J-S31014-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

STEVE A. LINCOLN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2056 MDA 2019

Appeal from the Judgment of Sentence Entered November 18, 2019

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

No(s): CP-22-CR-0001152-2007

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 29, 2020

Steve A. Lincoln appeals from the judgment of sentence of three to six 

years of imprisonment, followed by ten years of probation, after the trial court 

revoked his probation. We affirm.

Appellant, who was a deputy with the Dauphin County Sheriff’s 

Department, sexually abused multiple children. In the above-captioned case, 

he pled nolo contendere in 2008 to various charges, including rape of a child 

and rape of a child under the age of thirteen, concerning his sexual abuse of 

two of those children. Appellant did not contest the finding that he is a 

sexually violent predator (“SVP”). 

The terms of the negotiated plea agreement included that Appellant 

would serve one to two years of imprisonment, followed by ten years of 

probation. During probation, Appellant would be subject to special conditions 

involving restrictions on contact with minors and the possession of 
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pornography, as well as continuing sexual offender counseling which utilized 

polygraph testing. See N.T. Sentencing, 6/18/08, at 9. The trial court 

sentenced Appellant in accordance with the plea agreement on June 18, 2008. 

In August 2019, the Dauphin County Adult Probation Department issued 

a detainer against Appellant and requested a probation revocation hearing. 

The Department alleged that Appellant violated two of the special conditions 

of his probation, namely that he was unsuccessfully discharged from his sex 

offender counselling group and he admitted to paying for sex. The trial court 

held a hearing on November 18, 2019, at which Appellant’s probation officer 

and therapist testified. At the conclusion of the hearing, the trial court revoked 

Appellant’s probation and sentenced him as indicated above. 

Appellant filed a timely motion for modification of sentence, which the 

trial court denied. On December 18, 2019, Appellant filed a timely notice of 

appeal. The trial court ordered Appellant to file a statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant’s counsel 

filed the statement late, but the trial court authored an opinion addressing the 

substance of Appellant’s claims. Accordingly, the following issues raised by 

Appellant are ripe for our review:1

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1 An attorney’s failure to file and serve a timely 1925(b) statement in a 

criminal case “is a failure to perfect the appeal, it is presumptively prejudicial 

and ‘clear’ ineffectiveness.” Pa.R.A.P. 1925, Note. Accordingly, in criminal 

cases, remand, not waiver, results from the late filing of a statement. 

However, where, as here, the trial court addressed the issues raised in a late-
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1. Whether the trial court abused its discretion in 

sentencing [Appellant] to an aggregate sentence of 3-6 years of 

incarceration with 10 years of consecutive probation where the 

evidence presented by the Commonwealth failed to establish that 

[Appellant] violated a specific condition of his probation and would 

be at risk of re-offending? 

2. Whether the trial court abused its discretion in 

sentencing petitioner to an aggregate sentence of 3-6 years of 

incarceration with 10 years of consecutive probation where the 

sentence is excessive and unreasonable in light of Appellant’s age, 

mental health issues, and rehabilitative needs?

Appellant’s brief at 7 (unnecessary capitalization omitted).

The following principles apply to our consideration of whether 

Appellant’s question raises a viable challenge to the discretionary aspects of 

his sentence.

An appellant is not entitled to the review of challenges to the 

discretionary aspects of a sentence as of right. Rather, an 

appellant challenging the discretionary aspects of his sentence 

must invoke this Court’s jurisdiction. We determine whether the 

appellant has invoked our jurisdiction by considering the following 

four factors: 

(1) whether appellant has filed a timely notice of 

appeal; (2) whether the issue was properly preserved 

at sentencing or in a motion to reconsider and modify 

sentence; (3) whether appellant’s brief has a fatal 

defect; and (4) whether there is a substantial question 

that the sentence appealed from is not appropriate 

under the Sentencing Code.

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014) 

(citations omitted). 

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filed statement, no remand is necessary, and this Court may address the 

merits of issues. See Commonwealth v. Thompson, 39 A.3d 335, 340 

(Pa.Super. 2012). 
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Appellant filed a timely notice of appeal and preserved the issue in a 

timely post-sentence motion seeking reconsideration of his sentence. 

