J-S62011-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DILLON MICHAEL BOREMAN

Appellant No. 1469 MDA 2015

Appeal from the Judgment of Sentence July 28, 2015

In the Court of Common Pleas of Perry County

Criminal Division at No(s): CP-50-CR-0000044-2013 

 CP-50-CR-0000045-2013 

 CP-50-CR-0000046-2013 

 CP-50-CR-0000444-2012 

 CP-50-CR-0000445-2012 

 CP-50-CR-0000446-2012 

 CP-50-CR-0000447-2012 

 CP-50-CR-0000448-2012 

 CP-50-CR-0000449-2012 

 CP-50-CR-0000450-2012

BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J. 

MEMORANDUM BY JENKINS, J.: FILED AUGUST 29, 2016

Dillon Michael Boreman (“Appellant”) appeals from the judgment of 

sentence entered in the Perry County Court of Common Pleas following the 

revocation of his State Intermediate Punishment (“SIP”) sentence. We 

affirm.

The trial court set forth the relevant facts and procedural history of 

this appeal as follows:

On May 13, 2013, Appellant entered guilty pleas on...ten 

(10) docket numbers.1 On that date, Appellant entered a 

guilty plea in:
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a) CR-444-2012, to one count of burglary, a felony 

of the second degree, in violation of [18 Pa.C.S. §] 

3502(a)(4), agreement with the Commonwealth is 

that [Appellant] serve a two month minimum 

sentence;

b) CR-445-2012, to one count of burglary, a felony 

of the second degree, in violation of [18 Pa.C.S. §] 

3502(a)(4), agreement with the Commonwealth is 

that [Appellant] serve a two month minimum 

sentence;

c) CR-446-2012, to one count of burglary, a felony 

of the second degree, in violation of [18 Pa.C.S. §] 

3502(a)(4), agreement with the Commonwealth is 

that [Appellant] serve a two month minimum 

sentence;

d) CR-447-2012, to one count of theft, a 

misdemeanor of the first degree, in violation of [18 

Pa.C.S. §] 3921(a), agreement with the 

Commonwealth is that [Appellant] serve a term of

probation;

e) CR-448-2012, to one count of possession of a 

firearm, a felony of the second degree, in violation of 

[18 Pa.C.S. §] 6105(a)(1), the court ordered a 

presentence investigation report; 

f) CR-448-2012, to one count of theft by unlawful 

taking, a misdemeanor of the second degree, in 

violation of [18 Pa.C.S. §] 3921(a), agreement with 

the Commonwealth is that [Appellant] serve a 

probationary sentence;

g) CR-449-2012, to two counts of burglary, felonies 

of the second degree, in violation of [18 Pa.C.S. §] 

3502(a)(4); agreement with the Commonwealth is 

that [Appellant] serve a two month minimum 

sentence on each count-there is no agreement as to 

concurrency;
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h) CR-450-2012, to one count of burglary, a felony 

of the second degree, in violation of [18 Pa.C.S. §]

3502(a)(4), agreement with the Commonwealth is 

that [Appellant] serve a two month minimum 

sentence;

i) CR-044-2013, to one count of theft, a 

misdemeanor of the second degree, in violation of 

[18 Pa.C.S. §] 3921(a); agreement with the 

Commonwealth is that [Appellant] will serve a 

probationary sentence;

j) CR-045-2013, to one count of burglary, a felony of 

the second degree, in violation of [18 Pa.C.S. §] 

3502(a)(4), agreement with the Commonwealth is 

that [Appellant] will serve a two month minimum 

sentence; and

k) CR-046-2013, to one count of theft, a felony of 

the third degree, in violation of [18 Pa.C.S. §] 

3502(a)(4), agreement with the Commonwealth is 

that [Appellant] serve a two month minimum 

sentence.

1 The agreement between the Commonwealth 

and [Appellant] was that the [sentences of 

incarceration] run consecutive to each other.

On October 3, 2013, the Appellant appeared for sentencing 

on all ten (10) docket numbers. On this date, the [c]ourt

sentenced Appellant to the [SIP] Program for a total of two 

(2) years on each of the charges, with all sentences 

running concurrent to each other.2

2 Appellant would have completed his two year SIP 

sentence on October 3, 2015.

On May 18, 2015, the court received a letter from the 

Department of Corrections, expelling Appellant from the 

SIP Program on February 13, 2015 for a lack of meaningful 

participation, evidenced by multiple relapse[s] and 

behavioral infractions. As a result, the court held an SIP 

revocation/resentencing hearing on July 28, 2015. On that 

date, Appellant was resentenced to a total of forty-six (46) 
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to one-hundred-eight (108) months[’] incarceration in a 

State Correctional Institution (“SCI”). The court’s order 

states that “the [sentences of incarceration] are below the 

standard range due to agreement with the 

Commonwealth.” Appellant received credit from 

September 20, 2012 through April 14, 2014 (572 days), 

and February 13, 2015 through July 28, 2015 (166 days), 

totaling 738 days of credit (or 2 years and 8 days).

