J-S20036-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JONATHAN MITCHELL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2080 EDA 2022

Appeal from the Judgment of Sentence Entered July 12, 2022

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0004480-2018

BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.

MEMORANDUM BY COLINS, J.: FILED AUGUST 22, 2023

Jonathan Mitchell appeals from the judgment of sentence imposed 

following the revocation of his probation, which resulted in a one-to-two-year 

term of incarceration to be followed by one year of probation. On appeal, 

Mitchell challenges the discretionary aspects of this sentence, averring that 

the court failed to consider all of the relevant sentencing guidelines. 

Specifically, Mitchell contends that the court’s lack of consideration into his 

overall danger to the community and rehabilitative needs resulted in too 

excessive of a sentence. We disagree and therefore affirm, but remand for the 

court to file a new sentencing order that is consistent with the sentence 

originally imposed on June 1, 2022.

As background, the record reflects that Mitchell entered into a non-

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 Retired Senior Judge assigned to the Superior Court.
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negotiated guilty plea on January 22, 2020, wherein he pleaded guilty to one 

count of aggravated assault stemming from a May 28, 2018 incident involving

the use of a machete on the victim’s left ankle. See 18 Pa.C.S. § 2702.

Resultantly, on July 9, 2020, the court imposed a sentence of time served to 

twenty-three months of incarceration to be followed by three years of 

probation, predicated on his cooperation with the probation department’s 

mental health unit. By that point, however, Mitchell “had been in custody 

approximately 26 months.” Trial Court Opinion, 9/22/22, at 2. As such, he 

was immediately released from incarceration, identified by the court as it 

“granting [Mitchell] immediate parole,” id., at 3, and Mitchell then began 

serving his term of probation. 

On November 20, 2020, the court conducted its first violation of 

probation (“VOP”) hearing. Subsequently, the court conducted seven 

additional VOP hearings due to issues stemming from Michell’s noncompliance 

with the terms of his probation, but at each of these junctures, probation was 

continued. Ultimately, due to Mitchell’s inability to adhere to his probation’s 

terms regarding drug and mental health treatment, e.g., testing positive for 

cocaine usage, in addition to an out-of-county arrest and sentencing, the court 

revoked probation on June 1, 2022, and immediately sentenced Mitchell to 

one-to-two years of incarceration to be followed by one year of probation. 

On June 8, 2022, Mitchell filed a timely motion for reconsideration of 

this newly imposed post-revocation sentence. The court, on June 29, 2022, 

filed an order simultaneously vacating its judgment of sentence and 
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scheduling the matter for a new sentencing hearing on July 12, 2022. See 42 

Pa.C.S. § 5505 (trial court may rescind any order within 30 days after its entry 

if no appeal has been taken therefrom). On that July date, the court issued an 

order that purported to deny Mitchell’s motion for reconsideration, further 

writing “[s]ame sentence to stand.” Order Denying Motion for 

Reconsideration, 7/12/22. The court did not issue a new sentencing order.

Responsively, Mitchell filed yet another motion for reconsideration of his 

sentence, which, on August 10, 2022, was denied by the lower court. On that 

same date, Mitchell filed a notice of appeal from the July 12 Order.1

On appeal, Mitchell presents one issue for review:

1. Was the court’s imposition of a state sentence excessive, as it 

was not only disproportionate to his violating conduct, but also 

violative of Pennsylvania Sentencing Code’s subsection 

9721(b)?

See Appellant’s Brief, at 3.

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1 On October 19, 2022, this Court issued an order directing Mitchell to show 

cause why this appeal should not be quashed as having been taken from the 

July 12, 2022 order, which purported to deny Mitchell’s motion for 

reconsideration and was not entered on the docket as a judgment of sentence. 

Mitchell’s response indicates that the trial court intended, through its July 12, 

2022 order, for Mitchell to serve the one-to-two-year VOP sentence imposed 

on June 1, 2022, but that was subsequently vacated. The rule to show cause 

was thereafter vacated, and the issue was referred to the merits panel. Upon 

review of the record here, including the transcript of the July 12, 2022 hearing,

and as evidenced in the briefs filed in this appeal, it is clear that the trial court 

intended to reimpose the June 1, 2022 sentence. Nevertheless, in light of the 

procedural peculiarity of the proceedings below and as discussed further,

infra, we remand the matter for the court to issue a new sentencing order that 

is congruent with its original sentencing scheme.
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Mitchell’s sole claim challenges the discretionary aspects of his 

sentence.2 Correspondingly, to review such a claim, we are guided by a wellsettled standard of review: 

[s]entencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 

of discretion is not shown merely by error in judgment. Rather,

the 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. Moye, 266 A.3d 666, 676-77 (Pa. Super. 2021) (citation 

omitted).

