J-S64001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
              v.                      :
                                      :
                                      :
 JOSHUA LEVERS                        :
                                      :
                   Appellant          :   No. 447 WDA 2018

          Appeal from the Judgment of Sentence March 5, 2018
 In the Court of Common Pleas of Washington County Criminal Division at
                    No(s): CP-63-CR-0002772-2014

 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
              v.                      :
                                      :
                                      :
 JOSHUA SETH LEVERS                   :
                                      :
                   Appellant          :   No. 448 WDA 2018

          Appeal from the Judgment of Sentence March 5, 2018
 In the Court of Common Pleas of Washington County Criminal Division at
                    No(s): CP-63-CR-0002773-2014

 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
              v.                      :
                                      :
                                      :
 JOSHUA SETH LEVERS                   :
                                      :
                   Appellant          :   No. 449 WDA 2018

          Appeal from the Judgment of Sentence March 5, 2018
 In the Court of Common Pleas of Washington County Criminal Division at
                    No(s): CP-63-CR-0001422-2015
J-S64001-19


BEFORE:      BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.:                         FILED DECEMBER 12, 2019

        Joshua Levers appeals from the judgment of sentence of an aggregate

term of three-and-one-half to ten years of incarceration imposed after

revoking Appellant’s sentence of state intermediate punishment (“SIP”).1 We

affirm.

        The trial court offered the following summary of the factual background

of the cases involved in this appeal.

              This case arises out of three separate criminal complaints
        filed against [Appellant]. On October 27, 2014, a criminal
        complaint was filed whereby the Defendant was charged with one
        count of flight to avoid apprehension, trial, or punishment, one
        count of resisting arrest or other law enforcement, one count of
        possession of a controlled substance, one count of use or
        possession of a controlled substance, one count of disorderly
        conduct, one count of terroristic threats, and one count of
        harassment.

             These charges arise from an incident on September 27,
        2014, [when] an officer responded to a harassment call at 104
        Warren Street, Bentleyville, Pennsylvania, where the victim,
        Susan Childs, stated that [Appellant] threatened to “beat the hell
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   As this Court has explained:

        SIP is a two-year program designed to benefit persons with drug
        and alcohol problems. 61 Pa.C.S. §§ 4102-4109. In order to be
        eligible for the SIP program, a defendant cannot have a history of
        present or past violent behavior and the Pennsylvania Department
        of Corrections (“DOC”) must determine that the defendant is in
        need of drug and alcohol treatment.

Commonwealth v. Kuykendall, 2 A.3d 559, 560 (Pa.Super. 2010).

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     out of her” and to slash her vehicle’s tires. After [Appellant] had
     fled from the residence, the officer pursued and apprehended him
     in the nearby woods.

           Another criminal complaint was filed on October 13, 2014,
     whereby [Appellant] was charged with one count of aggravated
     assault, one count of recklessly endangering another person, one
     count of simple assault, and one count of harassment.

           These charges arise out of an incident on October 13, 2014,
     when an officer was dispatched to a domestic call on the 500 block
     of Main Street in Bentleyville, Pennsylvania. The victim, Deonnia
     Paxton, informed the officer that her husband, [Appellant],
     grabbed her around the neck and held a knife to her neck. The
     victim stated that she escaped the home on foot. As she fled,
     [Appellant] put her in a headlock and threw her to the ground,
     causing injuries to her right hand and left side of her head.

           Finally, the third criminal complaint was filed on March 23,
     2015, whereby [Appellant] was charged with one count of
     burglary, two counts of criminal trespass, one count of theft by
     unlawful taking or disposition, and one count of criminal attempt,
     arising from an incident on February 23, 2015, at a residence on
     54 Grange Road, in West Pike Run Township, Pennsylvania. The
     owner of the residence, Cynthia Yonkers, reported that as she
     arrived at her home, she noticed a male exiting the basement door
     and carrying a stereo. She yelled at the man, causing him to drop
     the stereo and flee. Subsequently, on March 2, 2015, the victim
     contacted law enforcement and identified [Appellant] as the male
     from the February incident.

Trial Court Opinion, 1/10/19, at 2-3 (footnotes, unnecessary capitalization,

and repetition of amounts in numerical form omitted).

     Appellant entered guilty pleas and was sentenced in March 2015 to

county intermediate punishment, including a period of electronic home

monitoring, and counseling.    Pleading guilty to new criminal charges in

September 2015, Appellant’s sentence was revoked and Appellant was

sentenced to probation through the mental health court program.            Upon

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violation of his probation, Appellant’s probation was revoked and he was

sentenced in August 2016 to be placed in the SIP program, followed by a term

of probation.      In February 2018, the DOC informed the trial court that

Appellant was expelled from the SIP program for drug use and lack of

participation.    After a hearing, Appellant’s SIP sentence was revoked.     On

March 5, 2018, the trial court imposed the term of incarceration of three-and-

one-half to ten years at issue in this appeal.

