J-A21037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellee

                      v.

WARREN ALSTON,

                           Appellant                No. 1733 EDA 2014


           Appeal from the Judgment of Sentence entered May 9, 2014,
              in the Court of Common Pleas of Philadelphia County,
              Criminal Division, at No(s): CP-51-CR-1205041-2001


BEFORE: ALLEN, MUNDY, and FITZGERALD*, JJ.

MEMORANDUM BY ALLEN, J.:                              FILED JULY 17, 2015

      Warren Alston (“Appellant”) appeals from the judgment of sentence

imposed by the trial court after it determined that Appellant had violated his

probation. We affirm.

      The trial court summarized the procedural background of this case as

follows:

            On April 15, 2002, [Appellant] appeared before [the trial]
      court and entered into a negotiated guilty plea to one count of
      unlawful restraint and one count of criminal trespass.
      Thereafter, the negotiated sentence of time served (11.5
      months) to 23 months confinement, followed by 3 years
      consecutive reporting probation was imposed. On April 24,
      2002, [Appellant] was paroled from Philadelphia County to
      authorities from New Jersey on an arrest warrant and
      transported to Middlesex County Correctional Institution to serve
      a New Jersey sentence for failing to pay imposed violation of
      probation fines. [Appellant] was subsequently released to the
      streets of New Jersey approximately six to eight weeks later.
      [FN1 [Appellant] remained free from physical incarceration for
      approximately two months, since on or about July 2002.] On

*Former Justice specially assigned to the Superior Court.
J-A21037-15


     September 22, 2002, [Appellant] was arrested in Middlesex
     County, New Jersey and charged with several violent offenses.
     [FN2 [Appellant] was charged with two counts of burglary, one
     count of terroristic threats, one count of possession with a
     deadly weapon unlawful purpose, two counts of aggravated
     sexual assault, one count of aggravated assault, one count of
     robbery, and one count of criminal restraint.] Subsequently, on
     February 9, 2004, [Appellant] pled guilty as charged to all
     counts, and on May 14, 2004 was sentenced to 20 years
     confinement, parole ineligible for 17 years and given credit for
     time served. This court, unaware of [Appellant’s] New Jersey
     conviction, scheduled a listing for July 17, 2002.        When
     [Appellant] failed to appear or inform the court of his
     whereabouts, a bench warrant was issued for his arrest on July
     24, 2002.

           On May 9, 2014, a probation revocation hearing was held
     via two-way simultaneous audio and video media with
     [Appellant] from the East Jersey State Prison in Rahway, New
     Jersey.    This court found [Appellant] in violation of the
     probationary sentence imposed on April 15, 2002, and sentenced
     him to 2.5-5 years state confinement on the charge of unlawful
     restraint and a consecutive 3.5-7 years on the charge of criminal
     trespass, both to run consecutive to the term [Appellant] is
     currently serving in New Jersey, with credit for time served.

           [Appellant] filed a Notice of Appeal, on June 9, 2014. On
     June 10, 2014, this court ordered [Appellant] to file a Statement
     of Matters Complained of on Appeal in accordance with
     PA.R.APP.PROC. 1925(b). On June 30, 2014, said statement
     was filed by [Appellant] along with a Motion for an Extension of
     Time to File a Supplemental Statement of Errors Complained of
     on Appeal pending receipt of the notes of testimony. The
     extension was granted on July 21, 2014 and the supplemental
     statement was filed on July 22, 2014.

Trial Court Opinion, 11/17/14, at 1-2.

     On appeal, Appellant presents two issues for our review:

     1.     Did not the trial court violate the mandate of Pa.R.Crim.P.
     708, that a probation revocation hearing be held “as speedily as
     possible,” inasmuch as [A]ppellant’s revocation hearing was not
     listed or held until 10 years after [A]ppellant’s direct violation


                                    -2-
J-A21037-15


      guilty plea in New Jersey, and this substantial delay was
      unreasonable and prejudicial to [A]ppellant?

      2.    Was not the probation revocation sentence of six to twelve
      years incarceration to be served at the conclusion of a sentence
      of twenty years incarceration that [A]ppellant was already
      serving in New Jersey excessive and unreasonable, where the
      sentence far surpassed what was necessary to foster
      [A]ppellant’s rehabilitative needs insomuch as the sentence was
      imposed 10 years after the direct violation occurred and
      [A]ppellant had already served the length of the entire
      revocation sentence since he had been incarcerated for 12 years
      in New Jersey?

