J-S28040-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SHAWN CARL ROGERS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 94 MDA 2020

Appeal from the Judgment of Sentence Entered January 2, 2020

in the Court of Common Pleas of Huntingdon County 

Criminal Division at No(s): CP-31-CR-0000376-2015

BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 20, 2020

Shawn Carl Rogers (“Rogers”) appeals from the judgment of sentence 

imposed following the revocation of his probation. We affirm.

Between 2013 and 2015, Rogers was employed by Tuscarora Organic 

Growers (“Tuscarora Organic”). During his employment as the bookkeeper, 

Rogers used Tuscarora Organic’s payment system to write unauthorized 

checks to himself for a total of $18,961.64. 

On March 3, 2017, Rogers entered a negotiated guilty plea to two counts 

of forgery, and one count each of theft by unlawful taking, theft by deception, 

receiving stolen property, and conspiracy.

1

 Additionally, Rogers agreed to pay 

the full amount of restitution and to make a $7,150.00 payment to Tuscarora 

Organic prior to the start of his sentence. The trial court accepted Rogers’s 

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1 18 Pa.C.S.A. §§ 4101(a)(2), 3921(a), 3922(a)(1), 3925(a), 903.
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guilty plea and deferred sentencing for the purposes of preparing a presentence investigation report.

On May 25, 2017, in accordance with the terms of the plea agreement, 

the trial court sentenced Rogers to a period of two to six months in prison at 

the Huntingdon County Correctional Facility, followed by 3 years’ probation, 

plus fines and costs. Additionally, Rogers was ordered to undergo drug and 

alcohol evaluation and treatment. The trial court delayed Rogers’s sentence 

pending his $7,150.00 payment. Rogers successfully made the initial payment 

and subsequently reported to the Huntingdon County Correctional Facility on 

February 2, 2018, to begin his sentence. Rogers did not file any post-sentence 

motions or a direct appeal.

On June 22, 2018, Rogers was released from prison. At that time, 

Rogers entered into a payment plan with the Huntingdon Probation 

Department (“Probation Department”) to pay $530.00 a month toward his 

restitution, fines, and costs.

On December 12, 2018, the Probation Department filed a Petition to 

revoke Rogers’s probation based on technical violations of the terms of his 

probation. The Petition alleged that Rogers had failed to attend two 

appointments with his probation officer, failed to notify the Probation 

Department of his change of address and change in employment, and failed 

to make his monthly $530.00 payments. The trial court scheduled a Gagnon 
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I

2 hearing for December 28, 2018,3 and Rogers subsequently failed to appear. 

The trial court issued a bench warrant for Rogers, and he was arrested on 

June 10, 2019.

On June 11, 2019, the trial court conducted a combined Gagnon I and 

contempt hearing. At the close of the hearing, the trial court found that (1) 

probable cause existed that Rogers had violated his probation, but he would 

be released pending a Gagnon II hearing; and (2) Rogers was in indirect 

criminal contempt for failure to pay fines, costs, and restitution. Additionally, 

Rogers agreed to pay another $2,000.00 towards his restitution by August 14, 

2019. Rogers was only able to pay $1,697.69 by August 14, 2019. 

Prior to the Gagnon II hearing, the Probation Department filed an 

Amended Petition to revoke Rogers’s probation. The Amended Petition alleged 

that Rogers had failed to undergo the court-ordered drug and alcohol 

evaluation and treatment; Rogers had fled the state and was in North Carolina 

for approximately one month without notifying the Probation Department; and 

Rogers had tested positive for marijuana metabolites on June 14, 2019. In 

response to the Amended Petition, Rogers filed a Motion to 

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2 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).

3

In its Opinion, the trial court states that the Gagnon I hearing was scheduled 

for December 28, 2018; however, the docket does not reflect a hearing 

scheduled for that day. 
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Clarify4the restitution amount and the trial court ordered a hearing to be held 

on November 7, 2019.

