J-S17042-15

___________________________ *Former Justice specially assigned to the Superior Court. NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. JOHN M. RODGERS Appellant No. 1786 WDA 2014

Appeal from the Judgment of Sentence May 31, 2013 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000500-2008

BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.* MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 02, 2015 Appellant, John M. Rodgers, appeals nunc pro tunc from the judgment of sentence entered in the Jefferson County Court o f Common Pleas, following revocation of his probation. We affirm. The relevant facts and procedural history of this case are as follows. On July 19, 2008, Appellant took three hundred and forty-seven dollars ($347.00) from a victim. During the course of the theft, Appellant punched and kicked the victim in the face, head, and ribs. Appellant entered a negotiated guilty plea at docket CP-33-CR-0000500-2 008 (“docket 500- 2008”) on October 1, 2008, to theft by unlawful tak ing or disposition (18 Pa.C.S.A. § 3921(a)) and simple assault (18 Pa.C.S. A. § 2701(a)). The court sentenced Appellant that day to two (2) years ’ probation for eachJ-S17042-15

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conviction, to be served consecutively, for an aggr egate sentence of four (4) years’ probation at docket 500-2008. 1, 2 Appellant committed technical violations of his pr obation by failing to report and by changing his residence without permis sion from his probation officer. On December 9, 2009, Appellant admitted t o the technical probation violations; the court subsequently ordered a pre-se ntence investigation (“PSI”) report. Prior to holding a revocation (“VO P”) hearing, Appellant committed new offenses in Clearfield County. 3 On February 14, 2011, the court held a VOP hearing for Appellant’s theft and simple assault convictions at docket 500-2008. The court took judicial notice of Appellant’s guilty plea and sentence in Clearfield County, and revoked Appe llant’s probation for

____________________________________________ 1 Also on October 1, 2008, Appellant entered a guilt y plea at docket # CP33-CR-0000499-2008 (“docket 499-2008”) to theft by unlawful taking or disposition. The court sentenced Appellant to elev en (11) months to two (2) years’ imprisonment (less one day), plus one (1) da y of probation, for that offense. The court imposed Appellant’s sentences a t docket 500-2008 consecutive to Appellant’s sentence at docket 499-2 008.

2 On October 20, 2008, the court amended the sentenc ing order for Appellant’s theft conviction at docket 500-2008, to eliminate a term/condition of Appellant’s probation, which had required Appellant to pay a constable fee. The court did not otherwise alter Appellant’s theft sentence.

3 Specifically, Appellant pled guilty to driving und er the influence of alcohol or a controlled substance, unauthorized use of a mo tor vehicle, and careless driving. On September 28, 2010, the Clearfield Cou nty Court of Common Pleas sentenced Appellant to thirty (30) days to tw o (2) years’ imprisonment for the DUI conviction; two (2) years’ probation fo r the unauthorized use conviction; and imposed no further penalty for the careless driving conviction.J-S17042-15

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theft and simple assault based on Appellant’s new c rimes. The court resentenced Appellant to eighteen (18) months’ prob ation for theft (consecutive to any other sentence Appellant was se rving), and resentenced Appellant to six (6) months’ probation for simple a ssault, consecutive to the theft probation sentence. Thus, the court imposed an aggregate sentence of twenty-four (24) months’ probation for Appellant’s simple assault and theft convictions at docket 500-2008. 4 Appellant violated his probation again in December 2011 and January 2012, by committing drug offenses. 5 On April 3, 2013, Appellant entered a negotiated guilty plea for these crimes at docket # CP-33-CR-0000618-2012 (“docket 618-2012”) and docket # CP-33-CR-0000621-2 012 (“docket 621- 2012”). Specifically, Appellant pled guilty to one count of possession with intent to deliver a controlled substance (“PWID”) a t each docket. The court imposed a term of nine (9) months to five (5) years ’ imprisonment for each PWID conviction, to be served concurrently. Additi onally, regarding Appellant’s underlying theft and simple assault con victions at docket 500- 2008, Appellant admitted that his drug offenses con stituted violations of his

____________________________________________ 4 The court also revoked Appellant’s probation at do cket 499-2008, and resentenced Appellant to eighteen (18) months to fi ve (5) years’ imprisonment on that docket, consecutive to the Cle arfield County sentence.