Appellant’s Brief at 4.

      Appellant asserts that his sentence is “excessive … unreasonable and

prejudicial,” and complains that he is “essentially serving a life sentence.”

Appellant’s Brief at 16-17.

      The Commonwealth counters that it is not chargeable with the delay in

Appellant’s sentencing, i.e., knowledge that Appellant left Pennsylvania

without approval when he was paroled in 2002, and that Appellant was

responsible “for the delay occasioned by his absconding and committing new

crimes.”   Commonwealth Brief at 7.     The Commonwealth maintains that

Appellant “was in no way prejudiced by the delay,” and additionally asserts

that Appellant has failed to present a substantial question regarding his

sentencing. Id.

      We initially note that when we review the results of a probation

revocation hearing, we are limited to determining the validity of the

proceedings, and the legality of the judgment of sentence imposed.

Commonwealth v. Heilman, 876 A.2d 1021, 1026 (Pa. Super. 2005).

                                    -3-
J-A21037-15



Instantly, we have read the notes of testimony from Appellant’s May 9, 2014

probation violation hearing, and conclude that the proceedings were valid

and the sentence was legal. The assistant district attorney asserted:

            [U]ltimately the reason for the delay falls on [Appellant’s]
      shoulders. He was on the street at some point after July, and
      he’s the one who got arrested in September.             [Appellant’s
      counsel] seems to be implying … that somehow because the new
      arrest – I think [Appellant’s counsel] is asking this Court to make
      a connection between the fact that [Appellant] was released by
      the Philadelphia prison to Middlesex County and then was
      arrested in Middlesex County, that somehow the Philadelphia
      prison system is responsible for keeping track of him. What if he
      had been arrested in New York or Vermont or Arizona?

           He got arrested in September. I don’t see how under
      normal circumstances the Philadelphia Probation Department is
      necessarily supposed to be made aware of that.

N.T., 5/9/14, at 30.

      In agreement, the trial court reasoned:

            This case is extremely troubling to me.          [Appellant]
      negotiated a plea most favorable to him under circumstances
      which play out in a more violent fashion across the river in New
      Jersey. If we remember, [Appellant] pled guilty to unlawful
      restraint and criminal trespass in the Philadelphia case, and the
      facts were that he unlawfully entered the home of his estranged
      wife, and despite her pleadings he held her hostage for a period
      of time until he was arrested.

            He is essentially asking this court to give him the benefit of
      having been arrested obviously on a warrant from New Jersey,
      and when he got back to New Jersey, despite the fact that he left
      the jurisdiction without any approval, while he was free he did
      not return to Philadelphia. Instead he remained in New Jersey,
      committed a crime, a vicious crime, was sent to jail, and now he
      maintains that while he was in jail he had done everything in his
      power to bring his location to the attention of the Philadelphia
      authorities.     I reject that uncorroborated statement or
      statements of his out of hand.

                                     -4-
J-A21037-15


            He then goes on to say that because of the long period of
     delay for which he is at fault that the citizens of the
     Commonwealth of Pennsylvania should be blamed because his
     having not been brought before this court to have the detainer
     resolved has worked a prejudice against him, and I am to
     believe – he has asked me to believe that this prejudices a man
     who entered someone else’s home and sexually assaulted them,
     the prejudice that precludes his being given a favorable
     classification is not the heinousness of the crime I just outlined,
     but the fact that he has a detainer back here in Philadelphia. I
     find that there is no prejudice.

Id. at 52-53.

     Consistent with the foregoing, the Honorable Sandy L.V. Byrd, sitting

as the trial court, has authored a thorough and comprehensive opinion

further explaining the propriety of Appellant’s sentence given the specific

factual background and applicable legal authority.    Accordingly, we adopt

Judge Byrd’s November 17, 2014 opinion as our own in affirming Appellant’s

judgment of sentence.

     Judgment of sentence affirmed.

     Justice Fitzgerald joins the Memorandum.

