J-A07040-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ZACHARY WISE SHOWERS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 932 MDA 2023

Appeal from the Judgment of Sentence Entered May 17, 2023

In the Court of Common Pleas of Berks County Criminal Division at 

No(s): CP-06-CR-0003542-2021

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

MEMORANDUM BY STEVENS, P.J.E.: FILED: APRIL 24, 2024

Zachary Wise Showers appeals from the May 17, 2023 judgment of 

sentence of 2 to 8 years’ imprisonment imposed following the revocation of 

his probation and resentencing for one count of aggravated indecent assault

– complainant less than 13 years of age.

1 After careful review, we affirm the 

judgment of sentence.

The relevant facts of this case, as gleaned from the certified record, are 

as follows: While he was a juvenile, Appellant engaged in the repeated sexual 

assault of the female victim, his biological sister, when she was between 9 

and 13 years old. See Affidavit of Probable Cause, 12/2/21 at 1. 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. § 3125(a)(7).
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The trial court summarized the procedural history of this case as 

follows:

On March 3, 2022, in accordance with a negotiated 

plea agreement, [Appellant] was sentenced to eight 

(8) years of probation on one count of aggravated 

indecent assault[.] On June 9, 2022, a bench warrant 

was issued for alleged violations of probation and on 

May 17, 2023, [Appellant] was brought before the 

court for a Gagnon II hearing. [Appellant] admitted 

to violating his probation for failure to report as 

directed, failure to notify of a change of address, 

failure to obtain permission to travel, failure to 

complete urine screens, failure to participate in 

counseling and treatment, failure to abide by the sex 

offender rules and having a new arrest (DUI). After

hearing the recommendations and arguments of 

counsel, [Appellant] was resentenced [on May 17, 

2023] to two (2) years to eight (8) years of 

incarceration. On May 23, 2023, a timely post[-

]sentence motion was filed. On June 8, 2023, a 

hearing on the post[-]sentence motion was held and 

the motion was denied. A [] notice of appeal was filed 

on June 27, 2023. The court did not order a 1925(b) 

statement because counsel for [Appellant] filed [a 

Pa.R.A.P. 1925(b) concise statement] concurrently 

with the notice of appeal. 

Trial court opinion, 7/7/23 at 1 (citation and extraneous capitalization 

omitted). 

Preliminarily, we note that the filing of a post-sentence motion does not 

toll the appeal period for a probation revocation sentence. See Pa.R.Crim.P.

708(E) (“The filing of a motion to modify sentence will not toll the 30-day 

appeal period.”). Accordingly, Appellant was required to file his notice of 

appeal 30 days after his May 17, 2023 resentencing, or by June 16, 2023. 

See Pa.R.A.P. 903(a) (“the notice of appeal...shall be filed within 30 days after 
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the entry of the order from which the appeal is taken.”). Because the instant 

notice of appeal was not filed until June 27, 2023, this Court issued an order 

on September 11, 2023, directing Appellant to show cause why the appeal 

should not be quashed as untimely. Appellant failed to respond to the Rule to 

Show Cause order.

It is well settled that an appellate court may excuse an untimely notice 

of appeal where there has been a “breakdown in the processes of a court.” 

See Pa.R.A.P. 105 comment. This Court has found that a breakdown occurred 

where the trial court, at the time of sentencing, either failed to advise the 

appellant of his post-sentence and appellate rights or misadvised him. See

Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa.Super. 2003) (declining 

to quash facially untimely appeal from judgment of sentence following a 

probation revocation when the trial court misadvised the appellant of the time 

limits for filing an appeal pursuant to Rule 708).

Instantly, the record reveals that the trial court’s June 8, 2023 order 

denying Appellant’s post-sentence motion failed to advise Appellant that his

notice of appeal must be filed by June 16, 2023; in fact, the order did not 

contain any advice regarding appeal rights at all. Accordingly, we find that

there was a breakdown in the processes of the court and excuse the untimely 

filing of Appellant’s notice of appeal.

On appeal, Appellant raises the following issue for our review:

Did the sentencing court abuse its discretion by 

resentencing Appellant to a sentence of two (2) to 
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eight (8) years while failing to consider mitigating 

factors, his pre and post[-]conviction circumstances

including his record of self-improvement; the nature 

and circumstances of the charges, specifically 

Appellant’s status as a juvenile at the time of the

offenses and giving undue weight to the Sentencing 

Guidelines[?]

Appellant’s brief at 4 (extraneous capitalization omitted).

“In an appeal from a sentence imposed after the court has revoked

probation, we can review the validity of the revocation proceedings, the 

legality of the sentence imposed following revocation, and any challenge to 

the discretionary aspects of the sentence imposed.” Commonwealth v.

