NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA
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v. :
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JOHN HARTNETT :
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Appellant : No. 779 MDA 2025
Appeal from the Judgment of Sentence Entered May 13, 2025 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0004542-2022
BEFORE: DUBOW, J., BECK, J., and LANE, J. MEMORANDUM BY LANE, J.: FILED AUGUST 18, 2026 John Hartnett (“Hartnett”) appeals from the judgment of sentence imposed following the revocation of his parole and probation. We affirm.
In 2022, while Hartnett was receiving medical care at a medical center in Harrisburg, he intentionally headbutted a member of the medical staff, causing her injury. As a result of criminal charges filed in relation to this incident, Hartnett entered into a negotiated plea agreement in November 2023. Pursuant to the agreement, in exchange for Hartnett pleading guilty to aggravated assault,1 a second-degree felony, the Commonwealth would “concede the [sentencing] guidelines as though it was a simple assault,” so
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1 See 18 Pa.C.S.A. § 2702(a)(3) (stating that a “person is guilty of aggravated
assault if he . . . attempts to cause or intentionally or knowingly causes bodily injury to any of the . . . persons enumerated in subsection (c)[,]” which includes a “health care practitioner or technician”).
that his minimum sentence would range from six to twenty-seven months’ imprisonment, rather than twenty-one to twenty-seven months.2 N.T., 11/27/23, at 5-6. The parties did not come to any agreement with respect to the crime’s ten-year statutory maximum.3 Following an oral colloquy, the trial court accepted Hartnett’s guilty plea and imposed a two-part sentence of eight to twenty-three months’ imprisonment (“Phase One”), with a concurrent five- year term of probation (“Phase Two”). However, given that Hartnett had already served the minimum eight-month term of imprisonment associated with this sentence, the trial court contemporaneously ordered for his release on parole at Phase One.4 In August 2024, the Dauphin County Adult Probation Department (“Probation Services”) filed a notice with the court indicating that Hartnett had violated the terms of his parole and probation by incurring a charge of public intoxication, failing to report to his probation officer, failing to pay his fines and court costs, and moving without prior approval. In accordance with this
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2 Given that Hartnett had a prior Colorado conviction for obtaining controlled
substances by fraud or deceit, the Commonwealth calculated his prior record score (“PRS”) as 5 when determining the applicable sentencing guideline ranges for aggravated assault and simple assault.
3 See 18 Pa.C.S.A. § 1103 (stating the maximum sentence for a second- degree felony is ten years’ imprisonment).
4 As discussed further herein, the record reflects that Hartnett suffers from
mental health issues as well as addiction issues. During his periods of parole, Parole Services made efforts to help Hartnett gain admission to several inpatient treatment facilities to address his mental health and addiction issues.
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notice, the parties convened before the violation of parole/probation (“VOP”) court for a hearing, at the conclusion of which the court revoked Hartnett’s parole at Phase One. The VOP court then ordered that Hartnett be immediately released on parole subject to “all previous conditions.” Short Commitment, 9/17/24, at unnumbered 1. The VOP court did not modify Hartnett’s Phase Two probationary sentence.
The following month, Probation Services filed another notice with the court indicating that Hartnett had again violated the terms of his parole and probation. This time, Probation Services indicated that in addition to Hartnett failing to report to his probation officer and traveling outside of Dauphin County without permission, he had also incurred charges of public drunkenness and public indecency stemming from an incident involving police at a local YMCA. As a result, the parties reconvened before the VOP court for a hearing, and the VOP court once more revoked Hartnett’s parole. The VOP court subsequently ordered Hartnett to serve the remaining balance of his Phase One sentence, with the added caveat that he was immediately eligible for work release, as well as release from incarceration upon obtaining a stable address. See Short Commitment, 11/19/24, at unnumbered 1. Again, the VOP court did not alter Hartnett’s Phase Two probationary sentence.