     Judge Mundy concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2015




                                    -5-
                                                                             Circulated 06/26/2015 12:22 PM




           IN THE COURT OF COMMON PLEAS PHILADELPffiA COUNTY
                                CRIMINAL TRIAL DIVISION



 COMMONWEALTH OF PENNSYLVANIA                              CP-51-CR-1205041-2001


                        v.
                                                           SUPERIOR COURT

              WARREN ALSTON                                                            FILED
                                                                                         NOV 17 2014
                                                            1733 EDA 2014
                                                                                    Criminal Appeals (mil
                                                                                 -First JL1dictal Distnc1 ot PA

                                            OPINION

Byrd, J.                                                                       NoveD1ber17,2014

   Defendant, Warren Alston, filed a direct appeal from this court's May 9, 2014 judgment of

sentence following a violation of probation hearing. In accordance with the requirements of PA.

R..APP. PROC. 1925, this court submits the following Opinion.

                                  I. PROCEDURAL HISTORY

    On April 15, 2002 defendant appeared before this court and entered into a negotiated guilty plea

to one count of unlawful restraint and one count of criminal trespass. Thereafter, the negotiated

sentence of time served (11.5 months) to 23 months confinement, followed by 3 years consecutive

reporting probation was imposed. On April 24, 2002, defendant was paroled from Philadelphia

County to authorities from New Jersey on an arrest warrant and transported to Middlesex County

Correctional Institution to serve a New Jersey sentence for failing to pay imposed violation of

probation fines. Defendant was subsequentlyreleased to the streets ofNewJersey approximatelysix
                                                                                                                                l

                                                                                                                                               .
                                                                                                                                    -r-: ·-.~·:···-

                                                                                                                                               j ..
                                                                                               Circulated 06/26/2015 12:22 PM                  ..
                                                                                                                                               ;

                                                                                                                                               i.


to eight weeks later.1 On September 22, 2002, defendant was arrested in Middlesex County, New.

Jersey and charged with several violent offenses. 2 Subsequently, on February 9, 2004, defendant pled

guilty as charged to all counts, and on May 14, 2004 was sentenced to 20 years confinement, parole

ineligible for 17 years and given credit for time served. This court, unaware of defendant's New

Jersey conviction, scheduled a listing for July, 17, 2002. When defendant failed to appear or inform

the court of his whereabouts, a bench warrant was issued for his arrest on July 24, 2002.

       On May 9, 2014, a probation revocation hearing was held via two-way simultaneous audio.and

video media with defendant from the East Jersey State Prison in Rahway, New Jersey. This court

found defendant in violation of the probationary sentence imposed on April 15, 2002, and sentenced

him to 2.5 -5 years state confinement on the charge of unlawful restraint and a consecutive to 3.5 -7

years on the charge of criminal trespass, both to run consecutive to the term defendant is currently

serving in New Jersey, with credit given for time served.

       Defendant filed a Notice of Appeal, on June 9, 2014. On June 10, 2014, this court ordered

defendant to file a Statement of Matters Complained of on Appeal in accordance with PA. RAPP.

PROC. 1925 (b). On June 30, 2014, said statement was filed by defendant along with a Motion for an

Extension of Time to File a Supplemental Statement of Errors Complained of on Appeal pending

receipt of the notes of testimony. The extension was granted on July 21, 2014 and the supplemental

statement was filed on July 22, 2014.

                  II. STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

           In accordance with PA. RAPP. PROC.1925 (b), defendant raised the following issues in his


I
    Defendant remained free from physical incarceration for approximatelytwo months, since on or about July 2002.
:!Defendant was charged with two counts of burglary (N.J. STAT.ANN.§ 2C: 18-2 (a)(l )), one count of terroristic threats(§
2C: 12-3(b)), one count of possession of a weapon unlawful purpose(§ 2C:39-4(d)), two counts of aggravated sexual ·
assault (§ 2C:14-2(a)(3)), one count of aggravated assault (§ 2C: 13-2(a)), one count of robbery

                                                            2
Commonwealth v. Warren Alston
s   .• -,



                                                                                           Circulated 06/26/2015 12:22 PM




                Statement of Matters Complained of on Appeal':

