J-S09021-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHARLES JESSE COY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1260 WDA 2022

Appeal from the Judgment of Sentence Entered September 30, 2022

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

No(s): CP-10-CR-0000253-2019

BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.

MEMORANDUM BY BOWES, J.: FILED: APRIL 25, 2023

Charles Jesse Coy appeals from the judgment of sentence of twentyfour to sixty months of incarceration following the revocation of his probation. 

As the trial court failed to make the necessary findings and statements of its 

reasons for resentencing Appellant to that term of total confinement, we are 

constrained to vacate the September 30, 2022 judgment of sentence and 

remand for a new resentencing hearing.

The following history of this case is gleaned from the certified record. 

By criminal complaint filed in January 2020, Appellant was charged with fifty 

counts of attempted sexual abuse of children and fifty counts of criminal use 

of a communication facility. The charges stemmed from Appellant’s request 

through a social media site to receive pornography involving children under 

the age of ten, and the subsequent discovery through a search warrant of 
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images of child pornography on his mobile phone. Appellant entered into a 

negotiated plea agreement according to which he was sentenced to a county 

sentence of imprisonment followed by five years of probation. Among the 

conditions of supervision to which Appellant agreed was that he:

must not enter or loiter within 1,000 feet of areas where the 

primary activity at such locations involve[s] persons under the age 

of 18 years old, including playgrounds, youth recreation centers, 

elementary schools, high schools, elementary/high school bus 

stops, Special Olympics, Boy Scout/Girl Scout meetings/events or 

any similar areas where persons under the age of 18 commonly 

congregate.

Plea Agreement Agreed Recommended Sentence Conditions of Supervision, 

12/31/20, at ¶ 19. 

On August 5, 2022, Butler County Probation Officer Jeremy McCorkle 

attended a birthday party for a preschool child at a local trampoline park, a 

recreational facility with a primary demographic of children between the ages 

of four and sixteen. During the party, Officer McCorkle noticed Appellant, 

whom he recognized from seeing him at the probation office. Officer McCorkle 

took photographs of Appellant standing on a platform next to a foam pit within 

a few feet of the children. Officer McCorkle contacted Probation Officer Chad 

Karenbauer to confirm Appellant’s identity and that he was under supervision 

at the time. Thereafter, Officer Karenbauer brought Appellant into the office 

and asked him whether he had been anywhere he should not have been, and 

Appellant indicated he had not. When confronted with the photograph taken 

by Officer McCorkle, Appellant admitted to knowingly having gone to a 
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forbidden location, but insisted he was only there to pick up his mother and 

his niece. 

Based upon the events of August 5, 2022, Appellant was charged with 

violating the terms of his probation. At a subsequent Gagnon I1 hearing, 

Officers McCorkle and Karenbauer testified to the above, as well as to the fact 

that Appellant had been previously designated as a sexually violent predator

(“SVP”) in another case. See N.T. Hearing, 9/30/22, at 4-10, 17. The 

Commonwealth also offered into evidence the photographs taken by Officer 

McCorkle and the Plea Agreement Agreed Recommended Sentence Conditions 

of Supervision executed by Appellant on December 31, 2020, in connection 

with his guilty plea. Since Appellant was a registered SVP and fully aware that 

he should not have gone to the trampoline park, Officer Karenbauer 

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1 Gagnon v. Scarpelli, 411 U.S. 778 (1973). As this Court has summarized:

[W]hen a parolee or probationer is detained pending a revocation 

hearing, due process requires a determination at a pre-revocation 

hearing, a Gagnon I hearing, that probable cause exists to 

believe that a violation has been committed. Where a finding of 

probable cause is made, a second, more comprehensive hearing, 

a Gagnon II hearing, is required before a final revocation decision 

can be made.

Commonwealth v. Allshouse, 969 A.2d 1236, 1240 (Pa.Super. 2009) 

(cleaned up). We have acknowledged that “one violation hearing may satisfy 

the requirements of both a Gagnon I and Gagnon II hearing,” if the hearing 

satisfies the more extensive requirements of Gagnon II. Commonwealth 

v. Heilman, 876 A.2d 1021, 1027 (Pa.Super. 2005). It appears that only one 

hearing was held in the instant case. However, Appellant does not challenge 

the propriety of the unitary hearing per se. 
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recommended that Appellant’s probation be revoked and that he be given a 

state sentence. Id. at 18. 

