111 F.3d 133
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Miriam DOMINGUEZ-GARCIA, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 96-1874.
United States Court of Appeals, Seventh Circuit.
Submitted March 5, 1997.*Decided April 7, 1997.

Before BAUER, COFFEY and ROVNER, Circuit Judges.

ORDER

1
An Immigration Judge ("IJ") ordered Miriam Dominguez-Garcia deported after an in absentia hearing.  The IJ and the Board of Immigration Appeals ("BIA") denied Dominguez-Garcia's motion to rescind the order and reopen her case, holding that she failed to satisfy the statutory requirements for rescinding an order of deportation issued after an in absentia hearing.  Because we find that the IJ failed to provide Dominguez-Garcia with the statutorily required notice of her hearing, we vacate the BIA's order and remand this case to the BIA for further consideration consistent with this order.

Facts

2
On February 13, 1993, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause to Miriam Dominguez-Garcia, alleging that she had entered the United States without inspection in violation of 8 U.S.C. § 1251(a)(1)(B).1  In April 1993, the INS mailed a notice to Dominguez-Garcia's home, informing her that her deportation hearing would be held on June 1.  On that day, Dominguez-Garcia appeared at the hearing with Victor Madrigal, her accredited representative.  Madrigal filed a notice of appearance and requested a continuance.  The IJ continued the hearing until July 6.

3
There is no transcript of the July 6 hearing.  Apparently, however, Madrigal appeared without Dominguez-Garcia and requested another continuance.  The IJ then continued the hearing until September 7, and served Madrigal personally with written notice of the new hearing date.

4
Dominguez-Garcia failed to appear at the September 7 hearing, although Madrigal was present.  When questioned by the IJ, Madrigal could offer no explanation for Dominguez-Garcia's absence.  The IJ then conducted the hearing in absentia.   The INS introduced a certified copy of Dominguez-Garcia's Record of Deportable Alien as proof of deportability, to which Madrigal did not object.  The court also admitted the written notice of the September 7 hearing date that was served on Madrigal in-person.  Based on this evidence, the IJ ordered Dominguez-Garcia deported to Mexico.  See 8 U.S.C. § 1252b(c)(1).

5
In December 1993, Dominguez-Garcia filed a timely motion to rescind her deportation order and reopen the proceedings.  See 8 U.S.C. § 1252b(c)(3).2  In support of her motion, Dominguez-Garcia contended that the notice of her September 7 hearing provided to Madrigal did not satisfy the statutory requirements for such notice.  The IJ denied Dominguez-Garcia's motion to reopen, holding that Madrigal had received actual notice of the hearing, and that accordingly, the statutory prerequisites for an in absentia hearing had been satisfied.  Dominguez-Garcia then filed an appeal to the BIA.  The BIA affirmed the IJ and adopted his decision denying Dominguez-Garcia's motion to reopen.  This petition for review followed.

Analysis

6
An appellate court reviews the BIA's denial of a motion to reopen for an abuse of discretion.  Groza v. INS, 30 F.3d 814, 818 (7th Cir.1994).

7
The IJ in this case conducted Dominguez-Garcia's in absentia deportation hearing pursuant to 8 U.S.C. § 1252b.  Section 1252b provides in relevant part that:

8
Any alien who, after written notice required under [8 U.S.C. § 1252b(a)(2) ] has been provided to the alien or the alien's counsel of record, does not attend a proceeding under section 1252 of this title, shall be ordered deported under section 1252(b)(1) of this title in absentia if the [INS] establishes by clear, unequivocal, and convincing evidence that[ ] the written notice was so provided and that the alien is deportable.

9
8 U.S.C. § 1252b(c)(1).  Once an alien has been ordered deported in absentia under this section, § 1252b(c)(3) permits only two grounds for reopening the proceedings:  either that the alien did not receive proper notice under § 1252b(a)(2), or certain defined "exceptional circumstances."   See 8 U.S.C. § 1252b(c)(3).

10
Dominguez-Garcia argues that the notice provided to Madrigal did not satisfy the requirements of § 1252b(a)(2).3  That section requires that:

11
in the case of any change or postponement in the time and place of [deportation proceedings] written notice [of the new time or place of the proceedings] shall be given in person to the alien (or, if personal service is not practicable, written notice shall be given by certified mail to the alien or to the alien's counsel of record....)

12
8 U.S.C. § 1252b(a)(2)(B).  According to Dominguez-Garcia, § 1252b(a)(2)(B) permits three--and only three--methods of service of notice:  personal service on the alien, service by certified mail on the alien, or service by certified mail on the alien's counsel.  Because the INS provided Madrigal with written notice in person, rather than by certified mail, Dominguez-Garcia argues that the INS failed to comply with the statutory notice requirements of § 1252b.4

13
We agree with Dominguez-Garcia.  Section 1252b(a)(2) specifies three methods of service of notice on an alien.  The IJ in this case did not follow any of the three methods permitted by that section.  It thus invariably follows that the prerequisites for an in absentia deportation hearing under § 1252b(c)(1) were not met in this case, and that the BIA therefore abused its discretion in refusing to reopen Dominguez-Garcia's case under § 1252b(c)(3)(B).

14
The INS offers a number of responses to this conclusion;  we do not find any of them persuasive.  The INS first argues that the in-person service provision in § 1252b(a)(2)(B) is ambiguous, and that an INS regulation equating personal service on an alien's representative with personal service on the alien--8 C.F.R. § 292.5--is a reasonable interpretation of that ambiguous statute.  Accordingly, the INS contends that the personal notice served on Madrigal was constructively personal notice served on Dominguez-Garcia.