                         a  Appellant's right to due process oflaw and bis right to a speedy hearing under
                            Pa. R. Crim, P. 708 (B) were violated by the ten (10) year delay between his
                            new conviction and his probation violation hearing, said delay being not
                            intrinsically reasonable. Furthermore, the Commonwealth failed to exercise
                            due diligence in scheduling the revocation hearing and appellant was
                            prejudiced by the delay by being denied access to a modified custody status
                            and various programs in prison, which unnecessarily restrained his personal
                            liberty.
                         b. The sentence imposed on the charge of unlawful restraint, 18 Pa. C.S.A. §
                            2902, is illegal because the original term of incarceration of time-served to
                            twenty [sic] (23) months combined with the new term of incarceration of
                            two-and-one-half (2 1/2) to five (5) years results in an aggregate period of
                            imprisonment that exceeds the statutory maximum.
                         c. The sentence imposed on appellant violated the requirements of 42 Pa
                            C.S.A. § 9721 (b), inthat it was unreasonable, manifestly excessive, and far
                            surpassed what was necessary to foster appellant's rehabilitative needs.

                                                    IlLFACTUALBACKGROUND

                At the violation of probation hearing, this court first proffered an email from Philadelphia Adult

            Parole and Probation Department Supervisor Duane Archie and defendant's Gagnon II hearing

            summary. The Commonwealth presented the testimony of Probation Officer Rosa Ramos and

            defendant testified on his own behalf. TI1e facts supporting revocation of probation are as follows.

                On April 24, 2002 after being sentenced by this court on April 15, 2002, pursuant to a negotiated

            guilty plea, defendant was released to Middlesex County, New Jersey sheriff's department on an

            open probation detainer. N.T. 5/9/2014 at 19, 20-21. Unaware of defendant's release and bis

            incarceration in Middlesex County, this court scheduled a hearing for July 17, 2002. Id at 20.

            Subsequently, a bench warrant was issued on July 24, 2002, after defendant failed to appear. The

            hearing revealed that defendant had not been assigned a probation officer between his April 24, 2002

            parole release date and issuance of the warrant on July 24, 2002. Id. at 21-22. However, after the



            (§ 2C:15-l(a)(l)), and one count of criminal restraint(§ 2C:13-2(a)).

                                                                      3
            Commonwealth v. Warren Alston
                                                                                            Circulated 06/26/2015 12:22 PM




    bench warrant was issued, defendant's file was transferred out of the probation unit to the violation

    unit. Id at 24.

         On April 7, 2014 Mr. Archie brought to this court's attention that defendant had been convicted

    out of state and was serving a 20 year incarceration sentence in East Jersey State Prison. Id at 11-12.

    Mr. Archie stated that on July 24, 2013 the APPD was notified of defendant's New Jersey

    convictions, which placed him in direct violation of this court's April 1 S, 2002 sentence. Id. at 11-

    12, 16. His probationary term was scheduled to expire on October 17, 2006, however at that time

    defendant was incarcerated in New Jersey following a September 22, 2002 arrest. Id at 11-12, 15.

    The APPD had not sched u1ed a hearing due to the outstanding active bench warrant issued on July

    24, 2002. On April 7, 2014 Mr. Archie emailed this court and requested that a hearing be scheduled.

    Id. at 14, 16. Thefollowingday,April          8, 2014, a hearing was scheduled for April 11, 2014. Id. at 16.

    The hearing, however, was continued to May 9, 2014 pending the availability of necessary two-way

    simultaneous audio and video media. Id

        At the hearing, defense counsel emphasized defendant's duty to inform the Commonwealth ofhis

    release from Philadelphia prison to Middlesex County Correctional Institution and of his subsequent

release from New Jersey custody in July 2002. Id. at 29. Defendant, however, made no such

verifiable attempt during his two months of freedom, or after he was arrested in New Jersey on the

felony charges. Id. at 29-3 0, 34, 4 2. During the revocation hearing it was also revealed that between

July 2002 and July 2013, defendant made no attempts to inform this court directly of his

incarceration status in New Jersey. N. T. 5/9/2014 at 27, 42. Defendant however alleged that on one

occasion between 2008 and 2010, he made an effort to notify Pennsylvania authorities of his New

Jersey incarceration through an interstate detainer. Id. at 35. Defendant further claimed that he filed

