J-S64001-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSHUA LEVERS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 447 WDA 2018

Appeal from the Judgment of Sentence March 5, 2018

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

No(s): CP-63-CR-0002772-2014

COMMONWEALTH OF PENNSYLVANIA

v.

JOSHUA SETH LEVERS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 448 WDA 2018

Appeal from the Judgment of Sentence March 5, 2018

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

No(s): CP-63-CR-0002773-2014

COMMONWEALTH OF PENNSYLVANIA

v.

JOSHUA SETH LEVERS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 449 WDA 2018

Appeal from the Judgment of Sentence March 5, 2018

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

No(s): CP-63-CR-0001422-2015
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BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.: FILED DECEMBER 12, 2019

Joshua Levers appeals from the judgment of sentence of an aggregate 

term of three-and-one-half to ten years of incarceration imposed after 

revoking Appellant’s sentence of state intermediate punishment (“SIP”).

1

 We 

affirm.

The trial court offered the following summary of the factual background

of the cases involved in this appeal.

This case arises out of three separate criminal complaints 

filed against [Appellant]. On October 27, 2014, a criminal 

complaint was filed whereby the Defendant was charged with one 

count of flight to avoid apprehension, trial, or punishment, one 

count of resisting arrest or other law enforcement, one count of 

possession of a controlled substance, one count of use or 

possession of a controlled substance, one count of disorderly 

conduct, one count of terroristic threats, and one count of 

harassment.

These charges arise from an incident on September 27, 

2014, [when] an officer responded to a harassment call at 104 

Warren Street, Bentleyville, Pennsylvania, where the victim, 

Susan Childs, stated that [Appellant] threatened to “beat the hell 

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* Retired Senior Judge assigned to the Superior Court.

1 As this Court has explained:

SIP is a two-year program designed to benefit persons with drug 

and alcohol problems. 61 Pa.C.S. §§ 4102-4109. In order to be 

eligible for the SIP program, a defendant cannot have a history of 

present or past violent behavior and the Pennsylvania Department 

of Corrections (“DOC”) must determine that the defendant is in 

need of drug and alcohol treatment.

Commonwealth v. Kuykendall, 2 A.3d 559, 560 (Pa.Super. 2010).
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out of her” and to slash her vehicle’s tires. After [Appellant] had 

fled from the residence, the officer pursued and apprehended him 

in the nearby woods. 

Another criminal complaint was filed on October 13, 2014, 

whereby [Appellant] was charged with one count of aggravated 

assault, one count of recklessly endangering another person, one 

count of simple assault, and one count of harassment.

These charges arise out of an incident on October 13, 2014, 

when an officer was dispatched to a domestic call on the 500 block 

of Main Street in Bentleyville, Pennsylvania. The victim, Deonnia 

Paxton, informed the officer that her husband, [Appellant], 

grabbed her around the neck and held a knife to her neck. The 

victim stated that she escaped the home on foot. As she fled, 

[Appellant] put her in a headlock and threw her to the ground, 

causing injuries to her right hand and left side of her head.

Finally, the third criminal complaint was filed on March 23, 

2015, whereby [Appellant] was charged with one count of 

burglary, two counts of criminal trespass, one count of theft by 

unlawful taking or disposition, and one count of criminal attempt,

arising from an incident on February 23, 2015, at a residence on 

54 Grange Road, in West Pike Run Township, Pennsylvania. The 

owner of the residence, Cynthia Yonkers, reported that as she

arrived at her home, she noticed a male exiting the basement door 

and carrying a stereo. She yelled at the man, causing him to drop

the stereo and flee. Subsequently, on March 2, 2015, the victim 

contacted law enforcement and identified [Appellant] as the male 

from the February incident.

Trial Court Opinion, 1/10/19, at 2-3 (footnotes, unnecessary capitalization, 

and repetition of amounts in numerical form omitted).

Appellant entered guilty pleas and was sentenced in March 2015 to 

county intermediate punishment, including a period of electronic home 

monitoring, and counseling. Pleading guilty to new criminal charges in 

September 2015, Appellant’s sentence was revoked and Appellant was 

sentenced to probation through the mental health court program. Upon 
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violation of his probation, Appellant’s probation was revoked and he was 

sentenced in August 2016 to be placed in the SIP program, followed by a term 

of probation. In February 2018, the DOC informed the trial court that 

Appellant was expelled from the SIP program for drug use and lack of 

participation. After a hearing, Appellant’s SIP sentence was revoked. On 

March 5, 2018, the trial court imposed the term of incarceration of three-andone-half to ten years at issue in this appeal. 

