J-S53044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
RALPH MICHAEL LUCHETTA
Appellant No. 70 MDA 2016
Appeal from the Judgment of Sentence December 14, 2015
in the Court of Common Pleas of Schuylkill County Criminal Division
at No(s):CP-54-CR-0000645-2014
BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 27, 2016
Appellant, Ralph Michael Luchetta, appeals from the judgment of
sentence entered in Schuylkill County Court of Common Pleas following the
trial court’s revocation of his probation/parole. He challenges the
discretionary aspects of his revocation of probation sentence. We affirm.
The trial court summarized the facts and procedural posture of this
case as follows:
[Appellant] has appealed an Order of Court dated
December 14, 2015 entered after a Revocation Hearing at
which [Appellant] stipulated to violating the terms and
conditions of his Re-Probation/Parole. He was Re-
Sentenced on the Re-Probation sentence to a period of
incarceration of 18½ months to 37 months at a SCI,
consecutive to his Parole sentence of 11½ months to 23
months. Thus, the cumulative sentence is 2½ to 5 years.
*
Former Justice specially assigned to the Superior Court.
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He was given 645 days credit for time served. This was
his second revocation.
[Appellant] was originally sentenced on November 12,
2014 to a period of 11½ months to 23 months, followed by
a five (5) years’ Probation on a charge of Aggravated
Assault. The assault involved his sister. He stabbed her in
her left thoracic area. He pled Guilty to one (1) count of
Aggravated Assault on November 12, 2014 pursuant to a
Negotiated Plea Agreement. All other counts were nol
prossed. [Appellant’s] sentence included a Mental
Health/Mental Retardation evaluation and follow-up
treatment.
On January 17, 2015, [Appellant] was paroled on his
Parole sentence. On June 15, 2015, his Probation/Parole
was revoked for violation thereof at a Revocation Hearing,
because [Appellant] violated the conditions thereof by
possessing dangerous weapons and not having an
appropriate residence. After revocation of his Parole
sentence, his new maximum date was February 6, 2016.
He was Re-Probated to a five (5) year term on his
Probation sentence. [Appellant] was Re-Paroled effective
October 27, 2015 to a Rehabilitation facility. He didn’t
complete his treatment and left the facility in violation of
the terms of his Probation/Parole. He had left the
treatment facility after only one (1) day. The
Commonwealth then filed a Motion to Revoke his Re-
Parole/Re-Probation at which the above mentioned history
was established at the Revocation Hearing on December
14, 2015.
At the Re-Probation/Parole Hearing, Robert Houston,
Schuylkill County Adult Probation Officer testified.
[Appellant] had to be handcuffed during the proceeding.
Mr. Houston testified that [Appellant] had mental health
problems that could be addressed at SCI Waymart. The
Schuylkill County Adult Probation Office had no other
options given [Appellant’s] lack of cooperation in receiving
mental health treatment. [Appellant] also testified. His
demeanor was angry and hostile. He was critical of Mr.
Houston. Mr. Houston was clearly frustrated by
[Appellant’s] refusal to cooperate with his mental health
treatment. [Appellant] admitted he has mental health
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issues, but presented the Court with no viable alternative
to a State Sentence where he would receive appropriate
treatment. So the Re-Re-Sentence was ultimately
imposed.
Trial Ct. Op., 1/20/16, at 1-2 (citation omitted). This timely appeal
followed.1
Appellant raises the following issue for our review: “Whether the
sentence imposed was excessive to the degree that it amounted to an abuse
of discretion?” Appellant’s Brief at 4. Appellant’s Brief contains a Pa.R.A.P.
2119(f) concise statement of the reasons relied upon for allowance of
appeal. Id. at 7. Appellant contends in the 2119(f) statement that “[t]he
lengthy sentence imposed by the [t]rial [c]ourt goes against the
rehabilitative nature of the Sentencing Code, as Appellant was denied the
opportunity to participate in supervision at the county level.” Id. at 7.