3
    The previous statement was taken verbatim from defendant's filed Statement of Errors.
                                                              4
Commonwealth v. Warren Alston
                                                                              Circulated 06/26/2015 12:22 PM




the pleadings with the Philadelphia Clerk of Courts and the District Attorney's office, and received

confirmation. Id at 25-26. However, he failed to present any correspondence or documentation of

same at the revocation hearing. Id. Thus defendant's allegation was based on facts not proven by the

evidence presented. Id In 2002, defendant was apparently also serving a probationary sentence under

the supervision of the Court of Common Pleas, Northampton County, Pennsylvania. By defendant's

account, that court did not conduct a revocation hearing after his New Jersey convictions, but

terminated his case. Id

    Furthermore, the Gagnon II hearing revealed that defendant will not be eligible for parole from

the East Jersey State Prison in Rahway, NJ until 2019, at the age of 63, following which he will

remain under New Jersey supervision for the remainder of his life. Id at 25. Defendant's sole

contention for having this court terminate its probationary sentence was that the detainer was

prejudicial because it prevented modification and reduction of his medium/maximum security

custody status and precluded him from befog eligible for certain jobs and programs while

incarcerated. Id at 27, 37. Despite the self- identified ''very serious charges," for which defendant

was imprisoned, he insisted that it was his detainer that prejudiced his custody status and program

accessibility. Id at 43-45. This court explicitly rejected defendant's ''uncorroborated claim," and

denied his motion to terminate probation. Id. at 53.

                                          IV. DISCUSSION

           A. Defendant's Due Process and Speedy Trial Claim Lacks Merit

       Defendant first asserts that his "right to due process of law and his right to a speedy hearing

under PA. R.CRIM. PROC. 708 (B) were violated by the ten (10) year delay between his new

conviction and his probation violation hearing." Statement of Errors   1 a.
       The Pennsylvania Constitution affords due process rights, which include the right to "a

                                                 5
Commonwealth v, WarrenAlston
                                                                                Circulated 06/26/2015 12:22 PM




 speedy public trial by an impartial jury of the vicinagc ... in all criminal prosecutions." PA. CONST.

 ART. I, § 9. Pertaining to violation of probation and parole hearings, Pennsylvania law establishes

 that a trial "judge [ can]not revoke[] probation ... or parole ... unless there has been: a hearing held

 as speedily as possible at which the defendant is present and represented by counsel [and there is] a

 finding of record that the defendant violated a condition of probation ... or parole. PA. R CRIM. PRO.

 708 (B)(l )( emphasis added). The Superior Court has interpreted the rule to require that a revocation

 hearing be held within a reasonable time. Commonwealth v. Saunders, 575 A.2d 936, 938 (Pa.

 Super. 1990)( emphasis added). When a revocation hearing is delayed, the court must evaluate the

 reasonableness of the delay by examining three factors: (1) the length of the delay; (2) the reasons for

the delay; and (3) the prejudice resulting to the defendant. Jd. Applying the factors here, the delay,

 although lengthy was reasonable under circumstances of'this specific case and defendant suffered no

prejudice.

        Under the first prong of the reasonableness test, the length of the delay, "[t]he relevant period

of delay is calculated from the date of conviction or entry of guilty plea to the date of the violation

hearing." Commonwealth v. Woods, 965 A.2d 1225, 1227 (Pa. Super. 2009) (citation omitted). Here,

the length of the delay was from February 9, 2004, the date defendant pled guilty as charged in New

Jersey, to May 9, 2014, the date of defendant's probation violation hearing. However, Philadelphia

authorities did not become aware of defendant's conviction until July 24, 2013. After this court was

informed of defendant's New Jersey conviction on April 7, 2014, a hearing was scheduled the

following day. However, the hearing was not held until May 9, 2014, in order to obtain the necessary

two-way simultaneous audio and video media. Thus, the ten (10) year delay is directly attributable to

defendant's unavailability. Defendant, while on probation in 2002, was incarcerated in another

jurisdiction, such that his presence could not be discovered despite the Commonwealth's due

                                                   6
Commonwealth v. Warren Alston
                                                                                  Circulated 06/26/2015 12:22 PM




 diligence. Therefore, defendant is not entitled to relief:

