J-S28040-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHAWN CARL ROGERS : : Appellant : No. 94 MDA 2020
Appeal from the Judgment of Sentence Entered January 2, 2020 in the Court of Common Pleas of Huntingdon County Criminal Division at No(s): CP-31-CR-0000376-2015
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 20, 2020
Shawn Carl Rogers (“Rogers”) appeals from the judgment of sentence
imposed following the revocation of his probation. We affirm.
Between 2013 and 2015, Rogers was employed by Tuscarora Organic
Growers (“Tuscarora Organic”). During his employment as the bookkeeper,
Rogers used Tuscarora Organic’s payment system to write unauthorized
checks to himself for a total of $18,961.64.
On March 3, 2017, Rogers entered a negotiated guilty plea to two counts
of forgery, and one count each of theft by unlawful taking, theft by deception,
receiving stolen property, and conspiracy.1 Additionally, Rogers agreed to pay
the full amount of restitution and to make a $7,150.00 payment to Tuscarora
Organic prior to the start of his sentence. The trial court accepted Rogers’s
____________________________________________
1 18 Pa.C.S.A. §§ 4101(a)(2), 3921(a), 3922(a)(1), 3925(a), 903. J-S28040-20
guilty plea and deferred sentencing for the purposes of preparing a pre-
sentence investigation report.
On May 25, 2017, in accordance with the terms of the plea agreement,
the trial court sentenced Rogers to a period of two to six months in prison at
the Huntingdon County Correctional Facility, followed by 3 years’ probation,
plus fines and costs. Additionally, Rogers was ordered to undergo drug and
alcohol evaluation and treatment. The trial court delayed Rogers’s sentence
pending his $7,150.00 payment. Rogers successfully made the initial payment
and subsequently reported to the Huntingdon County Correctional Facility on
February 2, 2018, to begin his sentence. Rogers did not file any post-sentence
motions or a direct appeal.
On June 22, 2018, Rogers was released from prison. At that time,
Rogers entered into a payment plan with the Huntingdon Probation
Department (“Probation Department”) to pay $530.00 a month toward his
restitution, fines, and costs.
On December 12, 2018, the Probation Department filed a Petition to
revoke Rogers’s probation based on technical violations of the terms of his
probation. The Petition alleged that Rogers had failed to attend two
appointments with his probation officer, failed to notify the Probation
Department of his change of address and change in employment, and failed
to make his monthly $530.00 payments. The trial court scheduled a Gagnon
-2- J-S28040-20
I2 hearing for December 28, 2018,3 and Rogers subsequently failed to appear.
The trial court issued a bench warrant for Rogers, and he was arrested on
June 10, 2019.
On June 11, 2019, the trial court conducted a combined Gagnon I and
contempt hearing. At the close of the hearing, the trial court found that (1)
probable cause existed that Rogers had violated his probation, but he would
be released pending a Gagnon II hearing; and (2) Rogers was in indirect
criminal contempt for failure to pay fines, costs, and restitution. Additionally,
Rogers agreed to pay another $2,000.00 towards his restitution by August 14,
2019. Rogers was only able to pay $1,697.69 by August 14, 2019.
Prior to the Gagnon II hearing, the Probation Department filed an
Amended Petition to revoke Rogers’s probation. The Amended Petition alleged
that Rogers had failed to undergo the court-ordered drug and alcohol
evaluation and treatment; Rogers had fled the state and was in North Carolina
for approximately one month without notifying the Probation Department; and
Rogers had tested positive for marijuana metabolites on June 14, 2019. In
response to the Amended Petition, Rogers filed a Motion to
2 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
3 In its Opinion, the trial court states that the Gagnon I hearing was scheduled for December 28, 2018; however, the docket does not reflect a hearing scheduled for that day.
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Clarify4 the restitution amount and the trial court ordered a hearing to be held
on November 7, 2019.
The Gagnon II hearing was held on November 6, 2019, and Rogers
again failed to appear. However, Rogers did appear on November 7, 2019,
for a hearing on Rogers’s Motion to Clarify the restitution amount. The trial
court proceeded to conduct a hearing for “all open matters regarding
[Rogers]’s probation.” See Trial Court Opinion, 1/28/20, at 3. During the
hearing, Rogers stipulated that he was in violation of his probation. At the
conclusion of the hearing, the trial court found that Rogers had violated his
probation, revoked Rogers’s probation, and scheduled a sentencing hearing
for January 2, 2020.
On January 2, 2020, the trial court resentenced Rogers to 12 to 24
months in prison. Rogers did not file a post-sentence motion. Rogers filed a
timely Notice of Appeal and a contemporaneous Pa.R.A.P. 1925(b) Concise
Statement of errors complained of on appeal. The trial court filed a Pa.R.A.P.
