J - A21037 - 15

*Former Justice specially assigned to the Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v. WARREN ALSTON, Appellant No. 1733 EDA 2014 Appeal from the Judgment of Sentence entered May 9 , 2014, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP - 51 - CR - 1205041 - 2001 BEFORE: ALLEN, MUNDY, and FITZGERALD*, JJ. MEMORANDUM BY ALLEN, J.: FILED JULY 17, 2015 Warren Alston (“Appellant”) appeals from the judgment of sentence imposed by the trial court after it determined that Appellant had violated his probation. We affirm. The trial court summarized the procedural background of this case as follows: On April 15, 2002, [Appellant] appeared before [the trial] court and entered into a negotiated guilty plea to one count of unlawful restraint and one count of criminal trespass. Thereafter, the negotiate d sentence of time served (11.5 months) to 23 months confinement, followed by 3 years consecutive reporting probation was imposed. On April 24, 2002, [Appellant] was paroled from Philadelphia County to authorities from New Jersey on an arrest warrant and transported to Middlesex County Correctional Institution to serve a New Jersey sentence for failing to pay imposed violation of probation fines. [Appellant] was subsequently released to the streets of New Jersey approximately six to eight weeks later. [F N1 [Appellant] remained free from physical incarceration for approximately two months, since on or about July 2002.] OnJ - A21037 - 15

- 2 -

September 22, 2002, [Appellant] was arrested in Middlesex County, New Jersey and charged with several violent offenses. [FN2 [Appell ant] was charged with two counts of burglary, one count of terroristic threats, one count of possession with a deadly weapon unlawful purpose, two counts of aggravated sexual assault, one count of aggravated assault, one count of robbery, and one count of criminal restraint.] Subsequently, on February 9, 2004, [Appellant] pled guilty as charged to all counts, and on May 14, 2004 was sentenced to 20 years confinement, parole ineligible for 17 years and given credit for time served. This court, unaware of [ Appellant’s] New Jersey conviction, scheduled a listing for July 17, 2002. When [Appellant] failed to appear or inform the court of his whereabouts, a bench warrant was issued for his arrest on July 24, 2002. On May 9, 2014, a probation revocation hearin g was held via two - way simultaneous audio and video media with [Appellant] from the East Jersey State Prison in Rahway, New Jersey. This court found [Appellant] in violation of the probationary sentence imposed on April 15, 2002, and sentenced him to 2.5 - 5 years state confinement on the charge of unlawful restraint and a consecutive 3.5 - 7 years on the charge of criminal trespass, both to run consecutive to the term [Appellant] is currently serving in New Jersey, with credit for time served. [Appellant] fi led a Notice of Appeal, on June 9, 2014. On June 10, 2014, this court ordered [Appellant] to file a Statement of Matters Complained of on Appeal in accordance with PA.R.APP.PROC. 1925(b). On June 30, 2014, said statement was filed by [Appellant] along wi th a Motion for an Extension of Time to File a Supplemental Statement of Errors Complained of on Appeal pending receipt of the notes of testimony. The extension was granted on July 21, 2014 and the supplemental statement was filed on July 22, 2014. Trial Court Opinion, 11/17/14, at 1 - 2. On appeal, Appellant presents two issues for our review: 1. Did not the trial court violate the mandate of Pa.R.Crim.P. 708, that a probation revocation hearing be held “as speedily as possible,” inasmuch as [A]ppellant’s revocation hearing was not listed or held until 10 years after [A]ppellant’s direct violationJ - A21037 - 15

- 3 -

guilty plea in New Jersey, and this substantial delay was unreasonable and prejudicial to [A]ppellant? 2. Was not the probation revocation sentence of six to twe lve years incarceration to be served at the conclusion of a sentence of twenty years incarceration that [A]ppellant was already serving in New Jersey excessive and unreasonable, where the sentence far surpassed what was necessary to foster [A]ppellant’s re habilitative needs insomuch as the sentence was imposed 10 years after the direct violation occurred and [A]ppellant had already served the length of the entire revocation sentence since he had been incarcerated for 12 years in New Jersey? Appellant’s Brie f at 4. Appellant asserts that his sentence is “excessive ... unreasonable and prejudicial,” and complains that he is “essentially serving a life sentence.” Appellant’s Brief at 16
- 17. The Commonwealth counters that it is not chargeable with the delay in Appellant’s sentencing, i.e. , knowledge that Appellant left Pennsylvania without approval when he was paroled in 2002, and that Appellant was responsible “for the delay occasioned by his absconding and committing new crimes.” Commonwealth Brief at 7. Th e Commonwealth maintains that Appellant “was in no way prejudiced by the delay,” and additionally asserts that Appellant has failed to present a substantial question regarding his sentencing. Id . We initially note that w hen we review the results of a pr obation revocation hearing, we are limited to determining the validity of the proceedings, and the legality of the judgment of sentence imposed. Commonwealth v. Heilman , 876 A.2d 1021, 1026 (Pa. Super. 2005).J - A21037 - 15

