J-S82018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    HEATH SNYDER                               :
                                               :   No. 249 WDA 2017
                       Appellant

            Appeal from the Judgment of Sentence October 5, 2016
     In the Court of Common Pleas of Bedford County Criminal Division at
                       No(s): CP-05-CR-0000126-2016


BEFORE:      BENDER, P.J.E., STEVENS*, P.J.E., and STRASSBURGER**, J.

MEMORANDUM BY STEVENS, P.J.E.:                       FILED MARCH 6, 2018

       Appellant, Heath Snyder, appeals from the judgment of sentence of four

years’ probation entered in the Court of Common Pleas of Bedford County

after he entered a no contest plea to one count each of simple assault and

endangering the welfare of a child stemming from allegations he broke his

minor son’s nose during a physical altercation. Herein, Appellant claims the

court failed to consider his rehabilitative needs when it refused to modify the

terms of his probation to permit him to attend pool (billiards) league events

that take place in drinking establishments. We quash.

       On April 8, 2016, Appellant was charged with aggravated assault, simple

assault, harassment, and endangering the welfare of a child. 1         Criminal

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1 18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), 2709(a)(1), and 4304(a)(1),
respectively.
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* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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Information, filed 4/8/16. According to the underlying criminal complaint filed

against Appellant on March 2, 2016, Appellant had periodically assaulted his

juvenile sons during household disputes over the previous two years. The

most recent of these incidents occurred in August of 2015, when Appellant,

while bending his son over a table to spank him, slammed the boy’s face down

on the table causing him to suffer a broken nose. Criminal Complaint, Affidavit

of Probable Cause, 3/2/16. Appellant’s son required two separate surgeries

by an ear, nose, and throat specialist to repair the injury. N.T. 9/16/16 at 3-

4.

       On September 16, 2016, pursuant to a surprisingly lenient plea

agreement, Appellant pleaded no contest to simple assault and endangering

the welfare of a child in exchange for an aggregate sentence of four years’

probation (comprising two years’ probation for each offense) and payment of

restitution for the cost of his son’s surgical procedures. N.T. 9/16/16 at 1-8.

Appellant’s sentence also required him to complete a program of anger

management and/or domestic counseling as recommended by the Adult

Probation Office of Bedford County.            At the conclusion of the sentencing

hearing, the court advised Appellant that he had ten days to file post-sentence

motions and thirty days to file an appeal.            Appellant confirmed that he

understood his rights in this respect. N.T. at 7-8.2
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2 On October 5, 2016, the court filed a written sentencing order memorializing
the sentence announced in court on September 16, 2016. Copies were
delivered to, inter alia, Appellant and his counsel on October 10, 2016.


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      On January 10, 2017, Appellant filed a “Motion for Modification of

Probation Conditions,” in which he complained that the probation condition

prohibiting him from being in proximity to alcoholic beverages would prevent

him from carrying out his duties as the president of a county-wide pool league,

whose matches take place in bars and taverns. He, therefore, requested that

the court amend his probation conditions to allow him to carry out his duties

to run the league.

      On February 2, 2017, the court conducted a hearing on Appellant’s

motion. Appellant argued that his role as president of the 16-team league

gave him a sense of purpose and responsibility that was otherwise lacking in

his life, as he was on social security disability due to a work-related injury.

He downplayed the significance of the alcohol provision among his conditions

of probation, as he had not drunk alcohol since August of 2013, and he had

faithfully attended anger management classes for the past 14 months. N.T.

2/2/17 at 6-7.

      For its part, the Commonwealth surprisingly did not object to Appellant’s

request, but the Bedford County Probation Office did.         Specifically, the

probation office expressed concern not only with its inability to monitor

whether Appellant would abstain from drinking at the nighttime league events,

but also with permitting Appellant to be in the company of others who were

drinking in bars and, thus, more prone to exercising impaired judgment.




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Given Appellant’s history of anger-related offenses, both recent and remote,3

the probation office submitted it was best to enforce the condition that

Appellant not frequent establishments that serve alcohol.

