J-S52035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RICHARD WAYNE MONTGOMERY

Appellant No. 285 WDA 2015

Appeal from the Judgment of Sentence of January 23, 2015

In the Court of Common Pleas of Blair County

Criminal Division at Nos.: CP-07-CR-0000594-2010

CP-07-CR-0000595-2010

CP-07-CR-0002469-2010

CP-07-CR-0002493-2012

BEFORE: SHOGAN, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.: FILED NOVEMBER 05, 2015

Richard Montgomery appeals the January 23, 2015 judgment of 

sentence, which the trial court imposed following the revocation of his 

probation. We affirm. 

On July 13, 2013, Montgomery entered guilty pleas in three separate 

criminal cases. In the case docketed at CP-07-CR-594-2010, Montgomery 

pleaded guilty to driving while operating privilege is suspended or revoked, 

habitual offenders, and driving under the influence of alcohol or controlled 

substance (“DUI”).1 In the case docketed at CP-07-CR-595-2010, 

Montgomery pleaded guilty to habitual offenders and driving while operating 

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1 75 Pa.C.S. §§ 1543(b)(1), 6503.1, and 3802(a)(1), respectively. 
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privilege is suspended or revoked. Finally, in the case docketed at CP-07-

CR-2469-2010, Montgomery pleaded guilty to habitual offenders and driving 

while operating privilege is suspended or revoked. The trial court sentenced 

Montgomery to an aggregate term of six years’ probation in those cases. 

On December 14, 2012, Montgomery pleaded guilty to possession of a 

controlled substance2and driving while suspended. The trial court 

sentenced Montgomery to thirty days’ imprisonment for driving while 

suspended and to one year of probation for possession of a controlled 

substance, which the court imposed concurrent to all other sentences that 

Montgomery was serving. 

While the record before us is incomplete, it appears that Montgomery 

was charged with, inter alia, possession of a controlled substance with intent 

to deliver (“PWID”)3on three separate occasions between August 2013 and 

November 2013. Those charges were filed and docketed at CP-07-CR-1871-

2013, CP-07-CR-2616-2013, and CP-07-CR-2621-2013. On June 2, 2014, 

Montgomery pleaded guilty to PWID in each of those cases. On that same 

day, the trial court sentenced Montgomery to an aggregate sentence of one 

year minus one day to two years minus two days’ incarceration. 

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2 35 P.S. § 780-113(a)(16). 

3 35 P.S. § 780-113(a)(30). 
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On October 17, 2014, Montgomery stipulated to violating the 

conditions of his probation in the 2010 and 2012 cases. On January 23, 

2015, the trial court held a Gagnon II hearing. See Gagnon v. Scarpelli, 

411 U.S. 778 (1973). At that hearing, Montgomery presented evidence of 

his chronic health conditions. Specifically, Montgomery suffers from 

coronary artery disease and peripheral vascular disease. At the time of the 

hearing, Montgomery was taking twenty-two different medications for those 

conditions. He also has a permanent pacemaker, a filter, a balloon, and 

numerous stents implanted throughout his body. 

James Yaworski, an agent with the Pennsylvania Board of Parole and 

Probation, initially recommended sentencing Montgomery to three to six 

years’ incarceration. However, in light of Montgomery’s medical conditions, 

Agent Yaworksi recommended that the trial court impose a sentence of two 

to five years’ incarceration. At the conclusion of the hearing, the trial court 

sentenced Montgomery to eighteen to thirty-six months’ incarceration. On 

February 2, 2015, Montgomery timely filed a motion to modify his sentence, 

which the trial court denied without a hearing on February 5, 2015. 

On February 17, 2015, Montgomery filed a notice of appeal. On March 

2, 2015, the trial court ordered Montgomery to file a concise statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On March 
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26, 2015, Montgomery filed a Rule 1925(b) statement.4 On April 27, 2015, 

the trial court filed a Pa.R.A.P. 1925(a) opinion. 

Montgomery presents one issue for our consideration: “Whether the 

[trial] court abused its discretion and imposed a sentence grossly 

disproportionate on [Montgomery] when it failed to consider his serious 

heart condition that had gotten worse since he was imprisoned on probation 

violation charges and his advanced age?” Brief for Montgomery at 11. 