- 4 -

Instantly, we have read the notes of testimon y from Appellant’s May 9, 2014 probation violation hearing, and conclude that the proceedings were valid and the sentence was legal. The assistant district attorney asserted:

[U]ltimately the reason for the delay falls on [Appellant’s] shoulders. He was on the street at some point after July, and he’s the one who got arrested in September. [Appellant’s counsel] seems to be implying ... that somehow because the new arrest – I think [Appellant’s counsel] is asking this Court to make a connection between the fact that [Appellant] was released by the Philadelphia prison to Middlesex County and then was arrested in Middlesex County, that somehow the Philadelphia prison system is responsible for keeping track of him. What if he had been arrested in New York or V ermont or Arizona? He got arrested in September. I don’t see how under normal circumstances the Philadelphia Probation Department is necessarily supposed to be made aware of that. N.T., 5/9/14, at 30. In agreement, the trial court reasoned: This case i s extremely troubling to me. [Appellant] negotiated a plea most favorable to him under circumstances which play out in a more violent fashion across the river in New Jersey. If we remember, [Appellant] pled guilty to unlawful restraint and criminal tresp ass in the Philadelphia case, and the facts were that he unlawfully entered the home of his estranged wife, and despite her pleadings he held her hostage for a period of time until he was arrested. He is essentially asking this court to give him the benef it of having been arrested obviously on a warrant from New Jersey, and when he got back to New Jersey, despite the fact that he left the jurisdiction without any approval, while he was free he did not return to Philadelphia. Instead he remained in New Jer sey, committed a crime, a vicious crime, was sent to jail, and now he maintains that while he was in jail he had done everything in his power to bring his location to the attention of the Philadelphia authorities. I reject that uncorroborated statement or statements of his out of hand.J - A21037 - 15

- 5 - He then goes on to say that because of the long period of delay for which he is at fault that the citizens of the Commonwealth of Pennsylvania should be blamed because his having not been brought before this court to have t he detainer resolved has worked a prejudice against him, and I am to believe
– he has asked me to believe that this prejudices a man who entered someone else’s home and sexually assaulted them, the prejudice that precludes his being given a favorable class ification is not the heinousness of the crime I just outlined, but the fact that he has a detainer back here in Philadelphia. I find that there is no prejudice. Id . at 52 - 53. Consistent with the foregoing, the Honorable Sandy L.V. Byrd, sitting as the trial court, has authored a thorough and comprehensive opinion further explaining the propriety of Appellant’s sentence given the specific factual background and applicable legal authority. Accordingly, we adopt Judge Byrd’s November 17, 2014 opinion as o ur own in affirming Appellant’s judgment of sentence. Judgment of sentence affirmed. Justice Fitzgerald joins the Memorandum. Judge Mundy concurs in the result. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary
Date: 7/17/2015

### probation fine s. Defendant w as subsequ e ntly re l eas e d to th e street s ofNe w Jersey ap prox imatel y s i x Correctional Institution to s erve a New Jer s ey s entence fo r failing t o pay imposed v i o l ation of County to authorities from New Jer s ey on an arrest warrant and tr an sporte d to Middlesex County reportin g prob ation w as imposed
. O n April 24, 200 2, defendant was paro l ed from Phil a d e lph ia sentence of time served (11.5 month s ) to 2 3 months confinem e nt , follo w ed b y 3 year s co ns ecutive to one coun t of unlawful restraint and o ne c ount of c ri minal trespas s . There afte r , the n eg o ti ated On April 15 , 2002 

### d ef

endant appeared be fo re this court and entered into a n eg o ti ated gui l ty ple a I. 

### PROCEDURAL HIS

TOR Y R. .AP P. P R OC
. 1 925, 

### thi s court submits 

### the follow i ng O p ini o n. 

### sentence followi n g a 

### violati on o f pro bation h e arin g . In accordan c e with 

### the requ ireme n t s of PA
. 

### Defendant, Warren Alston, filed a 

### direct appe al from this 

### co urt's M ay 9, 2 0 14 

### j u dgme n t of NoveD1ber17,2 0 14 Byr d , J . OPIN IO N 

### C r i mi na l A pp eals (mil



### -Fir st JL 1 d ictal Dis tn c1 ot 

## P A N O V 1 7 20 1 4 173 3 EDA 2 01 4 

# FIL ED WARREN ALS T O N S UPE RIOR CO U R T 

### v. C P

- 5 1 -CR-1205 0 41-2 001 COMMO NWEAL TH OF P ENN SYLV AN IA IN 

### THE COURT OF COMMON PLEAS PHILADELPffiA COUNTY

CRIMINAL TRIAL DIVISION Circulated 06/26/2015 12:22 PMCommonwe a lth v . Wa rre n Alsto n 2 I D efe n dant remain e d free from ph y sical in c arc e ration for ap p ro xim ately two months , sin c e on or ab ou t J u ly 2002. :! D ef endan t w as charg ed w ith two c o unts o f b ur g lary (N.J. STAT. ANN
. § 2C : 18