15
We cannot agree with the INS.  There is nothing ambiguous about the in-person service provision of § 1252b(a)(2)(B).  That section states that "written notice shall be given in person to the alien."   There is nothing ambiguous about this statute that would permit the INS to construe "shall be given in person to the alien" to mean "shall be given in person to the alien or to the alien's counsel."   Indeed, as the parenthetical clause in the same sentence indicates, Congress was well aware of how to draft this alternate method of service by proxy if it so chose.  "If the intent of Congress is clear, that is the end of the matter;  for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress."  Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984).

16
The INS next contends that serving notice personally on an alien's representative is a better method of service than service on the representative by certified mail.  But the INS cites to no case which holds that in situations in which Congress specifically has authorized service of notice by methods A, B or C, service of notice by method D suffices so long as an agency or court determines that method D is "as good as" or "better than" A, B or C.  Rather, where Congress's intent is clearly enacted in unambiguous language, that language is conclusive.  Negonsott v. Samuels, 507 U.S. 99, 104 (1993) (citation omitted);  Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570 (1982).  In this case, Congress unambiguously authorized three methods of service of notice;  the statute must therefore be taken as an exhaustive list of authorized methods or service.  "We must faithfully apply the law as Congress has drafted it.  We should not disregard plain statutory language in order to impose on [a] statute what we may consider [to be] a more reasonable meaning."  Jenkins v. Heintz, 25 F.3d 536, 539 (7th Cir.1994), aff'd, 514 U.S. 291 (1995).  Thus, even if in-person service on an alien's representative is a better method of service than certified mail, our task is not to improve upon § 1252b(a)(2)(B).  "[W]here, as here, the statute's language is plain, 'the sole function of the courts is to enforce it according to its terms.' "  United States v. Ron Pair Enter., Inc., 489 U.S. 235, 241 (1989) (citing Caminetti v. United States, 242 U.S. 470, 485 (1917)).

17
Finally, the INS contends that under 8 U.S.C. § 1252, it was required to serve Dominguez-Garcia only with notice "reasonable under all the circumstances."   That section provides that:

18
Proceedings before [an immigration judge] acting under the provisions of this section shall be in accordance with such regulations, not inconsistent with this chapter, as the Attorney General shall prescribe.  Such regulations shall include requirements that are consistent with section 1252b of this title and that provide that ... the alien shall be given notice, reasonable under all the circumstances, of the nature of the charges against him and of the time and place at which the proceedings will be held....

8 U.S.C. § 1252(b)(1).5

19
We believe that the INS's interpretation of this statute is erroneous.  Section 1252 deals with deportation hearings generally;  § 1252b(c) deals specifically with in absentia hearings.  In general, under § 1252 the INS need provide an alien with only reasonable notice of a deportation hearing.  But § 1252b(c)(1) permits an IJ to order an alien deported in absentia only if the notice requirements of § 1252b(a)(2) are first followed.  The general notice provision of § 1252 does not override the specific notice prerequisites of § 1252b(a)(2), (c)(1) for in absentia hearings.  Accordingly, even if the notice Dominguez-Garcia received was "reasonable," it did not satisfy the statutory prerequisites for an in absentia hearing under § 1252b(c)(1).

20
Moreover, we note that Congress added § 1252b to the Immigration and Naturalization Act in 1990.  See Immigration Act of 1990, Pub.L. No. 101-649, 104 Stat. 4978 (1990).  Unlike its predecessor, § 1252b mandates--rather than permits--in absentia orders of deportation in cases in which aliens fail to appear at deportation hearings.  Congress likewise imposed stricter and more specific notice requirements under § 1252b(a)(2) for in absentia hearings, presumably because the consequences of an alien's failure to appear are more severe under the new statute.  Fuentes-Argueta v. INS, 101 F.3d 867, 870 (2d Cir.1996);  United States v. Perez-Valdera, 899 F.Supp. 181, 185 (S.D.N.Y.1995).  By specifying which methods of notice are adequate prerequisites to in absentia deportation proceedings, rather than merely requiring notice that is "reasonable under all the circumstances," Congress has made a clear policy choice;  both this court and the INS are bound by that choice.

21
Accordingly, we hold that the IJ failed to provide Dominguez-Garcia with the statutorily required notice of her deportation hearing, and that the BIA therefore abused its discretion by refusing to rescind her order of deportation and reopen her hearing.  We therefore GRANT the petition for review, VACATE the Board's Order, and REMAND this case for further proceedings consistent with this order.

*
 Both parties have waived oral argument in this case;  accordingly, the appeal is submitted on the briefs and the record.  See Fed.R.App.P. 34(f);  Cir.R. 34(f)

1
 Because all the facts and proceedings at issue in this appeal occurred in 1993, all references in this Order will be to the 1993 version of the United States Code.  See Rosendo-Ramirez v. INS, 32 F.3d 1085, 1086 n. 1 (7th Cir.1994)

2
 In an affidavit, Dominguez-Garcia explained her absence from the September 7 hearing by stating that Madrigal incorrectly informed her that her hearing had been rescheduled for September 9.  She further stated that she appeared at the Immigration Court on September 9, only to learn that the IJ had conducted her hearing in absentia two days earlier.  In support of these contentions, Dominguez-Garcia also submitted a copy of her plane ticket, purchased on August 17, 1993, for travel on September 8 from Chicago (where she was living at the time) to San Antonio, Texas (where the hearing was to be held)