1925(a) Opinion.
Rogers now raises the following claim for our review: “Is the sentence
imposed on [] Rogers manifestly excessive, given his acceptance of ____________________________________________
4 In his Motion, Rogers argued that the Probation Department had alleged an incorrect amount of restitution. Specifically, Rogers claimed that the initial restitution amount was $18,961.94, but the Probation Department had alleged that Rogers owed $23,562.69 in restitution. Additionally, Rogers reminded the trial court that he had paid $7,150.00 of the restitution prior to the beginning of his sentence and, thus, his remaining restitution should have been $11,811.94. Rogers’s Motion to Clarify did not calculate his additional payment of $1,697.69.
-4- J-S28040-20
responsibility for his actions, his lack of prior criminal record, and his attempts
at payment of restitution?” Brief for Appellant at 3.
Rogers claims that his sentence of 12 to 24 months in prison was
manifestly excessive, and that the trial court failed to consider mitigating
factors in fashioning Rogers’s sentence. Id. at 13. Additionally, Rogers
contends that the trial court should have sentenced him to a period of
probation instead of prison time and, in doing so, failed to consider his prior
criminal record. Id. at 11-12. Further, Rogers claims that the trial court
engaged in “message sending goals.” Id. at 12. Finally, Rogers argues that
the trial court abused its discretion by sentencing him to a period of total
confinement for technical violations. Id.
Rogers challenges the discretionary aspects of his sentence, from which
there is no absolute right to appeal. See Commonwealth v. Sunealitis, 153
A.3d 414, 420 (Pa. Super. 2016). Rather, when an appellant challenges the
discretionary aspects of his sentence, we must consider his brief on this issue
as a petition for permission to appeal. Commonwealth v. Yanoff, 690 A.2d
260, 267 (Pa. Super. 1997); see also Commonwealth v. Tuladziecki, 522
A.2d 17, 18 (Pa. 1987).
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J-S28040-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHAWN CARL ROGERS : : Appellant : No. 94 MDA 2020
Appeal from the Judgment of Sentence Entered January 2, 2020 in the Court of Common Pleas of Huntingdon County Criminal Division at No(s): CP-31-CR-0000376-2015
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 20, 2020
Shawn Carl Rogers (“Rogers”) appeals from the judgment of sentence
imposed following the revocation of his probation. We affirm.
Between 2013 and 2015, Rogers was employed by Tuscarora Organic
Growers (“Tuscarora Organic”). During his employment as the bookkeeper,
Rogers used Tuscarora Organic’s payment system to write unauthorized
checks to himself for a total of $18,961.64.
On March 3, 2017, Rogers entered a negotiated guilty plea to two counts
of forgery, and one count each of theft by unlawful taking, theft by deception,
receiving stolen property, and conspiracy.1 Additionally, Rogers agreed to pay
the full amount of restitution and to make a $7,150.00 payment to Tuscarora
Organic prior to the start of his sentence. The trial court accepted Rogers’s
____________________________________________
1 18 Pa.C.S.A. §§ 4101(a)(2), 3921(a), 3922(a)(1), 3925(a), 903. J-S28040-20
guilty plea and deferred sentencing for the purposes of preparing a pre-
sentence investigation report.
On May 25, 2017, in accordance with the terms of the plea agreement,
the trial court sentenced Rogers to a period of two to six months in prison at
the Huntingdon County Correctional Facility, followed by 3 years’ probation,
plus fines and costs. Additionally, Rogers was ordered to undergo drug and
alcohol evaluation and treatment. The trial court delayed Rogers’s sentence
pending his $7,150.00 payment. Rogers successfully made the initial payment
and subsequently reported to the Huntingdon County Correctional Facility on
February 2, 2018, to begin his sentence. Rogers did not file any post-sentence
motions or a direct appeal.
On June 22, 2018, Rogers was released from prison. At that time,
Rogers entered into a payment plan with the Huntingdon Probation
Department (“Probation Department”) to pay $530.00 a month toward his
restitution, fines, and costs.
On December 12, 2018, the Probation Department filed a Petition to
revoke Rogers’s probation based on technical violations of the terms of his
probation. The Petition alleged that Rogers had failed to attend two
appointments with his probation officer, failed to notify the Probation
Department of his change of address and change in employment, and failed
to make his monthly $530.00 payments. The trial court scheduled a Gagnon
-2- J-S28040-20
I2 hearing for December 28, 2018,3 and Rogers subsequently failed to appear.
The trial court issued a bench warrant for Rogers, and he was arrested on
June 10, 2019.
