J. A21043/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

*Retired Senior Judge assigned to the Superior Court. COMMONWEALTH OF PENNSYLVANIA,

Appellant

v.

JAMES BREECE : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2377 EDA 2013 Appeal from the Judgment of Sentence Entered December 19, 2012, in the Court of Common Pleas of Bucks County, Criminal Division at No(s): CP- 09

- CR -005416-2009 BEFORE: BOWES, OTT, and STRASSBURGER*, JJ. MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 23, 2014 The Commonwealth of Pennsylvania (the Commonwealth) appeals from the judgment of sentence entered on December 19, 2012, which modified the term of probation for James Breece (Bre ece). 1 We affirm. On June 18, 2009, Breece was charged with six counts each of indecent assault without consent and corruption of mino rs. 2 These charges stemmed from incidents of sexual abuse perpetrated by B reece upon minor victims when they were between the ages of seven and t welve, and occurred between 1978 and 1988. On October 11, 2009, Breece p led nolo contendere to all counts. At that time, Breece was 69 years old. On December 16,

1 The Commonwealth purports to appeal from the order signed on July 16, 2013, and entered on July 17, 2013, which denied its petition for reconsideration filed after the judgment of sentence th at was entered on December 19, 2012. However, this appeal lies properly from the judgment of sentence itself, and we have amended the caption acco rdingly.

2 18 Pa.C.S. § 3126(a)(1) and 18 Pa.C.S. § 6301(a), respectively.J. A21043/14

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2009, Breece was sentenced to 111⁄2 to 23 months’ incarceration, followed by an aggregate term of 22 years’ probation. Part o f that sentence included Breece’s participation in “sex offender supervision and tr eatment.” N.T., 12/16/2009, at 2. Breece completed his minimum sentence, and was paroled o n December 1, 2010. After completing his parole, Breece began his term of probation in November 2011. On November 19, 2012, Breece presented to the trial court a petition to terminate probation an d sexual offender supervision. 3 He requested a hearing date prior to the effective da te of the latest version of Megan’s Law, also known as the Sexual Offender Reporting and Notification Act (SORNA), codified at 42 Pa.C.S. §§ 9799.10-9799.41. 4 A hearing took place on December 19, 2012, after whi ch, the trial court denied Breece’s motion. However, the trial cour t did modify Breece’s term of probation by decreasing it from 22 years to 11 years. On December 27, 2012, the Commonwealth filed a “Petition For Reco nsideration Of

3 That petition is not included in the certified record

.

4 The General Assembly enacted SORNA on December 20, 2 011, and amended it on July 5, 2012. SORNA became effective o n December 20, 2012. Under SORNA, indecent assault is a Tier 1 offen se (42 Pa.C.S. § 9799.14(b)(6)); thus, Breece is required to register as a sexual offender with the State Police for 15 years. 42 Pa.C.S. § 979 9.15(a)(1). Accordingly, Breece presented a petition to request that the trial court terminate his supervision so that he would not have to comply with th ese new sexual offender registration requirements.J. A21043/14

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Sentence.” 5 A hearing on that petition was held on June 7, 2013. On July 17, 2013, the trial court entered an order denying t hat petition. The Commonwealth filed a notice of appeal, and both the Commonwealth and the trial court complied with Pa.R.A.P. 1925.

5 Pa.R.Crim.P. 721(A)(1) provides that the Commonweal th may file a “motion to modify sentence.” Instantly, the Commonwealt h called i ts motion a “Petition For Reconsideration Of Sentence.” A s this motion challenged the sentence imposed by the trial court, we co nclude it is still governed by Pa.R.Crim.P. 721 - Procedures for Commonw ealth Challenges to Sentence; Sentencing Appeals. Where the Commonwealth files a motion to modify sente nce within 10 days of the judgment of sentence, the Rule provides th e following: If the defendant has not filed a post-sentence motion, the judge shall not vacate sentence but shall decide the Commonweal th's motion within 120 days of the filing of the motion. If the judge fails to decide the Commonwealth's motion within 120 d ays, the motion shall be deemed denied by operation of law. Pa.R.Crim.P. 721(C)(2). In this case, the Commonwea lth filed its motion within 10 days. Accordingly, the trial court had 120 days, or until April 18, 2013, in which to dispose of the motion. As the trial court did not dispose of the motion by that date, the clerk of courts should ha ve entered an order deeming the Commonweal th’s motion denied by operation of law, and the Commonwealth’s appeal should have been filed within 3 0 days of that order. That did not occur. Under similar circumstances, this Court has held that “where the clerk of courts does not enter an order indi ca ting that the postsentence motion is denied by operation of law and not ify the defendant of same, a breakdown in the court system has occurred and [t his Court] will not find an appeal untimely under these circumstances.” Commonwealth v. Perry , 820 A.2d 73 4, 735 (Pa. Super. 2003). Thus, the Commonwealth’s appeal, which was filed well-outside this timeframe, i s timely due to the breakdown in the court system.J. A21043/14

