J-S78008-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CHRISTOPHER MUMMERT,

Appellant No. 1748 WDA 2015

Appeal from the Judgement of Sentence Entered September 30, 2015

In the Court of Common Pleas of Cambria County

Criminal Division at No(s): CP-11-CR-0001295-2010

BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 7, 2016

Appellant, Christopher Mummert, appeals from the judgment of 

sentence of 2-8 years’ incarceration, imposed following the revocation of his 

probation imposed for two sexual offenses. Specifically, Appellant contends 

that the sentencing court erred by increasing the length of his sentence 

following the granting of his post-sentence motion (PSM). After careful 

review, we affirm.

The sentencing court summarized the pertinent factual and procedural 

history of this case as follows:

In 2010, [Appellant] was charged with Statutory Sexual 

Assault, Aggravated Indecent Assault, Indecent Assault, and 

Corruption of Minors, for alleged sexual acts with D.B., a female 

juvenile born [in] March [of] 1996. On February 22, 2011, 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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[Appellant] pled guilty to Statutory Sexual Assault [("Count 1")] 

and Unlawful Contact with Minors (reduced from Aggravated 

Indecent Assault) [("Count 2")]. On June 14, 2011, the trial 

court sentenced [Appellant] on Count 1 to a term of 

imprisonment of one year less a day to two years less a day, 

with no eligibility for "good time" (early release); and on Count 

2, to five years[’] County probation, consecutive to Count 1. 

By Order dated April 10, 2012, the trial court granted 

[Appellant]'s unopposed Motion for House Arrest, with the 

following conditions:

(1) [Appellant] shall not use a computer, smart phone, or 

any device that provides internet access at any time.

(2) [Appellant] shall continue with counseling at least one 

time per week.

(3) [Appellant] is not permitted to be employed for a 

period of at least three months.

(4) [Appellant] is also DIRECTED to follow all conditions 

established by the House Arrest Coordinator.

(5) If [Appellant] fails to comply with all conditions, his 

House Arrest shall be terminated and [Appellant] shall be 

returned to the Cambria County Prison to serve the 

remainder of his sentence.

[Order, 4/10/12, at 1 (single page)]. [Appellant] served his 

sentence on house arrest from April 17, 2012 to June 13, 2012, 

the end of his minimum sentence. [Appellant]'s maximum 

sentence of imprisonment ended on June 14, 2013, [ending his 

term of parole,] at which time he began his five-year term of 

probation. 

In May [of] 2015, [Appellant]'s Cambria County Probation 

Officer, Carla Templeton, received information from the Megan's 

Law Tip Line regarding [Appellant]'s alleged internet activity with 

a minor. Officer Templeton investigated the tip and learned that 

[Appellant] had moved without registering his new address; had 

a cell phone, internet access, and email access; and had been 

employed at Best Buy, an electronics department store. On May 

27, 2015, Officer Templeton filed a Petition for Probation/Parole 

Violation Hearing.
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On June 5, 2015, the trial court conducted a 

Probation/Parole Violation Hearing, during which [Appellant]'s 

mother, Sherri Nicoletti, confirmed that she removed [Appellant] 

from her home after she caught him accessing the internet. 

Further, [Appellant] admitted that he changed his address 

without properly notifying the Pennsylvania State Police. 

[Appellant] testified that he believed his internet restriction 

applied only to his term of house arrest from April 17, 2012 

through June 13, 2012. The trial court agreed that the Order 

dated April 10, 2012 was "somewhat ambiguous" regarding 

internet usage after expiration of [Appellant]'s house arrest, but 

noted that there was "no ambiguity about [Appellant] not being 

permitted to have contact with a minor over the internet." On 

June 8, 2015, the trial court issued an Order finding [Appellant] 

"to be in technical violation of his parole for his failure to report 

a change of address with the Pennsylvania State Police" and 

continuing his sentencing pending a hearing on the merits 

regarding the "allegations that [Appellant] had inappropriate 

internet contact with a minor." 

On June 16, 2015, the trial court conducted a hearing on 

the merits. The Commonwealth failed to provide information 

regarding identification of the Megan's Law tip provider or 

evidence to establish the age of the person [Appellant] contacted 

via the internet. Following hearing, the trial court entered an 

Order reaffirming [Appellant]'s technical parole violation for 

failure to report his change of address and resentencing 

[Appellant] to immediate re-parole without credit for time on 

parole before the violation. Additionally, the trial court 

prohibited [Appellant] from using electronic devices with internet 

capabilities for six months; prohibited [Appellant]'s employment 

by any electronics store; directed [Appellant] to cancel his cell 

phone service within seven days; allowed the Probation Office to 

regularly check [Appellant]'s cell phone; and ordered [Appellant] 

to continue weekly counseling.