Approximately three months thereafter, in February 2025, Probation Services filed a third notice with the court informing it that Hartnett was in violation of the terms of his parole and probation for failing to report to his
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probation officer, failing to pay his fines and court costs, failing to provide an updated home address, and leaving an inpatient treatment facility against medical advice. On May 13, 2025, the parties reappeared before the VOP court, at which time Hartnett confessed to committing the aforementioned violations. See N.T., 5/13/25, at 2. Given its history with Hartnett thus far, the VOP court elected to hear from each of the parties regarding their recommendation for Hartnett’s rehabilitation. We provide the relevant portions of this discussion, as follows:
[Probation Services]: Your honor, this is our third revocation hearing. I want to give a little bit of information regarding [Hartnett]. He does need help. He needs dual inpatient treatment. The issue is that – and I have dates for you. We went to six different facilities[,] and nothing made him satisfied at any of the facilities. So he would just leave them [against medical advice]. He won’t stay at a facility to get the help he needs. And then I have no idea where he goes.
He’s homeless. He just goes wherever he wants to go. He doesn’t keep me updated. And that’s the issue we’re having with him. So we would respectfully request for Phase [One], he be revoked to his back time of [ten] months, [twenty-three] days. And then Phase [Two], not be revoked with work release eligibility. And we also request that he be supervised on a mental health caseload with a mental health probation officer.
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[The Commonwealth]: Judge, as usual, I have to play the bad guy. We’re here for a third revocation. It was an aggravated assault on [an] enumerated person[] and I’m asking respectfully for the [twenty-one] to [twenty-seven]. It’s gotten to a point where the Commonwealth is very concerned for the safety of the Commonwealth and the enumerated persons that . . . Hartnett is going to have to be dealing with to undergo treatment.
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[VOP Court]: I fully understand where the Commonwealth is coming from as well. Tell me what additional information I need to hear.
[Hartnett’s Attorney]: . . . First, let me just note in response to that[,] that while I understand the concern, I don’t believe there’s ever been an allegation that . . . Hartnett has behaved violently while subject to court supervision. The problem is more so that he leaves [against medical advice]. And that’s what I can address.
Judge, he indicated to me that part of the problem is that there is an incident that happened when he was in the depth of drug addiction, a pretty unfortunate and embarrassing incident that I think is referenced in the probation officer’s report that was filmed. And that is being associated with him by people who know him or know of him at drug treatment facilities, which is creating basically a hostile environment for him.
Now, he fully admits he is not dealing with this in the correct way.
But the underlying impulse, although poorly executed, is a good one, he is trying to find the right environment to seek treatment in.
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[VOP Court]: [Hartnett, w]hat is your current diagnosis?
[Hartnett]: Oh, boy. It certainly begins with depression and attention and hyperactivity problems. I don’t think it goes much further than that. The drugs and the alcohol are really the beginning[,] and I believe the end[,] of my serious problems.
And while not directly having anything to do with charges, certainly I would not have been in the position I was in to get the charges. And by the way, Your Honor, getting new charges is only weeks away. I have no illusions about that. The fact that I have no new charges is quite a miracle and I’m well aware of that.
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[Hartnett’s Attorney]: Judge, that sort of feeds into our request.
We are generally in agreement with the request of probation[,]
but we would have two tweaks.
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And in light of . . . Hartnett’s indication that he recognizes what a serious problem this is at this point, he does not feel that it’s appropriate for him to go to work release in the interim. He needs to go directly to a structured inpatient facility.
So, Your Honor, he is – we’re modifying probation’s request by asking that he be recommitted to serve back time on Phase [One];
Phase [Two] as requested by probation remain unchanged; but that he is eligible to parole to [a] facility that he selected once probation is – if and only if probation is able to confirm that they would, in fact, take him and that there is an acceptable method of transport.
N.T., 5/13/25, at 2-5, 7, 10 (unnecessary capitalization omitted).
Nearing the conclusion of this discussion, the VOP court made the following observations with respect to Hartnett’s rehabilitative needs and their effect on his forthcoming revocation sentence:
[VOP Court]: Let me give you the thought of the court. [Hartnett]
obviously has high treatment needs. As a matter of fact, he’s never been in one place long enough to really confirm any of the diagnoses. And it may be much more complex than we even anticipate.
And every time there’s an attempt at treatment, he goes AWOL.
He never follows through. So my thoughts are, you’re in need of treatment and you don’t cooperate in getting the treatment, which means there’s usually a need for a restrictive setting. Because the same treatment is applied outpatient, inpatient, restrictive setting as well as even SCIs – it’s the same treatment – the question is whether you have it under control.
