J-S32033-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF 

: PENNSYLVANIA 

Appellee :

 :

v. :

:

MICHAEL R. NEPPACH, :

 :

Appellant : No. 1965 WDA 2014 

Appeal from the Judgment of Sentence entered on October 28, 2013 

in the Court of Common Pleas of Beaver County, 

Criminal Division, No(s): CP-04-CR-0002257-2010; 

CP-04-CR-0002434-2012 

BEFORE: SHOGAN, OLSON and MUSMANNO, JJ. 

MEMORANDUM BY MUSMANNO, J.: FILED JUNE 03, 2015 

Michael R. Neppach (“Neppach”) appeals from the judgment of 

sentence imposed following the revocation of his probation/parole. We 

affirm. 

This appeal involves three separate cases that were consolidated at 

the probation revocation court level: 2257-2010 (“No. 2257”); 1667-2012 

(“No. 1667”); and 2434-2012 (“No. 2434”). At No. 2257, the 

Commonwealth charged Neppach, in November 2010, with retail theft, to 

which he subsequently pled guilty and received a sentence of three years of 

probation. While Neppach was on probation, the Commonwealth charged 

him with retail theft at No. 1667, to which he pled guilty in October 2012, 

and was sentenced to two years of probation. In December 2012, the 

Commonwealth charged Neppach at No. 2434 with criminal trespass and 
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possession of drug paraphernalia. Neppach pled guilty to criminal trespass 

and was sentenced to serve 61⁄2 to 23 months in the Beaver County Jail, 

followed by three years of probation. 

In January 2013, concerning Nos. 2257 and 1667, the Commonwealth 

filed a Petition to revoke Neppach’s probation, alleging technical violations 

based upon the new charges against Neppach at No. 2434. Following 

Neppach’s subsequent stipulation to the probation violations, the court 

revoked his probation and sentenced him to 6 to 231⁄2 months in the Beaver 

County Jail, followed by one year of probation. 

In August 2013, after Neppach had completed his minimum 61⁄2-month 

sentence imposed at No. 2434, he was released on parole, and ordered by 

the trial court to enter inpatient drug and alcohol treatment at the 

Gaudenzia Treatment Center (“Gaudenzia”).1 However, Neppach left 

Gaudenzia within 24 hours, without informing the Adult Probation and Parole 

Office. Accordingly, a warrant was issued for his arrest. 

On August 30, 2013, the Commonwealth again filed a Petition to 

revoke Neppach’s probation/parole, on all three case numbers, based upon 

Neppach’s technical violation by leaving Gaudenzia. After ordering a 

presentence investigation report and considering the Commonwealth’s 

 

1

 This Court has noted that “a sentencing court can, as a condition of parole, 

require a defendant to ‘satisfy any other conditions reasonably related to the 

rehabilitation of the defendant and not unduly restrictive of his liberty or 

incompatible with his freedom of conscience.’” Commonwealth v. 

Cappellini, 690 A.2d 1220, 1226 (Pa. Super. 1997) (quoting 42 Pa.C.S.A. 

§ 9754(c)(13)). 
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Petition, the probation revocation court revoked Neppach’s probation/parole, 

and imposed the following sentences: (1) at No. 1667, time served of 237 

days; (2) at No. 2257, sixteen to sixty months in a State Correctional 

Institution; and (3) at No. 2434, sixteen to sixty months in a State 

Correctional Institution, to run concurrently with the sentence at No. 2257. 

Notably to the instant appeal, the probation revocation court gave Neppach 

242 days’ credit for time served concerning No. 2257, and 308 days at No. 

2434. The probation revocation court applied these periods as back-time 

toward the parole portion of the underlying sentences, and terminated 

parole in both cases. Neppach timely filed a post-sentence Motion, arguing 

that his sentences were excessive, and challenging the court’s application of 

credit for time served to the parole portion of his underlying sentences at 

Nos. 2257 and 2434. The probation revocation court denied Neppach’s 

Motion. 

Following a procedural history that is not relevant to this appeal, 

Neppach timely filed a Notice of Appeal, nunc pro tunc, in November 2014.2

Neppach timely filed a Pa.R.A.P. 1925(b) Concise Statement of Errors 

Complained of on Appeal, after which the probation revocation court issued 

an Opinion. 

On appeal, Neppach presents the following issues for our review: 

 

2

 Neppach’s appeal concerns only his sentences at Nos. 2257 and 2434. 

