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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 (Breece).1

 We affirm. 

 On June 18, 2009, Breece was charged with six counts each of 

indecent assault without consent and corruption of minors.2 These charges 

stemmed from incidents of sexual abuse perpetrated by Breece upon minor 

victims when they were between the ages of seven and twelve, and occurred 

between 1978 and 1988. On October 11, 2009, Breece pled 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 that was entered on 

December 19, 2012. However, this appeal lies properly from the judgment 

of sentence itself, and we have amended the caption accordingly. 

2

 18 Pa.C.S. § 3126(a)(1) and 18 Pa.C.S. § 6301(a), respectively. 
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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 of that sentence included 

Breece’s participation in “sex offender supervision and treatment.” N.T., 

12/16/2009, at 2. 

Breece completed his minimum sentence, and was paroled on 

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 and sexual offender 

supervision.3

 He requested a hearing date prior to the effective date 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 which, the trial 

court denied Breece’s motion. However, the trial court 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 Reconsideration Of 

 

3

 That petition is not included in the certified record. 

4

 The General Assembly enacted SORNA on December 20, 2011, and 

amended it on July 5, 2012. SORNA became effective on December 20, 

2012. Under SORNA, indecent assault is a Tier 1 offense (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. § 9799.15(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 these new sexual 

offender registration requirements. 
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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 that 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 Commonwealth may file a 

“motion to modify sentence.” Instantly, the Commonwealth called its 

motion a “Petition For Reconsideration Of Sentence.” As this motion 

challenged the sentence imposed by the trial court, we conclude it is still 

governed by Pa.R.Crim.P. 721 - Procedures for Commonwealth Challenges to 

Sentence; Sentencing Appeals. 

Where the Commonwealth files a motion to modify sentence within 10 

days of the judgment of sentence, the Rule provides the following: 

If the defendant has not filed a post-sentence motion, the judge 

shall not vacate sentence but shall decide the Commonwealth's 

motion within 120 days of the filing of the motion. If the judge 

fails to decide the Commonwealth's motion within 120 days, the 

motion shall be deemed denied by operation of law. 

Pa.R.Crim.P. 721(C)(2). In this case, the Commonwealth 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 have entered an order 

deeming the Commonwealth’s motion denied by operation of law, and the 

Commonwealth’s appeal should have been filed within 30 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 indicating that the postsentence motion is denied by operation of law and notify the defendant of 

same, a breakdown in the court system has occurred and [this Court] will 

not find an appeal untimely under these circumstances.” Commonwealth v. 

Perry, 820 A.2d 734, 735 (Pa. Super. 2003). Thus, the Commonwealth’s 

appeal, which was filed well-outside this timeframe, is timely due to the 

breakdown in the court system. 
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On appeal, the Commonwealth challenges the discretionary aspects of 

Breece’s sentence.6

 “[T]here is no absolute right to appeal when challenging 

the discretionary aspect of a sentence.” Commonwealth v. Crump, 995 

A.2d 1280, 1282 (Pa. Super. 2010). To preserve properly a discretionary 

sentencing issue, the Commonwealth must raise the claim at 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]ppeal is permitted only after this Court determines that 

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 forth a plausible 

argument that the sentence violates a provision of the sentencing code or is 

contrary to the fundamental norms of the sentencing process.” Naranjo, 53 

A.3d at 72 (citations omitted). In addition, the Commonwealth “must 

provide a separate statement specifying where the sentence falls in the 

sentencing guidelines, what provision of the sentencing code 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 Commonwealth abandoned this 

argument. Moreover, the law is clear that a trial court “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). 
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Instantly, the Commonwealth raised this issue in a timely-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 aspects 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 arguments in support of 

its claim that the new judgment of sentence is “unreasonable.” 

Commonwealth’s Brief at 17-18. The Commonwealth argues that had 

Breece committed these crimes more recently, the identical conduct would 

result in additional charges with higher offense gravity scores. Id. at 18. 

The Commonwealth also argues that Breece “was less than forthright” 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 either of these 

reasons presents a substantial question as to why the trial 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 process.” Naranjo, 

supra. The Commonwealth has not directed us to any case involving a 
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Commonwealth appeal from a trial court’s decision to decrease a term of 

probation.7

 Moreover, this Court’s research has not revealed any such case.

Even assuming, arguendo, the Commonwealth has presented a 

substantial question, we are not persuaded that the trial 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 evaluate 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 for its decision. 

At the hearing, we found it significant that Breece testified 

that he had been participating in therapy with Ken Singer since 

he was charged with these offenses in addition to sex offender 

supervision ordered by the probation department; he admitted 

his offenses to his wife and other family members; he had the 

support of a church community (which is fully aware of the 

convictions); and he had continued contact with [his son, who 

was one of the victims in this case, as well as his grandchildren]. 

Furthermore, we took into consideration that the crimes charged 

occurred twenty-five (25) to thirty-five (35) years ago; that 

[Breece] was, at the time of the Petition to Terminate 

Supervision, seventy-two years of age; his health issues,

including high blood pressure, emphysema, sleep apnea, and 

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; and 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. 
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 Under this modified term of probation, Breece likely will be on 

probation for the majority of the remainder of his life. Moreover, he is 

subject to stringent reporting requirements under SORNA. Accordingly, we 

cannot agree with the Commonwealth that the modification of Breece’s 

probation was an abuse of discretion. 

 Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/23/2014