J-S70018-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

JEREMY BAILEY, :

:

Appellant : No. 1885 EDA 2014

Appeal from the Judgment of Sentence May 21, 2014,

Court of Common Pleas, Philadelphia County,

Criminal Division at No(s): CP-51-CR-0004233-2007

and CP-51-CR-0020375-2011

BEFORE: DONOHUE, LAZARUS and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 04, 2015

Appellant, Jeremy Bailey (“Bailey”), appeals from the judgment of 

sentence entered on May 21, 2014 by the Court of Common Pleas of 

Philadelphia County, Criminal Division. We affirm.

As this appeal stems from the numerous revocations of Bailey’s parole 

and probation, an overview of the facts underlying his various convictions is 

unnecessary. We summarize the relevant procedural history of this case as 

follows. On June 3, 2008, Bailey pled guilty to aggravated assault, criminal 

conspiracy, and possessing an instrument of crime at docket number CP-51-

CR-0004233-2007 (“2008 convictions”). On August 12, 2008, the trial court 

sentenced Bailey to time served to twenty-three months of incarceration 

followed by five years of probation on the aggravated assault charge and to 

a concurrent term of time served to twenty-three months of incarceration 
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followed by five years of probation on the possessing an instrument of crime 

charge. Bailey did not file an appeal.

On June 27, 2011, Bailey pled guilty to possession of a controlled 

substance at docket number MC-51-CR-0020375-2011 (“2011 conviction”). 

The trial court sentenced Bailey to six to twenty-three months of 

incarceration. The same day, the trial court found Bailey in violation of his 

parole and anticipatory violation of his probation for his 2008 convictions. 

The trial court sentenced Bailey to the remaining balance of his sentence for 

his 2008 convictions, concurrent with the sentence for his 2011 conviction, 

followed by five years of probation. On February 27, 2012, the trial court 

granted Bailey’s request for early parole.

On September 20, 2012, after determining that Bailey was in technical 

violation of his probation and parole, the trial court revoked his probation for 

his 2008 convictions and his parole for his 2011 conviction. On November 

14, 2012, the trial court sentenced Bailey to three to twenty-three months of 

incarceration with immediate parole, followed by two years of probation for 

violating the probation for his 2008 convictions. For violating the parole of 

his 2011 conviction, the trial court sentenced Bailey to a concurrent term of 

three to twelve months of incarceration with immediate parole.

On May 14, 2013, Bailey was again arrested, this time charged with 

theft by unlawful taking, possession of firearm prohibited firearms not to be 

carried without a license; carrying firearms in public in Philadelphia, and 
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receiving stolen property. On May 22, 2013, the Commonwealth filed a 

motion for a violation of probation hearing. On March 10, 2014, the trial 

court held a violation of probation hearing, at the conclusion of which it

found Bailey in violation of his probation for his 2008 convictions. On May 

21, 2014, the trial court revoked his probation and parole for his 2008 

convictions and sentenced him to eleven and a half to twenty-three months 

of incarceration, followed by ten years of probation. The same day, the trial 

court terminated Bailey’s parole for his 2011 conviction, but did not impose 

a sentence with respect to the 2011 conviction. 

On June 17, 2014, Bailey filed a timely notice of appeal. On July 30, 

2014, the trial court ordered Bailey to file a concise statement of the errors 

complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules 

of Appellate Procedure. On August 20, 2014, Bailey’s appointed counsel 

filed a statement of intent to file an Anders/McClendon brief pursuant Rule 

1925(c)(4). On November 25, 2014, Bailey’s appointed counsel filed in this 

Court a “Petition to Vacate Briefing Schedule and to Remand for Filing of 

Statement of Errors and Lower Court Opinion Pursuant to Rule 1925.” On 

December 18, 2014, this Court granted Bailey’s petition and remanded the 

case to the trial court for Bailey to file a Rule 1925(b) statement. On 

December 24, 2014, Bailey filed his Rule 1925(b) statement. 

On appeal, Bailey raises the following issues for our review:
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1. With regard[] to [the 2011 conviction], where 

[Bailey] was originally sentenced to a term of 

incarceration and no term of probation, then found in 

violation of his parole and sentenced to an entirely 

new term of incarceration, and then again found in 

violation of supervision, was not the most recent 

sentence illegal and the revocation of that sentence 

based upon insufficient evidence since the 

Commonwealth failed to prove that the defendant 

was lawfully under supervision at the time of the

most recent alleged violations of supervision?