Appellant’s brief contains a statement of reasons relied upon for his challenge 

to the discretionary aspects of his sentence as required by Pa.R.A.P. 2119(f). 

Thus, we consider whether Appellant has raised a substantial question. 

Appellant avers that a sentence of total confinement upon revocation 

was not appropriate because the evidence did not establish that he violated a 

specific term of his probation or was likely to commit a new crime. See

Appellant’s brief at 17. He also contends that his aggregate sentence is 

manifestly unreasonable and excessive in light of his age, mental health 

issues, and rehabilitative needs. Id. 

We conclude that Appellant has raised a substantial question. See

Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa.Super. 2012) (“An 

argument that the trial court imposed an excessive sentence to technical 

probation violations raises a substantial question.”); Commonwealth v. 

Johnson, 125 A.3d 822, 826 (Pa.Super. 2015) (“This Court has held that an 

excessive sentence claim—in conjunction with an assertion that the court 

failed to consider mitigating factors—raises a substantial question.”). 

Therefore, we shall proceed to address the merits of Appellant’s claims. 

We review the VOP court’s sentencing determination for an abuse of 

discretion. 

In this context, an abuse of discretion is not shown merely by an 

error in judgment. Rather, the appellant must establish, by 
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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. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014). 

Our Supreme Court has explained that sentencing following revocation 

of probation

is qualitatively different than an initial sentencing proceeding. At 

initial sentencing, all of the rules and procedures designed to 

inform the court and to cabin its discretionary sentencing 

authority properly are involved and play a crucial role. However, 

it is a different matter when a defendant reappears before the 

court for sentencing proceedings following a violation of the mercy 

bestowed upon him in the form of a probationary sentence. For 

example, in such a case, contrary to when an initial sentence is 

imposed, the Sentencing Guidelines do not apply, and the 

revocation court is not cabined by [the] requirement 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.

Upon 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. 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 

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
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(3) such a sentence is essential to vindicate the 

authority of the court.

Commonwealth v. Pasture, 107 A.3d 21, 27–28 (Pa. 2014) (cleaned up).

With these principles in mind, we turn to Appellant’s arguments. 

Appellant contends that, while he “may have erred” in his counselling 

participation and had a “setback” in his treatment, he did not violate a specific 

condition of his probation. Appellant’s brief at 21. Rather, he posits that his 

actions were “twice removed from the specific conditions of his probation,” 

and that his hesitancy to share during group therapy would be best addressed 

through continuing his treatment. Id. at 21-22. Appellant further argues 

that, even if his conduct constituted a technical violation of his probation, 

there is nothing to support a finding that he would commit another crime if he 

stayed in treatment. He asserts that he had been consistently compliant with 

his treatment and probation terms since 2014, acknowledges that he needs 

help, and is willing to comply with treatment. Id. at 24. Finally, Appellant 

maintains that his excessive sentence resulted from the trial court’s failure to 

consider that he was sixty-three years old, had served in the armed forces for 

ten years, and struggles with the mental and emotional effects of having 

suffered a stroke while driving which resulted in the deaths of four of his family 

members. Id.

The trial court addressed Appellant’s claims as follows:

[T]here was lengthy testimony at the revocation hearing 

regarding Appellant’s non-compliance with sex offender 

treatment. Appellant participated in a high risk group that met 
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1.5 hours a week and was given the opportunity to disclose 

behaviors of noted concern to either the group or individually to 

the counselor. Appellant was designated as a SVP . . . and was 

required to take a yearly polygraph. Prior to taking the polygraph, 

the staff at Commonwealth Clinical Group prep the individual to 

have a higher success rate of passing. 

In 2017, while prepping for his polygraph, Appellant 

disclosed that he was masturbating to minors, watching 

pornography, and engaging in prostitution. Appellant was given 

a “pass” at that time - he was admonished for his behaviors yet 

was permitted to continue treatment with a goal of addressing 

those issues. At every group after the disclosure, Appellant 

denied engaging in any concerning behaviors.

While preparing for his polygraph in 2019, Appellant again 

disclosed that he continued to masturbate to thoughts of minors, 

specifically those of his victims, continued to watch pornography, 

and continued to engage in prostitution. When asked during a 

group session why Appellant withheld information about engaging 

in concerning behaviors, Appellant stated that it was the 

counselor’s responsibility to ask the “right” questions. 