Appellant elected not to testify, but presented his mother as a witness, 

who indicated that she had indeed called Appellant to pick her up on the day 

in question, but had not been aware that she was asking him to violate the 

terms of his probation. Id. at 22-23. Appellant also elicited from 

Officer Karenbauer on cross-examination that Appellant has a mental health 

diagnosis, that he had been compliant with sex offender treatment, and that, 

as far as the officer knew, this was Appellant’s only probation violation. Id. 

at 19-20.

Appellant did not dispute that the Commonwealth proved that he 

violated the terms and conditions of his probation. Id. at 27 ([“[O]n the face 

of it, obviously, [Appellant] is in violation, yes.”). Nor did he contest that he 

should receive “some sort of punishment or . . . some sort of modification of 

the supervision[.]” Id. at 28. Nonetheless, he highlighted that his mental 

health condition “does probably make thinks a little bit harder for him,” that 

in more than one year of supervision he had otherwise been compliant and 

“done what [wa]s asked of him,” that treatment had been working, and that, 

as he only committed this violation to help his mother, it did not establish that 

county supervision while Appellant remained living in the community was 

untenable. Id. 
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The Commonwealth, on the other hand, indicated that the suggestion 

that Appellant’s “behavior is d[e] minim[i]s” was “offensive.” Id. The 

Commonwealth noted that the violated condition was imposed because 

Appellant had a history as a SVP who was dangerous to children, that he 

blatantly disregarded his rules of supervision by even going within 1,000 feet 

of the trampoline park, let alone within the facility “up on the deck closest to 

children,” and that, but for Officer McCorkle catching Appellant there, “we 

wouldn’t have known that he was around all of these children, over 60 kids in 

that area.” Id. at 29. Accordingly, the Commonwealth asserted that 

Appellant was not amenable to county supervision and asked that he be given 

a sentence of two to four years in state prison. Id. at 30. 

The trial court found that Appellant committed “a serious violation of his 

rules of supervision,” and revoked his probation. Id. The court immediately 

sentenced Appellant to a term of two to five years of state incarceration. The

court then advised Appellant of his right to speak on his own behalf, to present 

argument or information concerning the sentence, and to seek modification of 

the sentence, along with his appellate and counsel rights. Id. at 30-31. 

Appellant raised no objection to the proceedings or sentence at that time. 

On October 5, 2022, Appellant submitted a pro se post-sentence motion 

asserting his continued indigence and requesting the assistance of appointedcounsel to determine whether a new pre-sentence investigation (“PSI”) had 

been undertaken to update the two-year-old PSI from the prior sentencing 
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and whether the trial court considered the appropriate sentencing factors in 

accordance with 42 Pa.C.S. §§ 9721(b) and 9771.

2

 The following day, 

Appellant filed a motion for reconsideration of sentence, asserting his right to 

credit for time served, contending that none of the conditions for a sentence 

of total confinement enumerated in § 9771 were present in his case, and 

arguing that a current PSI was required for the court to make a just ruling. 

The documents were properly filed, docketed, and forwarded to 

Appellant’s counsel in accordance with Pa.R.Crim.P. 576(A)(4). Counsel 

promptly filed a timely motion for modification of sentence reiterating 

Appellant’s claims that the sentence of total confinement was unduly punitive 

in light of the violation in question and the lack of a consideration of mitigating 

evidence or a PSI. See Post-Sentence Motion, 10/6/22, at ¶ 3.

By order filed October 17, 2022, the trial court scheduled a hearing on 

Appellant’s motion for October 24, 2022. It is unclear from the certified record 

whether the hearing took place, but the trial court entered an order on October 

25, 2022, providing Appellant with thirty days to file a memorandum of law in 

support of his position, and the Commonwealth thirty days after that to 

respond. The next day, the court scheduled a hearing for November 2, 2022, 

for it to “amend its order to include the Pennsylvania Parole Board’s special 

conditions for sex offenders as part of the sentence.” Order, 10/26/22 

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2 These statutes are discussed in detail infra.
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(unnecessary capitalization omitted). On November 4, 2022, the court filed 

an order attaching a list of those conditions and directing the clerk of courts 

to file them with the sentencing order. 

In the meantime, mindful that the motion for reconsideration of the 

revocation sentence did not toll Appellant’s time to appeal to this Court,3

Appellant instead filed a timely notice of appeal on October 25, 2022. 

Thereafter, both Appellant and the trial court complied with Pa.R.A.P. 1925. 

Appellant presents two issues for our review:

I. The trial court abused its discretion and violated the 

fundamental norms that underlie the sentencing process 

when it resentenced [Appellant] to a period of incarceration 

of twenty four to sixty months because it failed to consider all 

required sentencing factors set forth in 42 Pa.C.S. §§ 9721(b) 

and 9725, and that the trial court failed to order a new [PSI], 

resulting in a sentence that was manifestly unreasonable and 

disproportionate to the nature of the probation violation 

alleged, and not individually tailored to [Appellant], requiring 

a new resentenc[ing] hearing?