On August 6, 2015, the trial court conducted a Review 

Hearing after receiving information that [Appellant] violated his 

probation. Officer Templeton testified that she confiscated 

[Appellant]'s cell phone and found text messages to two females 

from late July 2015. First, [Appellant] exchanged text messages 

with "Alexis," including discussions about Alexis "hitting puberty" 

and about her grandmother being "in denial that she has hit 

puberty." Second, [Appellant] exchanged text messages with 

"Me Too from Bucks County," whom [Appellant] (age 26) 
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acknowledged was at least 10 years his junior. In both 

conversations, [Appellant] referenced "sexually explicit 

matter[s]" and exchanged nude pictures of genitalia. Further, 

[Appellant] performed numerous Internet searches for "Bucks 

County" and told "Me Too" he "was soon going to have a job and 

he would have gas money and he would come and see them." 

Both Officer Templeton and Ms. Nicoletti identified the phone as 

belonging to [Appellant]. 

[Appellant]'s own evidence also supported a parole 

violation. [Appellant] presented a letter from Dr. Mary Berge 

and Associates dated August 5, 2015, indicating that Defendant 

was engaging in "regular counseling sessions" and was "doing 

well[,]" but "has continued to engage in behaviors that put him 

at risk for further offense, such that this information has been 

communicated to his probation officer." The trial court found 

that [Appellant] violated the terms of his parole and revoked his 

parole, remanding him to the Cambria County Prison to serve 

the remainder of his time, with no credit for time served on 

parole prior to revocation.

On August 17, 2015, [Appellant] filed a "Post-Sentence 

Motion to Modify/Clarify Sentence." On August 25, 2015, 

following a Post-Sentence Hearing, the trial court granted in part 

[Appellant]'s Motion because "[a]ll parties agree that Defendant 

was sentenced as a parole violator when in fact he should have 

been sentenced as a probation violator; therefore, [Appellant] 

will be resentenced on the probation violation." Additionally, the 

trial court granted [Appellant]'s request to postpone his 

probation violation resentencing. 

On September 30, 2015, the trial court conducted a 

Probation Violation Sentencing Hearing. The trial court found 

that [Appellant] violated the terms of his probation, revoking his 

probation and resentencing him to serve two to eight years in 

state prison, without credit for time served on parole prior to 

revocation but with credit for time served since [he was] 

detained on the probation violation.

On October 7, 2015, [Appellant] filed a "Post-Sentence 

Motion to Modify Sentence." [Appellant] requested a downward 

modification because he believed that "a sentence [of] total 

confinement in the custody of the Department of Corrections is 

unnecessary and counter to his needs for rehabilitation" and that 

a maximum sentence of eight years was "excessive" and "not 
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tailored to him as a first-time violator." On October 13, 2015, 

the trial court conducted a Post-Sentence Hearing and denied 

[Appellant]'s request for sentence modification.

On October 30, 2015, [Appellant] filed a timely Notice of 

Appeal to the Superior Court of Pennsylvania. On November 2, 

2015, the trial court entered an Order directing [Appellant] to 

file a Concise Statement of Errors Complained of on Appeal 

[pursuant to Pa.R.A.P. 1925(b)]. ... [Appellant] timely filed his 

[Rule 1925(b) statement] on November 30, 2015. 

Trial Court Opinion (TCO), 12/31/15, at 1-5 (footnotes and citations 

omitted).

Appellant now presents the following question for our review: 

“Whether the sentencing court erred when it increased a probation violator’s 

term of imprisonment when it did so only after the offender filed a [PSM] to 

correct its initial illegal sentence[?]” Appellant’s Brief at 4. 

Appellant’s claim challenges the discretionary aspects of his sentence. 

Sentencing 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 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. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007) 

(citation omitted). Moreover,

[c]hallenges to the discretionary aspects of sentencing do 

not entitle an appellant to review as of right. Commonwealth 

v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant 

challenging the discretionary aspects of his sentence must 

invoke this Court's jurisdiction by satisfying a four-part test:
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[W]e conduct 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 substantial question that the 

sentence appealed from is not appropriate under the 

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

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 

2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) 

(internal citations omitted). Objections to the discretionary 

aspects of a sentence are generally waived if they are not raised 

at the sentencing hearing or in a motion to modify the sentence 

imposed. Commonwealth v. Mann, 820 A.2d 788, 794 

(Pa.Super.2003), appeal denied, 574 Pa. 759, 831 A.2d 599 

(2003).