The Gagnon II hearing was held on November 6, 2019, and Rogers 

again failed to appear. However, Rogers did appear on November 7, 2019,

for a hearing on Rogers’s Motion to Clarify the restitution amount. The trial 

court proceeded to conduct a hearing for “all open matters regarding 

[Rogers]’s probation.” See Trial Court Opinion, 1/28/20, at 3. During the 

hearing, Rogers stipulated that he was in violation of his probation. At the 

conclusion of the hearing, the trial court found that Rogers had violated his 

probation, revoked Rogers’s probation, and scheduled a sentencing hearing 

for January 2, 2020. 

On January 2, 2020, the trial court resentenced Rogers to 12 to 24 

months in prison. Rogers did not file a post-sentence motion. Rogers filed a 

timely Notice of Appeal and a contemporaneous Pa.R.A.P. 1925(b) Concise 

Statement of errors complained of on appeal. The trial court filed a Pa.R.A.P. 

1925(a) Opinion. 

Rogers now raises the following claim for our review: “Is the sentence 

imposed on [] Rogers manifestly excessive, given his acceptance of 

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4

In his Motion, Rogers argued that the Probation Department had alleged an 

incorrect amount of restitution. Specifically, Rogers claimed that the initial 

restitution amount was $18,961.94, but the Probation Department had alleged 

that Rogers owed $23,562.69 in restitution. Additionally, Rogers reminded 

the trial court that he had paid $7,150.00 of the restitution prior to the 

beginning of his sentence and, thus, his remaining restitution should have 

been $11,811.94. Rogers’s Motion to Clarify did not calculate his additional 

payment of $1,697.69.
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responsibility for his actions, his lack of prior criminal record, and his attempts 

at payment of restitution?” Brief for Appellant at 3.

Rogers claims that his sentence of 12 to 24 months in prison was 

manifestly excessive, and that the trial court failed to consider mitigating 

factors in fashioning Rogers’s sentence. Id. at 13. Additionally, Rogers 

contends that the trial court should have sentenced him to a period of 

probation instead of prison time and, in doing so, failed to consider his prior 

criminal record. Id. at 11-12. Further, Rogers claims that the trial court 

engaged in “message sending goals.” Id. at 12. Finally, Rogers argues that 

the trial court abused its discretion by sentencing him to a period of total 

confinement for technical violations. Id.

Rogers challenges the discretionary aspects of his sentence, from which 

there is no absolute right to appeal. See Commonwealth v. Sunealitis, 153 

A.3d 414, 420 (Pa. Super. 2016). Rather, when an appellant challenges the 

discretionary aspects of his sentence, we must consider his brief on this issue 

as a petition for permission to appeal. Commonwealth v. Yanoff, 690 A.2d 

260, 267 (Pa. Super. 1997); see also Commonwealth v. Tuladziecki, 522 

A.2d 17, 18 (Pa. 1987). Prior to reaching the merits of a discretionary 

sentencing issue,

[this Court conducts] a four-part analysis to determine: (1) 

whether appellant has filed a timely notice of appeal, see 

Pa.R.A.P. 902 and 903; (2) whether the issue was properly 

preserved at sentencing or in a motion to reconsider and modify 

sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief 

has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a 
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substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation 

marks and some citations omitted).

Here, Rogers filed a timely Notice of Appeal and properly included a Rule 

2119(f) Statement in his brief. However, Rogers did not object at sentencing 

to the trial court’s allegedly excessive sentence, nor did he file a post-sentence 

motion. See Commonwealth v. Gibbs, 981 A.2d 274, 282-83 (Pa. Super. 

2009) (stating that a challenge to the discretionary aspects of a sentence is 

waived where the appellant failed to preserve such challenge at sentencing or 

in a post-sentence motion). Accordingly, Rogers has waived his challenges to 

the discretionary aspects of his sentence on appeal. See id.; see also

Commonwealth v. Barnhart, 933 A.2d 1061, 1066-67 (Pa. Super. 2007). 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/20/20