I’m seeing a problem keeping him under control. And I think probation is holding back on exactly how frustrated they truly are with [Hartnett]. That’s the perception of where the court is coming from. . . ..
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Let me share this with you[, Hartnett]. You’re an extremely bright individual, which frankly makes you dangerous to your own wellbeing in that you tend to overthink everything. You think you’re smarter than every one of the doctors that deals with you. Even when you get an opinion, you’re going to have another angle on it. I know you don’t agree with me. But I’m just articulating what I’m seeing. And the definition of insanity is doing the same thing over and over and expecting a different result.
So essentially, I think we all agree on the need for . . . treatment.
You need it in a secure facility. And I really don’t think I have another viable option. We have gone through this a lot of times.
And I generally like you. You have a charm to you that’s amazing.
But it tends to get you out of facing the reality of what you need to do.
Id. at 8-9, 12-13 (unnecessary capitalization omitted).
At the conclusion of the hearing, the VOP court: (1) ordered Hartnett to serve his remaining parole balance at Phase One, with all of his credit for time served therein attributed; and (2) imposed a concurrent term of two-to-six years’ imprisonment at Phase Two, for an aggregate revocation sentence of twenty-four months to six years in prison. Hartnett thereafter filed a timely post-sentence motion requesting the modification of his revocation sentence. Three weeks later, on the final day of his appeal period and having not yet received any ruling on his post-sentence motion, Hartnett filed a timely notice of appeal.5 Hartnett and the VOP court thereafter complied with the requirements of Pa.R.A.P. 1925.
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5 A notice of appeal must be filed within thirty days after the entry of the order
appealed from. See Pa.R.A.P. 903(a). An appellant whose revocation of probation sentence has been imposed after a revocation proceeding has thirty (Footnote Continued Next Page)
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Hartnett raises the following issues for our review:
1. Did the court err in ordering an incarceration sentence when it did not make the statutorily required finding that incarceration is necessary upon the probation revocation proceedings as required by Commonwealth v. Seals[, 353 A.3d 747 (Pa.
Super. 2026) (en banc)]?
2. Did the court abuse its discretion in imposing a sentence of state confinement when the court failed to consider the resentencing guidelines in making its decision?
3. Did the court, assuming it did consider the resentencing guidelines, improperly apply them as the calculated [PRS]
included an offense without equivalency?
Hartnett’s Brief at 5 (unnecessary capitalization omitted, issues reordered).
In his first issue, Hartnett contends that his Phase two revocation sentence is illegal because it was imposed in violation of 42 Pa.C.S.A. § 9771(c). See Seals, 353 A.3d at 763 (holding that a claim that the trial court failed to adhere to section 9771(c), as amended by Act 44 of 2023 (“Act 44”),
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days to appeal, regardless of whether or not he files a post-sentence motion. See Pa.R.Crim.P. 708(E) (providing that the filing of a motion to modify sentence will not toll the thirty-day appeal period); see also Commonwealth v. Coleman, 721 A.2d 798, 799 (Pa. Super. 1998) (holding that, because the filing of a motion to modify sentence following a revocation of probation does not extend the appeal period, a party seeking to appeal a revocation sentence must do so within the thirty-day appeal period prescribed by Rule 903(a)). Accordingly, because the VOP court neither expressly granted reconsideration nor ruled on Hartnett’s post-sentence motion within the appeal period, he was required to file a notice of appeal before its expiration. See Pa.R.A.P. 1701(b)(3); see also id. Comment (stating “because the clock is running on the appeal period and the period for reconsideration simultaneously, filing the notice of appeal at the same time as or shortly after the motion for reconsideration will protect against waiver of the appeal if the trial court . . . fails to act”).
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when resentencing a probationer to a period of total confinement implicates the legality of the sentence). Accordingly, we review a challenge to the legality of a sentence “de novo and with a plenary scope of review.” Id. at 766.
The core of Hartnett’s illegality of sentence claim pertains to whether the trial court’s revocation of his probationary sentence, and subsequent imposition of a term of total confinement, complied with the requirements of section 9771(c), as amended by Act 44. By passing Act 44, our legislature imposed certain restrictions on a court’s ability to resentence an individual in violation of their probation to total confinement. See 42 Pa.C.S.A. § 9771(c). These amendments include “a presumption against total confinement for technical violations of probation[,]” as well as a limited list of scenarios whereby a “court may impose a sentence of total confinement upon revocation[.]” 42 Pa.C.S.A. § 9771(c)(1).