The determination of what constitutes a substantial 

question must be evaluated on a case-by-case basis. 

Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007). 

A substantial question exists “only when the appellant advances 

a colorable argument that the sentencing judge's actions were 

either: (1) inconsistent with a specific provision of the 

Sentencing Code; or (2) contrary to the fundamental norms 

which underlie the sentencing process.” Sierra, supra at 912-

13.

As to what constitutes a substantial question, this Court 

does not accept bald assertions of sentencing errors. 

Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 

2006). An appellant must articulate the reasons the sentencing 

court's actions violated the sentencing code. Id.

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

Instantly, Appellant preserved his claim in a PSM, filed a timely notice 

of appeal, and provided a Rule 2119(f) statement in his brief. We also 

recognize that Appellant’s claim, that the court’s sentence was the product 

of vindictiveness, presents a substantial question for our review. See 
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Commonwealth v. Tapp, 997 A.2d 1201, 1203 (Pa. Super. 2010) 

(concluding that “alleging judicial vindictiveness ... constitute[s] a substantial 

question mandating appellate review”). Accordingly, we turn to the merits 

of his claim.

A vindictive sentence constitutes an abuse of a sentencing court’s 

discretion because it arises out of “partiality, prejudice, bias or ill will.” 

Hoch, 936 A.2d at 518. This Court has recognized that “[w]here a 

subsequent sentence imposes a greater penalty than previously was 

imposed, a presumption of vindictiveness attaches.” Commonwealth v. 

Serrano, 727 A.2d 1168, 1170 (Pa. Super. 1999). “In order to overcome 

the presumption of vindictiveness, the sentencing court's reasons must be 

based upon objective information which justifies the increased sentence.” 

Id. 

Appellant asserts that there is a presumption of vindictiveness with 

regard to the sentence imposed on September 30, 2015 (hereinafter, 

“second VOP1sentence”), given that it vastly exceeded the sentence 

imposed on August 6, 2015 (hereinafter, “first VOP sentence”), and because 

the sentencing court only increased his sentence after he had exercised his 

right to further review through his August 17, 2015 PSM. Moreover, 

____________________________________________

1 Violation of Probation/Parole.
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Appellant contends the court lacked, or otherwise failed to assert, an 

objective basis for increasing his sentence. 

 We first must ascertain whether a presumption of vindictiveness 

applies in this case. Appellant’s first VOP sentence was to serve the time 

remaining on his original sentence prior to when he was paroled. Appellant 

was sentenced on June 14, 2011 to just less than 1-2 years’ incarceration. 

Had Appellant served his minimum sentence, his remaining time would have 

been, at most, one year. However, because Appellant was effectively 

paroled a few months earlier, when he was granted house arrest, it is 

estimated by Appellant that his first VOP sentence imposed a term of 

incarceration of approximately 14 months. That sentence is substantially 

less that the second VOP sentence of 2-8 years’ incarceration. Accordingly, 

we agree with Appellant that a presumption of vindictiveness applies to the 

second VOP sentence currently under review.

Appellant also asserts that “[t]here was no objective basis or change 

of circumstances to justify the court increasing the term of imprisonment.” 

Appellant’s Brief, at 23. Appellant contends that “there was no change in 

circumstances based on [his] conduct, since he was incarcerated the entire 

time on the violation.” Id. He also alleges that no additional facts 

concerning the probation/parole violation itself were discovered in the 

interim.

We disagree. Appellant is correct that the factual basis for his 

sentence did not change, in terms of the nature of his violations or issues 
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concerning his amenability to rehabilitation. However, the objective basis 

for the increase in his sentence is immediately apparent from the record, 

and arises out of the distinction between parole and probation. 

