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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
GEORGE GILLARD, : No. 612 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence, January 5, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0010234-2010
BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 15, 2019
George Gillard appeals from the January 5, 2017 judgment of sentence
entered by the Court of Common Pleas of Philadelphia County following the
revocation of his probation and imposition of a new sentence. After careful
review, we affirm.
The trial court set forth the following procedural history:
On October 13, 2010, [appellant] was arrested and
charged with, inter alia, aggravated assault, criminal
conspiracy, and possessing instruments of crime.[1]
On May 13, 2013, [appellant] entered into a
negotiated guilty plea and was sentenced, in accord
with the plea agreement, to 11½ to 23 months[’]
incarceration followed by 7 years[’] probation.
Subsequently, while on probation, [appellant] was
arrested in early 2015 in Delaware County on four
counts of possession with intent to deliver
1 18 Pa.C.S.A. §§ 2702(a), 903, and 907(a), respectively.
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(PWID)[Footnote 4]. On June 30, 2015, [appellant]
[pled] guilty to the PWID charges and was sentenced
to 18 to 36 months[’] incarceration followed by 1 year
of probation.
[Footnote 4] Pursuant to 35 P.S. § 780-
113(a)(30).
[Appellant’s violation of probation (“VOP”)] hearing
was originally scheduled for February 11, 2015, but
was administratively continued five[Footnote 5] times
due to “open bills[.”] The VOP hearing was ultimately
held on October 7, 2016, where the [trial court] found
[appellant] in direct violation of probation, and
revoked his probation. The [trial court] ordered a
pre-sentence investigation (PSI) report in advance of
sentencing.
[Footnote 5] Continuances occurred on:
February 11, 2015; July 1, 2015;
November 12, 2015; May 11, 2016; and
July 22, 2016.
At the conclusion of his VOP sentencing hearing on
January 5, 2017, [appellant] was sentenced to 3 to
7 years on the initial aggravated assault charge and a
consecutive 3 to 7 years on the criminal conspiracy
charge, resulting in an aggregate sentence of 6 to
14 years[’] incarceration for the direct violation of
probation. [Appellant] filed a motion to reconsider on
January 17, 2017, which was denied on March 29,
2017.
On April 25, 2017, [appellant] filed an
untimely[Footnote 6] direct appeal to the Superior
Court of Pennsylvania at 1634 EDA 2017. On
December 11, 2017, the Superior Court dismissed
[appellant’s] direct appeal as untimely. In the
interim, [appellant] filed a [Post Conviction Relief
Act2] petition on December 4, 2017, seeking
restoration of his direct appellate rights nunc pro
2 42 Pa.C.S.A. §§ 9541-9546.
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tunc. The [trial court] granted [appellant’s] petition
on January 17, 2018.
[Footnote 6] Pursuant to Pa.R.Crim.P.
720(A)(3), in the event [appellant] fails to
file a post-sentence motion within 10 days
of sentencing, [appellant’s] notice of
appeal must be filed within 30 days of
sentencing. In this case, [appellant]
failed to file a post-sentence motion
within 10 days, thus rendering his notice
of appeal on April 25, 2017 untimely.
On February 7, 2018, [appellant] timely filed the
instant appeal. On February 12, 2018, the [trial
court] filed and served on [appellant] an order
pursuant to Rule 1925(b) of the Pennsylvania Rules of
Appellate Procedure, directing [appellant] to file and
serve a statement of errors complained of on appeal
within twenty-one days of the [trial court’s] order. On
March 2, 2018, [appellant] timely filed his 1925(b)
statement.
Trial court opinion, 8/15/18 at 1-3 (footnotes 1-3 and extraneous
capitalization omitted). On August 15, 2018, the trial court filed an opinion
pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issues for our review:
1. Was [a]ppellant’s cumulative sentence of 6 to
14 years[’] incarceration for a violation or [sic]
probation an abuse of the trial court’s
discretion?
2. Was [a]ppellant prejudiced by the lower court’s
failure to sentence him in a timely manner in
accordance with Pa.R.Crim.P. 708?
Appellant’s brief at 4.
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In his first issue, appellant contends that the trial court abused its
discretion by imposing a manifestly excessive sentence. (Id. at 9.) Put
another way, appellant raises a challenge to the discretionary aspects of his
sentence.