Neppach’s sentence at No. 1667 is not implicated because it was terminated 

and closed after the probation revocation court imposed a sentence of time 

served. 
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I. [Whether the probation revocation] court abused its

discretion in imposing a sentence of total confinement 

following a parole/probation revocation hearing, by stating 

on the record that the parole was terminated, and that [] 

Neppach would receive credit for time served on a 16 to 60 

month sentence imposed at [Nos. 2257 and 2434], but then 

later drafting the written sentencing [O]rder[,] which 

directed that all credit for time served went toward the 

terminated parole, with zero credit toward the concurrent 16 

to 60 month sentence at each case[?] This sentence, 

handled in this fashion, was excessive and unreasonable in 

light of the amount of time already served on the underlying 

cases; the nature of the underlying cases involving criminal 

trespass and retail theft; and the fact that the revocation 

was caused by a technical violation – namely, that [] 

Neppach did not return to an inpatient treatment facility and 

contacted his probation officer two days later. 

II. [Whether the probation revocation] court abused its

discretion in imposing a sentence of total confinement – 

which was tantamount to an aggravated[-]range sentence, 

just shy of the statutory maximum – [and] which was

unduly harsh, excessive and unreasonable in light of the 

objectives of the Sentencing Code[,] as established in [42 

Pa.C.S.A.] § 9721(b), where the sentence imposed did not 

address [] Neppach’s time already served, his specific 

circumstances which caused the technical violation, the 

underlying charges of retail theft and criminal trespass; and 

[] Neppach’s rehabilitative needs[,] when compared to the 

need to protect the public, and where the [probation 

revocation] court failed to state on the record adequate 

reasons that would support the need to impose an 

aggravated[-]range sentence[?] 

Brief for Appellant at 6 (capitalization omitted).

 First, Neppach argues that the probation revocation court erred in its 

application of credit for time he had served in jail toward Nos. 2257 and 

 
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2434, i.e., 242 days, and 308 days, respectively. See id. at 18-19.3 

 The probation revocation court explained and addressed Neppach’s 

claim in its Pa.R.A.P. 1925(a) Opinion as follows: 

[Neppach] alleges that the [probation revocation c]ourt, 

during [Neppach’s] sentencing hearing, stated that [] Neppach 

would receive credit for time served on the sixteen to sixty 

month sentence[s] [imposed concurrently at Nos. 2257 and 

2434], but then drafted the written [sentencing] Order to say 

that this credit would be directed towards parole, which was then 

revoked. [See Brief for Appellant at 19.] The [c]ourt did indeed 

credit that time towards parole in its written [O]rder, and that 

sentence, delivered on the record during the hearing, was 

consistent with the written Order, as the record reveals. The 

transcript shows that the [c]ourt stated the following with regard 

to [No.] 2257 ...: 

[Neppach’s] parole is terminated. He is to receive credit 

for the dates in [jail] that he has on that case, which is 

242 days. [Neppach] is sentenced to serve not less than 

16 months, nor more than 60 months in a State penial 

[sic] or correctional institution or facility as the Bureau of 

Corrections shall determine. 

N.T., 10/28/13, at 19. Similarly, with regard to [No.] 2437 ..., 

the [c]ourt stated: 

[Neppach’s] parole is terminated. [Neppach] is [] given 

credit for the time period that he had in [jail], which in 

this case[,] my determination from the pre-sentence

report[,] is 308 days. [Neppach] is sentenced to serve 

not less than 16 months to 60 months in a State penial 

[sic] or correctional institution or facility[,] as the Bureau 

of Corrections shall determine, as I indicated, not less 

than 16 months, nor more than 60 months. 

 

3

 Though Neppach patterns his instant claim as a challenge to the 

discretionary aspects of his sentence, in reality, it is a challenge to the 

legality of the sentence. See Commonwealth v. Johnson, 967 A.2d 1001, 

1003 (Pa. Super. 2009) (stating that a challenge to a sentencing court’s 

failure to award proper credit for time served prior to sentencing implicates 

the legality of sentence). 
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Id. at 21. At no time did the [c]ourt state that the time would 

be credited to [Neppach’s] new confinement portion rather than 

the parole portion. Indeed, the [c]ourt’s statement that 

[Neppach] would receive credit immediately after the [c]ourt 

had stated that parole was terminated, and before imposing its 

sixteen to sixty month sentence on the probation violation, is a 

clear indication that the credit would be applied to the parole 

portion. Thus, the [c]ourt’s statements in imposing sentence 

during the hearing were in no way inconsistent with its later 

written Orders. 