       In agreeing with the probation office’s position, the court drew a

distinction between presiding over a pool league, which it considered a hobby

or leisure-time activity, and family or work-related activities for which it has

granted exceptions to standard probation conditions in other cases. The court

emphasized it was not suggesting that the game of pool attracted a clientele

prone to violence, and noted that its decision turned, instead, on the fact that

the league matches took place in bars. N.T. at 12. “[T]here’s a big difference

there…on where you’re having these [matches,] because there’s a much

higher chance that something could go wrong in a bar, even though it may

not be of your initial doing.” Id. Describing the condition as imposing merely

an inconvenience, the court upheld the probation condition in question and

denied Appellant’s motion by order of February 2, 2017.

       On February 7, 2017, Appellant filed the present appeal, in which he

raises the following question for our review:

       WHETHER THE COURT ERRED WHEN IT ABUSED ITS
       DISCRETION WHEN IT FAILED TO GRANT APPELLANT’S
       REQUEST TO MODIFY HIS PROBATION CONDITIONS TO
       PERMIT HIM TO ATTEND POOL LEAGUE EVENTS THAT TAKE
       PLACE IN ESTABLISHMENTS THAT SERVE ALCOHOL, AS
       DOING SO AIDS APPELLANT’S REHABILITATIVE NEEDS?

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3 The probation office noted Appellant was convicted of two prior simple
assault offenses in 2001 and 2002.

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Appellant’s brief at 6.

      Appellant correctly directs his claim to the discretionary aspects of his

sentence, as he challenges the reasonableness of the probation condition in

question given the facts of his case. See Commonwealth v. Houtz, 982

A.2d 537, 538 (Pa.Super. 2009) (holding challenge to probation condition

generally challenges the discretionary aspects of sentence and not the legality

of the sentence imposed).        Preliminarily, we must determine whether

Appellant has preserved the right to seek permission to appeal the trial court’s

exercise of sentencing discretion.

      When an appellant challenges the discretionary aspects of his sentence,

we utilize a four-part test 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 substantial
      question that the sentence appealed from is not appropriate under
      the Sentencing Code, 42 Pa. Cons.Stat.Ann. § 9781(b).

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

citations omitted).

      Initially, we review whether Appellant raised a particularized objection

at sentencing or filed a timely motion to reconsider and modify sentence, as

it bears on whether he filed a timely notice of appeal.     Our review of the

September 16, 2016 sentencing hearing confirms Appellant lodged no

objection to his sentence at that time.



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       Therefore, pursuant to Moury and Pa.R.Crim.P. 720(A)(1),4 Appellant

had ten days from the imposition of sentence to file a post-sentence motion

in order to preserve his challenge to the discretionary aspects of his sentence.

Appellant did not file his “Motion for Modification of Probation Conditions” until

January 10, 2017, months after the court’s September 16, 2016 order

announcing sentence in open court.5 Hence, Appellant neither filed a timely

motion challenging the discretionary aspects of his sentence nor objected to

the conditions of his probation at the time of sentencing in contravention of

the second prong of the discretionary aspects inquiry.

       Without having filed a timely post-sentence motion tolling the 30-day

period in which to file a notice of appeal, Appellant had until October 17, 2017,

to file his direct appeal. See Pa.R.A.P 903(c)(3) (“In a criminal case in which

no post-sentence motion has been filed, the notice of appeal shall be filed

within 30 days of the imposition of the judgment of sentence in open court.”).
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4Section 720(A)(1) provides, in pertinent part, that “a written post-sentence
motion shall be filed no later than 10 days after imposition of sentence.”

5 This decision holds to the well-settled rule that the calculation of time in
which to file either a post-sentence motion or, if no post-sentence motion is
taken, notice of appeal starts from the date on which sentence is announced
in open court. See infra. We note, however, that the court filed a written
sentencing order on October 5, 2017, which, inter alia, notified Appellant he
had 10 days to file post-sentence motions and 30 days to file a notice of
appeal. Even if we were to conclude that such notification, under the
particular facts of the case, could have misled Appellant to believe the filing
clock began as of the date he received such written notice—we do not reach
this conclusion—we would still consider Appellant’s February 7, 2017, notice
of appeal untimely, as indicated infra.



