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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 November 8, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-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
term of probation. We affirm.
The trial court set forth the facts and procedural history of this case as
follows:
On June 30, 2009, Appellant entered a negotiated guilty
rimes involved a
controlled sale of marijuana where Appellant sold eight packets
of marijuana to Police Officer Fitzgerald. The [c]ourt accepted
]ourt told
Appellant at his sentencing that, in light of his extensive 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
receive a sentence of [8] years should he violate the terms of his
supervision.
On October 1[8], 2011, Appellant appeared for a Gagnon
[1]
II violation hearing. Appellant [had been] arrested on July 8,
2011, for possession of a controlled substance. Appellant had
also missed six [probation] office visits, twice tested positive for
benzodiazepines, tested positive for marijuana six times, and
tested positive for opiates on one occasion. Appellant had
enrolled in treatment at Parkside Recovery but only attended the
intake meeting and was ultimately discharged due to his
absences.
Based on these technical violations,
on the criminal use of a communication device to run concurrent.
After a motion to reconsider the sentence, the sentence on
[PWID] was reduced to [3½] to [7] years.
Trial Court Opinion (TCO), 2/18/14, at 1-2 (citations to the record omitted).2
Appellant initially did not file an appeal from the imposition of his 3½
to 7 year aggregate sentence imposed on November 8, 2011. However, he
subsequently filed a petition for relief under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the restoration 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 convictions that increased the
incarceration. See TCO at 4 n.2 (citing 35 Pa.C.S. § 780-115).
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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 consideration 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 violations of
probation, without allowing him credit for the time he served in
custody for that same offense as part of his original sentence?
C. Is it an abuse of discretion for the court to sentence Appellant
for technical violations of probation, taking into consideration as
any wrong doing?
D. Is it an abuse of discretion for the court to sentence Appellant
for technical violations of probation without giving him positive
considerations for the time he was on the street trouble free,
and able to resist temptations for further wrong doing?
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, the court issued an
Appellant did not file his Rule 1925(b) statement until November 7, 2013,
opinion without any mention of the untimeliness of Appe
statement.
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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 that:
merits of an untimely Rule 1925(b) statement based solely on
raised issues. Under current precedent, even if a trial court
ignores the untimeliness of a Rule 1925(b) statement and
addresses the merits, those claims still must be considered
concise statement of [errors] complained of on appeal pursuant
to Rule 1925(b), the appellant must
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
Id.
Rule 1925(b) order to ensure it satisfied the dictates of Rule
1925(b). Id. at 225-226. Then, we must ensure that the prothonotary
Id. at 226. We stated that the failure of t
Id. at 226 (citing
In re L.M., 923 A.2d 505, 509-10 (Pa. Super. 2007)).
the dictates of Ru
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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 infor
indication in the record that the prothonotary provided notice to Appellant of
the
document attached. Under these circumstances, we decline to find
statement.
ues regarding the discretionary aspects of
his sentence are waived because he did not raise them in a post-sentence
year sentence. See Commonwealth v. Bromley, 862 A.2d 598, 603 (Pa.
discretionary aspects of his sentence is waived if the [a]ppellant has not filed
a post-sentence motion challenging the discretionary aspects with the
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
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3
While that motion is docketed, for some reason it is not contained in the
certified record.
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PWID,
Appellant did not file a post-sentence motion for reconsideration.
This Court faced similar circumstances in Commonwealth v. Levy,
83 A.3d 457 (Pa. Super. 2013). There, after Levy was sentenced, the
Commonwealth filed a motion for reconsideration, arguing that the term of
incarceration was too lenient. Id. at 467. The trial court agreed and re-
Id. Because Levy did not raise his sentencing
challenges at the -sentence motion
discretionary aspects of sentencing issues waived.4 Id.
We are compelled to reach the same conclusion in the instant 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 sentence is not absolute
and is waived if the appellant does not challenge it in post-sentence motions
or by raising the claim during the sentencing proceedings); Commonwealth
v. Lloyd, 878 A.2d 867 (Pa. Super. 2005) (finding the appellant 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 Appellant involves the
considered a non-waivable challenge to the legality of the sentence imposed.
(Footnote Continued Next Page)
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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
discussion of this issue. Consequently, we are unable meaningfully review
served.
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Com. v. Bowser, A.
Combined Opinion