Probation Revocation Court Opinion, 1/9/05, at 11-12 (emphasis in original, 

citation to Neppach’s brief added). Our review discloses that the court’s 

foregoing analysis is supported by the record. The probation revocation 

court gave Neppach back-time credit toward the parole portion of his 

underlying sentences at Nos. 2257 and 2434; granting him additional credit 

would amount to an inappropriate double credit for Neppach. See Jackson 

v. Vaughn, 777 A.2d 436, 438 (Pa. 2001) (holding that the appellant was 

not entitled to double credit for time served where “that time ha[d] already 

been credited towards his parole violation sentence.”). Accordingly, we 

discern no error by the probation revocation court in its application of credit 

for time served toward Nos. 2257 and 2434, and Neppach’s contention to 

the contrary lacks merit.

 Next, Neppach argues that the probation revocation court abused its 

discretion by imposing a sentence of total confinement for his technical 

probation violation in leaving Gaudenzia. See Brief for Appellant at 10, 22-

24. Neppach contends that the aggregate sentence at Nos. 2257 and 2434 

of sixteen to sixty months in prison is unduly harsh, excessive and 
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manifestly unreasonable, particularly in light of the fact that his underlying 

convictions were for retail theft and criminal trespass. See id. Neppach 

further asserts that this sentence is contrary to section 9771(c) of the 

Sentencing Code,4 in that “Neppach did not commit a new crime; the 

[probation revocation] court did not determine that he was likely to commit 

another crime; nor did the court indicate that total confinement was 

necessary to vindicate the authority of the court.” Id. at 23. 

Neppach challenges the discretionary aspects of his sentence. 

Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to review as of right. Commonwealth v. Moury, 992 A.2d 162, 

170 (Pa. Super. 2010). Rather, 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, [see] Pa.R.A.P. 2119(f); and (4) whether 

 

4

 Section 9771(c) provides as follows: 

The court shall not impose a sentence of total confinement upon 

revocation 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.A. § 9771(c). 
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there is a substantial question that the sentence appealed from 

is not appropriate under the Sentencing Code, [see] 42 

Pa.C.S.A. § 9781(b). 

Moury, 992 A.2d at 170 (citation omitted). 

Here, Neppach filed a timely Notice of Appeal and preserved the 

challenge to his sentence in a timely post-sentence Motion. He also has 

included a concise statement of the reasons relied upon for allowance of 

appeal in his brief, pursuant to Pa.R.A.P 2119(f). Additionally, we determine 

that Neppach’s claim presents a substantial question. See Commonwealth 

v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000) (stating that a substantial 

question is presented when a probation revocation sentence of total 

confinement, in excess of the original sentence, is imposed as a result of a 

technical violation of parole or probation);5 see also Commonwealth v. 

Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006) (stating that the appellant 

presented a substantial question by asserting that the sentencing court did 

not comply with section 9771(c) of the Sentencing Code when imposing its 

revocation sentence).

The imposition of sentence following the revocation of probation is 

vested within the sound discretion of the probation revocation court, which, 

 

5 We observe that technical violations can be sufficient to trigger the 

revocation of probation. See Commonwealth v. Infante, 888 A.2d 783, 

791 (Pa. 2005) (stating that “the reason for revocation of probation need not 

necessarily be the commission of or conviction for subsequent criminal 

conduct. Rather, ... [a] probation violation is established whenever it is 

shown that the conduct of the probationer indicates the probation has 

proven to have been an ineffective vehicle to accomplish rehabilitation and 

not sufficient to deter against future antisocial conduct.” (citation omitted)).
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absent an abuse of that discretion, will not be disturbed on appeal. Sierra,

752 A.2d at 913. Upon review, we determine the validity of the probation 

revocation proceedings and the authority of the sentencing court to consider 

the same sentencing alternatives that it had at the time of the initial 

sentencing. 42 Pa.C.S.A. § 9771(b); Commonwealth v. Gheen, 688 A.2d 

1206, 1207-08 (Pa. Super. 1997). When imposing a sentence of total 

confinement after a probation revocation, the sentencing court must 

consider the factors set forth in sections 9771(c) and 9721(b) of the 

Sentencing Code. Ferguson, 893 A.2d at 739; see also 42 Pa.C.S.A. 

§ 9721(b) (providing that when determining an appropriate sentence, the 

court must consider the protection of the public, the gravity of the offense in 

relation to the impact on the victim and the community, and the 

rehabilitative needs of the defendant). Following revocation of probation, a 

sentencing court need not undertake a lengthy discourse for its reasons for 

imposing a sentence of total confinement, but the record as a whole must 

reflect the sentencing court’s consideration of the facts of the crime and 

character of the offender. Commonwealth v. Crump, 995 A.2d 1280, 

1283 (Pa. Super. 2010). 