- 2 (a)( l ) ) , o n e c oun t o f terr o ristic thr e ats (§ 2 C: 1 2

- 3( b) ) , o ne count o f p ossess i o n of a weap o n unl a wful p urp os e ( § 2C:39-4(d)) , tw o co unt s o f aggr av at ed s e x u al · a ssau lt ( § 2C:1 4- 2(a ) ( 3)) , o ne count o f a gg rav ate d assault (§ 2 C: 13 -2 (a) ), one co u n t of rob bery In accordan ce with P A. RAPP
. P R OC .1925 (b ), defendan t rais e d the followin g is s u e s in hi s II. STATEMENT OF MATTERS COMPLAINED OF ON APPEAL statement wa s filed on Jul y 2 2 , 2014
. re cei p t of the notes oftestimon y. The ex ten s ion w as grante d on Ju ly 21 , 2014 and th e s uppl e mental E xten s ion of Tim e to Fil e a Suppl e men t al Stateme n t o f Error s Complain e d o f on Ap peal pe n ding PR OC. 1925 (b). On Jun e 30, 2014, sai d s tatement wa s filed b y defendan t alon g wi th a Motion for an d efe ndant to fil e a Statement of Matter s Complained o f on App eal in accor d an ce wi th PA. RAPP. Def e nd an t fil e d a Notice o f Appeal , on June 9 , 2 0 1 4
. On J une 1 0 , 2 014 , th is c ourt ordered s erving i n N ew Je rse y , with credit gi v en for tim e served. year s on the charge of criminal trespass , b oth to run consecutiv e to th e term de fe ndan t is currentl y him to 2.5

- 5 year s s t ate c onfinement o n the c h ar g e o f unlawful restraint and a conse c uti v e to 3 .5

- 7 found de f e ndant i n vi olation of th e prob ati on ary sentence imposed o n A p ril 15, 2 0 0 2, and s e nt e n c ed video m edia with def

e n d ant from the Ea s t J e rsey State Pris on in Rah w ay , Ne w J erse y . Th is c ourt On May 9 , 2014 , a probation revo c ati on hearin g was held vi a tw o -w ay simul t aneous audio
. an d th e c ourt of his where abouts, a bench w arrant wa s issued for his arrest on Jul y 24 , 20 0 2. Jers e y con viction, sch e du led a listing for J ul y, 17, 2002
. Wh e n d efe ndant fail e d to app e ar or inform ineli gi ble fo r 1 7 years and gi v en credi t for time s erv ed. Thi s court , unaw are o f defendan t's N e w 

### guilty a s c harged to all counts, and on May 14 , 2004 was s ente nced t o 20 y ear s confin e ment, par o le to ei gh t we e ks late r . 1 On S ep te mb er 22 , 20 02, defend an t w a s arr e s te d in Mi dd l esex C o unty , Ne w . Jersey and char g ed with s eve ral violent offe nses . 2 Sub se quently, on Feb ruary 9, 2004 , defendant pled l - r - : · -. ~ · :· · · - 

# . j
. .


### .. ; i. Circulated 06/26/2015 12:22 PMCommonwealth v . Warren Alston 3

(§ 2C:15-l(a)(l)), and one count of criminal restraint(§ 2C : 13-2(a))
. parole release date and issuance of the warrant on July 24, 2002. 

### Id. at 21-22. However, after the hearing revealed that defendant had not been assigned a probation officer between his April 24, 2002 Subsequently, a bench warrant was issued on July 24, 2002, after defendant failed to appear. The incarceration in Middlesex County, this court scheduled a hearing for July 17, 2002. Id at 20. open probation detainer. 