Relevantly, a “court may impose a sentence of total confinement upon revocation” if it finds that the defendant: “absconded and cannot be safely diverted from total confinement through less restrictive means[;]” or “[t]he technical violation involved an intentional and unexcused failure to adhere to recommended programming or conditions on three or more separate occasions[,] and the defendant cannot be safely diverted from total confinement through less restrictive means.” 42 Pa.C.S.A. § 9771(c)(1)(iii)(E)-(F).
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Additionally, where “a court imposes a sentence of total confinement following a revocation” based on one or more technical violations, the court is to “consider the employment status of the defendant” and impose a sentence as follows:
(i) For a first technical violation, a maximum period of [fourteen] days.
(ii) For a second technical violation, a maximum period of [thirty] days.
(iii) For a third or subsequent technical violation, the court may impose any sentencing alternative available at the time of initial sentencing.
42 Pa.C.S.A. § 9771(c)(2)(i)–(iii).
Hartnett does not contest that this is his third violation of parole and probation. Nor does he contest that the VOP court could impose any sentencing alternative available at the time of his initial sentencing. However, Hartnett argues that his Phase Two revocation sentence of two to six years’ imprisonment violated section 9771(c) because the VOP court “did not make a specific finding about whether [he] could be diverted through less restrictive means.” Hartnett’s Brief at 18. While Hartnett acknowledges that there was “a detailed discussion about [his] inconsistency in treatment and failure to actually complete any treatment” at the revocation hearing, he nevertheless claims the VOP court’s sentencing solution was not fully informed. Id. (emphasis in original).
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In this regard, Hartnett contends that the VOP court’s finding was “that the voluntary nature of [his] prior attempts of treatment was a failure” and that he therefore needed “a restrictive setting.” Id. at 18-19. However, Hartnett disagrees with the court’s conclusion that the only way to meet these needs was by sentencing him to total confinement and ordering restrictive programming. Hartnett emphasizes that the VOP court should have considered less restrictive means of treating him, such as ordering for his evaluation for inpatient programming. Hartnett asserts that because the VOP court did not consider this method of rehabilitation, it thereby imprisoned him without making a “specific finding consistent with Act 44.” Id. at 19-20.
The VOP court determined that Hartnett’s illegality claim was without merit, reasoning as follows:
At the . . . revocation hearing, Hartnett admitted to the probation and parole violations. This court then sought the views of the probation officer, the Commonwealth, and counsel for Hartnett. The probation officer stressed that this was the third revocation proceeding for Hartnett, he needed dual (mental health and substance abuse) inpatient treatment, and that they had taken him to six different treatment facilities, which he left against medical advice. The officer also pointed out that Hartnett was homeless and moved to wherever he wanted to go without permission. The officer thus recommended revoking Hartnett to serve the . . . back time on the [P]hase [O]ne sentence and a revocation of the probation term with work release.
For its part, the Commonwealth emphasized that this was Hartnett’s third revocation[,] and given his history[,] there was concern for the safety of the public. . . ..
Counsel for Hartnett acknowledged the Commonwealth’s concern but pointed out that there were no allegations of violence during supervision. Rather, the problem was that Hartnett
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repeatedly left treatment against medical advice. Counsel requested that Hartnett be recommitted to serve the balance of his term on the [P]hase [O]ne sentence but then [be] paroled to a treatment facility instead of work release. Hartnett allocated at some length, explaining his reasons for leaving treatment, acknowledging his serious drug, alcohol, and mental health problems, and candidly observing that “getting new charges is only weeks away.”
This court agreed with Hartnett on the need for treatment.
But based on the repeated failures following earlier treatment efforts, treatment had to be in a secure facility. Accordingly, this court revoked Hartnett’s parole term at [P]hase [One], directing that he serve the balance of that term[, a]nd at [P]hase [T]wo, we imposed a concurrent [two]-to-[six] year term of imprisonment in the hope of securing the dual diagnosis and needed treatment.
VOP Court Opinion, 4/15/26, at 3-4 (citations and unnecessary capitalization omitted).