2. With regard[] to [the 2008 convictions], did not 

the lower court consider an impermissible factor 

(i.e., that [Bailey] violated supervision in [the 2011 

conviction] where the sentence in that case was 

illegal and insufficient evidence was presented to 

prove a violation of that sentence) in fashioning the 

most recent revocation sentence for [the 2008 

convictions], and does not the recognition that the 

lower court erred in finding [Bailey] in violation of his 

supervision in [the 2011 conviction] upset the 

sentencing scheme such that resentencing is 

required for [the 2008 convictions]?

Bailey’s Brief at 4.

We begin by acknowledging the following standard of review of a trial 

court’s decision to revoke a defendant’s parole:

[T]he purposes of a court’s parole-revocation 

hearing – the revocation court’s tasks – are to 

determine whether the parolee violated parole and, if 

so, whether parole remains a viable means of 

rehabilitating the defendant and deterring future 

antisocial conduct, or whether revocation, and thus 

recommitment, are in order. The Commonwealth 

must prove the violation by a preponderance of the 

evidence and, once it does so, the decision to revoke 

parole is a matter for the court’s discretion. In the 

exercise of that discretion, a conviction for a new 

crime is a legally sufficient basis to revoke parole. 
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Following parole revocation and recommitment, 

the proper issue on appeal is whether the revocation 

court erred, as a matter of law, in deciding to revoke 

parole and, therefore, to recommit the defendant to 

confinement. 

Commonwealth v. Kalichak, 943 A.2d 285, 290-91 (Pa. Super. 2008) 

(citations omitted).

For his first issue on appeal, Bailey argues that the trial court erred 

when it most recently revoked his parole for his 2011 conviction on May 21, 

2014. See Bailey’s Brief at 10-14. Bailey contends that the sentence he 

received on November 14, 2012, which was the first time the trial court 

revoked his parole for his 2011 conviction, was illegal. See id. 

Consequently, Bailey asserts that because the November 14, 2012 sentence 

was illegal, the Commonwealth could not sustain its burden of proving that 

he was under supervision for his 2011 conviction when he committed the 

crimes that led to the May 21, 2014 revocation. See id.

We conclude that this argument does not entitle Bailey to relief. 

Bailey is correct that when the trial court revoked his parole for his 2011 

conviction on November 14, 2012, the trial court could only recommit him to 

serve the remaining unserved portion of his original sentence in that case. 

See Commonwealth v. Melius, 100 A.3d 682, 686 (Pa. Super. 2014).1 

 

1

 In Melius, our Court explained the following regarding the revocation of 

parole:
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However, the sentence that the trial court imposed on May 21, 2014 of 

eleven and a half to twenty-three months of incarceration followed by ten 

years of probation stemmed from the revocation of his probation for his 

2008 convictions. The trial court did not impose that sentence for the 

revocation of his parole for his 2011 conviction.

The certified record reflects that on September 20, 2012, the trial 

court revoked Bailey’s probation for his 2008 convictions and his parole for 

his 2011 conviction. On November 14, 2012, the trial court sentenced 

Bailey to three to twenty-three months of incarceration with immediate 

parole, followed by two years of probation on his 2008 convictions. See

Trial Court Order (2008 convictions), 11/14/12. The trial court also 

sentenced Bailey on his 2011 conviction to a concurrent term of three to 

 

“[A] parole revocation does not involve the 

imposition of a new sentence.” [Kalichak, 943 A.2d 

at 290] (citing Commonwealth v. Mitchell, [] 632 

A.2d 934, 936 ([Pa. Super.] 1993)). “Rather, the 

only option for a court that decides to revoke parole 

is to recommit the defendant to serve the alreadyimposed, original sentence. At some point 

thereafter, the defendant may again be paroled.” 

Id. (internal citations and footnote omitted); see 

also Commonwealth v. Galletta, 864 A.2d 532, 

538 (Pa. Super. 2004) (finding that in a violation of 

parole, the court is not free to impose a new 

sentence); Commonwealth v. Ware, 737 A.2d 

251, 253 (Pa. Super. 1999) (holding that “upon 

revocation of parole, the only sentencing option 

available is recommitment to serve the balance of 

the term initially imposed”).