Appellant thereafter filed timely notices of appeal.2 The trial court 

directed Appellant to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b), and Appellant eventually complied. Appellant 

contends on appeal that his sentence is excessive and was based upon 

improper factors. Appellant’s brief at 7. 

Before we address the merits of Appellant’s claim, we must determine 

whether it is properly before us. As the trial court and the Commonwealth 

note, Appellant’s 1925(b) statement was filed late. The consequence of a late 

1925(b) statement is usually waiver.3 See Pa.R.A.P. 1925(b)(4)(vii). 

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2 Although this appeal predates our Supreme Court’s decision 

Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), we note that Appellant 

filed a separate notice of appeal at each docket number implicated by the 

March 5, 2019 sentencing proceeding. 

3 The Commonwealth argues that Appellant’s failure to file a timely 1925(b) 

statement renders this appeal untimely even though the notice of appeal was 

timely filed. Commonwealth’s brief at 18-20. There is no support in the law 
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However, waiver does not apply in the instant case because the trial court’s 

April 12, 2018 order was not entered on the docket in compliance with

Pa.R.Crim.P. 114(C)(2)(c) by indicating the fact and date of service on the 

parties.4 See Commonwealth v. Chester, 163 A.3d 470, 472 (Pa.Super. 

2017) (holding order to file Rule 1925(b) statement was unenforceable where 

there was no indication on the docket of the date of service of the order 

requiring its filing). Accordingly, we consider whether Appellant has raised a

viable challenge to the discretionary aspects of his sentence.

The following well-established principles of law guide our review:

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.

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for the Commonwealth’s contention that lack of compliance with Rule 1925 

negates the timeliness of the appeal. 

4 Even if the trial court’s order were enforceable, remand, rather than waiver, 

would result pursuant to Rule 1925(c)(3) (providing for remand for a nunc pro 

tunc statement where counsel was per se ineffective in failing to file a timely 

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

(internal citations omitted). 

Appellant filed a timely notice of appeal, and his 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). Although he did not preserve 

his issue in a post-sentence motion, we conclude that his failure to do so is 

not fatal to his challenge. The Rules of Criminal Procedure provide as follows 

regarding sentencing upon violation of intermediate punishment:

The judge shall advise the defendant on the record: 

(a) of the right to file a motion to modify sentence and to appeal, 

of the time within which the defendant must exercise those rights, 

and of the right to assistance of counsel in the preparation of the 

motion and appeal[.]

Pa.R.Crim.P. 708(D)(3). As the transcript contains no such statement by the 

trial court, waiver does not apply. See Commonwealth v. Moore, 453 A.2d 

1029, 1030 (Pa.Super. 1982) (“[A]ppellant did not waive his right to 

challenge his sentence unless he knew that he had such a right, and he will 

not be deemed to have known that he had such a right unless the lower court 

told him that he did and also, told him how he could exercise his right.”). 

Thus, we consider whether Appellant has raised a substantial question

that his sentence is not appropriate. Appellant contends that the trial court 

improperly relied upon the DOC’s stated reasons for expelling Appellant from 

SIP in imposing an excessive aggregate sentence. We conclude that Appellant 

has raised a substantial question. See, e.g., Commonwealth v. Dodge, 77 
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A.3d 1263, 1273 (Pa.Super. 2013) (holding claim that the trial court relied 

upon impermissible sentencing factors presented a substantial question). 

Therefore, we address the merits of Appellant’s claim, mindful of the following.

“When reviewing sentencing matters, this Court must accord the 

sentencing court great weight as it is in the best position to view the 

defendant’s character, displays of remorse, defiance or indifference, and the 

overall effect and nature of the crime.” Commonwealth v. Ventura, 975 

A.2d 1128, 1134 (Pa.Super. 2009). Hence, we review the sentencing court’s 

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 

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). 