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As such, Appellant’s notice of appeal filed on February 7, 2017, was untimely,

such that he failed to meet the first prong of the discretionary aspects

inquiry.6,7 In sum, because Appellant has failed to file a timely notice of appeal

in the present matter, we are without jurisdiction to decide this matter on the

merits. Accordingly, we quash.        8




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6 Neither the parties nor the trial court addresses the timeliness of the notice
of appeal. However, because the timeliness of the appeal implicates our
jurisdiction, and is, as noted supra, the first component of the four-part
discretionary aspects inquiry, we sua sponte address the matter.

7 Finally, it bears noting that Section 5505 of the Judicial Code affords
Appellant no relief from his belated filings. Section 5505 provides that a court
may modify or rescind any order within 30 days after its entry, if no appeal
has been taken or allowed. See 42 Pa.C.S.A. § 5505. Here, Appellant asked
the court to modify the sentencing order well beyond 30 days after the order’s
entry, such that his request did not implicate Section 5505. Moreover, the
exception to the time constraints of Section 5505 recognizing a court’s
inherent power to correct patently unlawful errors with the order at any time
does not apply to a claim asking for reconsideration of a court’s exercise of
sentencing discretion. See Commonwealth v. Holmes, 933 A.2d 57, 66-67
(Pa. 2007).

8Even if we were to address Appellant’s challenge to the discretionary aspects
and find that it raised a substantial question on appeal, we would still find it
merits no relief. It is well-settled that:

       [s]entencing is a matter vested in the sound discretion of the
       sentencing judge, and a sentence will not be disturbed on appeal
       absent a manifest 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.




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Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa.Super. 2015)
(quotation omitted).

“A probation order is unique and individualized. It is constructed as an
alternative to imprisonment and is designed to rehabilitate a criminal
defendant while still preserving the rights of law-abiding citizens to be secure
in their persons and property.” Commonwealth v. Koren, 646 A.2d 1205,
1208 (Pa.Super. 1994). The trial court has discretion to order any reasonable
conditions that are “devised to serve the rehabilitative goals, such as
recognition of wrongdoing, deterrence of future criminal conduct, and
encouragement of future law-abiding conduct.” Commonwealth v. Hall, 622
Pa. 396, 80 A.3d 1204, 1209 (2013). Section 9754(c)(13) of the Sentencing
Code specifically provides that, in imposing an order of probation, a court may
require a defendant “[t]o satisfy any other conditions reasonably related to
the rehabilitation of the defendant and not unduly restrictive of his liberty or
incompatible with his freedom of conscience.” 42 Pa.C.S.A. § 9754(c)(13).
Appellant argues that strict imposition of the condition of probation prohibiting
him from visiting establishments that serve alcohol would unduly require him
to resign from his cherished role as president of a county-wide pool league.
Appellant derives a great deal of pride from this position, he maintains, and
he views his service in this regard as an important part of his rehabilitation
efforts.

Upon our review of the record, we discern no abuse of discretion in the court’s
refusal to create an exception to the conditions of Appellant’s probation so
that he may enter drinking establishments to participate in the Bedford County
pool league. The court carefully considered Appellant’s interest in the
recreational league, weighed it against the interest in his avoiding
environments where alcohol consumption may promote impaired judgment in
himself or others to the detriment of his rehabilitative goals, and made a
reasoned determination that the probation condition was appropriate. As
such, retention of the standard probation condition bore a rational relationship
to the important goal of reducing the likelihood of recidivism while Appellant
continues in his efforts to rehabilitate himself through anger management and
living a law-abiding life.

We note, “a person placed on probation does not enjoy the full panoply of
constitutional rights otherwise enjoyed by those who [have] not run afoul of
the law.” Koren, 646 A.2d at 1209 (quotations omitted). “A probation order
with conditions placed on it will to some extent always restrict a person's
freedom.” Commonwealth v. Hartman, 908 A.2d 316, 321 (Pa.Super.



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       Appeal quashed.

       P.J.E. Bender joins the Memorandum.

       Judge Strassburger files a Concurring Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/6/2018




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2006) (citation omitted). In the instant case, the trial court's condition of
probation served the important goals of protecting the public and preventing
recidivism, such that, even if Appellant had preserved this issue for review on
the merits, we would conclude the trial court did not abuse its discretion in
this regard.

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