After careful review, we likewise determine that Hartnett’s illegality of sentence claim is without merit. Here, the record is clear that each of the parties, including Hartnett, were in agreement that he was in need of inpatient medical treatment, and that Probation Services had gotten him into six inpatient treatment facilities from which Hartnett had absconded. Thus, it was undisputed that, up until that point, Hartnett had been unwilling to remain in treatment for long enough to receive a diagnosis, much less a tailored treatment plan. As is evident from the record, the VOP court judge afforded Hartnett the opportunity to voluntarily remain in an inpatient treatment facility throughout the history of this case. At Hartnett’s initial sentencing in 2023, the trial court imposed a sentence which permitted his immediate release on
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parole so that he could retain some form of autonomy in seeking treatment and rehabilitation for his self-acknowledged problems with mental illness and addiction. Indeed, even when Hartnett returned to the VOP court on two separate occasions , the judge either immediately released Hartnett back on parole, or designated Hartnett as immediately eligible for work release, with an instruction that he be released from confinement upon the procurement of a stable address.
Accordingly, at the VOP hearing for Hartnett’s third violation stemming from, inter alia, leaving an inpatient treatment facility against medical advice and absconding from the county for the third time, the VOP court made it clear that Hartnett’s inability to voluntarily remain in a treatment facility while serving less restrictive sentences left it without any other “viable option” aside from issuing a sentence of total confinement. N.T., 5/13/25, at 12. This conclusion clearly evinces a finding that the trial court believed it could not safely divert Hartnett from total confinement by less restrictive means.6 See
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6 Moreover, as the VOP court emphasized in its Rule 1925(a) opinion, Hartnett
himself confessed during the hearing that he posed a present danger to society, as he relayed that it was “quite a miracle” that he had “no new charges” at the time of the hearing, and that if things were to have continued as they were, his “getting new charges [would have been] only weeks away.” N.T., 5/13/25, at 7. Similarly, with respect to Hartnett’s limited, ancillary argument that the VOP court failed to make the required “inquiry into [his] employment status[,] we reiterate that Hartnett also informed the VOP court prior to resentencing that he did “not feel that [it was] appropriate for him to go to work release in the interim” and that he instead needed “to go directly to a structured inpatient facility.” Id. at 10; see also Hartnett’s Brief at 18.
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42 Pa.C.S.A. § 9771(c)(1)(iii)(E)-(F). Consequently, because we determine the VOP court had ample authority pursuant to section 9771(c) to impose a sentence of total confinement following its revocation of Hartnett’s probation for the third time, we hold that Hartnett’s first issue is without merit.7 See id.; see also 42 Pa.C.S.A. §§ 9771(c)(iii).
In his second and third issues, Hartnett contends that: (1) the VOP court misapplied the original sentencing guidelines associated with his underlying aggravated assault conviction when it calculated his revocation sentence; and (2) the computation of these guidelines relied upon a PRS which erroneously included a Colorado conviction for obtaining controlled substances by fraud or deceit. Each of these issues presents a challenge to the discretionary aspects of Hartnett’s revocation sentence. See Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012); see also Commonwealth v. Phillips, 946 A.2d 103, 111-12 (Pa. Super. 2008).
It is well established “that there is no automatic right to appeal the discretionary aspects of a sentence.” Provenzano, 50 A.3d at 154. Rather, prior to reviewing the merits of a challenge to the discretionary aspects of a sentence, this Court must first conduct a four-part analysis, determining:
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7 To the extent that Hartnett argues the VOP court needed to specifically state,
on the record and prior to sentencing, that he cannot be safely diverted from total confinement through less restrictive means, he does not provide any support for this assertion. Moreover, our review of the amended section 9771 reveals no language requiring a court to invoke these exact words. See 42 Pa.C.S.A. § 9771(c)(1)(iii)(E)-(F).
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(1) whether appellant has filed a timely notice of appeal, 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, [see] 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, [see] 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation and unnecessary capitalization omitted).
Instantly, Hartnett filed a timely post-sentence motion, a timely notice of appeal, and he included a Rule 2119(f) statement in his brief.8 Accordingly, we now review both Hartnett’s statement of questions presented and his Rule 2119(f) statement to determine whether he has presented a substantial question for our review. See Provenzano, 50 A.3d at 154 (holding we cannot look beyond the statement of questions presented and the prefatory Rule 2119(f) statement to determine whether a substantial question exists).