5 Appellant also committed a technical violation of probation by possessing controlled substances.J-S17042-15

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probation. The court took judicial notice of Appel lant’s guilty pleas and sentences for PWID, and ordered preparation of a PS I report. On May 31, 2013, the court held a VOP hearing conc erning Appellant’s theft and simple assault convictions at docket 500- 2008 based on Appellant’s PWID convictions. The court revoked pr obation for the theft and simple assault offenses and resentenced Appellant t o two and one-half (21⁄2) to five (5) years’ imprisonment for the theft convi ction (with credit for time served), concurrent to the PWID sentences; and six (6) months to two (2) years’ imprisonment for the simple assault convicti on (with credit for time served), consecutive to the theft sentence. Thus, the court imposed an aggregate revocation sentence of three (3) to seven (7) years’ imprisonment at docket 500-2008. Appellant did not file post-se ntence motions. On June 28, 2013, Appellant timely filed a notice of appeal. This Court affirmed the judgment of sentence on March 5, 2014, waiving Appellant’s sole issue challenging the discretionary aspects of his sentence for failure to object at sentencing or file post-sentence motions; and for failure to file a Pa.R.A.P. 2119(f) statement. See Commonwealth v. Rodgers , 100 A.3d 296 (Pa.Super. 2014). On July 28, 2014, Appellant timely filed a pro se PCRA petition. The court appointed counsel on August 15, 2014, who fil ed an amended PCRA petition on September 30, 2014, requesting reinstat ement of Appellant’s post-sentence and direct appeal rights nunc pro tunc . The court grantedJ-S17042-15

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relief on October 2, 2014, and reinstated Appellant ’s post-sentence and direct appeal rights nunc pro tunc . On October 3, 2014, Appellant timely filed a post-sentence motion nunc pro tunc , which the court denied that day. 6 Appellant timely filed a nunc pro tunc notice of appeal on October 20, 2014. On October 24, 2014, the court ordered Appel lant to file a concise statement of errors complained of on appeal pursuan t to Pa.R.A.P. 1925(b); Appellant timely complied on November 3, 2014. Appellant raises one issue for our review:

DID THE SENTENCING COURT EXERCISE A MANIFEST ABUSE OF DISCRETION AT [APPELLANT’S] GAGNON II [7] PROBATION REVOCATION SENTENCING WHEN IT SENTENCED [APPELLANT] TO A MANIFESTLY EXCESSIVE SENTENCE, THE MAXIMUM SENTENCE ALLOWED BY LAW, AND IN STATING REASONS FOR THE SENTENCE THAT WERE NOT SUPPORTED BY THE RECORD, TO WIT: IN BOTH THE GAGNON II REVOCATION SENTENCE TRANSCRIPTS, AND IN ITS PA.R.A.P. NO. 1925(A) OPINION, THE TRIAL COURT INDICATES THAT IT FASHIONED A SENTENCE THAT ONLY EXTENDED [APPELLANT’S] MINIMUM SENTENCE BY SIX (6) MONTHS WHEN IN REALITY THE TRIAL COURT EXTENDED [APPELLANT’S] MINIMUM AGGREGATE SENTENCE BY TWENTY-SEVEN (27) MONTHS? (Appellant’s Brief at 4).

____________________________________________ 6 The certified record does not contain a docket ent ry or court order denying Appellant’s post-sentence motion. Nevertheless, Ap pellant’s brief includes a copy of the order denying relief.

7 Gagnon v. Scarpelli , 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).J-S17042-15

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When reviewing the outcome of a revocation proceedi ng, this Court is limited to determining the validity of the proceedi ng, the legality of the judgment of sentence imposed, and the discretionary aspects of sentencing. Commonwealth v. Cartrette , 83 A.3d 1031, 1033-34 (Pa.Super. 2013) ( en banc ) (explaining that, notwithstanding prior decisions which stated our scope of review in revocation proceedings is limite d to validity of proceedings and legality of sentence, this Court’s scope of review on appeal from revocation sentencing can also include discret ionary sentencing challenges). Appellant argues the court’s on-the-record stateme nts concerning his revocation sentences for theft and simple assault a re inconsistent with the facts of record. Appellant explains the court sent enced him on April 3, 2013 at dockets 618-2012 and 621-2012 to concurrent term s of nine (9) months to five (5) years’ imprisonment for his PWID convic tions. Based on these drug convictions, the court revoked Appellant’s pro bation for his underlying theft and simple assault convictions at docket 500- 2008, and resentenced Appellant on May 31, 2013, to two and one-half (21⁄2) to five (5) years’ imprisonment for theft, and a consecutive six (6) m onths to two (2) years’ imprisonment for simple assault. Appellant asserts the court stated at the May 31, 2013 VOP hearing that the revocation senten ces for Appellant’s theft and simple assault convictions essentially in creased Appellant’s minimum sentence by only six (6) months. Appellant contends the court’sJ-S17042-15