### N.T. 5/9 /2014 at 19, 20-21. U naware of defendant's release and bis guilty plea, defendant was released to Middlesex County, New Jersey sheriff's department on an On April 24, 2002 after being sentenced by this court on April 15, 2002 , pursuant to a negotiated defendant testified on his own behalf. TI1e facts supporting revocation of probation are as follows
. summary. The Commonwealth presented the testimony of Probation Officer Rosa Ramos and Parole and Probation Department Supervisor Duane Archie and defendant's Gagnon II hearing At the violation of probation hearing, this court first proffered an email from Philadelphia Adult 

### Il LFACTUALBACKGROUND a Appellant's right to due process oflaw and 

### bis right to a speedy hearing under Pa. R. Crim, P. 708 (B) were violated by the ten ( 1 0) year delay between his new conviction and his probation violation hearing, said delay being not intrinsically reasonable. Furthermore, the Commonwealth failed to exercise due diligence in scheduling the revocation hearing and appellant was prejudiced by the delay by being denied access to a modified custody status and various programs in prison, which unnecessarily restrained his personal liberty. b. The sentence imposed on the charge of unlawful restraint, 18 Pa
. C.S.A. § 2902, is illegal because the original term o f incarceration of time

- served to twenty [sic] (23) months combined with the new term of incarceration o f two
- and-one

- half (2 1/2) to five (5) years results in an aggregate period of imprisonment that exceeds the statutory maximum. c . The sentence imposed on appellant violated the requirements of 42 Pa C.S.A. § 9721 (b ), in that it was unreasonable, manifestly excessive, and far surpassed what was necessary to foster appellant's rehabilitative needs. Statement of Matters Complained of on Appeal ': s . • - , Circulated 06/26/2015 12:22 PMCommonwealth v. Warren Alston 3 The previous statement was taken verbati m from defendant's filed Statement of Errors. 4 Jersey incarceration through an interstate detaine r . Id. at 35
. Defendant furthe r claimed that he filed occasion between 2008 and 2010, he made an effort to notify Pennsylvania authorities of his New incarceration status in New Jersey. N. T. 5/9/2014 at 27, 42. Defendant however alleged that on one July 2002 and July 2013, defendant made no attempts to inform this court directly of his felony charges. Id. at 29-3 0, 34, 4 2. During the revocation hearing it was also revealed that between verifiable attempt during his two months of freedom, or after he was arrested in New Jersey on the release from New Jersey custody in July 2002. Id. at 29. Defendant, however, made no such release from Philadelphia prison to Middlesex County Correctional Institution and of his subsequent At the hearing, defense counsel emphasized defendant's duty to inform the Commonwealth ofhis simultaneous audio and video media. Id The hearing, however, was continued to May 9, 2014 pending the availability of necessary two-way Id. at 14, 16. Thefollowingday,April 8, 2014, a hearing was scheduled fo r April 11, 2014. Id. at 16. 24, 2002. On April 7, 2014 Mr. Archie emailed this court and requested that a hearing be scheduled. The APPD had not sched u1ed a hearing due to the outstanding active bench warrant 

### issued on July defendant was incarcerated in New Jersey following a September 22, 2002 arrest. Id at 1 1-12, 15. 1 2, 16
. His probationary term was scheduled to expire on October 17, 2006, however at that time convictions, which placed him in direct violation of this court's April 1 S, 2002 sentence. 

### Id. at 11- Mr. Arch i e stated that on July 24, 2013 the APPD was notified of defendant's New Jersey out of state and was serving a 20 year incarceration sentence in East Jersey State Prison. Id at 11-12. On 

### April 7, 2014 Mr. Archie brought to this court's attention that defendant had been convicted unit. Id at 24. bench warrant was issued, defendant's file was transferred out of the probation unit to the violation Circulated 06/26/2015 12:22 PMCo mm o n we al th v, W ar re n Als ton 5 T he Pennsyl v ania C o n s tituti o n af fo rds du e p r oce ss right s , w hich inclu de th e ri g ht to "a c on v ic tio n and hi s p ro b atio n vi ol ati o n he ari n g. " S t ate m en t of Err o r s 

### 1 a . und er P A
. R. CRIM. PRO C. 708 (B) w ere v i o late d 

### b y th e ten (1 0 ) y ear d e lay b etwe e n hi s n ew De fen dant firs t ass ert s that h i s " ri ght to du e p ro cess of law and his right to a s pe e dy he aring A
. D efe n dant 's D u e Pr oc es s and S p ee d y Trial C l ai m L acks Merit IV
. DI SCU S S IO N deni e d his m otion t o termi nate prob ati on. 

### Id. at 5 3
. acc e ss ibili ty. Id at 4 3- 45. Thi s co urt expli c i tly rej ected d efendan t ' s ''u n co rrob orated cl ai m , " and was imp riso n ed, he ins i sted th at i t was hi s d etain er that prej udi ced hi s cu stody status an d program i ncarc erate d
. Id at 2 7, 3 7
. De s p i te the self - identifie d ''v ery seri o u s charg es," fo r w hi c h defendant custody statu s and p reclu d ed 

### him from befog eligib le for certai n j ob s and pro g ram s while preju di cial bec aus e it prevented m o dific ati on an d reducti o n o f his medium/maximum 

