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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
VINCENT PAUL WHITE
Appellant No. 738 WDA 2016
Appeal from the Judgment of Sentence April 20, 2016
in the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000147-2006
BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY RANSOM, J.: FILED MAY 11, 2017
Appellant, Vincent Paul White, appeals from the judgment of sentence
imposed April 20, 2016, following a Gagnon II1 hearing resulting in the
revocation of his split sentence and his re-sentencing to two and one-half to
five years of incarceration. We affirm.
On April 19, 2006, Appellant was charged with theft by unlawful taking
and harassment,2 and a bench warrant for his arrest issued. See Order,
4/19/06, at 1. On April 15, 2013, Appellant was arrested in New York state
and extradited to Jefferson County. See Bench Warrant Return, 4/17/13, at
1.
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1
See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (concluding that due
process requires parolee be given a preliminary (Gagnon I) and final
(Gagnon II) hearing prior to parole revocation).
2
18 Pa.C.S. § 3921(a), 2709(a)(1).
*
Retired Senior Judge assigned to the Superior Court.
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On April 17, 2013, Appellant pleaded guilty to theft by unlawful taking.
He was sentenced to time served to two years of incarceration less one day,
followed by three years plus one day of probation. However, in January
2015, the court issued an order for a bench warrant because Appellant had
violated the conditions of his probation. See Bench Warrant, 1/28/15, at 1.
On April 20, 2016, Appellant appeared before the court for a
revocation hearing. Appellant admitted to violating the terms of his
probation. See Notes of Testimony (N. T.), 4/20/16, at 4-5. The court
found that Appellant had violated his probation, based on a series of new
charges. Id. at 5. The court revoked Appellant’s probation and re-
sentenced him to two and one-half to five years of incarceration in state
prison. Id. at 5-6. Appellant filed a motion for reconsideration of sentence,
which the court denied.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. The court issued a responsive
opinion. In this Court, Appellant filed motions seeking appointment of
different counsel, or permission to proceed pro se. The matter was
remanded for a Grazier3 hearing, and Appellant was permitted to represent
himself on appeal. Appellant filed a second court-ordered Pa.R.A.P. 1925(b)
statement, but the court did not issue a second opinion.
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3
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Appellant raises the following issues for our review:
I. Whether [Appellant’s] original arrest and sentencing for theft
by unlawful taking/moveable property and subsequent probation
violation was premised upon an illegal sentence, because it was
imposed in violation of [42 Pa.C.S. § 5552(b)(1)] the statute of
limitations of actions?
II. Whether the violation of the terms of an illegal sentence
imposed from the outset can properly form the basis of the
[current] revocation of probation?
III. Whether the Commonwealth violated [Appellant’s] due
process of law, when during a subterfuge, extradited [Appellant]
on two [] occasions without a governor’s warrant and in violation
of the [Interstate Agreement on Detainers]?
IV. Whether [Appellant’s] sentence was further illegally imposed
because a satisfaction was had in this matter by the fine and
restitution/discharge of Ms. Diana L. Capece in 2005?
V. Whether [Appellant] was denied meaningful constitutional
protection and representation when revocation counsel rendered
ineffective assistance at [Appellant’s revocation hearing] by
failing to raise the illegality of the original April 17, 2013, arrest
and sentencing as a good faith defense at his April 20, 2016
sentencing?
VI. Whether [Appellant] was denied a speedy arrest/trial and
was denied fundamental due process?
Appellant’s Brief at 3 (unnecessary capitalization omitted).
Appellant’s issues do not challenge the revocation of his probation but,
instead, attack the legality of his plea and original sentence and the
effectiveness of counsel. However, Appellant did not pursue a direct appeal
within thirty days of the imposition of his sentence. See Pa.R.A.P. 903(a)
(providing thirty days to timely file an appeal). Absent extraordinary
circumstances, this Court has no jurisdiction to entertain an untimely appeal.
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Commonwealth v. Burks, 102 A.3d 497, 500 (Pa. Super. 2014). The
record does not reflect such extraordinary circumstances and, accordingly,
we have no jurisdiction to consider the issues Appellant raises herein.
To the extent that Appellant challenges the sentence imposed after the
revocation of his probation, these issues are meritless. On appeal from such
a sentence, our review is limited to determining the validity of the revocation
proceedings and the authority of the court to consider the same sentence
alternatives it had at the time of the initial sentence. See Commonwealth
v. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006). A sentence of total
confinement may be imposed if the defendant has been convicted of another
crime or if his conduct indicates it is likely he will commit another crime.
See Commonwealth v. Hoover, 909 A.2d 321, 323 (Pa. Super. 2006).
Here, Appellant was convicted of theft by unlawful taking, a misdemeanor of
the first degree, which bears a statutory maximum sentence of five years of
incarceration. See 18 Pa.C.S. § 106, 3921(a). Further, the court noted the
string of arrests in several states as its reason for imposing a sentence of
state confinement. See N.T. at 5-6. Accordingly, the revocation sentence
was legal and proper.
Finally, Appellant’s claims of ineffective assistance of counsel are not
currently reviewable. Absent circumstances not present here, “claims of
ineffective assistance of counsel are to be deferred to PCRA review; trial
courts should not entertain claims of ineffectiveness upon post-verdict
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motions; and such claims should not be reviewed upon direct appeal.”
Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2017
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