3
 Dominguez-Garcia does not contend that Madrigal's error in telling her the wrong date for her hearing constitutes an "exceptional circumstance" which would warrant reopening her hearing.  See supra at note 2

4
 Although there is no transcript of the July 6 hearing and the written notice of the September 7 hearing served on Madrigal is undated, we do not understand Dominguez-Garcia to be contesting the finding of the IJ that the undated written notice "was provided to [Madrigal] at the July 6, 1993 hearing."   Accordingly, Dominguez-Garcia does not deny that Madrigal received written notice of the September 7 hearing

5
 This unfortunate example of statutory numbering may lead to some confusion.  Section 1252(b) refers to subsection (b) of § 1252;  § 1252b is a separate section of Title 8, and follows §§ 1252 and 1252a


105 Pa. Commonwealth Ct. 427 (1987)
524 A.2d 1053
Jerome Lawson, Petitioner
v.
Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole, Respondent.
No. 2698 C.D. 1986.
Commonwealth Court of Pennsylvania.
April 24, 1987.
Submitted on briefs March 3, 1987.
To Judges CRAIG and PALLADINO, and Senior Judge BARBIERI, sitting as a panel of three.
*428 Lester G. Nauhaus, Public Defender, with him, John H. Corbett, Jr., Chief-Appellant Division, and Melaine S. Rothey, Appellant Counsel, for petitioner.
Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.
OPINION BY SENIOR JUDGE BARBIERI, April 24, 1987:
In this parole revocation appeal, Petitioner, Jerome Lawson, appeals here an order of the Pennsylvania Board of Probation and Parole (Board) denying him administrative relief from a Board parole revocation order. That revocation order revoked his parole as a technical parole violator and recommitted him to prison to serve the entire remaining balance of his unexpired term. We modify and affirm.
Lawson was initially sentenced to a term of five to ten years by the Court of Common Pleas of Beaver County as a result of his conviction for Rape[1] and Simple Assault.[2] The Board last paroled him on this sentence on March 20, 1985, at which time he was released *429 from the State Correctional Institution at Huntingdon (SCI-Huntingdon) to a plan in Aliquippa, Pennsylvania.
On March 6, 1986, Lawson turned himself into the Aliquippa Police at which time he was arrested as a parole violator and confined in the Beaver County Jail. The Board charged him with violating several conditions of his parole.[3] A parole Violation Hearing was held before a board hearing examiner on June 3, 1986, at the Beaver County Jail. As a result of that hearing, on July 2, 1986, the Board recorded an order revoking his parole and recommitted him to serve the balance of his unexpired term. A petition for administrative relief was filed pursuant to 37 Pa. Code § 71.5(h) which was denied by the Board on August 25, 1986. He then filed a petition for review with this Court, pro se. As he was confined in the Western Diagnostic and Classification Center at SCI-Pittsburgh at that time, we appointed the Public Defender of Allegheny County to represent him in this appeal. See Section 6(a)(10) of the Public Defender Act, Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. § 9960.6(a)(10); Brewer v. Pennsylvania Board of Probation and Parole, 90 Pa. Commonwealth Ct. 75, 494 A.2d 36 (1985); Passaro v. Pennsylvania Board of Probation and Parole, 56 Pa. Commonwealth Ct. 32, 424 A.2d 561 (1981) (en banc). The public defender then filed an amended petition for review on Lawson's behalf
*430 We also recognize that the recomputed maximum term expiration date of Lawson's sentence, March 16, 1987, has since expired. While the expiration of a parolee's maximum term would otherwise render an appeal of a Board parole revocation order moot, we shall proceed to decide the case on the merits on the basis of the importance of the issue of fines, costs and restitution and that of the imposition of backtime, since it is our belief that these issues are of great public importance and capable of repetition. Commonwealth v. Smith, 336 Pa. Superior Ct. 636, 486 A.2d 445 (1984); Carthon v. Pennsylvania Board of Probation and Parole, 99 Pa. Commonwealth Ct. 147, 512 A.2d 799 (1986); Appeal of Union Electric Contracting Co., 39 Pa. Commonwealth Ct. 584, 396 A.2d 862 (1979).
In this appeal, Lawson contends that (1) the Board's finding he violated 37 Pa. Code § 63.4(3)(ii) is unsupported by substantial evidence; and (2) the Board's finding that he violated Special Condition 6 of his parole by failing to pay fines and costs is unsupported by substantial evidence. We shall address these issues in the order stated, cognizant, of course, that our limited scope of review under Section 704 of the Administrative Agency Law, 2 Pa. C. S. § 704, requires this Court to affirm the Board unless necessary findings are unsupported by substantial evidence, an error of law committed, or a constitutional right of the parolee violated. Zazo v. Pennsylvania Board of Probation and Parole, 80 Pa. Commonwealth Ct. 198, 470 A.2d 1135 (1984).
General parole condition 3(b), 37 Pa. Code § 63.4(3) (ii), requires parolees to maintain contact with the parole supervision staff by reporting an arrest within seventy-two hours. The Board concedes Lawson turned himself into the Aliquippa Police on March 6, 1986, and a parole warrant was filed the following day. The record clearly shows Lawson was not taken into custody prior *431 to March 6, 1986. Since there was no arrest prior to March 6, 1986, he could not possibly have violated 37 Pa. Code § 63.4(3)(ii) by March 7, 1986, the date the parole agent filed the warrant and parole violation charges. Accordingly, we must vacate that portion of the Board's order that finds Lawson violated 37 Pa. Code § 63.4(3)(ii) by failing to report an arrest within seventy-two hours.
Lawson's other contention is that the Board erred in finding he violated special condition 6 of his parole, requiring him to pay fines, costs, and restitution. He argues the record shows that he was making every effort within his means to make payments on the outstanding fines, costs, and restitution owed to Beaver County.
Section 23 of the Act of August 6, 1941 (Parole Act), P.L. 861, as amended, 61 P.S. § 331.23, empowers the Board to impose special conditions of parole, in addition to the general conditions of parole applicable to all parolees, upon an individual coming under their jurisdiction where the Board feels the imposition of such a special condition is warranted. In the present case, the Board imposed a special condition upon Lawson's parole requiring that he pay fines, costs, and restitution, which at the time of his release totaled $1,430.08. Requiring a parolee or probationer to pay fines, costs, and restitution has long been an accepted condition of probation and parole in this Commonwealth. See Sections 9754(c) (8) and (11) of the Sentencing Code, 42 Pa. C. S. §§ 9754 (c)(8) and (11); Section 1106 of the Crimes Code, 18 Pa. C. S. § 1106; Commonwealth v. Mourar, 349 Pa. Superior Ct. 583, 504 A.2d 197 (1986), petition for allowance of appeal granted, 511 Pa. 619, 515 A.2d 898 (1986); Commonwealth v. Balisteri, 329 Pa. Superior Ct. 148, 478 A.2d 5 (1984); Commonwealth v. Wood, 300 Pa. Superior Ct. 463, 446 A.2d 948 (1982). We also recognize that Lawson's obligation to pay fines, costs and restitution *432 were imposed by the common pleas court as a part of the sentence for his underlying convictions. The Board has no authority to impose fines, costs or restitution nor does it have the authority to excuse or eliminate the imposition of fines, costs and restitution since the Board is without the authority to alter a judicially imposed sentence. See Gundy v. Pennsylvania Board of Probation and Parole, 82 Pa. Commonwealth Ct. 618, 478 A.2d 139 (1984). The Board can, however, condition a grant of parole upon a parolee satisfying those monetary obligations already imposed by a court. Cf. 42 Pa. C. S. §§ 9754(c)(8) and (11) (sentencing court may impose as a condition of probation the payment of fines, costs and restitution).
