J-S52035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

RICHARD WAYNE MONTGOMERY

                            Appellant                      No. 285 WDA 2015


          Appeal from the Judgment of Sentence of January 23, 2015
                In the Court of Common Pleas of Blair County
            Criminal Division at Nos.:  CP-07-CR-0000594-2010
                                        CP-07-CR-0000595-2010
                                        CP-07-CR-0002469-2010
                                        CP-07-CR-0002493-2012


BEFORE: SHOGAN, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                             FILED NOVEMBER 05, 2015

       Richard Montgomery appeals the January 23, 2015 judgment of

sentence, which the trial court imposed following the revocation of his

probation. We affirm.

       On July 13, 2013, Montgomery entered guilty pleas in three separate

criminal cases.     In the case docketed at CP-07-CR-594-2010, Montgomery

pleaded guilty to driving while operating privilege is suspended or revoked,

habitual offenders, and driving under the influence of alcohol or controlled

substance     (“DUI”).1       In   the   case   docketed   at   CP-07-CR-595-2010,

Montgomery pleaded guilty to habitual offenders and driving while operating
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1
       75 Pa.C.S. §§ 1543(b)(1), 6503.1, and 3802(a)(1), respectively.
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privilege is suspended or revoked. Finally, in the case docketed at CP-07-

CR-2469-2010, Montgomery pleaded guilty to habitual offenders and driving

while operating privilege is suspended or revoked. The trial court sentenced

Montgomery to an aggregate term of six years’ probation in those cases.

       On December 14, 2012, Montgomery pleaded guilty to possession of a

controlled substance2 and driving while suspended.           The trial court

sentenced Montgomery to thirty days’ imprisonment for driving while

suspended and to one year of probation for possession of a controlled

substance, which the court imposed concurrent to all other sentences that

Montgomery was serving.

       While the record before us is incomplete, it appears that Montgomery

was charged with, inter alia, possession of a controlled substance with intent

to deliver (“PWID”)3 on three separate occasions between August 2013 and

November 2013. Those charges were filed and docketed at CP-07-CR-1871-

2013, CP-07-CR-2616-2013, and CP-07-CR-2621-2013.          On June 2, 2014,

Montgomery pleaded guilty to PWID in each of those cases. On that same

day, the trial court sentenced Montgomery to an aggregate sentence of one

year minus one day to two years minus two days’ incarceration.




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2
       35 P.S. § 780-113(a)(16).
3
       35 P.S. § 780-113(a)(30).



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      On October 17, 2014, Montgomery stipulated to              violating the

conditions of his probation in the 2010 and 2012 cases.       On January 23,

2015, the trial court held a Gagnon II hearing. See Gagnon v. Scarpelli,

411 U.S. 778 (1973). At that hearing, Montgomery presented evidence of

his chronic health conditions.      Specifically, Montgomery suffers from

coronary artery disease and peripheral vascular disease. At the time of the

hearing, Montgomery was taking twenty-two different medications for those

conditions.   He also has a permanent pacemaker, a filter, a balloon, and

numerous stents implanted throughout his body.

      James Yaworski, an agent with the Pennsylvania Board of Parole and

Probation, initially recommended sentencing Montgomery to three to six

years’ incarceration. However, in light of Montgomery’s medical conditions,

Agent Yaworksi recommended that the trial court impose a sentence of two

to five years’ incarceration. At the conclusion of the hearing, the trial court

sentenced Montgomery to eighteen to thirty-six months’ incarceration. On

February 2, 2015, Montgomery timely filed a motion to modify his sentence,

which the trial court denied without a hearing on February 5, 2015.

      On February 17, 2015, Montgomery filed a notice of appeal. On March

2, 2015, the trial court ordered Montgomery to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).       On March




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26, 2015, Montgomery filed a Rule 1925(b) statement. 4 On April 27, 2015,

the trial court filed a Pa.R.A.P. 1925(a) opinion.

          Montgomery presents one issue for our consideration: “Whether the

[trial]    court   abused   its   discretion   and   imposed   a   sentence   grossly

disproportionate on [Montgomery] when it failed to consider his serious

heart condition that had gotten worse since he was imprisoned on probation

violation charges and his advanced age?” Brief for Montgomery at 11.