On June 11, 2019, the trial court conducted a combined Gagnon I and
contempt hearing. At the close of the hearing, the trial court found that (1)
probable cause existed that Rogers had violated his probation, but he would
be released pending a Gagnon II hearing; and (2) Rogers was in indirect
criminal contempt for failure to pay fines, costs, and restitution. Additionally,
Rogers agreed to pay another $2,000.00 towards his restitution by August 14,
2019. Rogers was only able to pay $1,697.69 by August 14, 2019.
Prior to the Gagnon II hearing, the Probation Department filed an
Amended Petition to revoke Rogers’s probation. The Amended Petition alleged
that Rogers had failed to undergo the court-ordered drug and alcohol
evaluation and treatment; Rogers had fled the state and was in North Carolina
for approximately one month without notifying the Probation Department; and
Rogers had tested positive for marijuana metabolites on June 14, 2019. In
response to the Amended Petition, Rogers filed a Motion to
2 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
3 In its Opinion, the trial court states that the Gagnon I hearing was scheduled for December 28, 2018; however, the docket does not reflect a hearing scheduled for that day.
-3- J-S28040-20
Clarify4 the restitution amount and the trial court ordered a hearing to be held
on November 7, 2019.
The Gagnon II hearing was held on November 6, 2019, and Rogers
again failed to appear. However, Rogers did appear on November 7, 2019,
for a hearing on Rogers’s Motion to Clarify the restitution amount. The trial
court proceeded to conduct a hearing for “all open matters regarding
[Rogers]’s probation.” See Trial Court Opinion, 1/28/20, at 3. During the
hearing, Rogers stipulated that he was in violation of his probation. At the
conclusion of the hearing, the trial court found that Rogers had violated his
probation, revoked Rogers’s probation, and scheduled a sentencing hearing
for January 2, 2020.
On January 2, 2020, the trial court resentenced Rogers to 12 to 24
months in prison. Rogers did not file a post-sentence motion. Rogers filed a
timely Notice of Appeal and a contemporaneous Pa.R.A.P. 1925(b) Concise
Statement of errors complained of on appeal. The trial court filed a Pa.R.A.P.
1925(a) Opinion.
Rogers now raises the following claim for our review: “Is the sentence
imposed on [] Rogers manifestly excessive, given his acceptance of ____________________________________________
4 In his Motion, Rogers argued that the Probation Department had alleged an incorrect amount of restitution. Specifically, Rogers claimed that the initial restitution amount was $18,961.94, but the Probation Department had alleged that Rogers owed $23,562.69 in restitution. Additionally, Rogers reminded the trial court that he had paid $7,150.00 of the restitution prior to the beginning of his sentence and, thus, his remaining restitution should have been $11,811.94. Rogers’s Motion to Clarify did not calculate his additional payment of $1,697.69.
-4- J-S28040-20
responsibility for his actions, his lack of prior criminal record, and his attempts
at payment of restitution?” Brief for Appellant at 3.
Rogers claims that his sentence of 12 to 24 months in prison was
manifestly excessive, and that the trial court failed to consider mitigating
factors in fashioning Rogers’s sentence. Id. at 13. Additionally, Rogers
contends that the trial court should have sentenced him to a period of
probation instead of prison time and, in doing so, failed to consider his prior
criminal record. Id. at 11-12. Further, Rogers claims that the trial court
engaged in “message sending goals.” Id. at 12. Finally, Rogers argues that
the trial court abused its discretion by sentencing him to a period of total
confinement for technical violations. Id.
Rogers challenges the discretionary aspects of his sentence, from which
there is no absolute right to appeal. See Commonwealth v. Sunealitis, 153
A.3d 414, 420 (Pa. Super. 2016). Rather, when an appellant challenges the
discretionary aspects of his sentence, we must consider his brief on this issue
as a petition for permission to appeal. Commonwealth v. Yanoff, 690 A.2d
260, 267 (Pa. Super. 1997); see also Commonwealth v. Tuladziecki, 522
A.2d 17, 18 (Pa. 1987). Prior to reaching the merits of a discretionary
sentencing issue,
[this Court conducts] a four-part analysis to determine: (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, Pa.R.A.P. 2119(f); and (4) whether there is a
-5- J-S28040-20
substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation
marks and some citations omitted).
Here, Rogers filed a timely Notice of Appeal and properly included a Rule
2119(f) Statement in his brief. However, Rogers did not object at sentencing
to the trial court’s allegedly excessive sentence, nor did he file a post-sentence
motion. See Commonwealth v. Gibbs, 981 A.2d 274, 282-83 (Pa. Super.
2009) (stating that a challenge to the discretionary aspects of a sentence is
waived where the appellant failed to preserve such challenge at sentencing or
in a post-sentence motion). Accordingly, Rogers has waived his challenges to
the discretionary aspects of his sentence on appeal. See id.; see also
Commonwealth v. Barnhart, 933 A.2d 1061, 1066-67 (Pa. Super. 2007).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 08/20/20
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