II. The trial court violated the requirement of 42 Pa.C.S. 

§ 9771(c) by imposing a sentence of total confinement when 

[Appellant] has not been convicted of another crime, his 

conduct did not demonstrate that he would commit a new 

crime if he was not imprisoned, and total confinement was 

not necessary to vindicate the authority of the court?

Appellant’s brief at 13 (cleaned up). 

We begin our consideration with a review of the legal principles

applicable to probation revocation. “Revocation of a probation sentence is a 

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3 See Pa.R.Crim.P. 708(E) (“The filing of a motion to modify [a violation-ofprobation] sentence will not toll the 30-day appeal period.”). 
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matter committed to the sound discretion of the trial court and that court’s 

decision will not be disturbed on appeal in the absence of an error of law or 

an abuse of discretion.” Commonwealth v. Perreault, 930 A.2d 553, 558 

(Pa.Super. 2007). Our Supreme Court offered the following summary of the 

trial court’s sentencing discretion:

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

(3) such a sentence is essential to vindicate the 

authority of the court.

42 Pa.C.S. § 9771(c).

Moreover, 42 Pa.C.S. § 9721(b) specifies that in every case 

following the revocation of probation, the court shall make as a 

part of the record, and disclose in open court at the time of 

sentencing, a statement of the reason or reasons for the sentence 

imposed.”

However, following revocation, a sentencing court need not 

undertake a lengthy discourse for its reasons for imposing a 

sentence or specifically reference the statutes in question. Simply 

put, since the defendant has previously appeared before the 

sentencing court, the stated reasons for a revocation sentence 

need not be as elaborate as that which is required at initial 
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sentencing. The rationale for this is obvious. When sentencing is 

a consequence of the revocation of probation, the trial judge is 

already fully informed as to the facts and circumstances of both 

the crime and the nature of the defendant, particularly where . . . 

the trial judge had the benefit of a PSI during the initial sentencing 

proceedings. [T]here is no absolute requirement that a trial 

judge, who has already given the defendant one sentencing break 

after having the benefit of a full record, including a PSI, must order 

another PSI before fashioning the appropriate revocation 

sentence.

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

In considering a challenge to the trial court’s exercise of its sentencing 

discretion, we observe that “[a]n appellant is not entitled to the review of 

challenges to the discretionary aspects of a sentence as of right.” 

Commonwealth v. Bowens, 265 A.3d 730, 762–63 (Pa. Super. 2021) (en 

banc) (cleaned up). 

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.

Id. at 763 (cleaned up). 

In the instant case, Appellant filed a timely notice of appeal and has 

included in his brief a statement of the reasons to allow the discretionaryaspects challenge pursuant to Pa.R.A.P. 2119(f). Appellant asserts that 

substantial questions are presented by the trial court’s sentencing him to total 

confinement for technical violations without considering the criteria and 
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stating its findings as required by §§ 9721(b), 9725, and 9771(c), as well as 

its failure to order a new PSI prior to the resentencing. See Appellant’s brief 

at 13, 21-24.

We agree that Appellant’s allegations were preserved in his postsentence motion and raise substantial questions. See Commonwealth v. 

Lucky, 229 A.3d 657, 664 (Pa.Super. 2020) (finding substantial questions 

presented by the imposition of a sentence of total confinement in excess of 

the original sentence for a technical violation without justification); 

Commonwealth v. Schutzues, 54 A.3d 86, 96 (Pa.Super. 2012) (treating 

“a trial court’s application of § 9771(c) as an issue implicating the 

discretionary aspects of a sentence”); Commonwealth v. Flowers, 950 A.2d 

330, 334 (Pa.Super. 2008) (ruling that claim that revocation court failed to 

order a new PSI or state reasons why one was unnecessary raised a 

substantial question). Accordingly, we shall proceed to consider the merits of 

those claims.

The following legal principles govern our consideration of Appellant’s 

sentencing challenges. “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. Edwards, 

194 A.3d 625, 637 (Pa.Super. 2018) (cleaned up). “We cannot re-weigh the 

sentencing factors and impose our judgment in the place of the sentencing 
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court.” Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009). 

Hence, we review the sentencing 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 

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). 

