J-S24018-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KEITH E. SMITH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 94 WDA 2024

Appeal from the Judgment of Sentence Entered December 28, 2023

In the Court of Common Pleas of McKean County 

Criminal Division at No(s): CP-42-CR-0000469-2022

BEFORE: BOWES, J., SULLIVAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY SULLIVAN, J.: FILED: August 12, 2024

Keith E. Smith (“Smith”) appeals from the judgment of sentence 

imposed following the revocation of his probation. Upon review, we affirm the

judgment of sentence.

In November 2022, Smith pleaded guilty to one count each of stalking 

and terroristic threats in one case, and harassment in a second case.

1

 The 

charges arose when Smith, more than twenty years after his graduation from 

high school, began contacting former classmates and sending sexually explicit 

and threatening texts. See Trial Court Opinion, 3/1/24, at 1; Stipulation of 

Facts, 11/21/22, at 1 (unnumbered); Written Guilty Plea Colloquy, 11/21/22, 

at 1 (unnumbered). Smith also appeared at one of the victim’s homes, 

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* Former Justice specially assigned to the Superior Court.

1 See 18 Pa.C.S.A. §§ 2709.1(a)(2), 2706(a)(1), 2709(a)(6). 
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honking the horn of his vehicle and threatening to physically harm the victim. 

See Trial Court Opinion, 3/1/24, at 1.

At sentencing, in accordance with the terms of the guilty plea 

agreement, the trial court sentenced Smith to forty days to eighteen months 

in prison for stalking with credit for ninety-four days’ time served, a concurrent 

term of eighteen months of probation for terroristic threats, and a concurrent 

term of twelve months of probation for harassment. See Order, 11/18/22, at 

1 (unnumbered).2 The sentencing order included a special condition of 

probation requiring that Smith “shall not have, direct or indirect contact, 

whatsoever, with any of the victims or be within one[]hundred [] yards of the 

victim[s’] residence[s] or in location that they are. He shall not knowingly be 

within one[]hundred [] yards in any public setting[.]” Id. at 2 (emphasis 

added). Smith was immediately paroled. Smith did not file a direct appeal.

Approximately two months later, Smith violated his parole when he sent 

the following text to one of the female victims, 

Why [are] you on a date with your grandfather tonight? You 

should bang me[;] I’m better than anyone you’ve ever been 

with[.] If you ever want to[,] call me. Sorry about before.

Trial Court Opinion, 3/1/24, at 2 (quotation marks omitted, punctuation 

regularized). The trial court revoked Smith’s parole and remanded him to jail. 

See Order, 3/16/23, at 1-2 (unnumbered). Smith did not appeal. The trial 

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2 The notes of testimony from Smith’s guilty plea hearing and sentencing are 

not included in the certified record.
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court reiterated to Smith at sentencing that he was to have no contact with 

the victims. See Trial Court Opinion, 3/1/24, at 2.

3

 Smith told the court he 

now understood that he could have no contact whatsoever with the victims. 

See id. at 2. Smith was paroled in May 2023.

Approximately one month later, in June 2023, Smith attempted to 

contact one of the female victims by leaving voicemail messages he intended 

a third party to give her. Smith stated:

That bitch [] better come my way and start sucking and fucking 

my dick or there’s going to be more shit going down. . .. If you 

don’t send the word to that fucking piece of shit whore. . .. That 

bitch better get the fuck over here and start fucking my dick or 20 

dudes are gonna be mother fucking pissed at you and mother 

fucking []. We’re gonna beat you and run you right out of 

town. . .. If I see you or [] with that bitch again, it might not 

happen today, but fuck give it a couple of months and I'll pop a 

mother fucker.

Trial Court Opinion, 3/1/24, at 2-3 (quotation marks omitted, punctuation 

regularized, names redacted). 

Following a full hearing, the trial court revoked Smith’s probation for 

terroristic threats and resentenced him to eighteen to forty-eight months in 

prison, with credit for time served. See Order, 12/28/23, at 1 (unnumbered). 

Smith filed a motion for reconsideration, which the trial court denied. This 

timely appeal followed.4

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3 The notes of testimony from the first revocation proceedings and 

resentencing are not included in the certified record.

4 Smith and the trial court complied with Pa.R.A.P. 1925.
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On appeal, Smith raises a single issue, “Whether the trial court abused 

its discretion in resentencing a [probation] violator outside of the guidelines?” 

Smith’s Brief at 5 (capitalization standardized). 

