J-A24023- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. ANTHONY BOWSER, Appellant No. 2567 EDA 2013 Appeal from the Judgment of Sentence Entered Novembe r 8 , 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

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- CR -0015974-2008
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J. * MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 12, 2014 Appellant, Anthony Bowser, appeals from the judgment of sentence of 31⁄2 to 7 years’ incarceration, imposed following the rev ocation of his prior term of probation. We affir m. The trial court set forth the facts and procedural histo ry of this case as follows: On June 30, 2009, Appellant entered a negotiated g uilty plea to possession with intent to deliver [(PWID)] and ... criminal use of a communication device. Appellant’s c rimes involved a controlled sale of marijuana where Appellant sold eigh t packets of marijuana to Police Officer Fitzgerald. The [c]our t accepted the plea and sentenced Appellant to [111⁄2] to [23] mont hs[’] incarceration plus [2] years[’] probation. The [c ]ourt told Appellant at his sentencing that, in light of his exten sive criminal background and the severity of the instant offense, he would

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* Retired Senior Judge assigned to the Superior Court.J-A24023- 14

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receive a sentence of [8] years should he violate the t erms of his supervision. On October 1[8], 2011, Appellant appeared for a Gagnon II [ 1] violation hearing. Appellant [had been] arrested o n July 8, 2011, for possession of a controlled substance. Appellant had also missed six [probation] office visits, twice tested posi tive for benzodiazepines, tested positive for marijuana six time s, and tested positive for opiates on one occasion. Appellant h ad enrolled in treatment at Parkside Recovery but only attended the intake meeting and was ultimately discharged due to hi s absences. Based on these technical violations, Appellant’s probation was revoked and he was sentenced to [4] to [8] years[’] incarceration for [PWID] and [31⁄2] to [7] years[’] incarce ration on the criminal use of a communication device to run concu rrent. After a motion to reconsider the sentence, the sentence on [PWID] was reduced to [31⁄2] to [7] years. Trial Court Opinion (TCO), 2/18/14, at 1-2 (citation s to the record omitted). 2 Appellant initially did not file an appeal from th e imposition of his 31⁄2 to 7 year aggregate sentence imposed on November 8, 20 11. However, he subsequently filed a petition for relief under the Po st Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the restora tion of his direct appeal rights nunc pro tunc . The court granted that petition and Appellant filed the instant appeal nunc pro tunc . Herein, he raises the following four issues for our review:

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1 Gagnon v. Scarpelli , 411 U.S. 778 (1973).

2 The trial court indicated Appellant had prior convicti ons that increased the applicable statutory maximum term for his PWID offense to ten years’ incarceration. See TCO at 4 n.2 (citing 35 Pa.C.S. § 780-115).J-A24023- 14

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A. Is it an abuse of discretion for the court to sentence Appellant to a significant, almost maximum, sentence of confinement for technical violations of his probation, without considera tion or application of [section] 9711(c) of the Sentencing Code, 42 Pa .C.S.A. §[]9771(c)? B. Is it an abuse of discretion for the court to sentence Appellant to a substantial term of confinement for technical viola tions of probation, without allowing him credit for the time he served in custody for that same offense as part of his original se ntence? C. Is it an abuse of discretion for the court to sentence Appellant for technical violations of probation, taking into consi deration as negative factors, impacting negatively on the sentence, “police contacts,” “including arrests,” which never became convictions of any wrong doing? D. Is it an abuse of discretion for the court to sentence Appellant for technical violations of probation without giving h im positive considerations for the time he was on the street

– trouble free, and able to resist temptations for further wrong doing ? Appellant’s Brief at 5 (unnecessary capitalization omitt ed). Initially, we note that on September 24, 2013, the trial court issued an order directing Appellant to file a Pa.R.A.P. 1925(b ) concise statement of errors complained of on appeal. On October 9, 2013, t he court issued an order granting Appellant’s request for an extension of time to file his Rule 1925(b) statement, and directing that Appellant’s concise statement be filed “on or before November 6, 2013....” Trial Court Order, 10/9/13. While Appellant did not file his Rule 1925(b) statement unt il November 7, 2013, the trial court addressed the merits of Appellant’s clai ms in its Rule 1925(a) opinion without any mention of the untimeliness of Ap pe llant’s concise
statement.J-A24023- 14

