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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEROY WHEELER                              :
                                               :
                       Appellant               :   No. 1631 WDA 2018

        Appeal from the Judgment of Sentence Entered October 23, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0013751-2012


BEFORE:      MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                            FILED OCTOBER 29, 2019

        Leroy Wheeler (Appellant) appeals from the judgment of sentence

imposed after the trial court revoked his probation. Upon review, we affirm.

        Appellant’s underlying conviction arose from his ongoing sexual abuse

of a minor, which occurred over a 10-year period, beginning when the victim

was 6 years old. N.T., 3/5/14, at 4. On March 5, 2014, Appellant pled guilty

to involuntary deviate sexual intercourse with a person under 16 years of age.1

That same day, the trial court sentenced Appellant to 1 to 2 years of

incarceration, followed by 5 years of probation. Additionally, the trial court




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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 3123(a)(7).
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ordered that as a condition of his probation, Appellant undergo sex offender

and mental health treatment. Id. at 6.

        The Commonwealth subsequently alleged that Appellant violated his

probation. Appellant appeared for a Gagnon I2 hearing on May 11, 2018,

after which the hearing officer found probable cause that Appellant violated

the terms of his probation. See Gagnon Hearing Officer Recommendation,

5/11/18, at 1. Appellant then appeared before the trial court on October 23,

2018, for a Gagnon II hearing. At the conclusion of the hearing, the trial

court found Appellant to be in violation of his probation, revoked the

probation, and sentenced Appellant to 10 to 20 years of incarceration.

        On November 2, 2018, Appellant filed a motion for modification of

sentence. While his motion was pending, Appellant, on November 16, 2018,

filed a notice of appeal. On January 8, 2019, the trial court granted Appellant’s

motion for modification to the extent Appellant sought credit for time served,

but denied the motion in all other respects. See Trial Court Order, 1/8/19, at

1. The record indicates that the trial court did not order Appellant to file a

statement pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), and

thus, Appellant’s issues are not waived. See Commonwealth v. Hooks, 921

A.2d 1199, 1202 (Pa. Super. 2007).

        On appeal, Appellant presents three issues for our review:

        1. Is Appellant’s appeal properly before this Court, given that he
        filed his Notice of Appeal within 30 days of the Judgment of
____________________________________________


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

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      Sentence, as he could not wait for the probation court to rule on
      his timely Motion to Modify Sentence lest his ability to seek
      appellate review be forfeited?

      2. Was the 10-to-20 year state prison sentence imposed on
      Appellant at his Probation Violation Hearing forbidden by 42
      Pa.C.S. § 9771(c) and in any manifestly excessive per se [sic]
      given that (A) Appellant was a Technical Probation Violator, not a
      Convicted Probation Violator; (B) there was no showing that he
      was likely to commit a crime while on probation unless he was
      imprisoned; and (C) there was no showing that an order of
      imprisonment was essential to vindicate the authority of the
      probation court?

      3. Was the 10-to-20 year state prison [sentence] imposed on
      Appellant at his Probation Violation Hearing manifestly excessive,
      even if imprisonment of some sort could be imposed, given that,
      inter alia, (A) he was a Technical Probation Violator rather than a
      Convicted Probation Violator; (B) he suffered from mental illness
      so severe that he had been previously committed to both Torrance
      State Hospital and to the Western Psychiatric Institution; (C) he
      had endured sexual abuse as a child and a fatherless upbringing;
      and (D) he had undertaken substantial rehabilitative efforts while
      confined in advance of his Probation Violation hearing?

Appellant’s Brief at 4-5.

      In his first issue, Appellant rebuts the trial court’s assertion in its

statement in lieu of opinion that Appellant’s notice of appeal filed November

16, 2018 was premature and should be quashed. See Trial Court Statement

in Lieu of Opinion, 3/12/19, at *1.     The trial court opines that because

Appellant filed his notice of appeal prior to its ruling on his motion for

reconsideration, “the judgment of sentence was not final by disposition or by

operation of law.” Id. (citing Pa.R.Crim.P. 720).

      Citing Pennsylvania Rule of Criminal Procedure 708(E), Appellant argues

that his appeal was perfected because the “filing of a motion to modify


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sentence will not toll the 30-day appeal period.”    Appellant’s Brief at 41.

Appellant states that had he waited until after the trial court ruled on his

motion on January 8, 2019, “his appeal would be subject to being quashed as

untimely.” Id. at 42. The Commonwealth agrees that Appellant’s notice of

appeal was not premature.     See Commonwealth’s Brief at 5-7 (“Because

[Appellant’s] [n]otice of [a]ppeal had to be filed within 30 days of the

revocation of his probation, his motion to modify sentence did not act to toll

his time for filing a timely appeal. Consequently, the instant appeal is not

premature.”). We agree.