          Montgomery’s argument raises a challenge to the discretionary aspects

of his sentence.      “A challenge to the discretionary aspects of a sentence

must be considered a petition for permission to appeal, as the right to

pursue such a claim is not absolute.”            Commonwealth v. McAfee, 849

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4
      The trial court’s March 2, 2015 order directed Montgomery to file and
serve upon the trial court his concise statement “within twenty-one (21)
days of the date of this Order,” i.e., on or before March 24, 2015. See
1925(b) Order, 3/2/2015, at 1.        Although Montgomery’s Rule 1925(b)
statement, which he filed on March 26, 2015, appears to be untimely, this
Court has held that a failure by the prothonotary to “give written notice of
the entry of a court order and to note on the docket that notice was given”
will prevent waiver for timeliness pursuant to Pa.R.A.P. 1925(b). In re
L.M., 923 A.2d 505, 510 (Pa. Super. 2007).
      Instantly, the docket does not indicate that the prothonotary provided
notice to the parties of the trial court’s March 2, 2015 order. Additionally,
there is a hand-written notation on the reverse side of the trial court’s
1925(b) order that reads, “3/26/15 faxed to [Montgomery’s counsel].”
1925(b) Order, 3/2/2015, at 1. Accordingly, we decline to conclude that
Montgomery has waived his issue on appeal for failure to file a timely Rule
1925(b) statement. See In re L.M., 923 A.2d at 510 (“If the docket does
not show that notice of the entry of a Rule 1925(b) order was provided to an
appellant, then we will not conclude that the appellant’s issues have been
waived[.]”).



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A.2d 270, 274 (Pa. Super. 2004).                 Before reaching the merits of

Montgomery’s claim, we must undertake 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 substantial question
       that the sentence is inappropriate under the sentencing code.

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa. Super. 2006).

       In order to raise a substantial question, an appellant must advance a

colorable argument that his or her “sentence violates either a specific

provision of the sentencing scheme set forth in the sentencing code or a

particular    fundamental        norm     underlying   the   sentencing   process.”

Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002). Our inquiry

must focus upon the reasons for which the appeal is sought, in contrast to

the facts underlying the appeal, which are necessary only to decide the

appeal on the merits. Id.

       Instantly, Montgomery has timely filed a notice of appeal, preserved

his claims in a timely post-sentence motion, and included in his appellate

brief a separate Rule 2119(f) statement.5               Because Montgomery has

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5
       In pertinent part, Rule 2119 provides:

       An appellant who challenges the discretionary aspects of a
       sentence in a criminal matter shall set forth in his brief a concise
       statement of the reasons relied upon for allowance of appeal
       with respect to the discretionary aspects of a sentence. The
(Footnote Continued Next Page)


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complied with the technical requirements to challenge the discretionary

aspects of his sentence, we proceed to determine whether he has presented

a substantial question that the sentence imposed is not appropriate under

the sentencing code.

      In his Rule 2119(f) statement, Montgomery contends that the trial

court failed “to adequately consider [his] serious heart condition and the fact

that he had been recently hospitalized twice for said heart condition since

imprisoned for the probation violation charges.” Brief for Montgomery at 14.

He also argues that the court “failed to properly take into account [his]

advanced age of 64.” Id. Montgomery’s Rule 2119(f) statement does not

identify a specific provision of the sentencing code with which his sentence is

inconsistent, or a fundamental norm of the sentencing process contrary to

his sentence. See Mouzon, supra.

      Moreover, this Court has held that “an allegation that the sentencing

court ‘failed to consider’ or ‘did not adequately consider’ various factors does

not raise a substantial question that the sentence was inappropriate.”

Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011); see

also Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013)

(“Appellant’s argument that the trial court failed to give adequate weight to

                       _______________________
(Footnote Continued)

      statement shall immediately precede the argument on the merits
      with respect to the discretionary aspects of sentence.

Pa.R.A.P. 2119(f).



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mitigating factors does not present a substantial question appropriate for our

review.”); Commonwealth v. Berry, 785 A.2d 994, 996 (Pa. Super. 2001)

(“[O]rdinarily, a claim that the sentencing court failed to consider or accord

proper weight to a specific sentencing factor does not raise a substantial

question.”).     Accordingly, Montgomery has failed to raise a substantial

question, and we do not review the discretionary aspects of his sentence.6

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/2015




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6
      Even if Montgomery had raised a substantial question, the record
belies his contention that the trial court failed to consider his chronic illness.
Indeed, the trial court’s sentencing order explicitly states, “[Montgomery’s]
health condition has been taken into consideration, and the [c]ourt . . .
believes that he will receive substantially better medical care in a State
Correctional Institution.” Order, 2/10/2015, at 3-4.



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