Appellant filed an appeal with the Superior Court and by 

order dated August 31, 2015, this court directed that he 

file a concise statement of matters complained on appeal. 

On February 8, 2016, Appellant filed his statement. 

Trial Court Pa.R.A.P. 1925(a) Opinion, filed February 29, 2016 at A-1-3 

(unnecessary capitalization omitted).

Appellant raises the following issues for our review:

1. WHETHER THE SENTENCING COURT HAD 

JURISDICTION AND/OR AUTHORITY AND/OR ABUSED ITS 

DISCRETION BY SENTENCING APPELLANT TO FORTY-SIX 

(46) TO ONE HUNDRED EIGHT (108) MONTHS[’] 

INCARCERATION WHEN APPELLANT’S ORIGINAL 

SENTENCE ON OCTOBER 13, 201[3] PROVIDED FOR A 

“TOTAL PERIOD OF TWO YEARS IN THE STATE 

INTERMEDIATE PUNISHMENT PROGRAM” AND WHEN 

APPELLANT WAS RESENTENCED ON JULY 28, 2015, HE 

HAD SERVED TWO YEARS AND EIGHT DAYS, A PERIOD OF 

TIME IN EXCESS OF TWO YEARS?

2. WHETHER THE SENTENCING COURT ABUSED ITS 

DISCRETION BY RESENTENCING [APPELLANT] TO FORTYSIX (46) TO ONE HUNDRED EIGHT (108) MONTHS[’] 

INCARCERATION ON JULY 28, 2015, WHEN HIS ORIGINAL 

SENTENCES WERE BASED ON AN AGREEMENT WITH THE 

COMMONWEALTH WITH A SPECIFIC SENTENCING 

STRUCTURE (SEE MAY 13, 2013 ORDER), AND WHEN 

APPLIED AT HIS RESENTENCING, THE ONLY CHARGE FOR 

WHICH HE WOULD NOT HAVE COMPLETED HIS MAXIMUM 

SENTENCE WITH HIS CREDIT DUE AT RE-SENTENCING ON 

JULY 28, 2015 IS, POTENTIALLY, THE CHARGE FOR 

VIOLATING TITLE 18 § 6105(A)(1), A SECOND DEGREE 
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FELONY FOR ONE COUNT POSSESSION OF A FIREARM IN 

CP-50-CR-0000448-2012 WHICH WOULD HAVE RESULTED 

IN A [THIRTY] (30) TO SIXTY (60) MONTH PERIOD OF 

INCARCERATION WITH SEVEN HUNDRED THIRTY-EIGHT 

(738) DAYS CREDIT AGAINST THIS SENTENCE?

3. WHETHER THE SENTENCING COURT ABUSED ITS 

DISCRETION IN SENTENCING APPELLANT TO FORTY-SIX 

(46) TO ONE-HUNDRED EIGHT (108) MONTHS[’] 

INCARCERATION ON JULY 28, 2015 WHEN PURSUANT TO 

THE PLEA AGREEMENT ENTERED INTO ON MAY 13, 2013 

WITH THE COMMONWEALTH PROVIDED FOR AN AGREED 

UPON MINIMUM INCARCERATIVE SENTENCE OF 16 

MONTHS AND AT THE TIME OF APPELLANT’S 

RESENTENCING HE HAD SERVED TWO (2) YEARS AND 

EIGHT (8) DAYS?

Appellant’s Brief at 20-21.

“Generally, in reviewing an appeal from a judgment of sentence 

imposed after the revocation of probation, this Court’s scope of review 

includes the validity of the hearing, the legality of the final sentence, and if 

properly raised, the discretionary aspects of the appellant’s sentence.” 

Commonwealth v. Kuykendall, 2 A.3d 559, 563 (Pa.Super.2010) (citing 

Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa.Super.2006)). “[I]n 

evaluating the revocation of [an] SIP sentence, we ordinarily... apply that 

[same] scope of review.” Id.

Appellant’s combined issues challenge both the legality and the 

discretionary aspects of his sentence. For purposes of disposition, we will 

first discuss his combined issues as they relate to the legality of his 

sentence.

“A challenge to the legality of a sentence...may be 

entertained as long as the reviewing court has 
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jurisdiction.” Commonwealth v. Borovichka, 18 A.3d 

1242, 1254 (Pa.Super.2011) (citation omitted). It is also 

well-established that “[i]f no statutory authorization exists 

for a particular sentence, that sentence is illegal and 

subject to correction.” Commonwealth v. Rivera, 95 

A.3d 913, 915 (Pa.Super.2014) (citation omitted). “An 

illegal sentence must be vacated.” Id. “Issues relating to 

the legality of a sentence are questions of law[.] ... Our 

standard of review over such questions is de novo and our 

scope of review is plenary.” Commonwealth v. Akbar, 91 

A.3d 227, 238 (Pa.Super.2014) (citations omitted).

Commonwealth v. Wolfe, 106 A.3d 800, 801–02 (Pa.Super.2014), aff'd, 

No. 68 MAP 2015, 2016 WL 3388530 (Pa. June 20, 2016).