         Moreover, as for the second prong of the reasonableness test, the reasons for the delay, the

 delay was caused by defendant's conduct. In Commonwealth v. Short, although defendant's

 revocation hearing was initially timely scheduled, there was a 29-month delay between its original

 and actual date. Commonwealth v. Short, No. CP-01-CR-0000745-2003, 2007 WL 5004096, (Adams

 Cnty, Ct. C.P. Mar. 13, 2007). After defendantdidnotappearfor       his original hearing, the trial court

 issued a warrant for his arrest. Id Unknown to the trial court, defendant had been convicted and

 sentenced to 2.5 years' incarceration in another county and there was no evidence that the

 Commonwealth or the court had any knowledge of his whereabouts. Id. Within a month of being

 made aware of defendant's whereabouts, a hearing was scheduled Id Noting that the record

 presented no indication that defendant was made available prior to the hearing date, the court denied

 defendant relief, and held that because "[ q]uick action was taken, and a hearing was completed

within a month, the delay was caused by defendant's failure to appear, his unknown whereabouts,

and his criminal conduct which resulted in a state sentence." Id

        Similarly, this court issued a bench warrant for defendant's arrest after he failed to appear for

bis July 17, 2002 hearing. Unknown to this court and the Commonwealth, defendant was free in

Middlesex County, New Jersey until his September 22, 2002 arrests which was followed by a

sentence of 20 years' incarceration in New Jersey. However, after being notified on July 24, 2013

that defendant was serving-a 20 year incarceration sentence at East Jersey State Prison, a hearing was

scheduled. Thus, the Commonwealth's actions constitutes due diligence in light of defendant's New

Jersey incarceration and his failure to maintain contact with the APPD. Even so, the most compelling

evidence is, however, defendant's own complete acceptance of responsibility for the delay. At the

revocation hearing defendant stated "I also take full responsibility for any lapse there may have been

                                                  7
Commonwealth v, Warren Alston
                                                                                  Circulated 06/26/2015 12:22 PM




 between the time I was released and contacted the authorities. In essence I would just like to say that

 I take full responsibility for my actions." NT. 5/9/2014 at 57-58. The foregoing notwithstanding,

. defendant asserts that the "Commonwealth failed to exercise due diligence in scheduling the

 revocation hearing ... " Defendant's claim lacks merit.

        Finally, under the third prong of the reasonableness test, the prejudice resulting to defendant,

 "[t]hequestionis whether ... the appellant was prejudiced by the delay." Woods, 965 A.2dat 1227.

 "Prejudice in this context compromises the loss of essential witnesses or evidence, the absence of

 which would obfuscate the determination of whether probation was violated, or unnecessary restraint

 of personal liberty." Woods, 965 A.2d at 1227-28 (citing Commonwealth v. Clark, 847 A.2d 122, 124

 (Pa.Super.2004)). As set forth above the delay was reasonable under the circumstances of this

 specific case. Defendant contends that he "was prejudiced by the delay by being denied access to a

 modified custody status and various programs in prison, which unnecessarily restrained his personal

 liberty." This court however fully rejects this uncorroborated assertion.

        As this court eluded to at defendant's revocation hearing, it is more likely that the nature of

 defendant's crimes determined bis custody status, and limited access to the various programs in

 prison, rather than a remote decade old Pennsylvania detainer. Here, there was no loss of essential

 witnesses or evidence, the determination of whether probation was violated was clearly based on a

 subsequent conviction, and any unnecessary restraint of personal liberty was due only to the fault of

defendant.Therefore, .tbis . court correctly rejected defendant's contention that the delay prejudiced

him by denying him access to various prison programs. This court properly concluded that the delay

was reasonable under the circumstances of this case and that defendant suffered no prejudice.

            Furthermore, defendant's argument that bis "right to due process oflaw and his right to a

speedy hearing ...     were violated by the ten (10) year delay [which] .[was] not intrinsically

                                                   8
Commonwealth v. Warren Alston
                                                                                    Circulated 06/26/2015 12:22 PM




   reasonable" is unfounded. The U.S. Supreme Court has set forth the due process rights of a

   defendant in a parole revocation hearing. Commonwealth v. Honeyblue, 276 Pa. Super. 107, 113

   (1980). The Court has held that the "due process rights of a defendant in a probation revocation

   hearing are less than those afforded a defendant in a criminal trial." Id. at 113. Specifically, the

   Supreme Court has identified those due process rights as encompassing:

          ( a) written notice of the claimed violations of (probation or) parole; (b) disclosure·
          to (probationer or) parolee of evidence against him; (c) opportunity to be heard in
          person and to present witnesses and documentary evidence; (d) the right to confront
          and cross-examine adverse witnesses (unless the hearing officer specifically finds
          good cause for not allowing confrontation); (e) a "neutral and detached" hearing
          body ... and (f) a ·written statement by the factfinder[] as to the evidence relied on
          and reasons for revoking (probation or) parole.