In determining whether a parolee or probationer may have parole or probation revoked for failure to pay court imposed fines, costs and restitution, the court or Board, as the case may be, must take into consideration and make a reasonable allowance for the parolee's or probationer's individual economic situation. See Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S. 235 (1970); Griffin v. Illinois, 351 U.S. 12 (1956). In Tate, the United States Supreme Court opined that there is no "constitutional infirmity in imprisonment of a defendant with the means to pay a fine who refuses or neglects to do so." 401 U.S. at 400. In Commonwealth v. Holm, 233 Pa. Superior Ct. 281, 335 A.2d 713 (1975), our Superior Court recognized that the mere lack of diligence in meeting monetary obligations attached by the court is sufficient to support an order revoking probation.
Here, the Board found that Lawson's four erratic payments of $5.00 each over the period of a year, totaling $20.00, on a total amount owed on fines, costs, and restitution in excess of $1,400.00, was not a good faith effort to comply with the special parole condition requiring *433 him to pay that court imposed monetary obligation. The evidence is undisputed that upon his release, Lawson entered into an agreement with Beaver County whereby he was to pay $5.00 per month towards his fines, costs, and restitution. There is also no question Lawson had an income during that period of time and made only four $5 payments. We cannot say the Board abused its discretion when it determined under these circumstances that Lawson violated Special Condition 6 of his parole.
As an alternative defense to his failure to pay fines, costs, and restitution, Lawson also pleads indigency. In Commonwealth ex rel. Benedict v. Cliff, 451 Pa. 427, 304 A.2d 158 (1973), our Supreme Court held that it is the parolee's or probationer's obligation to show indigency with respect to the payments of fines, costs, and restitution. There, the Supreme Court wrote:
[W]e hold that the appellants must be given the opportunity to establish that they are unable to pay the fine. Upon a showing of indigency, the appellants should be allowed to make payments in reasonable installments.
Id. at 434, 304 A.2d at 161. We also take due notice that parole or probation may be revoked even where an indigent makes a "reasonable effort to satisfy the fines." See Tate, 401 U.S. at 401.
Here, Lawson was already permitted to make periodic payments of his outstanding monetary obligations in minimal $5.00 monthly installments. We agree with the Board the $5.00 per month payment schedule was reasonable in consideration of his financial condition and a minimal drain on his monthly budget. Additionally, Lawson failed to produce any specific financial evidence at his parole Violation Hearing that he was unable to meet even those minimal payments. The only reference he made was to his increased costs due to his obtaining *434 custody of his son and how he had no funds left in his monthly budget to pay Beaver County the agreed upon $5.00 per month. He provided no figures on his monthly income or expenses which would support his conclusory assertions that he was financially unable to make more than the four $5.00 payments during the year he was out on parole. Mere conclusionary assertions are insufficient as a matter of law to meet a parolee's burden of showing indigency as a defense to a charge of violating a condition of parole requiring the payment of fines, costs, and restitution. On the basis of the record before us, we must concur with the Board that Lawson failed to show he was financially unable to meet the $5.00 monthly payment obligation he agreed to upon his release on parole. The Board, therefore, did not err or otherwise abuse its discretion when it found he violated special parole condition 6.
Having determined that one of the technical parole violations is not supported by the evidence, we must now determine whether it is necessary to remand this matter back to the Board for its reconsideration of the backtime to be imposed for the remaining parole violations. In Harper v. Pennsylvania Board of Probation and Parole, 103 Pa. Commonwealth Ct. 251, 520 A.2d 518 (1987), we recognized the discretion of the Board in imposing backtime for parole violations. There, we remanded that matter to the Board for reconsideration of the backtime imposed where one of three technical parole violations was vacated as unsupported by substantial evidence. In remanding, we held that we would not, as an appellate court, usurp the Board's discretion in imposing backtime for parole violations where one of three technical parole violations was vacated on appeal. Id. at 261, 520 A.2d at 523-524. Reviewing the circumstances presented by the case at bar, we have concluded that no remand is required.
*435 The entire unexpired term of Lawson's original Beaver County sentence at the time he was recommitted by the Board totaled one year, nine days. R. 7. The presumptive range for the two uncontested technical parole violations, violation of 37 Pa. Code § 63.4(2) (changing residence without permission) and 37 Pa. Code § 63.4(4) (failing to obey all federal, state and local laws), is six to eighteen months. 37 Pa. Code § 75.4. The Board imposed only twelve months for the three technical violations pertaining to general parole conditions. That twelve month backtime is well within the published presumptive range for the two uncontested technical parole violations. The presumptive range for a violation of a special condition of parole is at least as severe as the least serious of the violations of a general parole condition. 37 Pa. Code § 75.3(f). The least serious violation of a general parole condition, 37 Pa. Code § 63.4(4), carries a presumptive range of three to nine months. 37 Pa. Code § 75.4. The backtime imposed for violating the special condition of parole, unexpired term, is, in effect, nine days since that is the total unexpired term remaining if Lawson serves the twelve months imposed for his violations of the general parole conditions since backtime imposed for general parole condition violations and special parole condition violations are aggregated to compute a reparole eligibility date. 37 Pa. Code § 75.3 (f). Additionally, were the Board to reduce the twelve months imposed for the general parole violations to the minimum presumptive range of six months, the backtime imposed for the special parole condition violation, unexpired term, would then only amount to six months, nine days, still well within the three to nine month presumptive range for the special parole condition. See 37 Pa. Code § 75.3(f). The circumstances presented here are therefore distinguishable from those present in Harper where the Board had exceeded its presumptive *436 range in imposing backtime for Harper's parole violations. Here, the backtime imposed was well under the published presumptive range, due in part to the short time remaining on the unexpired term of Lawson's original sentence at the time of his parole revocation. Thus, Lawson's backtime is well within the Board's published presumptive ranges for the remaining technical parole violations and a remand to the Board for a reconsideration of the backtime imposed is not required. See Johnson v. Pennsylvania Board of Probation and Parole, 98 Pa. Commonwealth Ct. 294, 511 A.2d 894 (1986).
Having thus disposed of the issues raised by Lawson, we shall affirm the Board's order as modified by deleting the finding Lawson violated 37 Pa. Code § 63.4 (3)(ii).