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On appeal, the Commonwealth challenges the discretionar y aspects of

Breece’s sentence. 6 “[T]here is no absolute right to appeal when challengin g the discretionary aspect of a sentence.” Commonwealth v. Crump , 995 A.2d 1280, 1282 (Pa. Super. 2010). To preserve prop erly a discretionary sentencing issue, the Commonwealth must raise the claim a t sentencing or in a post-sentence motion and in a court-ordered Pa.R.A .P. 1925(b) concise

statement. Commonwealth v. Naranjo , 53 A.3d 66, 72 (Pa. Super. 2012). Furthermore, an “[a]pp eal is permitted only after this Court determines tha t there is a substantial question that the sentence was not appropriate under the sentencing code.” Crump , 995 A.2d at 1282. The Commonwealth presents a substantial question for review if it “sets fort h a plausible argument that the sentence violates a provision of the sentencing code or is contrary to the fundamental norms of the sentencing pr ocess.” Naranjo , 53 A.3d at 72 (citations omitted). In addition, the Com monwealth “must provide a separate statement specifying where the sente nce falls in the sentencing guidelines, what provision of the sentencing co de has been violated, what fundamental norm the sentence violates, and the manner in

which it violates the norm.” Id

.

6 The Commonwealth also raised an issue asserting that the trial court erred in modifying Breece’s sentence more than two years after he was originally sentenced. However, at oral argument, the Commonweal th abandoned this argument. Moreover, the law is clear that a trial cou rt “may at any time terminate continued supervision or lessen or increase the conditions upon which an order of probation has been imposed.” 42 Pa.C. S. § 9771(a).J. A21043/14

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Instantly, the Commonwealth raised this issue in a timel y-filed motion for reconsideration, and again in its Pa.R.A.P. 1925(b ) statement. However, the Commonwealth does not present a separate statement pursuant to Pa.R.A.P. 2119(f) (“An appellant who challenges the discretionary aspect s of

a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.”). Rather, it presents several argumen ts in support of its claim that the new judgment of sentence is “unreasona ble.”

Commonwealth’s Brief at 17 -18. The Commonwealth argues that had Breece committed these crimes more recently, the identica l conduct would result in additional charges with higher offense gravit y scores. Id . at 18. The Commonwealth also argues that Breece “was less than fo rthright” with his treatment provider and continued to volunteer at a home for troubled boys until his incarceration. Id . at 19. The Commonwealth has not persuaded this Court that eit her of these reasons presents a substantial question as to why the tria l court’s decision to decrease Breece’s probation “violates a provision of the sentencing code or is contrary to the fundamental norms of the sentencing p rocess.” Naranjo , supra . The Commonwealth has not directed us to any case inv olving aJ. A21043/14

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Commonwealth appeal from a trial court’s decision to d ecrease a term of probation. 7 Moreover, this Court’s research has not revealed any su ch case. Even assuming, arguendo , the Commonwealth has presented a substantial question, we are not persuaded that the tri al court’s decision to decrease the term of probation was an abuse of discretion. “In reviewing a challenge to the discretionary aspects of sentencing, we e valuate the court's

decision under an abuse of discretion standard.” Commonwealth v.

Stokes , 38 A.3d 846, 858 (Pa. Super. 2011). The trial court set forth the following rationale fo r its decision. At the hearing, we found it significant that Breece t estified that he had been participating in therapy with Ken S inger since he was charged with these offenses in addition to sex off ender supervision ordered by the probation department; he a dmitted his offenses to his wife and other family members; he ha d the support of a church community (which is fully aware of th e convictions); and he had continued contact with [his son, who was one of the victims in this case, as well as his grandch ildren]. Furthermore, we took into consideration that the crim es charged occurred twenty-five (25) to thirty-five (35) years ag o; that [Breece] was, at the time of the Petition to Termina te Supervision, seventy-two years of age; his health issues, including high blood pressure, emphysema, sleep apnea, a nd allergies; that his only violation of supervision was a technical violation for joining a church without first notifying the probation department of the location of the church and that the violation was handled in house by his current probation officer; a nd the fact that he was not subject to Megan’s law at the time of his conviction but would be subject to much more stringent reporting requirements under SORNA for the remainder of his life. Trial Court Opinion, 11/15/2013 at 11.

7 It is unlikely that there would be any case in which a defendant filed a notice of appeal from a decision to decrease his or her term of probation.J. A21043/14

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Under this modified term of probation, Breece likely will be on probation for the majority of the remainder of his l ife. Moreover, he is subject to stringent reporting requirements under SORNA . Accordingly, we

cann ot agree with the Commonwealth that the modificatio n of Breece’s probation was an abuse of discretion. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 9/23/2014