Melius, 100 A.3d at 686.
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twelve months of incarceration with immediate parole, see Trial Court Order 

(2011 conviction), 11/14/12, which Bailey argues was an illegal sentence. 

See Bailey’s Brief at 10-14.

The certified record further reflects that on May 13, 2013, Bailey was 

again arrested and charged with multiple firearms offenses, unauthorized 

use of a motor vehicle, and other crimes in yet another case, which gave 

rise to the instant revocation and re-sentencing proceedings that are the 

subject of this appeal. As a result of this arrest, on May 21, 2014, the trial 

court revoked Bailey’s probation and parole for his 2008 convictions and 

sentenced him to eleven and a half to twenty-three months of incarceration, 

followed by ten years of probation. See Trial Court Order (2008 

convictions), 5/21/14. On the same date, the trial court entered an order 

terminating his parole for his 2011 conviction, but did not impose any 

sentence on his 2011 conviction. See Trial Court Order (2011 conviction), 

5/21/14.

Therefore, assuming, arguendo, that the November 14, 2012 sentence 

of three to twelve months of incarceration following the first revocation of 

Bailey’s parole on his 2011 conviction was illegal, the alleged illegality of 

that sentence had no bearing on the sentence that is the subject of this 

appeal – the sentence of eleven and a half to twenty-three months of 

incarceration, followed by ten years of probation for violating the probation 

of his 2008 convictions. Moreover, because Bailey has finished serving the 
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three to twelve month sentence from November 14, 2012 for violating the 

parole of his 2011 conviction, Bailey’s challenge to the legality of that 

sentence is moot. See Commonwealth v. King, 786 A.2d 993, 996 (Pa. 

Super. 2001) (finding “appellant’s challenge to the legality of the sentence, 

which has expired and which bears no collateral civil or criminal 

consequences, is moot and will not be addressed by this Court.”). 

Therefore, Bailey’s first issue fails.

For his second issue on appeal, Bailey argues that the trial court 

abused its discretion when it sentenced him to eleven and a half to twentythree months of incarceration, followed by ten years of probation for 

violating the probation of his 2008 convictions. See Bailey’s Brief at 15-17. 

Bailey contends that the trial court relied on an impermissible factor when it 

re-sentenced him for his 2008 convictions because it took into consideration 

the improper revocation of his parole for his 2011 conviction. See id.

A claim that a trial court considered impermissible factors when 

sentencing a defendant is a challenge to the discretionary aspects of 

sentencing. Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 

2013), appeal denied, 91 A.3d 161 (Pa. 2014). “The right to appellate 

review of the discretionary aspects of a sentence is not absolute, and must 

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

Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014), appeal denied, 104 

A.3d 1 (Pa. 2014). This rule applies to our review of sentences imposed 
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following the revocation of probation. Commonwealth v. Kalichak, 943 

A.2d 285, 289 (Pa. Super. 2008). “An appellant must satisfy a four-part test 

to invoke this Court’s jurisdiction when challenging the discretionary aspects 

of a sentence.” Id. We conduct this four-part test to determine whether,

(1) the appellant preserved the issue either by 

raising it at the time of sentencing or in a post[-

]sentence motion; (2) the appellant filed a timely 

notice of appeal; (3) the appellant set forth a concise 

statement of reasons relied upon for the allowance of 

his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the 

appellant raises a substantial question for our 

review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation 

omitted), appeal denied, 86 A.3d 231 (Pa. 2014). 

Here, Bailey failed to preserve his discretionary aspects of sentencing 

claim by raising it at sentencing or in a post-sentence motion. Accordingly, 

Bailey has failed to preserve his discretionary aspects of sentencing claim for 

review. See id.; Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. 

Super. 2013) (“[I]ssues challenging the discretionary aspects of a sentence 

must be raised in a post-sentence motion or by presenting the claim to the 

trial court during the sentencing proceedings. Absent such efforts, an 

objection to a discretionary aspect of a sentence is waived.”). Therefore, 

Bailey’s second issue does not entitle him to relief.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/4/2015