Full Opinion

J-A22006-26 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT D. SHELTON : : Appellant : No. 1410 WDA 2025 Appeal from the Judgment of Sentence Entered October 20, 2025 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0006443-2021 BEFORE: BOWES, J., OLSON, J., and MURRAY, J. MEMORANDUM BY BOWES, J.: FILED: October 27, 2026 Robert D. Shelton appeals from the judgment of sentence of twelve to forty-eight months of incarceration imposed after his probation was revoked. We affirm. We glean the following history from the certified record. On May 31, 2023, Appellant entered a negotiated nolo contendere plea to one count each of corruption of minors and furnishing alcohol to minors, in exchange for the Commonwealth withdrawing the additionally-charged offenses, which included sexual assault, and agreeing to a probationary sentence to be set by the court. Appellant, then thirty-eight, had texted a sixteen-year-old girl asking for photographs. When the two met in person, he supplied her with alcohol. The court accepted the plea and sentenced Appellant to eighteen months of probation for the corruption charge and a concurrent term of nine months for the alcohol-related conviction. J-A22006-26 Appellant did not pursue a direct appeal. On May 28, 2024, while still under supervision for the corruption conviction, police received a tip and discovered several video and picture files on Appellant’s cell phone that led them to charge him with, inter alia, five counts of possession of child pornography. As a result, the revocation court lodged a detainer against Appellant on June 27, 2024.1 By report dated July 1, 2024, a hearing officer found probable cause that Appellant had violated his probation. Relevantly, the report indicated that a Gagnon I hearing had been held in June of 2024, and a Gagnon II hearing should be conducted following disposition of the new charges.2 Before that occurred, Appellant’s probation expired on November 30, 2024. On August 11, 2025, Appellant pled guilty to one count of child pornography and was sentenced to eleven and one-half to twenty-three ____________________________________________ 1 While not pertinent to the instant appeal, we note for completeness that Appellant initiated Post Conviction Relief Act proceedings in July of 2024, challenging the effectiveness of counsel as to the voluntariness of his plea. Ultimately, the court denied the petition as untimely filed. Appellant did not pursue that matter further. 2 As this Court explained: “In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the United States Supreme Court held that probationers are entitled to two hearings when a violation of probation is alleged. These are colloquially referred to as Gagnon I and Gagnon II hearings.” Commonwealth v. Baumann, 307 A.3d 1231, 1234 n.1 (Pa.Super. 2023) (cleaned up). Briefly summarized, the proceedings include “a preliminary hearing at the time of arrest and detention to discern whether the alleged violation is supported by probable cause (a Gagnon I hearing), and a second, more comprehensive hearing prior to the court rendering a final revocation decision (a Gagnon II hearing).” Commonwealth v. Hitchner, 360 A.3d 735, 738 n.1 (Pa. 2026) (cleaned up). -2- J-A22006-26 months of incarceration, followed by four years of probation. The certified record for the matter sub judice does not explain the delay in the child pornography case. In any event, the new charges having finally been resolved, the revocation court scheduled the Gagnon II hearing for October 20, 2025, revoked Appellant’s probation for corruption of minors based upon the new conviction, and resentenced him to twelve to forty-eight months of incarceration. Appellant timely filed a motion to modify sentence, alleging that the offending conduct occurred before he was placed under the court’s supervision. See Motion to Modify Sentence, 10/23/25, at 2-3. The court held a hearing, during which Appellant’s counsel argued that the acquisition of the contraband occurred in February and April of 2023, which predated the imposition of probation in May of 2023, and demonstrated “that he was not committing new acts while he was on [the court’s] probation.” N.T. 10/29/25, at 9; see also id. at 17 (“[H]e’s not actually doing something to show disrespect to the [c]ourt while he’s on your probation. It’s more of a lingering problem that eventually culminates in his plea[.]”). Appellant also contended that the violation was only technical in nature because he was not convicted on the new charges until after the period of probation expired. Id. at 11. The court rejected Appellant’s argument that his possession of the child pornography was isolated to the day he downloaded it and maintained its holding that Appellant was properly resentenced as a convicted violator. Therefore, it denied the motion. -3- J-A22006-26 This timely appeal followed. Both the court and Appellant complied with the dictates of Pa.R.A.P. 1925. Appellant raises a single issue: “The trial court abused its discretion and erred in sentencing Appellant to total incarceration as a convicted violator, resulting in an unreasonable, excessive, or illegal sentence, when he alleged he was a technical violator.” Appellant’s brief at 6 (cleaned up). We begin with the general principles governing our consideration of this issue: Our scope of review in