       Appellant thereafter filed timely notices of appeal.2     The trial court

directed Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and Appellant eventually complied. Appellant

contends on appeal that his sentence is excessive and was based upon

improper factors. Appellant’s brief at 7.

       Before we address the merits of Appellant’s claim, we must determine

whether it is properly before us. As the trial court and the Commonwealth

note, Appellant’s 1925(b) statement was filed late. The consequence of a late

1925(b) statement is usually waiver.3            See Pa.R.A.P. 1925(b)(4)(vii).


____________________________________________


2   Although this appeal predates our Supreme Court’s decision
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), we note that Appellant
filed a separate notice of appeal at each docket number implicated by the
March 5, 2019 sentencing proceeding.

3 The Commonwealth argues that Appellant’s failure to file a timely 1925(b)
statement renders this appeal untimely even though the notice of appeal was
timely filed. Commonwealth’s brief at 18-20. There is no support in the law



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However, waiver does not apply in the instant case because the trial court’s

April 12, 2018 order was not entered on the docket in compliance with

Pa.R.Crim.P. 114(C)(2)(c) by indicating the fact and date of service on the

parties.4 See Commonwealth v. Chester, 163 A.3d 470, 472 (Pa.Super.

2017) (holding order to file Rule 1925(b) statement was unenforceable where

there was no indication on the docket of the date of service of the order

requiring its filing). Accordingly, we consider whether Appellant has raised a

viable challenge to the discretionary aspects of his sentence.

       The following well-established principles of law guide our review:

       An appellant is not entitled to the review of challenges to the
       discretionary aspects of a sentence as of right. Rather, an
       appellant challenging the discretionary aspects of his sentence
       must invoke this Court’s jurisdiction. We determine whether the
       appellant has invoked our jurisdiction by considering the following
       four factors:

              (1) whether appellant has filed a timely notice of
              appeal; (2) whether the issue was properly preserved
              at sentencing or in a motion to reconsider and modify
              sentence; (3) whether appellant’s brief has a fatal
              defect; and (4) whether there is a substantial question
              that the sentence appealed from is not appropriate
              under the Sentencing Code.




____________________________________________


for the Commonwealth’s contention that lack of compliance with Rule 1925
negates the timeliness of the appeal.

4 Even if the trial court’s order were enforceable, remand, rather than waiver,
would result pursuant to Rule 1925(c)(3) (providing for remand for a nunc pro
tunc statement where counsel was per se ineffective in failing to file a timely
statement).

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Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)

(internal citations omitted).

      Appellant filed a timely notice of appeal, and his brief contains a

statement of reasons relied upon for his challenge to the discretionary aspects

of his sentence as required by Pa.R.A.P. 2119(f). Although he did not preserve

his issue in a post-sentence motion, we conclude that his failure to do so is

not fatal to his challenge. The Rules of Criminal Procedure provide as follows

regarding sentencing upon violation of intermediate punishment:

      The judge shall advise the defendant on the record:

      (a) of the right to file a motion to modify sentence and to appeal,
      of the time within which the defendant must exercise those rights,
      and of the right to assistance of counsel in the preparation of the
      motion and appeal[.]

Pa.R.Crim.P. 708(D)(3). As the transcript contains no such statement by the

trial court, waiver does not apply. See Commonwealth v. Moore, 453 A.2d

1029, 1030 (Pa.Super. 1982)        (“[A]ppellant did not waive his right to

challenge his sentence unless he knew that he had such a right, and he will

not be deemed to have known that he had such a right unless the lower court

told him that he did and also, told him how he could exercise his right.”).

      Thus, we consider whether Appellant has raised a substantial question

that his sentence is not appropriate. Appellant contends that the trial court

improperly relied upon the DOC’s stated reasons for expelling Appellant from

SIP in imposing an excessive aggregate sentence. We conclude that Appellant

has raised a substantial question. See, e.g., Commonwealth v. Dodge, 77

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J-S64001-19


A.3d 1263, 1273 (Pa.Super. 2013) (holding claim that the trial court relied

upon impermissible sentencing factors presented a substantial question).

Therefore, we address the merits of Appellant’s claim, mindful of the following.

      “When reviewing sentencing matters, this Court must accord the

sentencing court great weight as it is in the best position to view the

defendant’s character, displays of remorse, defiance or indifference, and the

overall effect and nature of the crime.” Commonwealth v. Ventura, 975

A.2d 1128, 1134 (Pa.Super. 2009). Hence, we review the sentencing court’s

determination for an abuse of discretion.

