J-S60005-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

HARVEY PATRICK SHORT,

Appellant No. 3496 EDA 2015

Appeal from the Judgment of Sentence October 20, 2015

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0001152-2011

BEFORE: SHOGAN, OTT, and STRASSBURGER,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED October 6, 2016

Appellant, Harvey Patrick Short, appeals from the judgment of 

sentence entered on October 20, 2015, following the revocation of his 

probation. We affirm.

The trial court set forth the relevant facts and procedural background 

of this matter as follows:

On May 9, 2011[, Appellant] entered a nolo contendere 

plea to the charge of Robbery. The Court sentenced [Appellant] 

to 18 to 36 months imprisonment in a state correctional facility 

followed by 7 years consecutive state probation. [Appellant] 

maxed out his jail time and was released on probation on 

February 26, 2014. On August 31, 2015[, Appellant] plead 

guilty in a new case to Criminal Attempt, Theft from Motor 

Vehicle and Criminal Mischief. He was sentenced to time served 

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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to 23 months confinement along with a year of probation on that 

case.

On October 20, 2015 after a Gagnon II hearing,[1]the Court 

found [Appellant] guilty of violating the terms of his probation 

and sentenced him to one to four years in a state correctional 

facility. [Appellant] filed a timely appeal. In his rambling 

1925(b) statement [Appellant] alleges numerous procedural 

defects which he asserts entitles him to have his sentence 

vacated. [Appellant’s] contentions lack merit.

____________________________________________

1

 This Court has explained Gagnon hearings as follows: 

In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 

L.Ed.2d 656 (1973), the United States Supreme Court held that 

a defendant accused of violating the terms of his probation is 

entitled to two hearings prior to formal revocation and resentencing. 

When 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. Sims, 770 A.2d 346, 349 (Pa.Super.2001). 

The Gagnon II hearing requires two inquiries: (1) whether the 

probationer has in fact violated one of the conditions of his 

probation, and, if so, (2) should the probationer “be recommitted 

to prison or should other steps be taken to protect society and 

improve chances of rehabilitation.” Id. (quoting Gagnon, supra

at 784, 93 S.Ct. 1756). 

Commonwealth v. Heilman, 876 A.2d 1021, 1026-1027 (Pa. Super. 

2005). 
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Trial Court Opinion, 1/19/16, at 1-2 (internal footnote omitted) (footnote 

added).

While it appears that Appellant was represented by counsel throughout 

the revocation and resentencing process, Appellant filed a pro se postsentence motion to modify sentence on October 28, 2015. It is not clear 

from the record if this motion was forwarded to counsel. See 

Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) (holding that 

where a criminal defendant is represented by counsel, “the proper response 

to any pro se pleading is [for the court] to refer the pleading to counsel, and 

to take no further action on the pro se pleading unless counsel forwards a 

motion”). However, there is no counseled post-sentence motion in the 

record and no order disposing of a post-sentence motion.

On November 18, 2015, Appellant filed a timely pro se notice of 

appeal. That same day, the trial court ordered Appellant to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

The docket indicates that the trial court served this order on Appellant’s 

counsel of record, Attorney Dawn Sutphin. Appellant filed his Pa.R.A.P. 

statement pro se on November 30, 2015. Ultimately on February 10, 2016, 

the trial court appointed current counsel, Attorney Joseph Lesniak, to 

represent Appellant in the instant appeal; however, Attorney Lesniak did not 

seek permission to file a post-sentence motion nunc pro tunc or pursue a 

motion to file an amended Pa.R.A.P. 1925(b) statement. 
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In this appeal, Appellant presents a single issue in his counseled brief:

Whether the trial court erred because the record failed to 

indicate any cognizance or consideration of the statutory 

sentencing criteria, rendering the sentence illegal, and harsh and 

excessive under the circumstances?

Appellant’s Brief at 5 (full italicization omitted).

Our standard of review is well settled:

When we consider an appeal from a sentence imposed 

following the revocation of probation, our review is limited to 

determining 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. § 9771(b). Commonwealth v. Fish, 

752 A.2d 921, 923 (Pa. Super. 2000). Revocation of a probation 

sentence is a 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. McNeal, 120 A.3d 313, 322 (Pa. Super. 2015) (internal 

quotation marks omitted). 

On review, it appears that Appellant’s issue is, in fact, two issues. 

Appellant challenges both the legality and the discretionary aspects of his 

sentence following the revocation of probation. We point out that no 

argument concerning the legality of the sentence is developed in Appellant’s 

brief; however, because the legality of a sentence is non-waivable and may 

be addressed by this Court sua sponte, Commonwealth v. Watley, 81 

A.3d 108, 118 (Pa. Super. 2013), we shall, in an abundance of caution, 

address the legality of Appellant’s sentence. 
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“When we address the legality of a sentence, our standard of review is 

plenary and is limited to determining whether the trial court erred as a 

matter of law.” Commonwealth v. Bowers, 25 A.3d 349, 352 (Pa. Super. 

2011) (citation omitted). “A challenge to the legality of a sentence may be 

raised as a matter of right, is not subject to waiver, and may be entertained 

as long as the reviewing court has jurisdiction.” Id. (citation omitted). “If 

no statutory authorization exists for a particular sentence, that sentence is 

illegal and subject to correction. An illegal sentence must be vacated.” Id. 

(citation omitted). 

Here, Appellant was convicted of robbery graded as a felony of the 

first degree. As noted above, the trial court sentenced Appellant to a term 

of eighteen to thirty-six months of incarceration followed by seven years of 

probation. At the time of resentencing following revocation of probation, the 

sentencing court is limited only by the maximum sentence it could have 

ordered at the time it imposed in the sentence of probation. 

Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001). 

Additionally, 

Subsequent to revocation of probation, the sentencing court has 

available to it all the options permissible at the time of initial 

sentencing, giving due consideration “to the time spent serving 

the order of probation.” 42 Pa.C.S. § 9771(b). As long as the 

new sentence imposed does not exceed the statutory maximum 

when factoring in the incarcerated time already served, the 

sentence is not illegal.
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Commonwealth v. Crump, 995 A.2d 1280, 1285 (Pa. Super. 2010) 

(citation omitted). A first-degree felony carries a statutory maximum 

sentence of twenty years. 18 Pa.C.S. § 1103(1). Thus, because Appellant 

had already served three years of imprisonment, the trial court could have 

imposed the statutory maximum sentence of eight and one-half to 

seventeen years of incarceration. Therefore, the imposition of a twelve-toforty-eight-month sentence at the time of revocation was well within the 

statutory limits. Accordingly, Appellant’s sentence was legal, and there was 

no error of law.

Next, Appellant argues that his sentence was excessive and that the 

sentencing court failed to consider factors set forth in 42 Pa.C.S. § 9771 

concerning sentences imposed following the revocation of probation. These 

issues are challenges to the discretionary aspects of Appellant’s sentence. 

Commonwealth v. Malovich, 903 A.2d 1247 (Pa. Super. 2006); 

Commonwealth v. Lutes, 793 A.2d 949 (Pa. Super. 2002).

As this Court clarified in Commonwealth v. Cartrette, 83 A.3d 1030 

(Pa. Super. 2013), our scope of review following the revocation of probation 

is not limited solely to determining 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. 

Rather, it also includes challenges to the discretionary aspects of the 

sentence imposed. Specifically, we unequivocally held that “this Court’s 
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scope of review in an appeal from a revocation sentencing includes 

discretionary sentencing challenges.” Cartrette, 83 A.3d at 1034. Further, 

as we have long held, the imposition of sentence following the revocation of 

probation is vested within the sound discretion of the trial court, which, 

absent an abuse of that discretion, will not be disturbed on appeal. 

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).

It is well settled that there is no absolute right to appeal the 

discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d 

800, 805 (Pa. Super. 2006). Rather, where an appellant challenges the 

discretionary aspects of a sentence, the appeal should be considered a 

petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 

155, 163 (Pa. Super. 2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. 

Super. 2010):

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test:

[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. 

[708]; (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).
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Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)).

Pennsylvania Rule of Appellate Procedure 302(a) provides that “issues 

not raised in the lower court are waived and cannot be raised for the first 

time on appeal.” Pa.R.A.P. 302(a). 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. Moury, 992 A.2d at 

170 (citing Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003)). In 

addition, Pa.R.Crim.P. 708 provides that a motion to modify sentence must 

be filed within ten days of the imposition of sentence following the 

revocation of probation. Pa.R.Crim.P. 708(D). As the comment to 

Pa.R.Crim.P. 708 explains:

Issues properly preserved at the sentencing proceeding need 

not, but may, be raised again in a motion to modify sentence in 

order to preserve them for appeal. In deciding whether to move 

to modify sentence, counsel must carefully consider whether the 

record created at the sentencing proceeding is adequate for 

appellate review of the issues, or the issues may be waived.

Pa.R.Crim.P. 708 cmt. Thus, an objection to a discretionary aspect of a 

sentence is waived if not raised in a post-sentence motion or during the 

sentencing proceedings. See Commonwealth v. Parker, 847 A.2d 745 

(Pa. Super. 2004) (holding challenge to discretionary aspect of sentence was 

waived because appellant did not object at sentencing hearing or file postsentence motion).
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Herein, the first requirement of the four-part test is met because 

Appellant brought a timely appeal. However, our review of the certified 

record reflects that Appellant waived his challenge to the discretionary 

aspects of his sentence by failing to raise the claim either at the sentencing 

proceeding or by means of a post-sentence motion. As noted above, 

Appellant filed a pro se post-sentence motion; however, because he was 

represented by counsel, that pro se motion was of no effect. See 

Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007) 

(providing that a defendant’s pro se filings while represented by counsel are 

legal nullities).2 Moreover, once current counsel was appointed, he did not 

file a petition seeking permission to file a post-sentence motions nunc pro 

____________________________________________

2 Assuming, arguendo, that we were to find that Appellant’s pro se postsentence motion properly preserved his challenge to the discretionary 

aspects of his sentence, we would conclude that no relief is due. In the pro 

se motion filed on October 28, 2015, Appellant alleges that the trial court, in 

violation of Pa.R.Crim.P. 708(D)(2), failed to state its reasons for the 

sentence imposed. While this allegation could arguably be construed as 

presenting a substantial question, were it considered in conjunction with the 

standards set forth in 42 Pa.C.S. § 9721 (which was not raised), the issue is 

meritless. The trial court, who was personally involved at different phases of 

Appellant’s case, took care to evaluate the facts and Appellant’s history and 

crafted a sentence that focused on Appellant’s mental health needs. N.T., 

10/20/15, at 8-12. Moreover, the sentencing court’s statement of reasons 

for a sentence imposed after probation revocation need not be as lengthy or 

elaborate as the reasons announced at the defendant’s initial sentencing 

because the judge is already fully informed of the circumstances of the crime 

and the nature of the defendant. Commonwealth v. Pasture, 107 A.3d 

21, 28 (Pa. 2014). 
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tunc. Accordingly, Appellant has not preserved this challenge, and we deem 

this issue to be waived.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/6/2016