   Commonwealth v. Ruff, 272 Pa. Super. 50, 57 (1979). Significantly, the Supreme Court has noted

   that even instances where a revocation hearing is delayed "until after the parolee has completed the

   sentence for the conviction which constituted the parole violation does not offend the principles of

   due process." Commonwealth v. Waters, 252 Pa. Super. 357, 359-60 (1977) (quoting Moody v.

   Daggett, 429 U.S. 78, 97 (1976)). Clearly, where a probation revocation hearing is delayed as a

   direct result of defendant's conduct and where he has not been prejudiced by said delay, there is no

   deprivation of due process rights.

              B. Defendant's IJlegal Sentence Claim LacksMerit

          Next, defendant claims that "the sentence imposed on the charge of unlawful restraint, 18 PA.

----CONS. STAT.-ANN. §   2902,.is-illegal because-the-original term-of-incarceration of time-served to

   twenty (23) months combined with the new term of incarceration of two-and-one-half (2.5) to five

   (5) years results in an aggregate period of imprisonment that. exceeds the statutory maximum." This

   claim must fail.

          "The [ standard of] review in an appeal from [ a] judgment of sentence which has been

                                                     9
   Commonwealth v. Warren Alston
                                                                                            Circulated 06/26/2015 12:22 PM




          imposed following revocation of probation is limited to the validity of the revocation proceedings

          and the legality of the :final judgment of sentence. Commonwealth v. Sylvanus, 369 A.2d 826,

          828 (Pa. Super. 1976) (citing Commonwealth v. Gilmore, 348 A.2d 425, 427 (Pa. 1975)).

          Therefore, "it is well settled that the revocation of a probation sentence is a matter comrn.itted 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." Id. at 322 (citing Commonwealth v.

         Smith, 669 A.2d 1008, 1011 (Pa. Super. 1996); Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa

          Super. 2000)). The Superior Court's examination is thus "limited to determining the validity ...

         and the authority of the sentencing court to consider the same sentencing alternatives that it had

         at the time of the initial sentencing." Commonwealth v. Hoover, 909 A.2d 321, 322-23 (Pa.

         Super. 2006).

             In Commonwealth v. Williams, defendant was originally sentenced to 11.5 to 23 months

         imprisonment and a consecutive 3 year probation term, after pleading guilty to attempted theft by

         unlawful taking, a felony of the third degree, with a statutory maximum of 3.5 -7 years. 662 A.2d

         658, 658 (Pa. Super. 1995). After serving the minimum sentence, defendant was released on parole.

         id. Sometime later, however, defendant's parole was revoked as a result of a conviction for new

         crimes, so he served the remainder of the 23 months under the original sentence and his probation

         was continued. Id. After being convicted while on parole a second time, defendant's probation was

______ ·-- .revoked and.he.was.then sentenced to.3 ..5....'.7-years' imprisomnent,-the statutory maximum sentence .. -

         allowed for his original attempted theft by unlawful taking plea of guilty. Id at 658-659. There, the

         trial court however only credited defendant with time served while on the violation of probation

         detainer and not with the cumulative 23 months already served imprisoned on the original offense.

        Id. at 659. On appeal, the Superior Court found validity in the basis of defendant's claim which was

                                                             10
        Commonwealth v. WarrenAlston
                                                                                 Circulated 06/26/2015 12:22 PM




 "the [trial court's] failure to credit [him] with the 23 months already served." Williams, 662 A.2d at

 659.

     Unlike the court in Williams which erred in failing to credit defendant with the time served on his

 original sentence, here, Mr. Alston's period of time served was credited againstthe2.5-5 years' term

 imposed at the Gagnon II sentencing hearing. NT. 51912014 at 60. Thus, defendant was "given credit

 for time served" after being sentenced to 2.5-5 years state confinement on the charge of unlawful

 restraint.