With these principles in mind, we turn to the substance of Appellant’s 

argument. Appellant acknowledges that he was expelled from SIP because 

he had relapsed and fallen back into using illegal drugs. However, Appellant 

complains that his sentence is excessively long insofar as it is based in part 

upon the trial court’s focus on documents supplied by the DOC that Appellant’s 

“lack of meaningful participation” in the program as well as drug use motivated 

his expulsion. Appellant’s brief at 11. Relying upon this Court’s decision in 

Commonwealth v. Schultz, 116 A.3d 1116, 1121 (Pa.Super. 2015), 

Appellant contends that the reasons why Appellant was expelled from the SIP 
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program were irrelevant and improperly considered at the sentencing hearing. 

Id. at 11-13.

In Schultz, the issue was whether the trial court erred in entertaining 

at a revocation hearing testimony from a DOC SIP coordinator about the 

reasons for the defendant’s expulsion from the program. The Court began by 

examining the statutes regarding expulsion from the SIP program on the one 

hand, and revocation of an SIP sentence on the other. The statute concerning 

the former provides as follows in relevant part:

(f) Expulsion from program.--

(1) A participant may be expelled from the drug offender 

treatment program at any time in accordance with 

guidelines established by the department, including failure 

to comply with administrative or disciplinary procedures or 

requirements set forth by the department.

(2) The department shall promptly notify the court, the 

defendant, the attorney for the Commonwealth and the 

commission of the expulsion of a participant from the drug 

offender treatment program and the reason for such 

expulsion. The participant shall be housed in a State 

correctional institution or county jail pending action by the 

court.

(3) The court shall schedule a prompt State intermediate 

punishment revocation hearing pursuant to 42 Pa.C.S. 

§ 9774 (relating to revocation of State intermediate 

punishment sentence).

61 Pa.C.S. § 4105. 

The statute governing revocation of a SIP sentence states as follows:
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(a) General rule.--The court may at any time terminate a 

sentence of State intermediate punishment pursuant to 61 Pa.C.S. 

Ch. 41 (relating to State intermediate punishment).

(b) Revocation.--The court shall revoke a sentence of State 

intermediate punishment if after a hearing it determines that the 

participant was expelled from or failed to complete the program.

(c) Proceedings upon revocation.--Upon revocation of a State 

intermediate punishment sentence, the sentencing alternatives 

available to the court shall be the same as the alternatives 

available at the time of initial sentencing. The attorney for the 

Commonwealth must file notice, at any time prior to resentencing, 

of the Commonwealth’s intention to proceed under an applicable 

provision of law requiring a mandatory minimum sentence.

42 Pa.C.S. § 9774

Noting that the decision whether to expel someone from the program is 

the sole province of the DOC, this Court held that the only question to be 

decided by a court at a revocation hearing held pursuant to 42 Pa.C.S. 

§ 9774(b) is if the DOC expelled the defendant or he failed to complete the 

program. “Section 9774(b) . . . only requires the Commonwealth to prove the 

fact of expulsion or non-completion. Once the trial court finds this fact, it is 

required to revoke under Section 9774(b).” Schultz, supra at 1121. 

Accordingly, we held that testimony about why the defendant was expelled 

from SIP by the DOC was legally irrelevant at the § 9774(b) hearing. Id. 

The Commonwealth aptly points out that Schultz is inapposite because 

the hearing at which the trial court discussed the reasons for Appellant’s 

expulsion from SIP by the DOC was a resentencing hearing pursuant to 

§ 9774(c), not merely a § 9744(b) revocation hearing. See 
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Commonwealth’s brief at 22-24. It is axiomatic that the trial court’s sentence 

is to be based upon consideration of, inter alia, the defendant’s rehabilitative 

needs. See, e.g., 42 Pa.C.S. § 9721(b) (detailing general sentencing 

standards). Appellant asked the court to allow him to live with his father and 

receive outpatient treatment, promising that this time he was ready to follow 

through with recovery through NA and AA. See, e.g., N.T. Revocation and 

Sentencing, 3/5/18, at 6-7. As such, the fact that Appellant was expelled 

from the SIP drug offender treatment program for both drug use and lack of 

meaningful participation was certainly relevant to Appellant’s amenability to 

rehabilitation through treatment. 

Accordingly, Appellant has failed to demonstrate that the trial 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. We thus have no reason to disturb the 

trial court’s exercise of discretion. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/12/2019