. Williams, 2016 WL 417378 [900 MDA 2015] (Pa.
Super. 2016) (unpublished memorandum).
4
  Williams was also originally charged with attempted rape. However, during
the revocation sentencing hearing, the prosecutor explained that victim, who
is the mother of Williams’ children “really [did not] want the stigma of sex
(Footnote Continued Next Page)


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assault, and 18 months’ consecutive probation for unlawful restraint.

Williams was immediately paroled.

      On October 7, 2014, Williams committed additional offenses against

the victim, which led to the charges at Docket No. CP-22-CR-0000183-2015.

On March 20, 2015, the trial court conducted a guilty plea and revocation

hearing.   Williams entered a guilty plea to charges of terroristic threats,

simple assault and criminal attempt (escape) at Docket No. CP-22-CR-

0000183-2015, for which the trial court sentenced him to an aggregate term

of 16 to 60 months’ imprisonment. In the present case, the court revoked

Williams’ parole and probation and resentenced him as follows: (1) for the

revocation of his parole, the court directed him to serve the balance of his

original sentence, that is, 6 months, 10 days’ imprisonment; and (2) for the

revocation of his probation, the court imposed a term of 18 to 60 months’

imprisonment. The trial court also instructed that the balance of his parole

revocation sentence be served concurrently to the sentence at Docket No.

CP-22-CR-0000183-2015, but that the probation revocation sentence be

served consecutively to the new sentence.

      On March 30, 2015, Williams filed a timely post-sentence motion

requesting modification of both sentences. On April 13, 2015, the trial court

entered an order modifying the sentence “to reflect that [Williams’] total

                       _______________________
(Footnote Continued)

offenders registry so we worked with her and Mr. Williams for the plea
agreement in [this] case.” N.T., 3/20/2015, at 6.



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Aggregated Sentence is 36 months to 120 months.”5             Order, 4/13/2015.

Thereafter, on May 1, 2015, the court denied Williams’ post-sentence

motion.

       On May 4, 2015, Williams, through new counsel, filed a petition for

collateral relief pursuant to the Post Conviction Relief Act (“PCRA”),6

asserting prior counsel’s ineffectiveness for failing to file a timely appeal

from the revocation sentence.             See Pa.R.Crim.P. 708(E) (stating that

following the imposition of a probation revocation sentence, “[t]he filing of a

motion to modify sentence will not toll the 30-day appeal period.”).         By

order entered June 1, 2015, the trial court granted Williams’ requested

relief, explaining:

       [Williams’] appellate rights are reinstated and he shall have
       thirty days (30) from the date of this Order in which to file a
       Notice of Appeal, if he so chooses.

Order, 6/1/2015.

       Thereafter, on June 11, 2015, Williams filed another post-sentence

motion seeking modification of his revocation sentence.        However, before

the trial court ruled on the motion, Williams filed a timely notice of appeal on




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5
  The court did not specify which individual sentence it modified to achieve
the greater minimum term. However, Williams has never challenged the
modification order.
6
    See 42 Pa.C.S. §§ 9541-9546.



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June 30, 2015.7        The trial court subsequently denied the post-sentence

motion on July 15, 2015.

       Preliminarily, we must address the trial court’s assertion that this

Court has no jurisdiction to consider Williams’ appeal.         See Trial Court

Opinion, 10/7/2015, at 5.         The court first states the appeal is premature

because Williams filed the notice of appeal before it had ruled on his post-

sentence motion. Id. at 4, citing Pa.R.Crim.P. 720. However, a petitioner

who is granted permission to file a direct appeal nunc pro tunc from a PCRA

court is not entitled to file a post-sentence motion nunc pro tunc, unless he

requested such relief in his PCRA petition, and was granted permission to do

so by the PCRA court.         Commonwealth v. Fransen, 986 A.2d 154, 158

(Pa. Super. 2009).        Because Williams neither requested nor was granted

permission to file a supplemental post-sentence motion, his filing was a

nullity. Nonetheless, in any event, a post-sentence motion does not toll the

30-day appeal period.          Pa.R.Crim.P. 708(E).   See Commonwealth v.

Burks, 102 A.3d 497, 500 (Pa. Super. 2014) (stating Pa.R.Crim.P. 708,

rather than Rule 720, governs a defendant’s direct appeal rights from the

judgment of sentence following probation revocation).        Therefore, Williams




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7
  The trial court did not direct Williams to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).




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properly filed a notice of appeal on June 30, 2015, prior to the expiration of

the 30-day period provided for in the PCRA court’s June 1, 2015, order.

       Second, the trial court stated it was “confused” and “confounded” as to

how to address the appeal because the notice of appeal indicated Williams

was appealing the June 1, 2015, order, which actually granted him the relief

he requested, that is, a nunc pro tunc appeal.          Trial Court Opinion,

10/7/2015, at 5. See Notice of Appeal, 6/30/2015. However, it is evident

from our review that Williams simply listed the wrong date on the notice of

appeal, as the proper order under appeal was the March 20, 2015,

revocation sentence.         Accordingly, “[b]ecause the appeal is otherwise

proper, we will treat this defect as harmless and proceed to consider the

merits as if the notice of appeal had correctly referred to the judgment of

sentence.”     Commonwealth v. Lahoud, 488 A.2d 307, 309 (Pa. Super.

1985), citing Pa.R.A.P. 105(a). Therefore, we proceed to an examination of

Williams’ challenge to the discretionary aspects of his probation revocation

sentence.8

       A challenge to the discretionary aspects of a sentence is not absolute,

but rather, “must be considered a petition for permission to appeal.”