      In this context, an abuse of discretion is not shown merely by an
      error in judgment. Rather, the appellant must establish, by
      reference to the record, that the sentencing court ignored or
      misapplied the law, exercised its judgment for reasons of
      partiality, prejudice, bias or ill will, or arrived at a manifestly
      unreasonable decision.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).

      With these principles in mind, we turn to the substance of Appellant’s

argument. Appellant acknowledges that he was expelled from SIP because

he had relapsed and fallen back into using illegal drugs. However, Appellant

complains that his sentence is excessively long insofar as it is based in part

upon the trial court’s focus on documents supplied by the DOC that Appellant’s

“lack of meaningful participation” in the program as well as drug use motivated

his expulsion. Appellant’s brief at 11. Relying upon this Court’s decision in

Commonwealth v. Schultz, 116 A.3d 1116, 1121 (Pa.Super. 2015),

Appellant contends that the reasons why Appellant was expelled from the SIP

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program were irrelevant and improperly considered at the sentencing hearing.

Id. at 11-13.

      In Schultz, the issue was whether the trial court erred in entertaining

at a revocation hearing testimony from a DOC SIP coordinator about the

reasons for the defendant’s expulsion from the program. The Court began by

examining the statutes regarding expulsion from the SIP program on the one

hand, and revocation of an SIP sentence on the other. The statute concerning

the former provides as follows in relevant part:

      (f) Expulsion from program.--

            (1) A participant may be expelled from the drug offender
            treatment program at any time in accordance with
            guidelines established by the department, including failure
            to comply with administrative or disciplinary procedures or
            requirements set forth by the department.

            (2) The department shall promptly notify the court, the
            defendant, the attorney for the Commonwealth and the
            commission of the expulsion of a participant from the drug
            offender treatment program and the reason for such
            expulsion. The participant shall be housed in a State
            correctional institution or county jail pending action by the
            court.

            (3) The court shall schedule a prompt State intermediate
            punishment revocation hearing pursuant to 42 Pa.C.S.
            § 9774 (relating to revocation of State intermediate
            punishment sentence).

61 Pa.C.S. § 4105.

      The statute governing revocation of a SIP sentence states as follows:




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      (a) General rule.--The court may at any time terminate a
      sentence of State intermediate punishment pursuant to 61 Pa.C.S.
      Ch. 41 (relating to State intermediate punishment).

      (b) Revocation.--The court shall revoke a sentence of State
      intermediate punishment if after a hearing it determines that the
      participant was expelled from or failed to complete the program.

      (c) Proceedings upon revocation.--Upon revocation of a State
      intermediate punishment sentence, the sentencing alternatives
      available to the court shall be the same as the alternatives
      available at the time of initial sentencing. The attorney for the
      Commonwealth must file notice, at any time prior to resentencing,
      of the Commonwealth’s intention to proceed under an applicable
      provision of law requiring a mandatory minimum sentence.

42 Pa.C.S. § 9774

      Noting that the decision whether to expel someone from the program is

the sole province of the DOC, this Court held that the only question to be

decided by a court at a revocation hearing held pursuant to 42 Pa.C.S.

§ 9774(b) is if the DOC expelled the defendant or he failed to complete the

program. “Section 9774(b) . . . only requires the Commonwealth to prove the

fact of expulsion or non-completion. Once the trial court finds this fact, it is

required to revoke under Section 9774(b).”         Schultz, supra at 1121.

Accordingly, we held that testimony about why the defendant was expelled

from SIP by the DOC was legally irrelevant at the § 9774(b) hearing. Id.

      The Commonwealth aptly points out that Schultz is inapposite because

the hearing at which the trial court discussed the reasons for Appellant’s

expulsion from SIP by the DOC was a resentencing hearing pursuant to

§ 9774(c),    not   merely    a   §   9744(b)   revocation    hearing.     See


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Commonwealth’s brief at 22-24. It is axiomatic that the trial court’s sentence

is to be based upon consideration of, inter alia, the defendant’s rehabilitative

needs.    See, e.g., 42 Pa.C.S. § 9721(b) (detailing general sentencing

standards). Appellant asked the court to allow him to live with his father and

receive outpatient treatment, promising that this time he was ready to follow

through with recovery through NA and AA. See, e.g., N.T. Revocation and

Sentencing, 3/5/18, at 6-7. As such, the fact that Appellant was expelled

from the SIP drug offender treatment program for both drug use and lack of

meaningful participation was certainly relevant to Appellant’s amenability to

rehabilitation through treatment.

      Accordingly, Appellant has failed to demonstrate that the trial court

“ignored or misapplied the law, exercised its judgment for reasons of

partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable

decision.” Antidormi, supra at 760. We thus have no reason to disturb the

trial court’s exercise of discretion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2019



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