As commonly defined, probation is “[a] sentence imposed for 

commission of crime whereby a convicted criminal offender is 

released into the community under the supervision of a 

probation officer in lieu of incarceration.” BLACK'S LAW 

DICTIONARY, 835 (6th ed. 991). Conversely, parole is the 

“[r]elease from jail, prison or other confinement after actually 

serving part of the sentence. Conditional release from 

imprisonment which entitles parolee to serve remainder of his 

term outside the confines of an institution, if he satisfactorily 

complies with all terms and conditions provided in [the] parole 

order.” Id. at 770. As is relevant, a court faced with a violation 

of probation may impose a new sentence so long as it is within 

the sentencing alternatives available at the time of the original 

sentence. 42 Pa.C.S. § 9771(b) (“Upon revocation [of 

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.”). In contrast, a court faced with a parole 

violation must recommit the parolee to serve the remainder of 

the original sentence of imprisonment, from which the prisoner 

could be reparoled. See Commonwealth v. Fair, 345 Pa. 

Super. 61, 497 A.2d 643, 645 (1985) (“The power of the court 

after a finding of violation of parole in cases not under the 

control of the State Board of Parole is ‘to recommit to jail....’ 

There is no authority for giving a new sentence with a minimum 

and maximum.”) (internal citation omitted)).

Commonwealth v. Stafford, 29 A.3d 800, 803 n.5 (Pa. Super. 2011) 

(quoting Commonwealth v. Holmes, 933 A.2d 57, 59 (Pa. 2007).

Thus, under the framework of a parole violation, the sentencing/VOP

court was limited to sentencing Appellant to a maximum term equal to the 

time remaining on his original sentence at the time he was paroled. See id. 
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That is precisely the nature of the first VOP sentence in this case, as the VOP 

court sentenced Appellant to serve the remainder of his time left on his 

original sentence prior to his parole. However, no such constraint applies to 

a sentence imposed for a violation of probation, where the maximum 

possible penalty is the statutory maximum for the underlying offenses, less 

any time-served. 

Appellant does not now dispute, and it was undisputed at the time of 

the second VOP sentence, that the VOP court could not sentence him for a 

violation of parole, because Appellant had already completed his parole prior 

to committing the new violations. Thus, Appellant violated his probation, not 

his parole. Accordingly, all “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, while no circumstance related to the facts underlying Appellant’s 

violation or new facts concerning his amenability to rehabilitation emerged 

between the first and second VOP sentences, the range of permissible 

sentences available to the court changed dramatically. The VOP court, 

constrained by a maximum sentence of 14 months’ incarceration when it 

mistakenly considered Appellant to have violated his parole, was later 

confronted with a maximum sentence of 4-8 years’ incarceration. The court 

ultimately did not impose the maximum possible sentence, settling instead 

for a term of 2-8 years’ incarceration. 
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Appellant argues that the VOP court never “lament[ed] that it was 

unable to sentence [him] to [a] state prison” sentence at the August 6, 2015 

hearing. Appellant’s Brief, at 23. Appellant further avers that at that same 

hearing, “the court believed that county imprisonment was sufficient to 

address the violation and stated nothing to the contrary.” Id. at 24. 

We do not view the VOP court’s failure to lament its sentencing 

limitations when considering the first VOP sentence as dispositive to our 

review of whether there was an objective basis for imposing the second VOP 

sentence. Appellant essentially contends that the VOP court should have 

expressed discontent with the existing legal framework in order to justify a 

different sentence, under a different legal framework, at a later time. We 

find this line of argument unpersuasive. Moreover, in our review of the 

August 6, 2015 hearing, we find nothing in the court’s statements indicating 

that it believed the first VOP sentence was ‘sufficient’ punishment for 

Appellant’s violations. To the contrary, the court sentenced Appellant to the 

maximum possible term allowable under the law governing parole. 

Furthermore, Appellant points to nothing of record demonstrating that 

the VOP court acted with actual vindictiveness, partiality, prejudice, bias or 

ill will, and our own review of the record fails to uncover evidence of such, 

despite the fact that we are compelled to find a presumption of 

vindictiveness in light of existing case law given the strange sequence of 

events at issue. We are satisfied that an objective basis overcoming the 

presumption of vindictiveness is readily apparent, as the range of 
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permissible sentences changed dramatically with regard to the first and 

second VOP sentences. 

Finally, we acknowledge Appellant’s counsel’s dilemma, which he 

characterizes as a Hobson’s choice between bringing to light a clear legal 

error in the first VOP sentence, versus his duty to minimize his client’s 

exposure to a longer sentence. However, we note that the illegality of the 

first VOP sentence could have been challenged by the Commonwealth, or 

even corrected by the court sua sponte within 30 days of its imposition. In 

any event, counsel’s ethical dilemma is wholly collateral to whether the court 

abused its discretion in imposing the second VOP sentence. 

Judgement of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/7/2016