      Pennsylvania Rule of Criminal Procedure 708(E) mandates that “[a]

motion to modify a sentence imposed after a revocation shall be filed within

10 days of the imposition.” Pa.R.Crim.P. 708(E). “The filing of a motion to

modify sentence will not toll the 30-day appeal period.” Id. Accordingly, an

appellant seeking to appeal a sentence following revocation must do so within

the 30-day time period prescribed by Pa.R.A.P. 903(a). See Commonwealth

v. Parlante, 823 A.2d 927, 929 (Pa. Super. 2003) (“An appellant whose

revocation of probation sentence has been imposed after a revocation

proceeding has 30 days to appeal her sentence from the day her sentence is

entered, regardless of whether or not she files a post-sentence motion.”).

      Here, Appellant was resentenced on October 23, 2018. Appellant filed

his motion for modification of sentence on November 2, 2018.         Because

Appellant’s motion addressed the sentence he received following revocation,

and not an original sentence, the filing of his motion did not toll the 30-day

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appeal period.    Pa.R.Crim.P. 708(E).       Regardless of whether Appellant’s

motion was outstanding before the trial court, his notice of appeal filed

November 16, 2018 was timely, and we therefore address its merits. See

Commonwealth v. Duffy, 143 A.3d 940 (Pa. Super. 2016) (noting that

regardless if a motion to modify sentence is filed, a notice of appeal from a

revocation proceeding must be filed within 30 days of the imposition of

sentence).

      In his two remaining issues, Appellant challenges the discretionary

aspects of his sentence. We address these issues together, recognizing:

      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.
      An abuse of discretion is more than an error in judgment — a
      sentencing court has not abused its discretion unless the record
      discloses that the judgment exercised was manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Simmons, 56 A.3d 1280, 1283-84 (Pa. Super. 2012)

(citations omitted).     “Also, upon sentencing following a revocation of

probation, the trial court is limited only by the maximum sentence that it could

have imposed originally at the time of the probationary sentence.”          Id. at

1286-87 (citation omitted).

      Further, “[t]he right to appellate review of the discretionary aspects of

a sentence is not absolute, and must be considered a petition for permission

to appeal.”   Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa.

Super. 2014). “An appellant must satisfy a four-part test to invoke this Court’s



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jurisdiction when challenging the discretionary aspects of a sentence.” Id.

We conduct this four-part test to determine whether:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of
      appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
      a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted). “A defendant presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations

omitted).

      Appellant has complied with the first three prongs of this test by raising

his sentencing claims in a timely post-sentence motion, filing a timely notice

of appeal, and including in his brief a Rule 2119(f) concise statement. See

Appellant’s Brief at 30-34. Therefore, we examine whether Appellant presents

a substantial question.

      In his 2119(f) statement, Appellant argues that the trial court failed to

comply with 42 Pa.C.S.A. § 9771(c) and imposed an excessive sentence. See

Appellant’s Brief at 30-31 (“[T]he Commonwealth[] failed to establish any of

the three prerequisites to a probation violation confinement sentence that are

set out in 42 Pa.C.S.A. § 9771(c).”).        This claim presents a substantial



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question. See Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super.

2006) (holding that where an appellant “presented a [2119(f)] statement

arguing that the [trial] court erred in its application of [S]ection 9771 and his

sentence . . . [was] manifestly excessive[,]” we concluded that “both these

issues present substantial question for review.”).

      Appellant also challenges the trial court’s imposition of a “manifestly

excessive” sentence for failing to consider Appellant’s mental health, troubled

upbringing, and his efforts to seek rehabilitative treatment. Appellant’s Brief

at 4-5. This claim also raises a substantial question. See Dodge, 77 A.3d at

1272 (holding that an excessive sentence claim, in conjunction with an

assertion that the trial court failed to consider mitigating factors, raises a

substantial question) (citation omitted).

      Turning to the merits of Appellant’s sentencing claims, we note:

      Upon revoking probation, a sentencing court may choose from any
      of the sentencing options that existed at the time of the original
      sentencing, including incarceration.        42 Pa.C.S. § 9771(b).
      However, the imposition of total confinement upon revocation
      requires a finding that either “(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.” 42 Pa.C.S. 9771(c).

Commonwealth v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015) (footnote

omitted). Further:

      In selecting from the alternatives set forth in subsection (a), 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

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      on the life of the victim and on the community, and the
      rehabilitative needs of the defendant. . . . In every case in which
      the court imposes a sentence for a felony or misdemeanor . . . the
      court shall make as a part of the record, and disclose in open court
      at the time of sentencing, a statement of the reason or reasons
      for the sentence imposed.