In his first issue, Appellant argues that, because the original October 

3, 2013 sentencing order provided that he was to serve a total period of two 

years’ intermediate punishment and because he had already served over two 

years’ when he was re-sentenced, the court lacked authority to re-sentence 

him to anything other than time served. We disagree.

Appellant’s October 3, 2013 sentencing order provided that Appellant 

serve two years in the SIP program. Appellant could have completed his 

sentence on October 3, 2015, however, upon being apprised that Appellant 

violated the terms of the SIP program, the court scheduled and conducted a 

revocation hearing, after which Appellant’s participation in the SIP program 

was revoked on July 28, 2015. Thus, Appellant’s first issue is devoid of 

merit. 

In his second and third issues, Appellant argues the court violated the 

terms of his negotiated plea agreement when it re-sentenced him. He 
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claims the agreement provided that his minimum sentence would be sixteen 

months, and that he had already served this time at sentencing. He 

concludes he should have been re-sentenced to time served with an 

additional period of probation. Alternately, he argues that because he had

already served the sixteen-month minimum on his theft and robbery 

convictions, the court should have only sentenced him for his possession of a 

firearm conviction. Again, we disagree.

The relevant statute provides:

§ 9774. Revocation of State intermediate 

punishment sentence

(a) General rule.--The court may at any time terminate a 

sentence of State intermediate punishment pursuant to 61 

Pa.C.S. Ch. 41 (relating to State intermediate 

punishment).

(b) Revocation.--The court shall revoke a sentence of 

State intermediate punishment if after a hearing it 

determines that the participant was expelled from or failed 

to complete the program.

(c) Proceedings upon revocation.--Upon revocation of 

a State intermediate punishment sentence, the sentencing 

alternatives available to the court shall be the same as the 

alternatives available at the time of initial sentencing. The 

attorney for the Commonwealth must file notice, at any 

time prior to resentencing, of the Commonwealth’s 

intention to proceed under an applicable provision of law 

requiring a mandatory minimum sentence.

42 Pa.C.S. § 9774. Accordingly, if a court revokes a defendant’s SIP 

sentence, it must re-sentence him. Commonwealth v. Kuykendall, 2 A.3d 

559, 562 (Pa.Super.2010). Further: 
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As it is well established that the sentencing alternatives 

available to a court at the time of initial sentencing are all 

of the alternatives statutorily available under the 

Sentencing Code, these authorities make clear that at any 

revocation of probation hearing, the court is similarly free 

to impose any sentence permitted under the Sentencing 

Code and is not restricted by the bounds of a negotiated 

plea agreement between a defendant and prosecutor.

Commonwealth v. Wallace, 870 A.2d 838, 843 (Pa.2005) (footnotes 

omitted).

Here, the court revoked Appellant’s SIP sentence and re-sentenced 

him to an aggregate 46-108 months’ incarceration. Specifically, the court 

sentenced Appellant to consecutive periods of incarceration of 2-6 months 

for each of his burglary and theft convictions on Docket Nos. 444, 445, 446, 

449, 450, 45 and 46, plus a consecutive period of incarceration of 30 to 60 

months for his possession of a firearm conviction. The court then gave 

Appellant credit for time served. The court was not required to adhere to 

the plea agreement upon re-sentencing Appellant,1and it was not required 

to give him credit for time he spent in the SIP program before it revoked his 

SIP sentence.2

____________________________________________

1 Although the court was not required to adhere to the plea agreement, it 

imposed a sentence within the boundaries of the agreement.

2 See Commonwealth v. Kuykendall, 2 A.3d 559, 565 (Pa.Super.2010)

(“In exchange for admittance into SIP, the defendant surrenders his 

statutory right to credit for time served while housed in a county correctional 

institution or non-Pennsylvania state correctional facility. Revocation and re-

(Footnote Continued Next Page)
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To the extent Appellant’s issues challenge the discretionary aspects of 

his sentence, we observe that challenges to the discretionary aspects of 

sentencing do not entitle a petitioner to review as of right. Commonwealth 

v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011). Before this Court can 

address such a discretionary challenge, an appellant must invoke this Court’s 

jurisdiction by satisfying the following four-part test:

(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. [720]; (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.

Id.

Although Appellant filed a timely notice of appeal and included a 

Pa.R.A.P. 2119(f) statement in his brief, he failed to object at sentencing or 

otherwise preserve his issue in a timely post-sentence motion. Thus, 

Appellant has failed to invoke this Court’s jurisdiction for his discretionary 

aspects of sentencing claims. See id.; see also Commonwealth v. 

Cartrette, 83 A.3d 1030, 1042 (Pa.Super.2013) (holding Appellant waived 

challenge to discretionary aspects of sentence following revocation of SIP 

(Footnote Continued) _______________________

sentencing do not constitute a second punishment, but provide a necessary 

incentive to the defendant to complete the program.”).
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sentence by failing to object at sentencing or preserve issue in postsentence motion).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/29/2016