### s ecuri ty con tention fo r h aving thi s co urt terminate its pr o bation ary s enten ce was that the d e tain er was rem ai n und er N ew Jers e y su perv isio n fo r the re main d er of his li fe. Id at 2 5. Defen dan t' s sol e th e Eas t Jer sey State Pris on in Rah way, N J un til 2 019 , at the age o f 63, fo llo wing whi ch he wi ll I ! ' !. Furtherm o re, the Gagnon II hearing re v ealed th at de f endant will not be eligi ble for par ole fr o m terminate d his case. I

d a ccoun t, that court d i d n ot condu c t a re voc ation he arin g after hi s N e w Jer sey con vic tio n s, but th e s up ervi sio n o f th e C o urt of C o mmo n Pl eas, No rthampt o n C ounty, Pennsy lv ania. B y defe n dan t' s ev i d en ce p r e se nted
. I

d In 2 0 0 2, de f

endant was app are ntl y al so servin g a p ro b atio n ary s en ten c e und er ' i I 

### I. ! s ame at the revocatio n heari n g. 

### Id. Thu s defendant 's alleg ation w as base d o n fac ts not pr ov en b y the con fi rm ation
. I

d at 25

- 26
. H o wev er, he f ailed to present any corre s ponde n ce or docum entation of 

# I I 

# I' : i I I the pl e adin gs wi th th e Phi la d el phi a Cl erk of Court s an d th e D istri ct Att o rn ey's offic e, an d recei ved Circulated 06/26/2015 12:22 PMCo mm o n weal t h v. Warre n A ls to n 6 juri s diction, s u ch th at his presence co uld n ot be disc o vered de s pite th e C o mm o nwealth ' s du e de f endan t ' s unavailability
. De fe ndan t , whil e o n prob ati o n in 2 002, w as incarce rated in another two- way si multan eo us audi o and v id e o media. Thu s, the te n ( 10 ) y e ar de l ay i s dir ec tl y attrib utable to follow i n g day. H o w ev er , the hearin g was not held until May 9 , 2 014, in o rder to obt ain the necessary info rmed of defen dant ' s N ew Jers ey con vic tio n on Ap ril 7 , 2 0 1 4 , a h earing was s ch eduled the au tho riti e s di d n ot become aw are o f d e fen dant' s c on vic tio n un til J ul y 2 4 , 20 1 3
. After thi s court was Jersey, to May 9 , 2 014 , the date of defendant ' s probation v i ol ation heari ng. H o w e v er, Philadelphia the l en gth of the del ay was from February 9 , 2 004 , th e d ate d efe n d an t p l e d guilty as char ge d i n New h eari ng ." Co mmo nwea l t

h v. W ood s, 9 6 5 A. 2d 12 25 , 1227 (P a. S u p er. 200 9) ( citati o n o mitted )
. H e re, o f de l ay is c alcu l ated from the date of conviction or en try of gu i lty p l ea t o the d ate o f the v iolati o n U nd er the first pron g ofthe reasonableness test, th e l e n g t h o f th e d e lay, "[t]he rele v ant peri od prej udi c e. al though l ength y was reas o nable und er circum s tanc es o f'this s pecific ca se and de f endant suff

ered n o , I 

### ;! the d elay; and (3) th e preju dic e resulting to the defe nd ant. J d. Applying the fact o r s here , the delay , reaso nabl en e s s of th e d el ay b y examining three fa c t ors: (1) th e length ofth e d elay; (2) th e reaso n s fo r S uper. 1 990)( emph asi s add ed). When a rev ocatio n hearing i s del aye d, the court mus t e val uate th e h earing be held within a re asonab le time. Commonw e alth v. Saund e r s, 575 A.2d 93 6 , 938 (Pa
. 7 0 8 (B )( l ) ( emp h asis a dded ). The Superior C ourt has interpreted the rule t o r equ ire that a re vo cati o n fin ding o f record that the de f endan t viol ated a c o ndi ti o n o f p r ob ati o n .. . o r par o l e. P A
. 

### R CRI M. P RO. as speedil y as possibl e at which the defe n dant is presen t and represe n te d by counsel [and there is] a th at a 

### tri al "judge [ can ] not r e v oke[ ] probati o n . .. or parole
.. . unless there has be e n: a hearing held ART. I , § 9
. Pert ai ning to vi o lati o n of probatio n an d p aro le h earings, Pe nnsy l v ania l aw es tabli s he s sp e edy public trial by an i mparti al jury of the vicinagc
... in all criminal prosecutions
. " P A
. CONS T. 