Here, the probation revocation court addressed Neppach’s challenge to 

his sentence in the court’s Rule 1925(a) Opinion as follows: 

During [the] probation violation hearing, the [probation 

revocation c]ourt considered the presentence investigation 
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report[6] and heard testimony from Institutional Parole 

Representative/Jail Population Control Officer for Beaver 

County[,] Bradley A. Herr [“Herr”]. The presentence report 

showed that [Neppach] has an extensive criminal history[,] 

including fifteen convictions. [Neppach previously] had been 

placed on ARD, probation, intermediate punishment, [County] 

incarceration, State incarceration, and parole. [Neppach] had 

been arrested and convicted six times from 2009 to 2013, and 

failed to complete supervision on any of these convictions. 

When placed on probation in Butler County in 2010, [Neppach] 

received new charges only eleven days later in Beaver County. 

Finally, when sent for inpatient care at [] Gaudenzia ... in the 

present cases, [Neppach] left the facility [with]in less than 

twenty-four hours, without notice or authorization. When he 

finally contacted [] Herr and left a voice message three days 

after leaving [Gaudenzia], [Neppach] did not inform [Herr of] his 

location or contact information. Thus, all attempts to divert 

[Neppach] away from his past criminal behavior have been 

unsuccessful. As [] Herr advised, “We’ve pretty much done what 

we can do on this on a county level as far as I’m concerned.” 

In considering these facts, the [probation revocation 

c]ourt[,] although not required to do so, consulted the 

sentencing guidelines.[7] Based on the evidence, [Neppach] has 

simply not been responsive to any of the alternative forms of 

treatment he has been offered. The public would not be 

adequately protected by a lesser sentence. 42 Pa.C.S.A. 

§ 9721(b). [Neppach] has shown, over a long criminal history 

with numerous convictions, that he is unwilling to complete any 

form of supervised release or inpatient treatment as directed. 

Further, the gravity of [Neppach’s] offenses is substantial, and 

includes two third-degree felonies. Id. Finally, as shown by his 

willful refusal to accept his court-ordered inpatient treatment at 

[] Gaudenzia ..., [Neppach’s] rehabilitative needs were simply 

 

6

 “[W]here the trial court is informed by a pre-sentence report, it is 

presumed that the court is aware of all appropriate sentencing factors and 

considerations[.]” Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. 

Super. 2009). 

7 See Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (observing 

that the sentencing guidelines do not apply to sentences imposed as result 

of revocation of probation). However, the sentences that the probation 

revocation court imposed at Nos. 2257 and 2434 were within the standard 

range of the sentencing guidelines. See N.T., 10/28/13, at 6. 
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not being met by the previous sentence. Id. Therefore, in the 

judgment of the [probation revocation c]ourt, a significant period 

of confinement was indicated and the sentences imposed were 

both reasonable and appropriate under the facts and

circumstances of this case.[FN]

[FN] The [c]ourt also notes that, despite the many factors 

weighing in favor of an extended period of confinement in 

both cases, the [c]ourt did not run [Neppach’s separate] 

sixteen to sixty month sentences in [Nos.] 2257 [] and 

2434 [] consecutively, but rather ran them concurrently. 

Probation Revocation Court Opinion, 1/9/05, at 12-13 (citation to record and 

some capitalization omitted; footnote in original; additional footnotes 

added). 

After review, we agree with the probation revocation court’s foregoing 

rationale, and conclude that the court did not abuse its discretion by 

imposing Neppach’s sentence of total confinement, which we find is neither 

excessive nor contrary to the Sentencing Code. See Sierra, 752 A.2d at 

915 (holding that the sentencing court’s imposition of a prison sentence 

following a probation violation was not an abuse of discretion, since the 

sentence was based upon the judge’s in-depth knowledge of the individual, a 

finding that parole and probation were not effective in rehabilitating the 

defendant, and that a further prison term was appropriate); see also 

Commonwealth v. Carver, 923 A.2d 495, 498 (Pa. Super. 2007) (stating 

that technical probation violations, where flagrant and indicative of an 

inability to reform, can support revocation and imprisonment); Cappellini, 

690 A.2d at 1226-27, 1228 (holding that the probation revocation court 

properly exercised its discretion in revoking the defendant’s probation and 
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imposing a sentence of total confinement where he violated conditions of his 

probation to participate in drug and alcohol treatment and testing, and 

refrain from contact with drug offenders, which evidenced his inability to 

reform). 

In light of the foregoing, and based upon our review of the record, we 

conclude that the probation revocation court did not commit an error of law 

or abuse its discretion in imposing Neppach’s sentence, or in giving him 

credit for time served. 

 Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 6/3/2015