Prior to our examination of Mitchell’s substantive claim, however, we 

note that “[t]he 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). As such, “[a]n appellant must satisfy a four-part test to invoke this 

Court's jurisdiction when challenging the discretionary aspects of a sentence.” 

Id.

The four-part test requires an appellant to demonstrate that:

(1) the appellant preserved the issue either by raising it at the 

time of sentencing or in a post[-]sentence motion; (2) the 

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2 As Mitchell was sentenced following the revocation of his probation, the 

sentencing guidelines do not apply to his sentence. See 204 Pa. Code § 

303.1(b). However, a sentencing court is still required to “consider the general 

principles and standards of the Sentencing Code.” Commonwealth v. 

Russell, 460 A.2d 316, 322 (Pa. Super. 1983).
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appellant filed a timely notice of appeal; (3) the appellant set forth 

a concise statement of reasons relied upon for the allowance of 

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). In establishing a “substantial question,” an appellant must set “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.” 

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations 

omitted); see also 42 Pa.C.S. § 9721(b) (requiring a sentence of confinement 

to be consistent with “the protection of the public, the gravity of the offense 

as it relates to the impact on the life of the victim and on the community, and 

the rehabilitative needs of the defendant[ ]”). If there is satisfaction of an 

appellant’s obligations under the four-part test, this Court will then review the 

underlying discretionary aspects of sentencing issue predicated on an abuse 

of discretion standard. See Commonwealth v. Akhmedov, 216 A.3d 307, 

328-29 (Pa. Super. 2019) (en banc). 

Given that Mitchell filed both the appropriate post-sentence motion and 

a timely notice of appeal and, too, through his inclusion of a concise Rule 

2119(f) statement in his brief, see Appellant's brief, at 8-10, we conclude that 

he has satisfied the first three requirements of the four-part test. As such, we 

must ascertain whether that Rule 2119(f) statement contains a substantial 

question.

In his Rule 2119(f) statement, he argues that his “sentence was 
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disproportionate to his violating conduct[,]” that the court “took no account of 

[his] mitigating circumstances, specifically his mental illness[,]” and that he 

“was not a danger to the community[.]” Id., at 8. As a result of these actions,

“[t]he lower court violated the Sentencing Code[, specifically Section 

9721(b),] and imposed an excessive sentence contrary to the fundamental 

norms which underlie the sentencing process.” Id. Accordingly, Mitchell 

asserts that he has raised a substantial question.

Section 9721(b) of the Sentencing Code indicates that the “sentence 

imposed should call for confinement that is consistent with the protection of 

the public, the gravity of the offense as it relates to the impact on the life of 

the victim and on the community, and the rehabilitative needs of the 

defendant.” 42 Pa.C.S. § 9721(b). In prior cases, we have determined that a 

substantial question exists where the contention is that a sentencing court 

failed to consider Section 9721(b) factors. See, e.g., Commonwealth v. 

Derry, 150 A.3d 987, 994-95 (Pa. Super. 2016) (concluding that a VOP court’s

failure to consider Section 9721(b) factors presents a substantial question). 

As Mitchell has raised a substantial question, we may proceed to review the 

merits of his argument on appeal.

Specifically in the context of post-VOP sentencing,

[u]pon revoking probation, “the sentencing alternatives available 

to the court shall be the same as were available at the time of 

initial sentencing, due consideration being given to the time spent 

serving the order of probation.” 42 Pa.C.S. § 9771(b). Thus, upon 

revoking probation, the trial court is limited only by the maximum 

sentence that it could have imposed originally at the time of the 
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probationary sentence, although once probation has been 

revoked, the court shall not impose a sentence of total 

confinement unless it finds that:

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

(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.

42 Pa.C.S. § 9771(c).

Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014). “Moreover, 42 

Pa.C.S. § 9721(b) specifies that in every case following the revocation of 

probation, ‘the court shall make as a part of the record, and disclose in open 

court at the time of sentencing, a statement of the reason or reasons for the 

sentence imposed.’ See also Pa.R.Crim.P. 708(C)(2) (indicating at the time 

of sentence following the revocation of probation, ‘[t]he judge shall state on 

the record the reasons for the sentence imposed.’).” Pasture, 107 A.3d at 28

(footnote omitted). 

However, following revocation, a sentencing court need not 

undertake a lengthy discourse for its reasons for imposing a 

sentence or specifically reference the statutes in question. Simply 

put, since the defendant has previously appeared before the 

sentencing court, the stated reasons for a revocation sentence 

need not be as elaborate as that which is required at initial 

sentencing. The rationale for this is obvious. When sentencing is 

a consequence of the revocation of probation, the trial judge is 

already fully informed as to the facts and circumstances of both 

the crime and the nature of the defendant[.]