### l'1 i
. , Circulated 06/26/2015 12:22 PMCommonwealth v , Warren A lston 7

diligence. Therefore , defendant is not entitled to relief : Moreover, as for the second prong of the reasonableness test, 

### the reasons for the delay, the delay was caused by defendant's conduct. In 

### Commonwealth v . 

### Short, although defendant's revocation hearing was initially timely scheduled , there was a 29-month delay between its original and actual date. Commonwealth v . Short, No. CP-01-CR-0000745-2003, 2007 WL 5004096 , (Adams Cnty, Ct. C.P. Mar. 13, 2007). After defendantdidnotappearfor his original hearing, the trial c ourt issued a warrant for his arrest. Id Unknown to the trial court, defendant had been convicted and sentenced to 2.5 years' incarceration in another county and there was no eviden c e that the Commonwealth or the court had any knowledge of his whereabouts. Id
. Within a month of being made aware of defendant's whereabouts, a hearing was schedu l ed Id Noting that the record presented no indication that defendant was made available prior to the hearing date, the court denied defendant relief, and held that because "[ q]uick action was taken, and a hearing was completed within a month, the delay was caused by defendant's failure to appear , his unknown whereabouts, and his criminal conduct which resulted in a state sentence." 

### Id Similarly, this court issued a bench warrant for defendant's arrest after he failed to appear for bis July 17, 2002 hearing. Unknown to th i s court and the Commonweal th, defendant was free in Middlesex County, New Jersey until his September 22, 2002 arrests which was followed by a sentence of 20 years' incarceration in New Jersey. Howev e r , after being notified on July 24, 2013 

### that defendant was serving-a 20 year incarceration sen tence at East Jersey State Prison , a hearing was scheduled. Thus, the Commonwealth's actions constitutes due diligence in light of defendant's New Jersey incarceration and his failure to maintain contact with the APPD
. Even so, the most compelling evidence is, however, defendant ' s own complete ac c eptanc e of responsibility for the delay. At the revocation hearing defendant stated "I also take full responsibility for any lapse there may have been Circulated 06/26/2015 12:22 PMCommonwealth v . Warren Alston

between the time I was released and contacted the authorities. 

### In essence I would just like to say that I take full responsibility for my actions." NT. 5/9/2014 at 57-58. The foregoing notwithstanding,

. defendant asserts that the "Commonwealth failed to exercise due diligence in scheduling the revocation hearing ... " Defendant's claim l acks merit. Finally, under the third prong of the reasonableness test, 

### the prejudice resulting to defendant, "[t]hequestionis whether
. . . the appellant was prejudiced by the delay." 

### Woods, 965 A.2dat 1227. "Prejudice in this context compromises the loss of essential witnesses or evidence, the absence of which would obfuscate the determination of whether probation was violated, or unnecessary restraint of personal liberty." 

### Woods, 965 A.2d at 1227-28 (citing 

### Commonwealth v. Clark, 847 A
. 2d 122, 124 (Pa.Super.2004)). As set forth above the delay was reasonable under the circumstances of this specific case. Defendant con tends that he "was prejudiced by the delay by being denied access to a modified custody status and various programs in prison, which unnecessarily restrained his personal l iberty
. " This court however fully rejects this uncorroborated assertion
. As this court eluded to at defendant's revocation hearing, it is more likely that the nature of defendant's crimes determined bis custody status, and limited access to the various programs in prison, rather than a remote decade old Pennsylvania detainer
. Here, there was no l oss of essential witnesses or evidence, the determination of whether probation was violated was clearly based on a subsequent conviction, and any unnecessary restraint of personal liberty was due only to the fault of defendant.Therefore, .tbis
. . court correctly rejected defendant ' s contention that the delay prejudiced him by denying him access to various prison programs. This court properly concluded that the delay was reasonable under the circumstances of this case and that defendant suffered no prejudice
.

Furthermore, defendant's argument that bis "right to due process oflaw and his right to a speedy hearing
.. . were violated by the ten (10) year delay [which ]
. [was ] not intrinsically 8 Circulated 06/26/2015 12:22 PMCo mm o nwealth v . Warren Alsto n 9 "The [ standard of] review 

### in an appeal from [ a ] j udgmen t o f sentence which has been claim must fail. (5) years res u l t s in an aggregate period o f imprisonment that
. exceeds the statu t ory maximum. " T hi s twenty (23) months comb in ed with the new term o f incarcer ation of two-and-o n e -h al f (2
. 5) to fiv e - - - - CONS. STAT. - A NN. 

### § 2902,
. is

- illegal because

- the

- original term
- of

- in c arceration of time

- served to N e xt, defendant claims that "the senten c e imposed on the charge of unlawful restraint, 18 P A. B . Defen

d a nt 's IJl e gal Sentence C

l ai m LacksM

er i t d eprivati on o f du e p r ocess rights
. 