Montgomery’s argument raises a challenge to the discretionary aspects 

of his sentence. “A challenge to the discretionary aspects of a sentence 

must be considered a petition for permission to appeal, as the right to 

pursue such a claim is not absolute.” Commonwealth v. McAfee, 849 

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4 The trial court’s March 2, 2015 order directed Montgomery to file and 

serve upon the trial court his concise statement “within twenty-one (21) 

days of the date of this Order,” i.e., on or before March 24, 2015. See

1925(b) Order, 3/2/2015, at 1. Although Montgomery’s Rule 1925(b) 

statement, which he filed on March 26, 2015, appears to be untimely, this 

Court has held that a failure by the prothonotary to “give written notice of 

the entry of a court order and to note on the docket that notice was given” 

will prevent waiver for timeliness pursuant to Pa.R.A.P. 1925(b). In re 

L.M., 923 A.2d 505, 510 (Pa. Super. 2007). 

Instantly, the docket does not indicate that the prothonotary provided 

notice to the parties of the trial court’s March 2, 2015 order. Additionally, 

there is a hand-written notation on the reverse side of the trial court’s 

1925(b) order that reads, “3/26/15 faxed to [Montgomery’s counsel].” 

1925(b) Order, 3/2/2015, at 1. Accordingly, we decline to conclude that 

Montgomery has waived his issue on appeal for failure to file a timely Rule 

1925(b) statement. See In re L.M., 923 A.2d at 510 (“If the docket does 

not show that notice of the entry of a Rule 1925(b) order was provided to an 

appellant, then we will not conclude that the appellant’s issues have been 

waived[.]”). 
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A.2d 270, 274 (Pa. Super. 2004). Before reaching the merits of 

Montgomery’s claim, we must undertake a four-part analysis to determine: 

(1) whether the appeal is timely; (2) whether Appellant 

preserved his issue; (3) whether Appellant’s brief includes a 

concise statement of the reasons relied upon for allowance of 

appeal with respect to the discretionary aspects of sentence; and 

(4) whether the concise statement raises a substantial question 

that the sentence is inappropriate under the sentencing code.

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa. Super. 2006). 

In order to raise a substantial question, an appellant must advance a 

colorable argument that his or her “sentence violates either a specific 

provision of the sentencing scheme set forth in the sentencing code or a 

particular fundamental norm underlying the sentencing process.” 

Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002). Our inquiry 

must focus upon the reasons for which the appeal is sought, in contrast to 

the facts underlying the appeal, which are necessary only to decide the 

appeal on the merits. Id. 

Instantly, Montgomery has timely filed a notice of appeal, preserved 

his claims in a timely post-sentence motion, and included in his appellate 

brief a separate Rule 2119(f) statement.5 Because Montgomery has 

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5

In pertinent part, Rule 2119 provides:

An appellant who challenges the discretionary aspects of a 

sentence in a criminal matter shall set forth in his brief a concise 

statement of the reasons relied upon for allowance of appeal 

with respect to the discretionary aspects of a sentence. The 

(Footnote Continued Next Page)
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complied with the technical requirements to challenge the discretionary 

aspects of his sentence, we proceed to determine whether he has presented 

a substantial question that the sentence imposed is not appropriate under 

the sentencing code. 

In his Rule 2119(f) statement, Montgomery contends that the trial 

court failed “to adequately consider [his] serious heart condition and the fact 

that he had been recently hospitalized twice for said heart condition since 

imprisoned for the probation violation charges.” Brief for Montgomery at 14. 

He also argues that the court “failed to properly take into account [his] 

advanced age of 64.” Id. Montgomery’s Rule 2119(f) statement does not 

identify a specific provision of the sentencing code with which his sentence is 

inconsistent, or a fundamental norm of the sentencing process contrary to 

his sentence. See Mouzon, supra. 

Moreover, this Court has held that “an allegation that the sentencing 

court ‘failed to consider’ or ‘did not adequately consider’ various factors does 

not raise a substantial question that the sentence was inappropriate.” 

Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011); see 

also Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) 

(“Appellant’s argument that the trial court failed to give adequate weight to 

(Footnote Continued) _______________________

statement shall immediately precede the argument on the merits 

with respect to the discretionary aspects of sentence. 

Pa.R.A.P. 2119(f). 
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mitigating factors does not present a substantial question appropriate for our 

review.”); Commonwealth v. Berry, 785 A.2d 994, 996 (Pa. Super. 2001) 

(“[O]rdinarily, a claim that the sentencing court failed to consider or accord 

proper weight to a specific sentencing factor does not raise a substantial 

question.”). Accordingly, Montgomery has failed to raise a substantial 

question, and we do not review the discretionary aspects of his sentence.6

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/5/2015

 

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6 Even if Montgomery had raised a substantial question, the record 

belies his contention that the trial court failed to consider his chronic illness. 

Indeed, the trial court’s sentencing order explicitly states, “[Montgomery’s] 

health condition has been taken into consideration, and the [c]ourt . . .

believes that he will receive substantially better medical care in a State 

Correctional Institution.” Order, 2/10/2015, at 3-4.