This appeal stems from an Order following a finding of violation of parole. Appellant’s claim on appeal is that the parole violation order is illegal and beyond the scope permitted under 42 Pa.C.S.A. § 9771. 1 We find no merit to this contention and affirm the order of revocation of parole.
The factual background leading to the revocation of Appellant’s parole and imposition of original sentence is as follows. On March 12, 1992, appellant pleaded guilty to Burglary and was sentenced to a term of incarceration of time served to twenty-three months, to be followed by one year’s probation. As a condition of parole, the trial court ordered appellant to pay restitution and court costs, and to participate in an “appropriate program” as designated by the Parole/Probation Department. After he was released from prison, appellant failed to report to his parole officer. In addition, he failed to make restitution as required by the original sentence. Finally, while on parole, he was arrested six (6) times in less than a year, and, in all six cases, failed to appear for the trial listings, forcing the court to issue bench warrants. 2
On February 22, 1993, at a violation hearing, the trial court revoked appellant’s parole and recommitted him to serve the
On appeal, appellant asks us to examine whether the trial court erred, as a matter of law, in revoking appellant’s parole and committing him to a term of total confinement. Appellant argues that the actions of the trial court in revoking his parole and sentencing him to a term of imprisonment are illegal and beyond the scope permitted under 42 Pa.C.S.A. § 9771(c). 4 He further contends that the applicable provisions concerning sentencing on a violation of probation mandate that a judge shall not impose a sentence of total confinement unless defendant has been convicted of another crime or if the conduct of defendant indicates that it is likely that he will commit another crime if he is not imprisoned. Finally, appellant argues that since the summary offense of retail theft is not classified as a crime under Pennsylvania Crimes Code, 18 Pa.C.S.A. § 3929(b), it is impermissible to sentence defendant to total confinement for the alleged violation of parole based upon an arrest for a summary offense of retail theft.
Conversely, the Commonwealth argues that appellant’s failure to include in his brief a Pa.R.A.P. 2119(f)
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statement, articulating a substantial question regarding the discretionary aspects of sentencing, constitutes a waiver of his claim that the sentence was improper. For this reason alone, the Commonwealth argues, appellate review should be declined. In support of this contention, the Commonwealth cites
Common
In reviewing Commonwealth’s argument, it is necessary to examine the precise application of Pa.R.A.P. 2119(f), and the supporting case law, as it applies to violations of parole. Pa.R.A.P. 2119(f) provides, in pertinent part, that:
An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. (Emphasis added.)
Clearly, the order revoking parole does not impose a new sentence; it requires appellant, rather, to serve the balance of a valid sentence previously imposed.
See Commonwealth v. Carter,
In the instant case, the trial court concluded that appellant’s blatant disregard for the conditions of his parole was quite serious. First, appellant was ordered to make restitution within (ninety) 90 days, and, in eleven months, the court concluded that he failed to make even a single payment. Moreover, the court found that he failed to pay any of his court fine of $145.00. The court further concluded that appellant never reported to the Parole/Probation Department. 6 Finally, the record indicates, while on parole, appellant was arrested six times in less than a year, and, in all six cases, failed to appear for the trial listings, forcing the court to issue bench warrants.
Clearly, to recommit appellant to jail was within the trial judge’s discretion. The Commonwealth need only show, by a preponderance of the evidence, that a parolee violated the conditions of his parole. The trial court concluded that these technical violations were serious. Based on the foregoing factors, we conclude that the hearing court was correct in finding that appellant had violated his parole, and the court
Order Affirmed.
Notes
. 42 Pa.C.S.A. § 9771. Modification or revocation of order o£ probation
(c) Limitation on sentence of total confinement. — The court shall not impose a sentence of total confinement upon revocation unless it finds that:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that he will
commit another crime if he is not imprisoned; or
(3) such a sentence is essential to vindicate the authority of the court.
. Appellant maintains that all of the summary offenses were subsequently discharged.
. In his brief, appellant incorrectly states that the trial court imposed a term of imprisonment for a period of 11 1/2 months to 23 months as a result of his conviction for Burglary. The record is clear that the trial judge revoked appellant’s parole and ordered him to serve the balance of his original sentence.
. Appellant erroneously relies on 42 Pa.C.S.A. § 9771(c) to support his contention. This appeal stems from a violation of parole order and not a violation of probation order. Therefore, 42 Pa.C.S.A. § 9771(c) is inapplicable.
. Pa.R.A.P., Rule 2119, 42 Pa.C.S.A.
. Appellant indicates that he initially reported to the parole authorities, but no record of his parole was found.