an appeal challenging a sentence imposed after probation revocation is limited to the validity of the revocation proceedings and the legality of the sentence imposed following revocation. Whether a sentence is illegal raises a question of law; thus, our scope of review is plenary, and our standard of review is de novo. When issues of statutory interpretation or application arise, we exercise de novo, plenary review. Commonwealth v. Hitchner, 360 A.3d 735, 747 (Pa. 2026) (cleaned up). Appellant frames his issue as either challenging the discretionary aspects of his sentence or its legality depending on how we interpret the nature of the violation. See Appellant’s brief at 3-5. According to Appellant, his “criminal conduct at [the child pornography case] occurred prior to him being placed on probation at [the underlying case], and he was not convicted until after said term of probation had expired.” Id. at 8. As a result, he contends that he should have been resentenced for a technical violation in light of the new charges, not as a convicted violator due to his plea. Id. If we determine that he was a technical violator, he argues that his sentence is -4- J-A22006-26 illegal because the court did not adhere to the limits set forth in 42 Pa.C.S. § 9771(c), whereas if we deem him a convicted violator, he seeks to assert that the court abused its discretion in imposing an unreasonably excessive sentence. Id. at 9-10. Meanwhile, the Commonwealth submits that the court was entitled to revoke [A]ppellant’s probation on October 20, 2025, just over two months after he was convicted of violating that probation. Appellant does not allege that there was any unreasonable delay or that he suffered any prejudice due to any delay and [the] Commonwealth submits that the timing of the revocation proceedings was reasonable. Commonwealth’s brief at 15 (citation omitted). In its Rule 1925(a) opinion, the court found that Appellant’s averment in his concise statement that his sentence was excessive and illegal for a technical violation “misstate[d] the record” because the court revoked his probation for being a convicted violator. See Trial Court Opinion, 3/31/26, at 5. It lamented that Appellant raised only a sentencing issue when it was “clear that Appellant’s claim of error [wa]s how the [c]ourt categorized the violation[.]” Id. at 5. Nevertheless, the court was able to glean the crux of Appellant’s argument and address it. In that regard, the court maintained that “Appellant’s argument that he did not violate probation with the conviction, which covered a possessory period spanning from the date of download until its discovery[, wa]s without any legal authority.” Id. at 9. -5- J-A22006-26 Therefore, it held that it properly resentenced him to incarceration as a convicted violator. As demonstrated by the foregoing, the first pertinent question before this Court is whether the court’s revocation was properly premised upon Appellant’s child pornography conviction, or whether he only committed a technical violation. Our legislature has outlined, in relevant part, the following parameters for probation revocations: (c) Limitation on sentence of total confinement.--There is a presumption against total confinement for technical violations of probation. The following shall apply: (1) The court may impose a sentence of total confinement upon revocation only if: (i) the defendant has been convicted of another crime; (ii) the court finds by clear and convincing evidence that the defendant committed a technical violation that involves an identifiable threat to public safety and the defendant cannot be safely diverted from total confinement through less restrictive means; or (iii) the court finds by a preponderance of the evidence that the defendant committed a technical violation and any of the following apply: (A) The technical violation was sexual in nature. .... (2) If a court imposes a sentence of total confinement following a revocation, the basis of which is for one or more technical violations under paragraph (1)(ii) or (iii), the court shall consider the employment status of the defendant. The defendant shall be sentenced as follows: -6- J-A22006-26 (i) For a first technical violation, a maximum period of 14 days. .... (d) Hearing required.--There shall be no revocation or increase of conditions of sentence under this section except after a hearing at which the court shall consider the record of the sentencing proceeding together with evidence of the conduct of the defendant while on probation. Probation may be eliminated or the term decreased without a hearing. 42 Pa.C.S. § 9771.3 Our High Court has reiterated that “[a]lthough the statutory scheme does not tolerate implied conditions of probation, a central component of a probationary sentence is the condition that the defendant remain crime-free.” Hitchner, 360 A.3d at 740-41 (cleaned up). Therefore, “probation is revocable only upon proof that the defendant violated a specific condition of probation or committed a new criminal offense.” Id. at 741 (cleaned up). With respect to the timing of a violation, “the court’s revocation authority does not attach before the probationary period begins.” Id. (cleaned up). “The duration of the court’s revocation authority is likewise limited. [Thus], a court has no authority to revoke a probationer’s sentence based on conduct that occurred after the term’s expiration.” Id. at 742 (cleaned up). Nevertheless, “a sentence for a violation of the terms of probation can be imposed after the expiration of the probationary period if the revocation is ____________________________________________ 3 While we utilize the version in effect at the time of Appellant’s revocation, we note that § 9771 has since been amended to alter the reference in § 9771(c)(2)(iv)(B) from “problem-solving court” to “treatment court.” -7- J-A22006-26 based on a violation which occurred within the probationary period.” Commonwealth v. Wright, 116 A.3d 133, 137 (Pa.Super. 