Wright, 116 A.3d 133, 136 (Pa.Super. 2015) (citation omitted). A 

“[r]evocation of a probation sentence is a matter committed to the sound 

discretion of the trial court and that court’s decision will not be disturbed on 

appeal in the absence of an error of law or an abuse of discretion.” 

Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa.Super. 2014) (citation 

omitted), appeal denied, 109 A.3d 678 (Pa. 2015). Appellant must 

“establish, by reference to the record, that the sentencing court ignored or 

misapplied the law, exercised its judgment for reasons of partiality, prejudice, 

bias or ill will, or arrived at a manifestly unreasonable decision.” 

Commonwealth v. Bullock, 170 A.3d 1109, 1123 (Pa.Super. 2017) (citation 

omitted), appeal denied, 184 A.3d 944 (Pa. 2018).

Here, Appellant argues that the trial court abused its discretion by failing 

to consider various mitigating factors in fashioning his standard-range 
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probation revocation sentence, including the “nature and circumstances of the 

original charge[,]” his rehabilitative needs, “the positive actions of the

Appellant during his admittedly brief time on probation[,]” and the fact that 

his crime occurred when he was a juvenile. Appellant’s brief at 11, 13-16.

Where an appellant challenges the discretionary aspects of his sentence,

as is the case here, the right to appellate review is not absolute. 

Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa.Super. 2018), appeal 

denied, 206 A.3d 1029 (Pa. 2019). On the contrary, an appellant challenging 

the discretionary aspects of his sentence must invoke this Court’s jurisdiction 

by satisfying the following four-part test:

(1) whether the appeal is timely; (2) whether 

appellant preserved his issue; (3) whether appellant’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. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013) 

(citations omitted).

As noted, Appellant’s untimely notice of appeal has been excused by this 

Court due to a breakdown in the in court processes. Additionally, Appellant 

preserved his sentencing claim in his May 23, 2023 post-sentence motion and 

has also included a statement in his brief that comports with the requirements 

of Pa.R.A.P. 2119(f). See Appellant’s brief at 5-6. Accordingly, we must 

determine whether Appellant has raised a substantial question.
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“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Griffin, 65 A.3d 

932, 935 (Pa.Super. 2013) (citation omitted), appeal denied, 76 A.3d 538 

(Pa. 2013). “A substantial question exists only when appellant advances a 

colorable argument that the sentencing judge’s actions were either: 

(1) inconsistent with a specific provision of the Sentencing Code; or 

(2) contrary to the fundamental norms which underlie the sentencing 

process.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012) 

(citation omitted), appeal denied, 63 A.3d 774 (Pa. 2013). 

“This Court repeatedly has held that a claim of inadequate consideration 

of mitigating factors does not raise a substantial question for our review.” 

Commonwealth v. Crawford, 257 A.3d 75, 79 (Pa.Super. 2021) (citations 

omitted). In Commonwealth v. Caldwell, 117 A.3d 763 (Pa.Super. 2015), 

appeal denied, 126 A.3d 1282 (Pa. 2015), a panel of this Court reiterated 

that, “ordinarily, a claim that the sentencing court failed to consider or accord 

proper weight to a specific sentencing factor does not raise a substantial 

question.” Id. at 769. Likewise, in Commonwealth v. Cannon, 954 A.2d 

1222 (Pa.Super. 2008), appeal denied, 964 A.2d 893 (Pa. 2009), we held 

that a claim that the trial court failed to consider, inter alia, the defendant’s

rehabilitative needs and age did not present a substantial question for review. 

Id. at 1228-1229. 
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Based on the foregoing, we find that Appellant’s argument fails to raise 

a substantial question, and, therefore, he has not preserved his challenge to 

the discretionary aspects of sentencing. Accordingly, we affirm the May 17, 

2023 judgment of sentence.

2

Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 04/24/2024

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2 Even if Appellant had raised a substantial question for this Court’s 

consideration, we would find no abuse of discretion. As the trial court properly 

noted in its Rule 1925(a) opinion, it thoroughly considered and weighed 

numerous factors in resentencing Appellant to a term of 2 to 8 years’ 

imprisonment, a probation revocation sentence whose minimum was actually

one year less than requested by the Commonwealth. See trial court opinion, 

7/7/23 at 5. Specifically, the trial court noted that it considered, inter alia,

Appellant’s prior record score and offense gravity score; his age at both the 

time of the offense and at the Gagnon II hearing; the background of this 

case and the information provided by the supervising probation officer; 

Appellant’s employment obligations; and his rehabilitative needs. Id. at 5-6.