ORDER
NOW, April 24, 1987, the Order of the Pennsylvania Board of Probation and Parole at Parole No. 3875-M, dated August 25, 1986, is hereby reversed in part and the Parole Revocation Order at Parole No. 3875-M, recorded July 2, 1986, is modified to delete any reference to a violation of 37 Pa. Code § 63.4(3)(ii). The Order of July 2, 1986, thus modified, is hereby affirmed.
NOTES
[1]  18 Pa. C. S. § 3121.
[2]  18 Pa. C. S. § 2701.
[3]  The Board charged that Lawson violated his parole by changing his residence without permission, a violation of 37 Pa. Code § 63.4(2), failing to report an arrest within seventy-two hours, 37 Pa. Code § 63.4(3)(ii), failing to obey all federal, state and local laws, 37 Pa. Code § 63.4(4), and failing to pay fines, costs, and restitution. The latter condition was a special condition of parole imposed under the authority granted the Board by Section 23 of the Parole Act, 61 P.S. § 331.23. Lawson admitted violating 37 Pa. Code §§ 63.4(2) and (4) and does not now dispute the validity of those parole violations.


J-S20001-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA        :   IN THE SUPERIOR COURT OF
                                     :         PENNSYLVANIA
                                     :
              v.                     :
                                     :
                                     :
 CHRISTOPHER MICHAEL RODLAND,        :
                                     :
                   Appellant         :      No. 1087 WDA 2017

         Appeal from the Judgment of Sentence April 19, 2001
             in the Court of Common Pleas of Blair County
         Criminal Division at No(s): CP-07-CR-0000890-1999,
         CP-07-CR-0000891-1999, CP-07-CR-0000892-1999,
         CP-07-CR-0000893-1999, CP-07-CR-0000894-1999,
         CP-07-CR-0000896-1999, CP-07-CR-0000898-1999,
         CP-07-CR-0000899-1999, CP-07-CR-0000900-1999,
         CP-07-CR-0000904-1999, CP-07-CR-0000905-1999,
         CP-07-CR-0000907-1999, CP-07-CR-0000908-1999,
         CP-07-CR-0000909-1999, CP-07-CR-0000910-1999,
         CP-07-CR-0000912-1999, CP-07-CR-0000913-1999,
         CP-07-CR-0001014-2000, CP-07-CR-0001107-1999,
           CP-07-CR-0001108-1999, CP-07-CR-0001112-19

 COMMONWEALTH OF PENNSYLVANIA        :   IN THE SUPERIOR COURT OF
                                     :         PENNSYLVANIA
                                     :
              v.                     :
                                     :
                                     :
 CHRISTOPHER MICHAEL RODLAND,        :
                                     :
                   Appellant         :      No. 1088 WDA 2017
J-S20001-19