Relevantly, this Court has held that an appellant raises a substantial question when he challenges the court’s application of the sentencing
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8 Although Hartnett’s Rule 2119(f) statement merely recites case law absent
any independent argument, we recognize that such a deficiency does not automatically constitute waiver, as: (1) the Commonwealth did not formally object to this defective statement in its brief; and (2) we may look at both the Rule 2119(f) statement and the statement of questions presented, which includes such independent argument, to determine whether he has raised a substantial question for our review. See Provenzano, 50 A.3d at 154; see also Commonwealth v. Shugars, 895 A.2d 1270 (Pa. Super. 2006) (stating we may review a claim that fails to comply with Rule 2119(f) if the Commonwealth does not object and the absence of a Rule 2119(f) statement does not significantly hamper our ability to review the appellant’s argument).
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guidelines. See Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007) (holding that a claim that the sentencing court misapplied the sentencing guidelines presents a substantial question). Likewise, an appellant raises a substantial question when he claims “that the trial judge utilized an incorrect PRS in computing his sentence under the Pennsylvania Sentencing Guidelines[.]” See Provenzano, 50 A.3d at 154. As Hartnett invokes both of these arguments in his statement of questions presented, we determine that each of his discretionary sentencing claims raises a substantial question. See id.; see also Cook, 941 A.2d at 11.
Accordingly, we now address the merits of Hartnett’s discretionary sentencing claims pursuant to the following standard:
[T]he proper standard of review when considering whether to affirm the sentencing court’s determination is an abuse of discretion. [A]n abuse of discretion is more than a mere error of judgment; thus, a sentencing court will not have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will. In more expansive terms, our Court recently offered: An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.
Provenzano, 50 A.3d at 154 (citing Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (citation and quotation omitted)).
In his second issue, Hartnett argues that the VOP court failed to adhere to the resentencing guidelines when it issued his revocation sentence. It is well established that different legal standards govern a VOP court’s sentencing
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ability depending on whether it finds a defendant has violated either their parole or their probation. See Commonwealth v. Holmes, 933 A.2d 57, 59 n.5 (Pa. 2007) (explaining that “[t]he difference between these often confused terms is crucial” when disposing of an appellant’s challenge to his revocation sentence). In accordance with this notion, our Supreme Court has defined probation as “a sentence imposed for [the] commission of crime whereby a convicted criminal offender is released into the community under the supervision of a probation officer in lieu of incarceration.” Id. By contrast, parole occurs where a convicted criminal offender is released “from jail, prison[,] or other confinement after actually serving part of the sentence” and where such conditional release “entitles [him] to serve [the] remainder of his term outside the confines of an institution” and so long as “he satisfactorily complies with all terms and conditions provided in [the] parole order.” Id.
As explained supra, where a court finds a convicted criminal offender to be in violation of their probation following a third technical violation, and it believes it cannot safely divert them from total confinement through less restrictive means, it may impose a new revocation sentence subject to “any sentencing alternative available at the time of initial sentencing.” 42 Pa.C.S.A. § 9771(c)(iii); see also 42 Pa.C.S.A. § 9771(c)(1)(iii)(E)-(F). Conversely, an “order revoking parole does not impose a new sentence[;]” instead, a VOP court is limited to ordering a criminal convict “to serve the balance of a valid sentence previously imposed.” Commonwealth v. Simmons, 262 A.3d 512,
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528 (Pa. Super. 2021) (en banc) (citing Commonwealth v. Mitchell, 632 A.2d 934, 936 (Pa. Super. 1993)). As this Court has emphasized, “such a recommittal is just that — a recommittal and not a sentence.” Id. There is thus “no authority” for a VOP court to give “a new sentence with a minimum and maximum” following the revocation of a criminal offender’s parole. Mitchell, 632 A.2d at 936.
Lastly, the delineation between the treatment of parole violations and probation violations is entirely purposeful, as such disparate treatment ultimately furthers “the primary goal of [rehabilitating] offenders[,]” while simultaneously protecting the public by deterring any “future criminal conduct[.]” Commonwealth v. Jennings, 351 A.3d 1215, 1234 (Pa. Super. 2026) (en banc). For instance, “[w]here a trial court imposes a probationary sentence concurrently with an underlapping carceral sentence, it retains sentencing options unavailable in a [strict] parole revocation context.” Id. In this same vein, “where the possibility of revocation looms [at sentencing], a probationary term imposed concurrently with incarceration serves to deter inmates from engaging in further criminal conduct.” Id.