42 Pa.C.S.A. § 9721(b).

      “Revocation of a probation sentence is a matter committed to the sound

discretion of the trial court and that court’s decision will not be disturbed on

appeal in the absence of an error of law or an abuse of discretion.”

Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa. Super. 2008) (citation

omitted). Upon sentencing following a revocation of probation, the trial court

is limited only by the maximum sentence that it could have imposed originally

at the time of the probationary sentence. Commonwealth v. Coolbaugh,

770 A.2d 788, 792 (Pa. Super. 2001). A re-sentence may not exceed the

statutory limits of the sentence, including allowable deductions for time

served. See id.

      Following revocation, a sentencing court need not undertake a lengthy

discourse for its reasons for imposing a sentence of total confinement, but the

record as a whole must reflect the sentencing court’s consideration of the facts

of the crime and character of the offender. Commonwealth v. Crump, 995

A.2d 1280, 1283 (Pa. Super. 2010). Also, “[w]hen a sentencing court has

reviewed a pre[-]sentence investigation report, we presume that the court

properly considered and weighed all relevant factors in fashioning the




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defendant’s sentence.” Baker, 72 A.3d at 663 (citing Commonwealth v.

Fowler, 893 A.2d 758, 767 (Pa. Super. 2006)).

     In imposing sentence, the trial court is required to consider the
     particular circumstances of the offense and the character of the
     defendant. The trial court should refer to the defendant’s prior
     criminal record, age, personal characteristics, and potential for
     rehabilitation. However, where the sentencing judge had the
     benefit of a presentence investigation report, it will be presumed
     that he or she was aware of the relevant information regarding
     the defendant’s character and weighed those considerations along
     with mitigating statutory factors. Additionally, the sentencing
     court must state its reasons for the sentence on the record. 42
     Pa.C.S.A. § 9721(b). The sentencing judge can satisfy the
     requirement that reasons for imposing sentence be placed on the
     record by indicating that he or she has been informed by the pre-
     sentencing report; thus properly considering and weighing all
     relevant factors.

Fowler, 893 A.2d at 767-68 (citing Commonwealth v. Boyer, 856 A.2d 149,

154 (Pa. Super. 2004)) (citations omitted) (emphasis added).

     Here, the record reveals that the trial court did not abuse its discretion

or commit an error in resentencing Appellant. At the outset of Appellant’s

hearing, the trial court stated that it “ordered, read[,] and considered”

Appellant’s pre-sentence investigation report.    N.T., 10/23/18, at 2.     In

addition, state probation and parole officer Charles Ackerman testified that

Appellant impermissibly possessed pornography, girl’s panties, and children’s

DVDs while on probation. Id. at 3. Mr. Ackerman also testified that Appellant

failed to complete a sex offender program and was discharged for aggressive

behavior. Id. On Appellant’s behalf, Appellant’s attorney emphasized to the




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trial court Appellant’s difficult upbringing, mental health issues, and the fact

that Appellant’s probation violation was “technical.” Id. at 7.

      Prior to imposing Appellant’s sentence, the trial court succinctly

explained its reasoning:

            Well, you know, [Appellant], I find it interesting that the
      treatment that I asked you to complete said -- you said you felt
      threatened and belittled. I wonder how threatened and belittled
      your six year old [victim] felt after you abused her for ten years.
      Do you think she felt threatened or belittled? . . .

            Okay. You have been caught with porno. I agree that it’s
      adult pornography.      You had a cell phone, you had other
      prohibited items. I do recognize that you have both health and
      mental health issues. However, thus far I have put you in JRS, I
      sent you to Torrance, you were in Mercy Behavioral where you
      were discharged unsuccessfully. You have already done state
      time so incarceration hasn’t deterred you from future activity. You
      did not take any advantages of any of the offers of rehabilitation
      that I offered, whether it was for being homeless, having mental
      health issues and you are not compliant with probation.

N.T., 10/23/18, at 10-11.

      Consistent with the foregoing, the trial court, in compliance with Section

9771, properly resentenced Appellant to confinement based upon its findings

that Appellant may be likely to commit another crime, and to vindicate the

authority of the trial court. 42 Pa.C.S.A. § 9771; see also N.T., 10/23/18,

10-11. Accordingly, “the record as a whole reflects the sentencing court’s

consideration of the facts of [Appellant’s] crime and [Appellant’s] character,”

Crump, 995 A.2d at 1283, and Appellant’s excessive sentencing claims lack

merit.

      Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2019




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