           Appeal from the Judgment of Sentence January 19, 2001
                in the Court of Common Pleas of Blair County
            Criminal Division at No(s): CP-07-CR-0000895-1999,
             CP-07-CR-0000897-1999, CP-07-CR-0000903-1999,
                           CP-07-CR-0000911-1999

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :         PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    CHRISTOPHER MICHAEL RODLAND,                 :
                                                 :
                       Appellant                 :      No. 1089 WDA 2017

                  Appeal from the PCRA Order June 13, 2017
                 in the Court of Common Pleas of Blair County
             Criminal Division at No(s): CP-07-CR-0000890-1999,
             CP-07-CR-0000891-1999, CP-07-CR-0000892-1999,
             CP-07-CR-0000893-1999, CP-07-CR-0000894-1999,
             CP-07-CR-0000895-1999, CP-07-CR-0000896-1999,
             CP-07-CR-0000898-1999, CP-07-CR-0000899-1999,
             CP-07-CR-0000900-1999, CP-07-CR-0000904-1999,
             CP-07-CR-0000905-1999, CP-07-CR-0000907-1999,
             CP-07-CR-0000908-1999, CP-07-CR-0000909-1999,
             CP-07-CR-0000910-1999, CP-07-CR-0000911-1999,
             CP-07-CR-0000912-1999, CP-07-CR-0000913-1999,
              CP-07-CR-0001014-2000, CP-07-CR-0001107-1999

BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED: July 2, 2019

        Christopher Rodland (“Rodland”) appeals, nunc pro tunc, from the

judgments of sentence entered following his convictions of arson1 and related

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1   See generally 18 Pa.C.S.A. § 3301.

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crimes. Rodland additionally appeals from the Order of the Post Conviction

Relief Act2 (“PCRA”) court, which reinstated his direct appeal rights, nunc pro

tunc, but denied relief on several of Rodland’s other claims, and declined to

remand for resentencing as to all counts. We affirm the Order of the PCRA

court. As to Rodland’s judgments of sentence, we affirm in part, and vacate

and remand for resentencing in part.

        In Commonwealth v. Rodland, 4 A.3d 687 (Pa. Super. 2010)

(unpublished memorandum), appeal denied, 13 A.3d 477 (Pa. 2010), this

Court briefly summarized some of the protracted history underlying the instant

appeal as follows:

               [T]his case has a convoluted procedural history…. [T]here
        were thirty or more criminal complaints filed against [Rodland].
        He pled guilty to some charges and underwent two jury trials—
        one involving various arson charges and another involving a
        second set of arson charges. After those trials, he was convicted
        and sentenced to extended periods of incarceration. [Rodland]
        then attempted to proceed on direct appeal[,] but his appeals
        were dismissed, apparently because his counsel failed to file
        briefs. [Rodland] filed numerous [P]etitions under the [PCRA],
        perhaps eleven of them, as well as collateral appeals from some
        of the denials of those [P]etitions. Eventually, this case came to
        the point where [Rodland’s] direct appeal rights were reinstated,
        [and he filed nunc pro tunc appeals from his judgments of
        sentence.]

Id. (unpublished memorandum at 1-2).

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2   42 Pa.C.S.A. §§ 9541-9546.

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       On direct appeal, nunc pro tunc, this Court found all but one issue

waived, based upon defects in Rodland’s appellate brief.      Id. (unpublished

memorandum at 3). This Court found no merit to Rodland’s claim that his

inculpatory statements to Altoona Police Detective Roger White (“Detective

White”) should have been suppressed, and affirmed Rodland’s judgments of

sentence, after which the Pennsylvania Supreme Court denied allowance of

appeal. Id. (unpublished memorandum at 3-5).

       On February 23, 2011, Rodland filed a Petition for relief pursuant to the

PCRA.3 Rodland filed a Supplemental Petition on July 20, 2011. The PCRA

court appointed counsel, who filed an Amended PCRA Petition. New counsel

was appointed in April 2012, who filed Supplemental PCRA Petitions in 2013.

On June 13, 2017, following a hearing, the PCRA court entered an Order

reinstating Rodland’s direct appeal rights, nunc pro tunc, and vacating one of

Rodland’s sentences. Thereafter, Rodland filed the instant direct appeals of

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3Rodland additionally sought bail pending his appeal, which the PCRA court
denied. On appeal, this Court affirmed the Order of the PCRA court, after
which the Pennsylvania Supreme Court denied allowance of appeal. See
Commonwealth v. Rodland, 64 A.3d 275 (Pa. Super. 2013), appeal
denied, 2018 Pa. LEXIS 2436.

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his judgments of sentence, and an appeal of the PCRA court’s Order.4

       Rodland presents the following claims for our review:

       1. Whether … the [PCRA] court should have set [] Rodland’s case
          for resentencing after vacating the sentence of one of the
          counts he was convicted on[], as it upset the overall sentencing
          scheme?

       2. Whether [] Rodland’s guilty pleas were unlawfully induced by
          the promise of Detective White to speak favorably at his
          sentencing, and whether the Commonwealth violated a plea
          bargain when Detective White failed to speak of [] Rodland’s
          cooperation at sentencing?

       3. Whether the sentencing court erred by leaving open the
          amount of restitution after the date [] Rodland was sentenced?

       4. Whether the trial court erred by permitting evidence of other
          bad acts/uncharged conduct to be put [before] the jury at []
          Rodland’s trial on December 5 & 6, 2000[?]