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statement is inaccurate, because the court actually increased Appellant’s minimum sentence by twenty-seven (27) months’ impri sonment. Specifically, Appellant maintains that his minimum sentence on the PWID convictions was nine (9) months’ imprisonment (beca use the court ran those sentences concurrently). By imposing a two and one -half (21⁄2) year minimum revocation sentence for theft (totaling thi rty (30) months) concurrent to the PWID sentences, the court increas ed Appellant’s minimum sentence by twenty-one (21) months. Appellant insi sts the court’s imposition of a consecutive six (6) month minimum s entence for simple assault increased Appellant’s aggregate minimum sen tence by twenty-seven (27) months. Appellant complains the court’s sente ncing rationale was mathematically inaccurate. Appellant concludes the revocation sentences are erroneous where the court’s sentencing justific ation is at odds with the record; and this Court must remand for resentencing

. 8 As presented, Appellant’s issue challenges the discretionary aspe cts of his sentence. See generally Commonwealth v. Kerstetter , 580 A.2d 1134 (Pa.Super. 1990) (explaining claim that court relied on inaccurate i nformation at sentencing implicates discretionary aspects of sentencing).

____________________________________________ 8 Appellant mentions that the court’s imposition of the statutory maximum sentence for his theft conviction (five years’ impr isonment) was manifestly excessive, but he fails to develop this claim. Con sequently, it is waived. See Commonwealth v. McDermitt , 66 A.3d 810 (Pa.Super. 2013) (explaining undeveloped claims are waived and unrev iewable on appeal).J-S17042-15

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Objections to the discretionary aspects of a senten ce are waived if they are not raised at the sentencing hearing or in a timely filed postsentence motion. Commonwealth v. Griffin , 65 A.3d 932, 935 (Pa.Super. 2013), appeal denied , 621 Pa. 682, 76 A.3d 538 (2013). See also Pa.R.Crim.P. 708(E) (stating motion to modify sente nce imposed after revocation shall be filed within 10 days of date of imposition); Commonwealth v. Burks , 102 A.3d 497 (Pa.Super. 2014) (explaining Rule 708 continues to govern appellant’s post-sentence r ights following reinstatement of post-sentence rights nunc pro tunc ). Instantly, the court reinstated Appellant’s post-s entence and direct appeal rights nunc pro tunc on October 2, 2014. Appellant timely filed a post-sentence motion the following day. Neverthele ss, Appellant raised a different challenge in his post-sentence motion nunc pro tunc than he presents on appeal. Specifically, Appellant phrase d his sentencing challenge in his post-sentence motion nunc pro tunc , as follows:

The...revocation sentences are both the maximum sentences allowed by statute and, it is herein alle ged that, they are both manifestly excessive when considering the mitigating factors, to wit: [Appellant] was seeking counseling through violence prevention and drug and alcohol, he had paid all of his fines and restituti on owed [to] Jefferson [C]ounty in connection with his prio r Theft and Simple Assault convictions, he was serving a ni ne month to five year sentence at SCI Pine Grove, he w ill receive from the State Parole Board an additional n ine to eighteen months for parole violations, and [Appella nt’s] acknowledgement to the court that he has made mista kes in his life;J-S17042-15

- 9 - Wherefore, [Appellant] requests the court grant the within motion to modify sentence and in so doing re-senten ce [Appellant] to a more lenient sentence. (Appellant’s Post-Sentence Motion Nunc Pro Tunc , filed October 3, 2014, at 1). Significantly, Appellant’s motion makes no men tion of his argument on appeal that the court’s statements at sentencing we re inconsistent with the record. ( See id. ) Thus, Appellant’s sentencing challenge is waived