Appellant asserts that the trial court ignored the law when it “failed to 

consider or explain why” the sentence it opted to impose “was the least 

stringent sentence to adequately protect the public and to serve the 

Appellant’s rehabilitative needs.” Appellant’s brief at 28. He further maintains 

that “none of the factors enumerated in 42 Pa.C.S. § 9725 were considered 

or mentioned by the trial court at any time.” Id. (cleaned up). Appellant 

argues that the sentence “was therefore manifestly unreasonable and an 

abuse of discretion, requiring that this Court vacate the sentence and remand 

for resentencing.” Id. at 28-29. 

Specific to § 9771(c), Appellant contends that the certified record does 

not support a finding that total confinement is necessary because the 

defendant committed a new crime or engaged in conduct indicating he is likely 

to commit another crime if not imprisoned, or that the authority of the court 

requires vindication. With no allegation of new criminal activity and a record 

“silent with respect to whether his conduct indicated that he was likely to 
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commit a new crime,” Appellant posits that the only possible justification for 

the sentence is vindication of the court’s authority. Appellant’s brief at 33. 

Since “[t]he only violation alleged was Appellant’s mere presence at a 

trampoline park,” he insists that a prison sentence was not essential. Id. 

Although it maintains that the sentence was appropriate, the trial court 

agrees with Appellant that it did not make an adequate record to justify its 

sentence. See Trial Court Opinion, 12/22/22, at 2. The court therefore asks 

that we remand the case for resentencing. Id. Further, the Commonwealth 

concurs with the trial court. See Commonwealth’s brief at 5. 

Initially, we note our displeasure with the belated recognition of the 

defects in Appellant’s sentencing proceedings. For example, had Appellant 

contemporaneously objected at the sentencing hearing to the trial court’s lack 

of compliance with its duty to state its reasons on the record, the court could 

have immediately amplified the record and potentially avoided this appeal 

altogether. Had the Commonwealth or the trial court promptly acknowledged 

the dearth of reasoning upon the filing of Appellant’s post-sentence motion, 

the court may have vacated the sentence and scheduled a new sentencing 

hearing to correct the error rather than merely scheduling hearings and 

ordering further briefs, thereby forcing Appellant to appeal and deprive the 

court of jurisdiction. 

Now that the case is before this Court, we are not bound to accede to 

the trial court’s request for resentencing despite the agreement of the 
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Commonwealth. Accordingly, we have reviewed the record to ensure that we 

could not maximize judicial economy and resolve the issues before us. In that 

vein, we note our rejection of Appellant’s suggestion that his technical 

violation was trivial and that his sentence was, ipso facto, unreasonable on its 

face. This Court has indicated that the violation by a defendant convicted of 

sexual misconduct with children of the condition to refrain from contact with 

children is significantly distinct from “another technical violation such as 

missing a meeting with a probation officer or counselor.” Schutzues, supra 

at 99. In such situations, “[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.” Id. 

Nonetheless, before imposing a sentence of total confinement upon 

revocation of Appellant’s probation, the trial court was statutorily required to 

make a finding, supported by the record, that imprisonment was necessary 

for one of the reasons enumerated in § 9771(c). See Schutzues, supra at 

93-94 (observing that § 9771(c) is a limitation upon the court’s authority to 

impose a sentence of total confinement for probation violations and that 

“compliance with § 9771(c) is explicitly non-discretionary”). Likewise, before 

dispensing with a new PSI, the trial court was required to place on the record 

its basis for doing so and to demonstrate that it was otherwise in possession 

of the information a PSI would have offered. See Flowers, supra at 334. 
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Instead, the trial court merely stated as follows before advising 

Appellant of his post-sentence rights:4

I do believe this is a serious violation of his rules of 

supervision. I do find that he violated the terms of his 

probation. I’m going to violate his -- revoke his probation. I’m 

going to sentence him to a term of not less than 24 moths nor 

more than 60 months with the Bureau of Corrections.

N.T. Hearing, 9/30/22, at 30. 

We agree with Appellant and the trial court that this statement was 

insufficient to satisfy the above-discussed statutory mandates. Consequently, 

we are constrained to vacate Appellant’s judgment of sentence and remand 

for a new sentencing hearing.

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Judgment of sentence vacated. Case remanded for a new resentencing 

hearing. Jurisdiction relinquished. 

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4 Some of the post-sentence rights stated by the court are more properly 

categorized as pre-sentence rights, such as Appellant’s “right to make a 

statement on [his] own behalf” and to “present argument and information 

relative to sentencing.” N.T. Hearing, 9/30/22, at 30-31. 

5 The trial court during the resentencing hearing may make of-record any 

additional overlooked matters, such as determining Appellant’s entitlement to 

credit for time served and informing Appellant of his obligations and special 

conditions as a sex offender. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/25/2023