### direct result of d efendant's condu ct and where he h a s not been pre j u d iced by said de l ay, there is n o Dagg e tt , 429 U
. S. 78, 97 ( 1 976))
. C l early , wh ere a p ro bation revocation hearing is d el aye d as a due process . " Commonwealth v. Water s , 252 Pa
. Super
. 357 , 359

- 60 (1977) (quoting Moody v . sentence for the convicti on which c o nstitute d the paro l e v i ol ation does n ot offend the principl e s o f that e ven instances w h ere a revocation he ari n g is d elayed "until after th e parolee has comple te d the Commonwealth v . Ruff, 272 Pa. Super
. 50 , 57 (1979)
. Signi fi cantly, the Supreme Court has n ote d ( a) writte n notic e of the claimed v i o l ations of (probation or) parole; (b) disc l osure · to (pro b ation er or) paro l ee of evi d ence against him; (c) opportunity to b e heard in p erson and to p r ese n t w i tn e sses and documentary evidence; ( d) the ri gh t to confront an d c r oss - e xamine adverse w i tnesses (unless the h e aring officer sp e cifi c ally fin d s good cause for not allow in g confrontation); ( e) a "neutral and detached" hearing body
.. . an d (f) a · w ri tten statemen t 

### by the factfind er [] as to th e eviden c e relied on an d reasons for re voking (probation or) parole
. Supre me Court has identified thos e due proce ss rights as en compass i n g: heari ng are l ess th an thos e afforded a defendant in a criminal trial." Id. at 1 13. Spe c i fic ally , the 

### (1980). The 

### Court has held that th e " du e process 

### rights of a defe n dant in a probation revocatio n reasonabl e" i s unfounded. The U .S. Supreme Court has set 

### forth the du e process rights of a defendant in a parol e revocation hearing. Commonwealth v . Honeyblu e , 276 Pa. Supe r . 10 7, 113 Circulated 06/26/2015 12:22 PMCommonw e alth v . Warren Alston 10

imposed following revocation of probation is 

### limited to the validity of the revocation proceedings and the legality of the :final judgment of sentence. 

### Commonwealth v. Sylvanus, 369 A.2d 826, 828 (Pa
. Super
. 1976) (citing 

### Commonwealth v. Gilmore, 348 A.2d 425, 427 (Pa. 1975)). Therefore, "it is well settled that the revocation of a probation sentence is a matter comrn.itted 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." 

### Id. at 322 ( citing 

### Commonwealth v . Smith, 669 A.2d 1008, 1011 (Pa. Super
. 1996); 

### Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa Super
. 2000)). The Superior Court ' s examination is thus "limited to determining the validity
. .. and the authority of the sentencing court to consider the s ame sentencing alternatives that it had at the time of the initial sentencing
. " 

### Commonwealth v. Hoover, 909 A.2d 321, 322

- 23 (Pa
. Super. 2006). In 

### Commonwealth v. Williams, defendant was originally sentenced to 11.5 to 23 months imprisonment and a consecutive 3 

### year probation term, after pleading guilty to attempted theft by unlawful taking, a felony of the third degree, with a statutory maximum of 3.5 -7 years. 662 A.2d 658, 658 (Pa. Super
. 1995)
. After serving the minimum sentence, defendant was released on parole. 

### id. Sometime later, however, defendant's parole was revoked as a resu l t of a conviction for new crimes, so he served the remainder of the 23 months unde r the original sentence and his probation was continued. 

### Id. After being convicted while on parole a second time, defendant's probation was

______ · - - . revoked and
. he.was
. then sentenced to .3
. .5
.... '.7

- years' impri somnent,-the statutory maximum sentence
.. - allowed for his original attempted theft by unlawful taking plea of guilty. Id at 658-659. There, the trial court however only credited defendant with time served while on the violation of probation detainer and not with the cumulative 23 months already served imprisoned on the original offense. 

### Id. at 659. On appeal, the Superior Court found validity 

### in the basis of defendant's claim which was Circulated 06/26/2015 12:22 PMCommonwealth v. Warren Alston 

### 11 C
. Defendant's M anifestly Excessive Sentence C l aim Lacks Merit Finally, defendant alleges that " [t ]he sentence imposed
... violated the requirements of 42 PA. Coxs
. STAT. ANN. §9721(b), in that it WdS unreasonable, manifestly excessive, and far surpassed what was necessary to foster [his] rehabilitative needs." This claim is also meritless
. It is first important to note that title 4 2, section 9721 (b) of the Pennsy l vania Consolidated Statutes Annotated specifically refers to the imposition of a sentence based on the Pennsylvania Commission on Sentencing. It is however well settled that in Pennsylvania "the sentencing guidelines do not apply to sentences imposed as a result of [a]
... revocation of probation hearing." 204 PA. Co DE § 303 .1. Moreover; in Commonwealthv
. Coolbaugh,defendant claimed that bis violation of probation sentence was excessive because it was inconsistent with the sentencing code, and that the court either deviated from the guidelines without providing adequate reasons, or considered improper factors
.