Id.
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In contesting the court’s lack of contemplation of mitigating 

circumstances, Mitchell’s excessiveness claim has two components: (1) he 

was not a danger to the community; and (2) the court did not consider his 

rehabilitative needs. See Appellant’s Brief, at 16-18. As to the former 

contention, Mitchell observes that, after a series of status hearings, which 

featured a series of probation continuances from the court, his probation 

officers “never recommended incarceration.” Id., at 16. As to the latter

assertion, the court “gave no consideration that [his] mental illness was a 

contributing factor to his noncompliance. Nor did the lower court explain how 

prison would address [his] rehabilitative needs.” Id., at 17. 

In response, the court found that its VOP sentence “was strictly within 

the range” for the aggravated assault charge in which Mitchell had originally 

been convicted. Trial Court Opinion, 9/22/22, at 5; see also 18 Pa.C.S. § 

106(b)(3) (providing that a second-degree felony carries a maximum 

sentence of “not more than ten years”). The court then outlined the eight VOP 

hearings that were replete with examples of Mitchell’s “continued failure to 

comply with probation and related violations.” Trial Court Opinion, 9/22/22, 

at 6. However, the parties “requested the [c]ourt to continue probation to 

allow [Mitchell] additional opportunities to attend drug treatment and mental 

health services.” Id. In the penultimate hearing preceding revocation, Mitchell 

was “pointedly advised ... this was his ‘last chance’ or his probation [would] 

be revoked.” Id. 
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At the VOP hearing, the court reviewed with Mitchell its prior 

continuances of his probation. Specifically, the court highlighted its prior 

continuation order: “[The court’s] order is clear: Probation continued. 

Granted, defendant is ordered to comply with the rules of Northeast Mental 

Health. That was a CRR program. It is very clear. He is to comply or his 

probation will be revoked. ... This is defendant’s last chance.” VOP Hearing, 

6/1/22, at 16-17. The court then asked Mitchell, regarding his failure to 

comply with that order, “[d]id I say – did I say five words to you, ‘I will lock 

you up?’” Id., at 17. Mitchell responded, “[y]es, you did, Your Honor.” Id., at 

18. The court continued: “If there was noncompliance, [the court] was not 

continuing probation any further in this case. Probation has been continued in 

an effort for treatment with drug compliance since June of 2020.” Id. After 

revoking his probation, the court then inquired, “is there a specific facility that 

can address his treatment?” Id., at 18-19. The court incorporated the 

Commonwealth’s response, specifically recommending “SCI Waymart for 

mental health and substance abuse issues.” Id., at 19. After that, the court, 

in discussing its imposition of probation as a component of the post-revocation 

sentence, indicated its desire that Mitchell receive treatment from the “mental 

health unit” of the probation office. Id., at 19-20. 

While the court did not discuss, with any specificity, Mitchell’s overall 

danger to the community, it was apprised of all of the relevant facts necessary 

to craft the sentence that it did. See, e.g., id., at 6 (demonstrating, for 
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example, that the Commonwealth advised the court that Mitchell had pleaded 

guilty to disorderly conduct in another county while on probation in the present 

matter). Moreover, the court’s sentence, through its very construction,

unequivocally establishes that it was concerned with Mitchell’s rehabilitative 

needs. The sentence explicitly allows for him to receive adequate treatment 

with the anticipation of helping his admitted “drug problem.” Id., at 18. 

Mitchell does not contest whether he violated the terms of his probation. 

Instead, he challenges the court’s imposition of a term of incarceration. In 

giving credence to the wide amount of deference afforded to the sentencing 

court and when juxtaposed against both Mitchell’s transgressions leading to 

probation revocation as well as the court’s concern over his prospective drug 

treatment, the court thoroughly considered his rehabilitative needs in 

sentencing him. As such, it did not abuse its discretion in imposing a sentence 

of one to two years of incarceration to be followed by one year of probation.

Notwithstanding our affirmation of Mitchell’s judgment of sentence, we 

note the procedural irregularity necessitating remand. Having already vacated 

the sentence it imposed on June 1, 2022, the court, on July 12, 2022, denied 

Mitchell’s motion for reconsideration of that sentence. The court then wrote in 

its July 12, 2022 order: “[s]ame sentence to stand.” Order Denying Motion for 

Reconsideration, 7/12/22. In essence, then, despite all parties acknowledging 

the court’s original June 1, 2022 order as the one currently governing 

Mitchell’s sentence, there is no actual judgment of sentence order of record
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that sets forth the terms of the sentence that Mitchell is currently serving. 

Accordingly, we remand for the court to issue a new sentencing order that 

materially reflects its prior June 1, 2022 order. 

Judgment of sentence affirmed. Case remanded for the filing of a new 

sentencing order. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/22/2023