2015) (cleaned up). “In that circumstance, the probation must be revoked and the sentence must be imposed within a reasonable time after the expiration of the probationary period.” Id. (cleaned up). This Court has explained that “in determining whether a [Gagnon II] hearing is held within a reasonable period, we examine the length of the delay; the reasons for the delay; and the prejudice resulting to the defendant from the delay.” Id. (cleaned up). We first dispel Appellant’s contention that his possession of child pornography was limited to the date he downloaded it to his phone. In his mind, his conduct was akin to robbing a bank before his probation began but being arrested after it commenced. See Appellant’s brief at 17. We reject this characterization, and find the court’s comparison to drug possession to be more apt. See N.T. Motion Hearing, 10/29/25, at 10-11. While Appellant may have initiated the possession before he was officially placed on probation, he still had access to the content while on probation since it remained on his phone. Therefore, we have no hesitation in concluding that he possessed child pornography in violation of the law while on probation. As for the court’s decision to postpone the Gagnon II hearing until the new charges were resolved, our Supreme Court has held that “it is not unreasonable for a probation revocation hearing to be postponed pending adjudication of criminal charges which are the basis for the revocation, even if that postponement results, as here, in a revocation hearing held after the -8- J-A22006-26 expiration of the probationary sentence.” Commonwealth v. Burrell, 441 A.2d 744, 745–46 (Pa. 1982) (cleaned up). Aside from his complaint that the delay resulted in his being sentenced as a convicted violator, Appellant has not alleged that he was prejudiced by the court’s decision to defer the Gagnon II hearing until his new charges were resolved. Since the conduct underpinning the new conviction occurred while Appellant was still serving his probationary period, we discern no error in the court’s decision to hold the hearing just over two months after Appellant’s guilty plea in the new case, despite it occurring after his probation expired.4 Cf. Wright, 116 A.3d at 138 (rejecting conviction as basis for revocation where conviction occurred after probationary term ended and the Commonwealth proffered no evidence of when the underlying conduct occurred that gave rise to the charges). Accordingly, we uphold the court’s finding that Appellant was a convicted violator. Having settled that question, we turn to Appellant’s contention that the sentence imposed constituted an abuse of discretion. For us to reach the merits of such a claim, an appellant must first preserve the issue at the revocation hearing or in a timely post-sentence motion, timely file a notice of appeal, include a Pa.R.A.P. 2119(f) statement in his brief, and raise a ____________________________________________ 4 In light of the limitations upon a resentencing for technical violators, to hold otherwise would permit significant disparity between those probationers who efficiently resolve their new charges, and those who employ dilatory tactics to ensure their convictions do not occur until after their probation has expired. -9- J-A22006-26 substantial question as to the appropriateness of the sentence. See Commonwealth v. Starr, 234 A.3d 755, 759 (Pa.Super. 2020). In his timely post-sentence motion, Appellant averred that the underlying conduct occurred before he was on probation, rendering his arrest for new charges a technical violation, and requested that his sentence be reduced accordingly. See Motion to Modify Sentence, 10/23/25, at 3-4 (pagination supplied). In his brief to this Court, while he at times purports to argue that his sentence is excessive if we deem it a convicted violation, he primarily posits that the court should have deemed him only a technical violator because he downloaded the offending content before he was placed on probation and his sentence is excessive insofar as it is not in accordance with the type of sentence authorized for technical violations pursuant to § 9771. See, e.g., Appellant’s brief at 9-15. Stated simply, his preserved discretionary sentencing claim is based upon the assumption that he was only a technical violator, and his sentence is therefore excessive. Id. at 17-18. However, as explained in detail hereinabove, Appellant was properly sentenced as a convicted violator. Therefore, he has not presented a substantial question, and we do not reach the merits of his discretionary sentencing claim. Based on the foregoing, we affirm the revocation sentence. Judgment of sentence affirmed. - 10 - J-A22006-26 DATE: 10/27/2026 - 11 -