J-S20025-16

*Retired Senior Judge assigned to the Superior Cour t. NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. JOHNNY RAY LOGSDON, JR. Appellant No. 1251 WDA 2015

Appeal from the Judgment of Sentence July 1, 2015 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000387-2013

BEFORE: PANELLA, OLSON and PLATT,* JJ. MEMORANDUM BY OLSON, J.: FILED MARCH 29, 2016 Appellant, Johnny Ray Logsdon, Jr., appeals from th e judgment of sentence entered on April 28, 2015 following the re vocation of his probation. We affirm. The certified record establishes the following fact ual and procedural history. On March 5, 2014, the trial court sentenc ed Appellant to five years’ probation after accepting his guilty plea to one co unt of unauthorized use of an access device (18 Pa.C.S.A. § 4106(a)). While s erving this probationary sentence, Appellant was convicted of new charges, i ncluding possession of a controlled substance (35 P.S. § 780-113(a)(16)) and presenting false identification to law enforcement officers (18 Pa.C .S.A. § 4914). The trial court found Appellant to be in violation of the ter ms of his probation and, on August 12, 2014, modified his probationary sentence to include 60 days’J-S20025-16

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incarceration in the Jefferson County Jail. Pursua nt to the terms of the trial court’s August 12, 2014 order, Appellant was to ser ve his sentence “beginning August 22 through August 24, 2014 and ea ch weekend thereafter until his sentence [was] complete.” Trial Court Or der, 8/12/14. On April 20, 2015, while on work release, Appellant tested positive for opiates in violation of the conditions of his proba tion and the terms of his work release. Because of this violation, the trial court, on July 1, 2015, docketed an order that revoked Appellant’s probatio n and sentenced him to three and one-half to seven years’ imprisonment in a state correctional facility, with credit for time served. Gagnon Orde r, 7/2/15. On July 15, 2015, Appellant filed a motion for reconsideration of his sentence, which the court denied on that same date. Appellant filed a notice of appeal on July 30, 2015. 1 Appellant presents one issue for our review: Whether the trial court abused its discretion when it revoked Appellant’s probation and resentenced him to serve a sentence of incarceration in [a] [s]tate [c]orrectional [i]n stitution for a minimum of three and one-half (31⁄2) years to a maximu m of seven (7) years for [A]ppellant’s violation of prob ation[?] Appellant’s Brief at 6.

____________________________________________ 1 On July 31, 2015, the trial court ordered Appellan t to file a concise statement of errors complained of on appeal (“conci se statement”). See Pa.R.A.P. 1925(a). On August 11, 2015, Appellant f iled his concise statement. The trial court issued its Rule 1925(a) opinion on September 25, 2015.J-S20025-16

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Appellant’s lone issue challenges the discretionary aspects of his

sentence. 2 See Commonwealth v. Haynes , 125 A.3d 800, 806 (Pa. Super. 2015). Pursuant to statute, Appellant does not have an aut omatic right to appeal the discretionary aspects of his se ntence. See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petition this C ourt for permission to appeal the discretionary aspects of his sentence. Id. As this Court has explained, in order to reach the merits of a discre tionary aspects claim, [w]e conduct a four-part analysis to determine: (1) whether [the] appellant has filed a timely notice of appeal , see Pa.R.A.P. 902 and 903; (2) whether the issue was properly pre served at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [708]; (3) whether [the] appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether th ere is a substantial question that the sentence appealed fro m is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). Commonwealth v. Leatherby , 116 A.3d 73, 83 (Pa. Super. 2015) (citation omitted). On July 30, 2015, Appellant filed a timely notice of appeal to the judgment of sentence issued on July 1, 2015. See Pa.R.A.P. 903(a) (“notice of appeal required by Rule 902 (manner of taking ap peal) shall be filed within 30 days after the entry of the order from wh ich the appeal is taken”); Pa.R.Crim.P. 708(E) (motion to modify revocation se ntence does not toll 30-day appeal period). In addition, Appellant incl uded within his brief a

____________________________________________ 2 By now, it is well-settled that a challenge to the discretionary aspects of a revocation sentence represents a cognizable issue o n appeal. See Commonwealth v. Cartrette , 83 A.3d 1030 (Pa. Super. 2013) ( en banc ).J-S20025-16

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statement pursuant to Pa.R.A.P. 2119(f). Hence, Ap pellant satisfied the first and third prongs of the foregoing test. The fourth prong of the foregoing test asks whethe r the appellant raises a substantial question as to whether his sen tence is appropriate under the Sentencing Code. “An appellant must, pursuant to [Pa.R.A.P.] 2119(f), articulate the manner in which the sentence violate s either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentenci ng process.” Commonwealth v. Shugars , 895 A.2d 1270, 1274 (Pa. Super. 2006) (internal citations and quotations omitted). Wheth er a substantial question exists focuses “on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessar y only to decide the appeal on the merits.” Id . In his Rule 2119(f) statement, Appellant argues tha t his sentence is unreasonable because it constituted too severe a pu nishment in light of the nature of his probation violation. Appellant also claims that the court’s explanation for the sentence did not justify its se verity. We read Appellant’s contentions as alleging that the court failed to co nsider the sentencing factors delineated in 42 Pa.C.S.A. § 9721(b). As s uch, we hold that Appellant raises a substantial question. See Cartrette , 83 A.3d 1042-1043 (claim that trial court's sentence is inconsistent with gravity of probation violation, the need for public protection, or defen dant’s rehabilitative needsJ-S20025-16

