J-S28040-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHAWN CARL ROGERS                          :
                                               :
                       Appellant               :   No. 94 MDA 2020

        Appeal from the Judgment of Sentence Entered January 2, 2020
             in the Court of Common Pleas of Huntingdon County
            Criminal Division at No(s): CP-31-CR-0000376-2015


BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED AUGUST 20, 2020

        Shawn Carl Rogers (“Rogers”) appeals from the judgment of sentence

imposed following the revocation of his probation. We affirm.

        Between 2013 and 2015, Rogers was employed by Tuscarora Organic

Growers (“Tuscarora Organic”). During his employment as the bookkeeper,

Rogers used Tuscarora Organic’s payment system to write unauthorized

checks to himself for a total of $18,961.64.

        On March 3, 2017, Rogers entered a negotiated guilty plea to two counts

of forgery, and one count each of theft by unlawful taking, theft by deception,

receiving stolen property, and conspiracy.1 Additionally, Rogers agreed to pay

the full amount of restitution and to make a $7,150.00 payment to Tuscarora

Organic prior to the start of his sentence. The trial court accepted Rogers’s

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1   18 Pa.C.S.A. §§ 4101(a)(2), 3921(a), 3922(a)(1), 3925(a), 903.
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guilty plea and deferred sentencing for the purposes of preparing a pre-

sentence investigation report.

      On May 25, 2017, in accordance with the terms of the plea agreement,

the trial court sentenced Rogers to a period of two to six months in prison at

the Huntingdon County Correctional Facility, followed by 3 years’ probation,

plus fines and costs. Additionally, Rogers was ordered to undergo drug and

alcohol evaluation and treatment. The trial court delayed Rogers’s sentence

pending his $7,150.00 payment. Rogers successfully made the initial payment

and subsequently reported to the Huntingdon County Correctional Facility on

February 2, 2018, to begin his sentence. Rogers did not file any post-sentence

motions or a direct appeal.

      On June 22, 2018, Rogers was released from prison.        At that time,

Rogers entered into a payment plan with the Huntingdon Probation

Department (“Probation Department”) to pay $530.00 a month toward his

restitution, fines, and costs.

      On December 12, 2018, the Probation Department filed a Petition to

revoke Rogers’s probation based on technical violations of the terms of his

probation.    The Petition alleged that Rogers had failed to attend two

appointments with his probation officer, failed to notify the Probation

Department of his change of address and change in employment, and failed

to make his monthly $530.00 payments. The trial court scheduled a Gagnon




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I2 hearing for December 28, 2018,3 and Rogers subsequently failed to appear.

The trial court issued a bench warrant for Rogers, and he was arrested on

June 10, 2019.

        On June 11, 2019, the trial court conducted a combined Gagnon I and

contempt hearing. At the close of the hearing, the trial court found that (1)

probable cause existed that Rogers had violated his probation, but he would

be released pending a Gagnon II hearing; and (2) Rogers was in indirect

criminal contempt for failure to pay fines, costs, and restitution. Additionally,

Rogers agreed to pay another $2,000.00 towards his restitution by August 14,

2019. Rogers was only able to pay $1,697.69 by August 14, 2019.

        Prior to the Gagnon II hearing, the Probation Department filed an

Amended Petition to revoke Rogers’s probation. The Amended Petition alleged

that Rogers had failed to undergo the court-ordered drug and alcohol

evaluation and treatment; Rogers had fled the state and was in North Carolina

for approximately one month without notifying the Probation Department; and

Rogers had tested positive for marijuana metabolites on June 14, 2019. In

response     to    the    Amended       Petition,   Rogers   filed   a   Motion   to



____________________________________________


2   See Gagnon v. Scarpelli, 411 U.S. 778 (1973).

3 In its Opinion, the trial court states that the Gagnon I hearing was scheduled
for December 28, 2018; however, the docket does not reflect a hearing
scheduled for that day.




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Clarify4 the restitution amount and the trial court ordered a hearing to be held

on November 7, 2019.