. 770-A
. 2d 788, 792 (Pa , Super. Ct. 2001) ( quoting 204 PA. CODE § 303.1 (b )}

-- However , the Superior

- - - - · · -- - -- Court found defendant's claim without merit after noti ng that "[tjhe sentencing guidelines do not apply to sentences imposed as a result of probation or parole revocations.
. . ,, 

### Id.; See 

### also Commonwealth v. Cappellini, 690 A.2d 1220 (Pa. 1997). Where defendant "ch all eng j es] the discretionary aspects of sentencing, [the Superior Court] must determine whether he has raised a "the [trial court ' s] failure to credit [ him] with the 23 months already served." 

### Williams, 662 A.2d at 

### 659. Unlike the court in 

### Williams which erred in failing to credit defendant with the time served on his original sentence, here, Mr. Alston's period of time served was credited againstthe2.5-5 years' term imposed at the Gagnon II sentencing hearing. NT. 51912014 at 60. Thus, defendan t was "given c redit for time served" after being sentenced to 2.5-5 years state confinement on the charge of unlawful restraint. Circulated 06/26/2015 12:22 PMCo mmonw e alth v . Warre n Alston 

### 1 2

substantial question as to whether hi s sentence was appropriate und er the Sen te ncing C ode a s a wh ol e." See: 42 P A
. C ON S
. S T AT
. ANN. § 

### 978l ( b )
. In 

### K raft the Co urt h o w ev er emp ha s ize d that" i ti s we ll establis h e d that a c l aim of exce ss iveness of sentence doc s n o t rai s e a substantial qu esti o n so a s t o permi t appellate review where the s entence i s within the statu to ry limit s . " 737 A.2d 75 5, 757 (Pa
. S up er . C t. 

### 1 9 99) ( qu o ting Commonw e a l th v . Cruz - Ce nte no, 668 A.2 d 5 36, 545 (Pa. Supe r . 1995 )). Thus , for r ea s ons s imilar to those s tated above , where the s en te n ce imp os ed is within 

### the st atuto ry allowabl e minimum and maxi mum range, d e fendant ha s fail ed to r aise a substantial que s tion that
w o ul d permi t appellate re v i e w. It mu s t n o t b e overlo o ked th at 

### the purp os e of a p r obation violati o n hearing remains to ass e ss "whethe r the co nduct of the pro b ati one rindicates that p r obation has p roven to be an effective vehicle to accompli sh rehabilitation and a s uffi ci ent deterrent a g ainst future anti s ocial con duct. " Ka te s, 305 A.2 d at 7 0 8
. See a lso Comm o n w ealth v. Mul li ns, 918 A .2 d 82, 86 ( 20 07) ( n o tin g that " [ e]ve n w here the VO P hearing record i s insuffi c ient to sustain revocatio n o f p robation , this purpo s e sh o uld not be fru s trate d" )
. F o r that reason , the court must " bal ance the interes t s of s ociety in p reventing future criminal c o nduct b y the defendant ag ain s t th e poss ib ili ty of rehab ilitatin gthe de fe ndant o u ts ide of p ri s on . " D e l Conte , 419 A.2d at 783
. In 

### bal ancing the interest s of society in p reventin g future criminal condu ct by the defend an t
a g ain st th e p o ss ibil i ty · of rehabi lit atin g de fe ndan t out s ide of priso n, thi s court t o o k in t o accoun t d e f cndant ' s original c rime
. ~ d the 

### seriousne ss o f the crime s for which h e was co nv icted , p l ac i ng him 

### i n di rect vio l ation of this court's p r obationary sentence. N. T 5 1 9 1 20 1 4 

### at 5 9
. In 

### the o ri ginal ca s e , on N ovemb er 1 3, 20 01, defendan t unlawfully en tered the h o m e of h i s e s tran g ed w ife , and de s pite h er p l eading s, held her h os tage until he w as appreh e nded. I d. at 

### 5 2. T he rec o rd e v iden c e s that this court pr o pe rl y foun d that fo r thi s d e fendant, p r obatio n wa s an ineffe c tive vehicl e to acc o mpli s h Circulated 06/26/2015 12:22 PMCommonwealth v , WarrenAlston 13 / t-------J ~ ---" --~ ---'-------'V- -H-~,,.,,:-~~



# f ANDY L.V. BYRD, 1. November 1 7. 20 1 4 For the afore menti oned reasons, this court's ju d gment of sentence should be AFFIRMED
. 

### V. CO NCLUSION protec tion outwe i g h ed defendant's need for re h abilitation. 

### Id. at 60. rehabilitation and an insufficient deterrent against future antisocial conduct. Thu s, society's need for Circulated 06/26/2015 12:22 PM