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is tantamount to assertion that sentencing court di d not consider the appropriate sentencing factors delineated in 42 Pa. C.S. § 9721(b), which raises a substantial question). We now consider the second prong of the foregoing test; i.e. , whether Appellant properly preserved his discretionary sent encing challenge before the trial court. In this case, Appellant failed to object to the discretionary aspects of his sentence at the July 1, 2015 resente ncing hearing. See N.T., 7/1/15, at 2-4. However, on July 15, 2015, Appella nt filed a post-sentence motion seeking modification of his sentence. The t rial court denied the motion on that same date. Under Pa.R.Crim.P. 708(E) , “A motion to modify a sentence imposed after a revocation shall be file d within 10 days of the date of imposition.” Pa.R.Crim.P. 708(E). Thus, A ppellant’s motion for modification was due on or before Monday, July 13, 2015. See 1 Pa.C.S.A. § 1908 (computation of time). Because Appellant di d not seek modification of his sentence until July 15, 2015, his discretion ary sentencing challenge is waived since his post-sentence motion was untimely and, therefore, was not properly preserved before the trial court. Nonethe less, even if we were to reach the merits of Appellant’s discretionary sente ncing claim, we conclude that he is not entitled to relief. Appellant argues that his maximum sentence for a t echnical violation is manifestly unreasonable. Specifically, he claim s that the trial court failedJ-S20025-16

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to explain why a lesser sentence would not have bee n sufficient to vindicate the court’s authority. “Sentencing is a matter vested in the sound discret ion of the sentencing judge, and a sentence will not be distur bed on appeal absent a manifest abuse of discretion.” Commonwealth v. Clarke , 70 A.3d 1281, 1287 (Pa. Super. 2013) (citation omitted). The sen tencing court must “follow the general principle that the sentence imp osed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the l ife of the victim and on the community, and the rehabilitative needs of the defe ndant.” 42 Pa.C.S.A. § 9721(b). In addition, in all cases where the cou rt “resentences an offender following revocation of probation ..., the c ourt shall make as a part of the record, and disclose in open court at the ti me of sentencing, a statement of the reason or reasons for the sentence imposed.” Id . In its Rule 1925(a) opinion, the trial court offer ed the following explanation for imposing its sentence of three and one-half to seven years’ total confinement following Appellant’s probation v iolation. Pursuant to 42 Pa.C.S.A. § 9771(c), a sentence of t otal incarceration is warranted if it is deemed to be ne cessary to vindicate the authority of the court. As the [tria l c]ourt stated on the record, that was the case here. [Appellant] was on work release – an opportunity many inmates do not enjoy – when he violated his probation by ingesting opiates. What he thereby accomplished was to convince the [c]ourt that he ha d no respect or concern for its authority. He had already viola ted his original probationary sentence and was serving weekends in t he county jail because of it. That lesser penalty clearly di d not make theJ-S20025-16

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desired impression, though. Something more was req uired. And something more is what the [c]ourt gave [Appellant] on July 1, 2015. As well as addressing the nature of the violation i tself, the [trial c]ourt advised [Appellant] that it [] reviewed the presentence investigation report and [considered] his individua l circumstances in fashioning his sentence. In doing so, [the trial court] adequately articulated its reasons for the s entence, which, incidentally, included the boot camp recommendation he requested. Trial Court Opinion, 9/25/15, at 1-2. We perceive no abuse of discretion in the sentence imposed by the trial court. Indeed, the record reflects that the court considered the sentencing code, the circumstances of Appellant’s p robation violation, a presentence investigation report, and the individua l character of the offender. N.T., 7/1/15, at 3. Apart from boilerpl ate characterizations of the sentence as “harsh” and “excessive,” Appellant does not challenge the factual findings rendered by the court or allege th at the court overlooked or ignored relevant factors pertaining to the discreti onary aspects of his sentence. Significantly, Appellant points to no ev idence that the trial court harbored any bias, ill will, or prejudice towards h im. We also bear in mind that the court confronted a situation in which Appe llant committed a second probation violation. As the trial court determined , Appellant’s repeat violation manifested a direct affront to the court’ s authority and demonstrated Appellant’s inability or unwillingness to refrain from criminal activity, even while under judicial supervision. I n such circumstances, weJ-S20025-16

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see no grounds for finding an abuse of discretion t hat allows us to disturb the trial court’s sentence. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/29/2016