Hartnett argues the trial court did not “properly consider” the resentencing guidelines — which required it to adhere to the sentencing guidelines governing his initial sentencing — when it calculated his underlying revocation sentence. Hartnett’s Brief at 20. Hartnett avers that at the time of his initial sentencing, the presumptive sentencing guideline range for his
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aggravated assault conviction was twenty-one to twenty-seven months, with a potential aggravated range of thirty-three months. However, Hartnett claims that when the VOP court: (1) revoked his parole to the balance remaining on his Phase One sentence, which had initially called for eight to twenty-three months’ imprisonment; and (2) simultaneously imposed “on that effective date” a concurrent two-to-six-year sentence of imprisonment in lieu of his Phase Two probationary sentence, the court effectively imposed an aggregate minimum sentence of thirty-two months’ imprisonment — placing it in the aggravated range of the initial sentencing scheme. Id. at 22. As a result, Hartnett maintains that because the VOP court did not provide any reasons on the record as to why it deviated from the standard sentencing guidelines to impose this aggravated sentence, but had instead indicated that it was giving him a sentence on “the lower side of the guidelines that would apply,” this Court must vacate his revocation sentence and remand for resentencing. Id.
The VOP court determined that Hartnett’s initial discretionary sentencing claim was without merit, reasoning as follows:
Here, contrary to Hartnett’s argument, we considered the Resentencing Guidelines as identified by the Commonwealth at the revocation proceeding — [twenty-one] to [twenty-seven]
months.[9] Those guidelines remained the same as when this court imposed the original sentence.
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9 As indicated previously, Hartnett originally pleaded guilty to aggravated assault in exchange for the Commonwealth agreeing to a reduced minimum (Footnote Continued Next Page)
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Hartnett contends, however, that this court imposed an aggravated range sentence. To reach this conclusion, Hartnett adds the [two]-to-[six]-year term from the revocation proceeding to the [eight]-to-[twenty-three]-month term imposed at the original sentencing on [P]hase [O]ne. In Hartnett’s view, we sentenced him to a [thirty-two]-month term of imprisonment, thereby departing upward from the [twenty-one]-to-[twenty-
seven]-month range. However, “it is well-settled that upon revocation of probation, a court possesses the same sentencing alternatives that it had at the time of the initial sentencing.” No authority exists to suggest that the eight months imposed on the [P]hase[ O]ne aspect of the split sentence is later added to the new sentence imposed following a revocation of the [P]hase[ T]wo probationary term. Accordingly, this court’s [twenty-four]-month minimum term fell within the [twenty-one]-to-[twenty-seven]-
month guideline range.
VOP Court Opinion, 4/15/26, at 4-5 (citations, footnote, and unnecessary capitalization omitted).
After careful review, we determine that the VOP court did not abuse its discretion by imposing a sentence of two-to-six years’ imprisonment following the revocation of Hartnett’s probation. In doing so, we preliminarily note that Hartnett appears to mistakenly conflate the sentencing mechanisms that accompany the VOP court’s revocation of his parole, with those that accompany its revocation of his probation. We reiterate that although the restrictions which apply to a criminal convict on parole and probation are very similar, the distinction between these rehabilitative methods is crucial to the
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sentencing guideline of six to twenty-seven months’ imprisonment, as applicable to a simple assault conviction. See N.T., 11/27/23, at 5-6. This negotiated range thus represented the minimum sentencing guidelines in place following the court’s acceptance of this plea.
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disposition of his instant discretionary sentencing claim. See Holmes 933 A.2d at 59, n.5.