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Recently, in Greater Erie Indus. Development Corp. v. Presque Isle Downs , 88 A.3d 222 (Pa. Super. 2014), this Court stated th at: [I]t is no longer within this Court’s discretion to rev iew the merits of an untimely Rule 1925(b) statement based sol ely on the trial court’s decision to address the merits of those untimely raised issues. Under current precedent, even if a trial court ig nores the untimeliness of a Rule 1925(b) statement and addresses the merits, those claims still must be considered waived: “Whenever a trial court orders an appellant to file a concise statement of [errors] complained of on appeal pur suant to Rule 1925(b), the appellant must comply in a timely manner.” Hess v. Fox Rothschild, LLP , 925 A.2d 798, 803 (Pa.Super.2007) (citing [ Commonwealth v. ] Castillo , 888 A.2d [775,] 780 [(Pa. 2005)]) (emphasis in original) ; see Feingold v. Hendrzak , 15 A.3d 937, 940 (Pa.Super.2011). Id. at 225. However, we went on in Greater Erie to acknowledge that “there are still operative exceptions to Rule 1925(b) waiver wit h regard to timeliness.” Id. First, we explained that we must “look first to the lan guage” of the trial court’s Rule 1925(b) order to ensure it satisfied the dictates of Rule 1925(b). Id. at 225-226. Then, we must ensure that the prothonot ary provided the appellant with written notice of the cou rt’s Rule 1925(b) order. Id. at 226. We stated that the failure of t he prothonotary to do so “will prevent waiver for timeliness pursuant to [Rule] 1925 (b).” Id. at 226 (citing
In re L.M. , 923 A.2d 505, 509-10 (Pa. Super. 2007)). In this case, the court’s September 24, 2013 order full y complied with the dictates of Ru le 1925(b), and there was a “Proof of Service” document attached to that order. However, the court’s October 9 , 2013 orderJ-A24023- 14

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extending the Rule 1925(b) filing deadline did not satisfy the requirements of Rule 1925(b). Most notably, that order did not i nfor m Appellant “that any issue not properly included in the [s]tatement timely f iled and served ... shall be deemed waived.” Pa.R.A.P. 1925(b)(3)(iv). Addit ionally, there is no indication in the record that the prothonotary provid ed notice to Appellant of the court’s issuance of that order; namely, there was no “Pro of of Service” document attached. Under these circumstances, we decline to find Appellant’s issues waived on the basis of his untimely fi led Rule 1925(b)
statement. Nevertheless, Appellant’s iss ues regarding the discretionary aspects of his sentence are waived because he did not raise them in a post-sentence motion following the court’s November 8, 2011 impositi on of the 31⁄2 to 7 year sentence. See Commonwealth v. Bromley , 862 A.2d 598, 603 (Pa. Super. 2004) (“It is well settled that an [a]ppellant’ s challenge to the discretionary aspects of his sentence is waived if the [a]pp ellant has not filed a post-sentence motion challenging the discretionary aspe cts with the sentencing court.”) (citations omitted). We acknowledge that Appellant filed a motion for reconsideration from the imposition of his initial 4 to 8 year term of incarceration. 3 However, after the court granted that motion

____________________________________________ 3 While that motion is docketed, for some reason it is n ot contained in the certified record.J-A24023- 14

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and resentenced Appellant to 31⁄2 to 7 years’ incarceration for PWID, Appellant did not file a post-sentence motion for recon sideration. This Court faced similar circumstances in Commonwealth v. Levy , 83 A.3d 457 (Pa. Super. 2013). There, after Levy w as sentenced, the Commonwealth filed a motion for reconsideration, argu ing that the term of incarceration was too lenient. Id. at 467. The trial court agreed and resentenced Levy, which this Court stated was “in effect[,] ... a second judgment of sentence.” Id. Because Levy did not raise his sentencing challenges at the time of his resentencing, or “file a post -sentence motion for reconsideration of the second judgment of sentence[,] ” we deemed his discretionary aspects of sentencing issues waived. 4 Id. We are compelled to reach the same conclusion in the insta nt case. Appellant did not file a motion for reconsideration of the sentence imposed on November 8, 2011. Accordingly, he has not preserved his challenges to the discretionary aspects of his sentence. 5

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4 See also Commonwealth v. Bullock , 948 A.2d 818 (Pa. Super. 2008) (stating the right to appeal a discretionary aspect of se ntence is not absolute and is waived if the appellant does not challenge it i n po st -sentence motions or by raising the claim during the sentencing proceedi ngs); Commonwealth v. Lloyd , 878 A.2d 867 (Pa. Super. 2005) (finding the appel lant waived his challenge to his sentence where he failed to raise the issue at the sentencing hearing or in his post-sentence motion).

5 We acknowledge that the second issue raised by Appella nt involves the court’s failure to give him credit for time served. Su ch claims have been considered a non-waivable challenge to the legality of the sentence imposed. (Footnote Continued Next Page)J-A24023- 14

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Judgment of sentence affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/12/2014

(Footnote Continued) _______________________ Commonwealth v. Davis , 852 A.2d 392, 399 (Pa. Super. 2004) (citation omitted) (“An attack upon the court’s failure to give credit for time served is an attack upon the legality of the sentence and cannot be waived.”). However, in the “Argument” portion of Appellant’s bri ef, he offers no discussion of this issue. Consequently, we are unable me aningfully review Appellant’s contention that the court failed to give him credit for time served.