Commonwealth v. Best, 120 A.3d 329, 348 (Pa. Super. 2015) (quotation

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8
  “[T]his Court’s scope of review in an appeal from a revocation sentencing
includes discretionary sentencing challenges.”        Commonwealth v.
Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc).




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omitted). To reach the merits of a discretionary issue, this Court must

determine:
      (1) whether the appeal is timely; (2) whether Appellant
      preserved [the] 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 substantial question
      that the sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

      Williams complied with the procedural requirements for this appeal by

filing both a post-sentence motion for reconsideration of sentence, and a

timely nunc pro tunc appeal. Williams also included in his brief a statement

of reasons relied upon for appeal pursuant to           Commonwealth v.

Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f). Therefore, we

must consider whether he has raised a substantial question justifying our

review.

      Williams argues his sentence is “excessive and unreasonable in light of

[his] rehabilitative needs.” Williams’ Brief at 9. He claims that prior to the

most recent sentence, for which the court ordered him to attend batterer’s

counseling, he had “never received any treatment, counseling, or therapy to

treat the underlying causes of his offenses.” Id. Moreover, Williams notes

the victim “bears no fear toward” him and “has in fact advocated for a

reduced sentence so as to allow [him] to receive the treatment she believes




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is needed for him to get back to his family and back on his prior career

path.” Id. at 12-13 (citation omitted).9

       A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted).      The Sentencing Code specifically mandates that, in

sentencing a defendant,

       the court shall follow the general principle that the sentence
       imposed should call for confinement that is consistent with the
       protection of the public, the gravity of the offense as it relates to
       the impact on the life of the victim and on the community,
       and the rehabilitative needs of the defendant.

42 Pa.C.S. § 9721(b) (emphasis supplied). Therefore, a claim that the trial

court failed to consider either the victim’s wishes or the defendant’s

rehabilitative needs raises a substantial question for our review.             See

Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010).




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9
  We note Williams attached to his March 30, 2015, post-sentence motion an
undated letter, purportedly signed by the victim, in which she states she did
not want him to “serve years in prison” and asked the court to reduce his
sentence so he could “come home sooner.”                Post-Sentence Motion,
3/20/2015, Exhibit A. Further, she indicates she “really need[s] him here
for [her] kids,” and that she is “not fearful” of him and knows that “he would
never hurt [their] children.” Id.



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       “In general, the imposition of sentence following the revocation of

probation is vested within the sound discretion of the trial court, which,

absent an abuse of that discretion, will not be disturbed on appeal.”

Commonwealth v. Hoover, 909 A.2d 321, 322 (Pa. Super. 2006) (citation

omitted).    Upon the revocation of a defendant’s probationary sentence, a

trial court may impose any sentencing option that was available under the

Sentencing Code at the time of the original sentencing, regardless of any

negotiated plea agreement.10 See 42 Pa.C.S. § 9771(b); Commonwealth

v. Wallace, 870 A.2d 838, 843 (Pa. 2005). The only limitation on a court’s

authority in imposing a probation revocation sentence, is found at Section

9771(c) of the Sentencing Code:

       The court shall not impose a sentence of total confinement upon
       revocation unless it finds that:

          (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 the court.
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10
   We will limit our discussion to Williams’ probation revocation sentence.
Indeed, the trial court had no discretion in the sentence it imposed upon
revocation of his parole on the charge of simple assault. “Rather, the only
option for a court that decides to revoke parole is to recommit the defendant
to serve the already-imposed, original sentence.”         Commonwealth v.
Melius, 100 A.3d 682, 686 (Pa. Super. 2014) (quotation omitted).




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42 Pa.C.S. § 9771(c).

      Here, Williams’ probationary sentence was revoked after he committed

another crime against the same victim.         Moreover, our review of the

sentencing transcript reveals the trial court fully considered both the victim’s

wishes and Williams’ rehabilitative needs when it imposed the sentence

herein.

      Although Williams attached to his post-sentence motion an undated

letter of support signed by the victim, the Commonwealth painted a much

different picture at the revocation sentencing hearing. First, the prosecutor

explained the original plea agreement, which included the reduction of a

charge of attempted rape to simple assault, was based upon the victim’s

desire that Williams not have to register as a sex offender because they

have children together.      See N.T., 3/20/2015, at 6.          However, the

prosecutor stated:

            [The victim] is torn. She doesn’t want to see [] Williams
      go away forever, but she has indicated that he needs help. She
      is very afraid of him.

            She told police just before he was arrested on this current
      charge that there was an incident between the two of them
      where he choked her in July of 2014 and he was charged with
      that. … But she was pressured by Mr. Williams’ mother to drop
      the charges. And she did not show up and those charges were
      dropped.

            So she is very scared of him and she wanted me to relay
      that he does need help.




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N.T., 3/20/2015, at 7.11 Before imposing the revocation sentence, the trial

court commented: “This is scary stuff, … and I’m concerned for [the victim].

Something is amiss here.” Id. at 13. Therefore, the trial court was aware

of the victim’s relationship with Williams, including her concern regarding

how a long prison term might affect his relationship with his children, and

determined a state prison term was necessary to protect her.

       Furthermore, although Williams asserts the court failed to consider his

rehabilitative needs – and emphasizes he had never before received any

treatment – we find his claims specious. Both the Commonwealth and the

trial court gave Williams the opportunity to correct his behavior when he was

originally sentenced to a term of probation. Indeed, that sentence included

the condition he “successfully complete Phase I” of batterer’s counseling.

N.T. 7/8/2014, at 5.       Nevertheless, only three months later, he assaulted

the same victim again.        Therefore, the court was well within its discretion

when it declined to give Williams a second chance.

       Judgment of sentence affirmed.




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11
  The prosecutor explained the victim was unable to attend the hearing
because she had to work. Id. at 6.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2016




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