              C. Defendant's Manifestly Excessive Sentence Claim Lacks Merit

     Finally, defendant alleges that "[t]he sentence imposed ... violated the requirements of 42 PA.

 Coxs. STAT. ANN. §9721(b), in that it    WdS   unreasonable, manifestly excessive, and far surpassed

 what was necessary to foster [his] rehabilitative needs." This claim is also meritless. It is first

 important to note that title 42, section 9721 (b) of the Pennsylvania Consolidated Statutes Annotated

 specifically refers to the imposition of a sentence based on the Pennsylvania Commission on

 Sentencing. It is however well settled that in Pennsylvania "the sentencing guidelines do not apply to

 sentences imposed as a result of [a] ... revocation of probation hearing." 204 PA. Co DE § 303 .1.

         Moreover; in Commonwealthv.Coolbaugh,defendant claimed that bis violation of probation

 sentence was excessive because it was inconsistent with the sentencing code, and that the court either

 deviated from the guidelines without providing adequate reasons, or considered improper factors .

. 770-A.2d 788, 792 (Pa, Super. Ct. 2001) ( quoting 204 PA. CODE § 303.1 (b)}--However, the Superior----··-- ---

 Court found defendant's claim without merit after noting that "[tjhe sentencing guidelines do not

 apply to sentences imposed as a result of probation or parole revocations. . . ,, Id.; See also

 Commonwealth v. Cappellini, 690 A.2d 1220 (Pa. 1997). Where defendant "challengjes] the

 discretionary aspects of sentencing, [the Superior Court] must determine whether he has raised a

                                                   11
 Commonwealth v. Warren Alston
                                                                                Circulated 06/26/2015 12:22 PM




substantial question as to whether his sentence was appropriate under the Sentencing Code as a

whole." See: 42 PA. CONS. STAT.ANN.§ 978l(b). In Kraft the Court however emphasizedthat"itis

well established that a claim of excessiveness of sentence docs not raise a substantial question so as

to permit appellatereview where the sentence is within the statutory limits." 737 A.2d 755, 757 (Pa.

Super. Ct. 1999) (quoting Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa. Super. 1995)).

Thus, for reasons similar to those stated above, where the sentence imposed is within the statutory

allowable minimum and maximum range, defendant has failed to raise a substantial question that

would permit appellate review.

        It must not be overlooked that the purpose of a probation violation hearing remains to assess

"whether the conduct of the probationerindicates that probation has proven to be an effective vehicle

to accomplish rehabilitation and a sufficient deterrent against future antisocial conduct." Kates, 305

A.2d at 708. See also Commonwealth v. Mullins, 918 A.2d 82, 86 (2007) (noting that"[ e]ven where

the VOP hearing record is insufficient to sustain revocation of probation, this purpose should not be

frustrated"). For that reason, the court must "balance the interests of society in preventing future

criminal conduct by the defendant against the possibility of rehabilitatingthe defendant outside of

prison." Del Conte, 419 A.2d at 783.

   In balancing the interests of society in preventing future criminal conduct by the defendant

against the possibility ·of rehabilitating defendant outside of prison, this court took into account

defcndant' s original crime. ~d the seriousness of the crimes for which he was convicted, placing him

in direct violation of this court's probationary sentence. N. T 51912014 at 59. In the original case, on

November 13, 2001, defendant unlawfully entered the home of his estranged wife, and despite her

pleadings, held her hostage until he was apprehended. Id. at 52. The record evidences that this court

properly found that for this defendant, probation was an ineffective vehicle to accomplish

                                                  12
Commonwealth v. Warren Alston
                                                                                 Circulated 06/26/2015 12:22 PM




rehabilitation and an insufficient deterrent against future antisocial conduct. Thus, society's need for

protection outweighed defendant's need for rehabilitation. Id. at 60.

                                           V. CONCLUSION

    For the aforementioned reasons, this court's judgment of sentence should be AFFIRMED.




                                                              f
November 17. 2014                                              /t-------J~---"--~---'-------'V--H-~,,.,,:-~~

                                                                  ANDY L.V. BYRD, 1.




                                                  13
Commonwealth v, Warren Alston