As explained supra, when the VOP court revoked Hartnett’s parole, it did not have the authority to issue him an entirely new sentence, with differing minimum and maximum terms, and in lieu of the split-sentence that he had been serving up until that point. See Simmons, 262 A.3d at 528; see also Mitchell, 632 A.2d at 936. Instead, when the VOP court revoked Hartnett’s parole, it could only order him to serve the remainder of his balance at Phase One, which it did, without any consequence to his remaining Phase Two sentence. See id. Accordingly, because the court’s actions in this regard dealt exclusively with the parole phase of Hartnett’s sentence, they are entirely unaffected by the Act 44 amended guidelines in place at section 9771, which strictly govern the modification or revocation of a criminal offender’s probationary sentence. See 42 Pa.C.S.A. § 9771 (titled “Modification or revocation of order of probation”); see also Jennings, 351 A.3d at 1234; Holmes 933 A.2d at 59, n.5.
The VOP court needed only to adhere to section 9771 and its amended requirements when it separately revoked the Phase Two probationary term of Hartnett’s split-sentence. As each of the parties acknowledge, section 9771(c)(2)(iii) required the VOP court to conform its revocation of probation sentence to “any sentencing alternative available at the time of initial sentencing.” 42 Pa.C.S.A. § 9771(c)(2)(iii). Here, Hartnett bargained for a
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minimum sentence ranging between six and twenty-seven months’ imprisonment. Thus, when the VOP court imposed a revocation of probation sentence carrying a concurrent two-year (twenty-four month) minimum, which was within these negotiated guidelines, it patently conformed with the requirements of section 9771(c)(2)(iii). Consequently, we hold that Hartnett’s initial discretionary sentencing claim is without merit.
In his third issue, Hartnett’s argument centers on whether the trial court’s original calculation of his minimum sentencing guidelines was flawed given that its PRS computation incorporated an earlier Colorado conviction for obtaining controlled substances by fraud or deceit. Before we reach the merits of this issue, however, we must first evaluate whether he has preserved it for our review.
Generally, when a defendant pleads guilty, he foregoes all claims and challenges except “the voluntariness of the plea, the jurisdiction of the court, or the legality of the sentence.” Commonwealth v. Stewart, 867 A.2d 589, 591 (Pa. Super. 2005). However, there are certain circumstances whereby a defendant who entered into a guilty plea may also challenge the discretionary aspects of his sentence. See id. Pertinently, “the determination of whether discretionary aspects of sentencing may be challenged after a guilty plea is entered depends upon the actual terms of the plea bargain, specifically, to what degree a sentence agreement has been reached.” Commonwealth v. Steager, 357 A.3d 137, 148 (Pa. Super. 2026) (citations omitted). Typically,
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where “a defendant enters an open guilty plea, he may challenge the discretionary aspects of the sentence imposed.” Id. Alternatively, “where the parties did not bargain for a specific sentence but negotiated as to a certain aspect of the sentence[,]” our Court has explained that a “hybrid” plea agreement exists, and that under such circumstances, an appellant may challenge only “those discretionary aspects of the sentence that were not agreed upon in the negotiation process.” Id. (quotation marks omitted). However, “where the plea agreement provides specific penalties, an appeal from a discretionary sentence will not stand.” Id. (original brackets omitted).
Here, we reiterate that Hartnett entered into a negotiated guilty plea agreement which provided for specific penalties. In this case, the Commonwealth agreed to reduce the minimum sentencing guidelines to the specific range of six to twenty-seven months imprisonment in exchange for Hartnett’s guilty plea to aggravated assault. Because the VOP court adhered to this negotiated minimum range by imposing a minimum sentence of two years’ imprisonment following the revocation of Hartnett’s probation, he is necessarily precluded from challenging the discretionary aspects of this portion of his sentence on appeal. See Steager, 357 A.3d at 148; see also Commonwealth v. Eisenberg, 98 A.3d 1268, 1276 (Pa. 2014) (instructing that “[w]hen a negotiated plea includes sentencing terms, . . . the defendant’s knowing and voluntary acceptance of those terms rightly extinguishes the ability to challenge a sentence the defendant knew was a proper consequence
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of his plea”); Commonwealth v. Morrison, 173 A.3d 286, 290 (Pa. Super. 2017) (explaining that to permit “a discretionary appeal following the entry of a negotiated guilty plea would undermine the designs and goals of plea bargaining, and would make a sham of the negotiated plea process”). Therefore, we conclude that Hartnett’s third issue is waived. See Steager, 357 A.3d at 148; see also Stewart, 867 A.2d at 591.
Consequently, as we determine that each of Hartnett’s claims merit no relief, we affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 08/18/2026