Smith challenges the discretionary aspects of his sentence. See id. at 

8-13. “[I]t is within our scope of review to consider challenges to the 

discretionary aspects of an appellant’s sentence in an appeal following a 

revocation of probation.” Commonwealth v. Ferguson, 893 A.2d 735, 737 

(Pa. Super. 2006). A challenge to the discretionary aspects of a sentence 

“must be considered a petition for permission to appeal.” Commonwealth v. 

Best, 120 A.3d 329, 348 (Pa. Super. 2015) (citations and internal citation 

omitted). This Court must determine:

(1) whether the appeal is timely; (2) whether [the appellant] 

preserved [the] issue; (3) whether [the defendant’s] brief includes 

a concise statement of the reasons relied upon for allowance of 

appeal with respect to the discretionary aspects of sentence; and 

(4) whether the concise statement raises a substantial question 

that the sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329–330 (Pa. Super. 2013) 

(citation omitted). Only where an appellant has met all four elements of the 

test will we review a challenge to the discretionary aspects of sentence. 

As noted above, Smith timely appealed. He filed a motion for 

reconsideration challenging the discretionary aspects of his sentence. 

However, his brief does not include a Pa.R.A.P. 2119(f) statement. See 

Smith’s Brief at 1-14. “A failure to include the Rule 2119(f) statement does 

not automatically waive an appellant’s argument; however, we are precluded 
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from reaching the merits of the claim when [the appellee] lodges an objection 

to the omission of the statement.” Commonwealth v. Roser, 914 A.2d 447, 

457 (Pa. Super. 2006). Because the Commonwealth has not objected to the 

absence of the 2119(f) statement, we will not find waiver on this basis. 

Regarding a substantial question, Smith asserts he was improperly 

sentenced outside the guidelines and the court failed to consider mitigating 

circumstances. See Smith’s Brief at 8-13. These claims do not raise a 

substantial question.

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. See 42 Pa.C.S.A. § 9771(b) (final effective date June 

10, 2024). “[U]pon 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. Infante, 63 A.3d 358, 365 

(Pa. Super. 2013) (internal quotation marks and citations omitted). At the 

time of Smith’s revocation and sentencing, 42 Pa.C.S.A. § 9771(c) provided

that once probation has been revoked, a sentence of total confinement may 

only be imposed if one of the following conditions exists:

(1) the defendant has been convicted of another crime; 

(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.
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42 Pa.C.S.A. § 9771(c) (final effective date June 10, 2024).

As of June 11, 2024, the statute now reads:

(1) The court may impose a sentence of total confinement upon 

revocation only if:

(i) the defendant has been convicted of another crime;

(ii) the court finds by clear and convincing evidence that the 

defendant committed a technical violation that involves an 

identifiable threat to public safety and the defendant cannot 

be safely diverted from total confinement through less 

restrictive means; or

(iii) the court finds by a preponderance of the evidence that 

the defendant committed a technical violation and any of 

the following apply:

(A) The technical violation was sexual in nature.

(B) The technical violation involved assaultive 

behavior or included a credible threat to cause bodily 

injury to another, including acts committed against a 

family or household member.

(C) The technical violation involved possession or 

control of a firearm or dangerous weapon.

(D) The technical violation involved the manufacture, 

sale, delivery or possession with the intent to 

manufacture, sell or deliver, a controlled substance or 

other drug regulated under the act of April 14, 1972 

(P.L. 233, No. 64),1 known as The Controlled 

Substance, Drug, Device and Cosmetic Act.

(E) The defendant absconded and cannot be safely 

diverted from total confinement through less 

restrictive means.

(F) The technical violation involved an intentional and 

unexcused failure to adhere to recommended 

programming or conditions on three or more separate 

occasions and the defendant cannot be safely diverted 
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from total confinement through less restrictive means. 

For purposes of this clause, multiple technical 

violations stemming from the same episode of events 

shall not constitute separate technical violations.

42 Pa.C.S.A. § 9771(c) (effective 6/11/24).

Here, regardless of which version of 42 Pa.C.S.A. § 9771(c) we apply, 

Smith is not entitled to relief. It is well-settled that “[t]he sentencing 

guidelines do not apply to sentences imposed as a result of probation or parole 

revocations[.]” Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. 

Super. 2001) (citation omitted). Further, even if the guidelines applied, 

Smith’s claim of excessiveness would not raise a substantial question, as his

sentences is within statutory limits. See Commonwealth v. Kraft, 737 A.2d

755, 757 (Pa. Super. 1999). Lastly, this Court has long held a claim asserting 

only a trial court’s failure to properly consider mitigating factors does not raise 

a substantial question. See Commonwealth v. Radecki, 180 A.3d 441, 

469-70 (Pa. Super. 2018) (collecting cases). Accordingly, Smith’s claim fails.

Judgment of sentence affirmed.

DATE: 08/12/2024