. See Griffin, supra

. Moreover, the court addressed Appellant’s appellat e issue as follows: 9

[Appellant] claims that the [c]ourt’s reasons for t he overall sentence were not supported by the record because “ on the record and in its Rule 1925(a) opinion [precedi ng Appellant’s initial direct appeal], the trial court indicates that it fashioned a sentence that only extended [Appellant’s] minimum sentence by six (6) months wh en in effect the trial court extended [Appellant’s] minim um aggregate sentence by twenty-seven (27) months.” T his claim, though, appears to stem from [Appellant’s] misapprehension of the [c]ourt’s express objective. On April 3, 2013, [Appellant] pled guilty to two co unts of [PWID], one at [docket] 618-2012 and the other at [docket] 621-2012, and pursuant to his plea agreeme nt, the [c]ourt sentenced him to concurrent terms of 9 months [to] 5 years’ incarceration. Those sentences would not commence, however, until [Appellant] had fulfilled the sentences he was then serving on account of his par ole violations. Approximately 7 weeks later, [Appellant] was again before the [c]ourt to be sentenced for violating his proba tion. At that time the [c]ourt revoked his probation and, no ting

____________________________________________ 9 Appellant raised his claim on appeal for the first time in his Rule 1925(b) statement.J-S17042-15

- 10 - that its aggregate sentence would increase his mini mum by only 6 months, resentenced him to 21⁄2 [to] 5 years [for theft] at [docket] 500-2008, concurrent with [docke ts] 618 and 621-2012, and a consecutive 6 months [to 2] yea r[s for simple assault at docket 500-2008]. Now, more than 17 months later, [Appellant] seems t o believe that the [c]ourt intended to add 6 months t o his 9- month minimum—an interpretation that, if correct, wo uld [validate] his claim. As the sentencing transcript reflects, however, it was his overall minimum to which the [c ]ourt deliberately added 6 months. After discussing the result of his 2011 Clearfield County sentence and his liability for the parole violation s he was facing, [Appellant] confirmed that the earliest he could begin serving his April 3, 2013 sentence was 21 mon ths later. It would thus be at least 30 months before he was eligible to be released from prison [based on the n inemonth minimum sentences for PWID]. When the [c]our t imposed a 21⁄2 year minimum at [docket] 500-2008, therefore, it did not alter his overall minimum sen tence. The only increase was the additional 6 months he wo uld have to serve [for simple assault at 500-2008], whi ch is precisely what the [c]ourt stated on the record. Because the [c]ourt did not abuse its discretion or impose a sentence other than that which it expressly inten ded and for which it gave its reasons, therefore, it respec tfully suggests that the judgment of sentence imposed agai nst [Appellant] on May [31], 2013 should be affirmed. (Trial Court Opinion, filed November 4, 2014, at 1- 2) (internal citations omitted). Our review of the May 31, 2013 VOP trans cript confirms the court’s statements. Appellant agreed at the VOP he aring that he could not begin serving his concurrent PWID sentences at dock ets 618-2012 and 621- 2012 until twenty-one (21) months later. The court ’s imposition of a minimum two and one-half (21⁄2) year (or thirty (30) m onth) revocationJ-S17042-15

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sentence for Appellant’s theft conviction, concurre nt to Appellant’s nine (9) month minimum PWID sentences, did not alter Appella nt’s earliest possible release date at dockets 618-2012 and 621-2012. Thu s, the court’s imposition of a consecutive six (6) month minimum r evocation sentence for Appellant’s simple assault conviction extended Appe llant’s earliest possible release date at dockets 500-2008, 618-2012, and 621 -2012, by only six (6) months. Therefore, even if Appellant had preserved his sentencing challenge in his post-sentence motion nunc pro tunc , it would nevertheless merit no relief because the record belies his claim

. 10 Accordingly, we affirm. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/2/2015

____________________________________________ 10 We note the court also had the benefit of a PSI re port at the VOP hearing on May 31, 2013. See Commonwealth v. Devers , 519 Pa. 88, 546 A.2d 12 (1988) (explaining that when sentencing court ha s benefit of PSI report, this Court can assume court was aware of relevant i nformation regarding defendant’s character and weighed those considerati ons along with mitigating factors).