       The Gagnon II hearing was held on November 6, 2019, and Rogers

again failed to appear. However, Rogers did appear on November 7, 2019,

for a hearing on Rogers’s Motion to Clarify the restitution amount. The trial

court proceeded to conduct a hearing for “all open matters regarding

[Rogers]’s probation.” See Trial Court Opinion, 1/28/20, at 3. During the

hearing, Rogers stipulated that he was in violation of his probation. At the

conclusion of the hearing, the trial court found that Rogers had violated his

probation, revoked Rogers’s probation, and scheduled a sentencing hearing

for January 2, 2020.

       On January 2, 2020, the trial court resentenced Rogers to 12 to 24

months in prison. Rogers did not file a post-sentence motion. Rogers filed a

timely Notice of Appeal and a contemporaneous Pa.R.A.P. 1925(b) Concise

Statement of errors complained of on appeal. The trial court filed a Pa.R.A.P.

1925(a) Opinion.

       Rogers now raises the following claim for our review: “Is the sentence

imposed on [] Rogers manifestly excessive, given his acceptance of
____________________________________________


4 In his Motion, Rogers argued that the Probation Department had alleged an
incorrect amount of restitution. Specifically, Rogers claimed that the initial
restitution amount was $18,961.94, but the Probation Department had alleged
that Rogers owed $23,562.69 in restitution. Additionally, Rogers reminded
the trial court that he had paid $7,150.00 of the restitution prior to the
beginning of his sentence and, thus, his remaining restitution should have
been $11,811.94. Rogers’s Motion to Clarify did not calculate his additional
payment of $1,697.69.

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responsibility for his actions, his lack of prior criminal record, and his attempts

at payment of restitution?” Brief for Appellant at 3.

      Rogers claims that his sentence of 12 to 24 months in prison was

manifestly excessive, and that the trial court failed to consider mitigating

factors in fashioning Rogers’s sentence.       Id. at 13.    Additionally, Rogers

contends that the trial court should have sentenced him to a period of

probation instead of prison time and, in doing so, failed to consider his prior

criminal record.    Id. at 11-12.   Further, Rogers claims that the trial court

engaged in “message sending goals.” Id. at 12. Finally, Rogers argues that

the trial court abused its discretion by sentencing him to a period of total

confinement for technical violations. Id.

      Rogers challenges the discretionary aspects of his sentence, from which

there is no absolute right to appeal. See Commonwealth v. Sunealitis, 153

A.3d 414, 420 (Pa. Super. 2016). Rather, when an appellant challenges the

discretionary aspects of his sentence, we must consider his brief on this issue

as a petition for permission to appeal. Commonwealth v. Yanoff, 690 A.2d

260, 267 (Pa. Super. 1997); see also Commonwealth v. Tuladziecki, 522

A.2d 17, 18 (Pa. 1987).       Prior to reaching the merits of a discretionary

sentencing issue,

      [this Court conducts] a four-part analysis to determine: (1)
      whether appellant has filed a timely notice of appeal, see
      Pa.R.A.P. 902 and 903; (2) whether the issue was properly
      preserved at sentencing or in a motion to reconsider and modify
      sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
      has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a


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      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation

marks and some citations omitted).

      Here, Rogers filed a timely Notice of Appeal and properly included a Rule

2119(f) Statement in his brief. However, Rogers did not object at sentencing

to the trial court’s allegedly excessive sentence, nor did he file a post-sentence

motion. See Commonwealth v. Gibbs, 981 A.2d 274, 282-83 (Pa. Super.

2009) (stating that a challenge to the discretionary aspects of a sentence is

waived where the appellant failed to preserve such challenge at sentencing or

in a post-sentence motion). Accordingly, Rogers has waived his challenges to

the discretionary aspects of his sentence on appeal.         See id.; see also

Commonwealth v. Barnhart, 933 A.2d 1061, 1066-67 (Pa. Super. 2007).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/20/20




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