Commonwealth Clinical Group gave Appellant the opportunity to 

redeem himself by taking another polygraph before discharging 

him from treatment. Appellant was deceptive on the polygraph; 

therefore, he was discharged. 

On paper, it appeared that Appellant was progressing 

through treatment and had even worked himself down from an 

individual and two group sessions a week to an individual and one 

group session a week. However, Appellant only appeared to be 

progressing because he was withholding the fact that he was 

engaging in concerning behaviors. Additionally, there is no 

dispute that Appellant suffered a stroke in 2018. Subsequently, 

Appellant was medically cleared to undergo a polygraph and there 

was no noticeable change in Appellant’s cognitive function. 

At the revocation hearing, Appellant admitted that he 

solicited a prostitute, but minimized his responsibility in what 

occurred. . . . It is apparent that Appellant does not appreciate 

how his actions led to the criminal convictions against him.

Prior to sentencing, the court stated on the record:
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THE COURT: The trouble is your targets were very 

young children. Your desires are children that are 

prepubescent. . . . It means you do pose a danger, 

which means you have to be 100 percent committed 

to your treatment. And I think that’s where you failed 

You started to succeed and you got sloppy, you slid 

back to your old ways. . . . 

You need to reboot and try again I’m not giving 

up on you but I think you need a chance to get back 

to where you were. I’m glad that you say you need 

help but it can’t just be words to make the judge go 

easy on you. You’ve got to accept it yourself. . . . 

Taking into consideration his history, the time 

he served, the obvious needs that still lie ahead, and 

taking into consideration his age, I’m going to 

formulate the sentence as follows . . . .

Trial Court Opinion, 2/20/20, at 5-7 (cleaned up). 

Upon review of the certified record, we discern no abuse of discretion. 

First, as noted above, Appellant agreed as part of his negotiated plea that he 

would have to successfully complete sex offender counseling and was 

restricted in possession of pornography. See N.T. Plea, 2/4/08, at 4. The 

trial court’s recitation above, which is supported by the record, establishes 

that Appellant viewed child pornography and he did not successfully complete 

his counselling. See N.T. Revocation, 11/18/19, at 8. Therapist Andrea 

Karlunas testified Appellant’s hiding of his high-risk behaviors such as 

watching child pornography and masturbating to thoughts of his victims from 

his therapist, his being deceptive in his polygraph, and his blaming his 

counsellors for not asking the right questions, caused Commonwealth Clinical 

Group to conclude that they “could no longer maintain him in the community.” 
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Id. at 9. These behaviors, plus his admitted payment of prostitutes for sex,

reasonably suggest that total confinement is warranted under the applicable 

legal principles. See Pasture, supra at 28.

Turning to the supposed excessiveness of the term of incarceration 

imposed, we first note that Appellant’s claim that the court failed to consider 

the mitigating factors is belied by the record. The trial court clearly took into 

account Appellant’s age and circumstances. See N.T. Revocation, 11/18/19, 

at 17, 19, 23. 

“A trial court does not necessarily abuse its discretion in imposing a 

seemingly harsh post-revocation sentence where the defendant originally 

received a lenient sentence and then failed to adhere the conditions imposed 

on him.” Schutzues, supra at 99. Even though sentencing guidelines do 

not apply to sentences imposed following probation revocation, see id. at 27, 

the trial court considered them, and imposed a sentence below the standard 

range. See Trial Court Opinion, 2/20/20, at 5 (explaining that the guidelines 

called for a standard-range sentence of fifty-four to seventy-two months for 

each of the rape convictions). Hence, Appellant was actually given lenient 

sentences both initially and upon revocation of his probation. We cannot 

conclude that such a sentence was an abuse of discretion under these 

circumstances. Accord Schutzues, supra at 100 (affirming judgment of 

sentence of six and one-half to thirteen years of incarceration after the 

defendant violated a term of his probation, following a negotiated lenient term 
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of imprisonment, by having contact with his young nieces who were of similar 

age of his victims).

In conclusion, Appellant has not shown that “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.” 

Antidormi, supra at 760. Thus, he is entitled to no relief from this Court. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/29/2020