“[I]t is within our scope of review to consider challenges to the
discretionary aspects of an appellant’s sentence in an appeal following a
revocation of probation.” Commonwealth v. Ferguson, 893 A.2d 735,
737 (Pa. Super. 2006). This Court has stated,
discretionary aspects of [an appellant’s] sentence [ ] are
not appealable as of right. Rather, an appellant
challenging the sentencing court’s discretion must invoke
this Court’s jurisdiction by satisfying a four-part test.
We conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal,
1
We note Appellant was not ordered to file a Pa.R.A.P. 1925(b) statement of
errors complained of on appeal.
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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, 42
Pa.C.S.A. § 9781(b).
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some
citations omitted). “This Court determines whether an appellant has raised
a substantial question by examination of the appellant’s concise statement of
the reasons relied upon for allowance of appeal[.]” Commonwealth v.
Faulk, 928 A.2d 1061, 1072 (Pa. Super. 2007).
[T]he Rule 2119(f) statement must specify where the
sentence falls in relation to the sentencing guidelines and
what particular provision of the Code is violated (e.g., the
sentence is outside the guidelines and the court did not
offer any reasons either on the record or in writing, or
double-counted factors already considered). Similarly, the
Rule 2119(f) statement must specify what fundamental
norm the sentence violates and the manner in which it
violates that norm (e.g., the sentence is unreasonable or
the result of prejudice because it is 500 percent greater
than the extreme end of the aggravated range).
Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en
banc).
In Commonwealth v. Haynes, 125 A.3d 800 (Pa. Super. 2015),
appeal denied, 140 A.3d 12 (Pa. 2016), the appellant
[i]n his Pa.R.A.P. 2119(f) statement, [the appellant]
argues first that the trial court failed to consider his mental
health issues and rehabilitative needs. However, this
Court has held on numerous occasions that a claim of
inadequate consideration of such factors does not raise a
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substantial question for our review. We point out that [the
appellant] does not allege that the trial court was unaware
of his mental health issues or his rehabilitative needs.
Id. at 807 (citations omitted).
As a prefatory matter, we consider whether Appellant has preserved
the issue of the discretionary aspect of his sentence. In Commonwealth v.
Kalichak, 943 A.2d 285 (Pa. Super. 2008), this Court held that
issues not preserved in the lower court may not be raised
on appeal. Pa.R.A.P. 302(a). For example, when a court
revokes probation and imposes a new sentence, a criminal
defendant needs to preserve challenges to the
discretionary aspects of that new sentence either by
objecting during the revocation sentencing or by filing a
post-sentence motion. Commonwealth v. Malovich, 903
A.2d 1247, 1251 (Pa. Super. 2006); Pa.R.Crim.P. 708(D).
Id. at 289.
In the case sub judice, Appellant did not preserve the issue in the trial
court. He did not object during the revocation sentencing or file a post-
sentence motion. See id. However, at the time of sentencing, the trial
court did not comply with Pennsylvania Rule of Criminal Procedure 708,
which provides in pertinent part:
(3) The judge shall advise the defendant on the record:
(a) of the right to file a motion to modify sentence and
to appeal, of the time within which the defendant must
exercise those rights, and of the right to assistance of
counsel in the preparation of the motion and appeal[.]
Pa.R.Crim.P. 708(D)(3)(a).
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Instantly, the court did not advise Appellant of the right to file a
motion to modify sentence. See id. Therefore, we decline to find waiver for
failure to preserve the issue in the trial court.
We examine Appellant’s Rule 2119(f) statement to determine whether
Appellant has raised a substantial question that the sentence appealed from
is not appropriate. See Leatherby, 116 A.3d at 83; Faulk, 928 A.2d at
1072. The 2119(f) statement does not advance an argument that the
sentence was inconsistent with a specific provision of the Sentencing Code or
that it was contrary to the fundamental norms which underlie the sentencing
process. See id. The claim that the court’s sentence did not take into
consideration his mental health and rehabilitative needs does not raise a
substantial question. See Haynes, 125 A.3d at 807. Furthermore,
Appellant does not claim the court was unaware of his mental health issues
or rehabilitative needs. See id. Appellant’s claim does not raise a
substantial question for our review. See id.; Leatherby, 116 A.3d at 83;
Goggins, 748 A.2d at 727. Accordingly, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2016
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