Challenges to the discretionary aspects of sentence
are not appealable as of right. Commonwealth v.
Leatherby, 116 A.3d 73, 83 (Pa.Super. 2015).
Rather, an appellant challenging the sentencing
court’s discretion must invoke this Court’s jurisdiction
by (1) filing a timely notice of appeal; (2) properly
preserving the issue at sentencing or in a motion to
reconsider and modify the sentence; (3) complying
with Pa.R.A.P. 2119(f), which requires a separate
section of the brief setting forth “a concise statement
of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence[;]”
and (4) presenting a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code. Id. (citation omitted).
Commonwealth v. Padilla-Vargas, 204 A.3d 971, 975 (Pa.Super. 2019).
Here, appellant failed to include a separate section of his brief setting
forth a concise statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of a sentence and the Commonwealth
raised an objection. (Commonwealth’s brief at 5-6.) Accordingly, appellant
waives his first issue on appeal. See Commonwealth v. Kiesel, 854 A.2d
530, 533 (Pa.Super. 2004) (holding that an appellate court is precluded from
conducting appellate review if the Commonwealth objects to the omission of
a Rule 2119(f) statement).
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In his second issue, appellant contends that appellant suffered prejudice
due to the trial court’s untimely revocation of probation and sentencing.
(Appellant’s brief at 11-12.) Appellant’s entire argument pertaining to
prejudice is as follows: “Appellant was prejudiced by the delay because he
was unable to present witnesses on his behalf and suffered unnecessary
incarceration.” (Id. at 12.)
[Pennsylvania Rule of Criminal Procedure] 708
provides in relevant part:
(B) Whenever a defendant has been
sentenced to probation or intermediate
punishment, or placed on parole, the
judge shall not revoke such probation,
intermediate punishment, or parole as
allowed by law unless there has been:
(1) a hearing held as speedily as
possible at which the
defendant is present and
represented by counsel; and
(2) a finding of record that the
defendant violated a condition
of probation, intermediate
punishment, or parole.
Pa. R.Crim.P. 708(B)(1), (2).
The language “speedily as possible” has been
interpreted to require a hearing within a reasonable
time. Commonwealth v. Saunders, [] 575 A.2d
936, 938 ([Pa.Super.] 1990). Rule 708 does not
establish a presumptive period in which the
Commonwealth must revoke probation; but instead,
the question is whether the delay was reasonable
under the circumstances of the specific case and
whether the appellant was prejudiced by the delay.
Commonwealth v. McCain, [] 467 A.2d 382, 383
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([Pa.Super.] 1983). The relevant period of delay is
calculated from the date of conviction or entry of
guilty plea to the date of the violation hearing. Id.
In evaluating the reasonableness of a delay, the court
examines three factors: the length of the delay; the
reasons for the delay; and the prejudice resulting to
the defendant from the delay. Saunders, supra.
The court must analyze the circumstances
surrounding the delay to determine if the
Commonwealth acted with diligence in scheduling the
revocation hearing. Commonwealth v. Bischof, []
616 A.2d 6, 8 ([Pa.Super.] 1992). Prejudice in this
context compromises the loss of essential witnesses
or evidence, the absence of which would obfuscate the
determination of whether probation was violated, or
unnecessary restraint of personal liberty.
Commonwealth v. Marchesano, [] 544 A.2d 1333,
1336 ([Pa.] 1988).
Commonwealth v. Clark, 847 A.2d 122, 123-124 (Pa.Super. 2004).
Here, appellant pled guilty to PWID in Delaware County on June 30,
2015. The trial court did not hold appellant’s VOP hearing until October 7,
2016. The record, however, reflects that appellant was incarcerated for the
entire period of the delay as a result of the PWID conviction. (See trial court
opinion, 8/15/18 at 2.) Moreover, appellant did not dispute that he violated
his probation. (Notes of testimony, 10/7/16 at 6.) Therefore, we find that
appellant was not prejudiced due to an inability to present witnesses on his
behalf, nor did he suffer any prejudice due to a loss of personal liberty. See
Commonwealth v. Christmas, 995 A.2d 1259, 1264 (Pa.Super. 2010),
appeal denied, 53 A.3d 756 (Pa. 2012). Accordingly, appellant’s second
issue is without merit.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/19
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