       5. Whether the trial court erred by allowing paper copies of []
          Rodland’s alleged confession to go back with the jury during
          deliberations?

       6. Whether [] Rodland’s speedy trial rights were violated?

       7. Whether the sentencing court erred by improperly considering
          Rodland’s expunged juvenile record and a threatening letter
          received by a prosecutor alleged to have come from [] Rodland,
          but was never properly investigated?

       8. Whether the Commonwealth withheld evidence favorable to []
          Rodland, thereby rendering [] Rodland’s guilty plea unknowing
          and involuntary?
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4 On June 1, 2018, our Supreme Court held, in a decision to be applied
prospectively only, that “when a single order resolves issues arising on more
than one lower court docket, separate notices of appeal must be filed. The
failure to do so will result in quashal of the appeal.” Commonwealth v.
Walker, 185 A.3d 969, 977 (Pa. 2018). Rodland filed the instant appeals
prior to the filing of our our Supreme Court’s decision in Walker.

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      9. Whether [] Rodland’s trial counsel should have been held
         ineffective for failing to present evidence of [Rodland’s] mental
         health at sentencing?

Brief for Appellant at 5-7 (issues renumbered).

      Rodland first argues that the PCRA court erred when it vacated one, but

not all, of his sentences, so as to allow resentencing on all charges. Id. at

15. According to Rodland, the trial court previously had nolle prossed Count

I at Criminal Information Number CR 909 of 1999. Id. However, at the later

guilty plea colloquy, Rodland mistakenly entered a guilty plea to Count I, and

the trial court sentenced Rodland on that Count. Id. at 16. Rodland points

out that the PCRA court correctly recognized this mistake, and properly

vacated Rodland’s sentence at Count I.       Id. (citing PCRA Court Opinion,

6/13/17, at 15).   However, Rodland challenges the PCRA court’s failure to

vacate all of his sentences, and remand for resentencing on the remaining

charges. Id. at 17. Rodland argues that, because the PCRA court’s Order

upset his sentencing scheme, all of his sentences should have been vacated,

and the case remanded for resentencing on all charges. Id. Rodland cites

Commonwealth v. Bartrug, 732 A.2d 1287 (Pa. Super. 1999), in support.

      In reviewing an illegal sentence claim, “[t]he issue … is a question of

law and, as such, our scope of review is plenary and our standard of review is

de novo.”   Commonwealth v. Williams, 920 A.2d 887, 889 (Pa. Super.

2007) (citation omitted).

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        In Bartrug, this Court held that “when an illegal sentence has been

imposed, the sentence must be corrected. Likewise, … if a trial court errs in

its sentence on one count in a multi-count case, then all sentences for all

counts will be vacated, so that the court can restructure its entire sentencing

scheme.”5 Bartrug, 732 A.2d at 1289 (citations omitted). However, where

vacating one sentence does not upset the trial court’s sentencing scheme,

there is no need to remand for resentencing. Commonwealth v. Thur, 906

A.2d 552, 569 (Pa. Super. 2006); see also Commonwealth v. Robinson,

817 A.2d 1153, 1163 n.14 (Pa. Super. 2003) (declining to remand for

resentencing, where the reversal of one sentence did not “upset the court’s

sentencing scheme[,] as the sentence we reverse here had been ordered to

run concurrent to the sentence imposed on the [other] conviction.”).

        Our review discloses that, at Count I, docketed at CR 909 of 1999,

Rodland was charged with arson-endangering persons,6 as to property located

at 700 E. 2nd Avenue in Altoona, Pennsylvania.     See Criminal Information,

6/21/99. Our review also discloses that, at Count II, Rodland was charged

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5 See Commonwealth v. Goldhammer, 517 A.2d 1280, 1283 (Pa. 1980)
(recognizing that, “when a defendant challenges one of several
interdependent sentences, he, in effect, challenges the entire sentencing
plan.”).

6   See 18 Pa.C.S.A. § 3301(a)(i).

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with arson-endangering property,7 for property located at 701 1st Avenue in

Altoona. See id. By an Order entered on November 14, 2000, the trial court

nolle prossed Count I. Trial Court Order, 11/14/00. Notwithstanding, Count

I improperly was included in Rodland’s guilty plea colloquy, and at sentencing.

At Count I, the trial court sentenced Rodland to 3 to 6 years in prison. This

sentence was imposed consecutive to Rodland’s other sentences at other

docket numbers. At Count II, the trial court imposed a prison term of 1-2

years, to run concurrent with Rodland’s sentence at Count I.           Contrary to

Rodland’s assertions, the sentence imposed at Count II was imposed

consecutive to all charges, except those imposed at Count I. Under these

circumstances, we conclude that, by vacating the sentence at Count I, the

PCRA court did not upset the trial court’s sentencing scheme. See Robinson,

817 A.2d at 1163 n.14. Therefore, we discern no error in the PCRA court’s

failure to require resentencing on all of Rodland’s convictions.

        In his second claim, Rodland argues that his guilty pleas were unlawfully

induced by a promise, made by Detective White, to speak favorably of

Rodland’s cooperation at sentencing.           Brief for Appellant at 19.   Rodland

argues that he waived his right to a jury trial and entered a guilty plea based

upon Detective White’s promise to make Rodland’s cooperation known to the

sentencing court. Id. at 22.

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7   See 18 Pa.C.S.A. § 3301(a)(ii).

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      “In determining whether a guilty plea was entered knowingly and

voluntarily, … a court is free to consider the totality of the circumstances

surrounding the plea.” Commonwealth v. Flanagan, 854 A.2d 489, 513

(Pa. 2004) (citations and internal quotation marks omitted).       “Our law

presumes that a defendant who enters a guilty plea was aware of what he was

doing.   He bears the burden of proving otherwise.”     Commonwealth v.

Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011) (citation omitted).         “A

person who elects to plead guilty is bound by the statements he makes in

open court while under oath and may not later assert grounds for withdrawing

the plea which contradict the statements he made at his plea colloquy.” Id.

(citation omitted).

      Our review discloses that Rodland’s present claim contradicts the

statements he made in his written and oral guilty plea colloquies.     In his

written guilty plea colloquy, Rodland was asked whether any promises or deals

had been offered in exchange for his guilty plea. See Written Plea Colloquy,

2/26/01, at ¶ 35. Rodland stated that he was promised a 5 to 10-year prison

term, consecutive to his current sentence, but made no mention of a promise

made by Detective White. See id. at ¶¶ 35-36. During the oral guilty plea

colloquy, the trial court inquired of Rodland whether any promises had been

made regarding his pleas, to which Rodland responded in the negative. N.T.

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(Plea Colloquy), 4/2/01, at 8-9. As Rodland is bound by these statements,

we cannot grant him relief on his claim.8

       In his third claim, Rodland argues that the trial court, at several docket

numbers, improperly failed to set the amount of restitution. Brief for Appellant

at 24. Rodland asserts that the trial court allowed the District Attorney 30

days within which to provide documentation, but the award was not entered

within the 30-day time period. Id. Rodland asserts that the judgments of

sentence that left open the amount of restitution are illegal. Id.

       As this Court has explained,

       a challenge to a court’s authority to impose restitution is generally
       considered to be a challenge to the legality of the sentence. A
       challenge to the legality of a sentence ... may be entertained as
       long as the reviewing court has jurisdiction. It is also well-
       established that [i]f no statutory authorization exists for a
       particular sentence, that sentence is illegal and subject to
       correction. An illegal sentence must be vacated. Issues relating
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8 Rodland’s reliance upon the Pennsylvania Supreme Court’s decision in
Commonwealth v. Gibbs, 553 A.2d 409 (Pa. 1989), and this Court’s decision
in Commonwealth v. Morgan, 606 A.2d 467 (Pa. Super. 1992), is
misplaced. In Gibbs, the Pennsylvania Supreme Court concluded that the
defendant had been impermissibly induced to make a confession after the
defendant stated, “Maybe I should talk to a lawyer.” Gibbs, 553 A.2d at 409.
The police officer had thereafter responded, “I really don’t know what good it
would do. The only thing is I would tell the District Attorney you cooperated
for whatever good that would be, but I would have no idea whether it would
help your case or not.” Id. In Morgan, this Court extended the rationale in
Gibbs to include situations in which the promise of favorable treatment by the
district attorney is used to induce a defendant to waive his right against self-
incrimination. Morgan, 606 A.2d at 469. These cases have not been
extended to apply where, as here, a defendant contradicts his statements
made during the guilty plea colloquy.

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     to the legality of a sentence are questions of law[; as a result,
     o]ur standard of review over such questions is de novo and our
     scope of review is plenary.

Commonwealth v. Rivera, 95 A.3d 913, 915-16 (Pa. Super. 2014) (internal

quotation marks and citations omitted).

     Restitution, as a part of a defendant’s sentence, is authorized by 18

Pa.C.S.A. § 1106. Section 1106 provides, in relevant part, as follows:

     § 1106. Restitution for injuries to person or property

     (a) General rule.—Upon conviction for any crime wherein
     property has been stolen, converted or otherwise unlawfully
     obtained, or its value substantially decreased as a direct result of
     the crime, … the offender shall be sentenced to make restitution
     in addition to the punishment prescribed therefor.

                                    ***

     (c) Mandatory restitution.—

                                    ***

        (2) At the time of sentencing the court shall specify the amount
        and method of restitution. In determining the amount and
        method of restitution, the court:

          (i) Shall consider the extent of injury suffered by the victim,
          the victim’s request for restitution ... and such other matters
          as it deems appropriate.

          (ii) May order restitution in a lump sum, by monthly
          installments or according to such other schedule as it deems
          just.

                                    ***

        (4)

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           (i) It shall be the responsibility of the district attorneys of the
           respective counties to make a recommendation to the court
           at or prior to the time of sentencing as to the amount of
           restitution to be ordered. This recommendation shall be
           based upon information solicited by the district attorney and
           received from the victim.

           (ii) Where the district attorney has solicited information from
           the victims as provided in subparagraph (i) and has received
           no response, the district attorney shall, based on other
           available information, make a recommendation to the court
           for restitution.

18 Pa.C.S.A. § 1106.

      Thus, “[t]he plain text of the statute requires the trial court to specify

the amount of restitution at the time of the original sentencing[,] as well as a

method of payment.” Commonwealth v. Gentry, 101 A.3d 813, 818 (Pa.

Super. 2014). “This provides the defendant with certainty as to his sentence,

and at the same time allows for subsequent modification, if necessary.”

Commonwealth v. Dinoia, 801 A.2d 1254, 1257 (Pa. Super. 2002).

Compare Commonwealth v. Mariani, 869 A.2d 484, 486 (Pa. Super. 2005)

(deeming a restitution order illegal where the trial court, at the time of

sentencing, declined to set any amount of restitution, and instead scheduled

a subsequent hearing on the restitution issue).

      Our review of the record discloses that the trial court considered the

issue of restitution separately, as to the charges at each docket number. For

example, at docket number CR 1112 of 1999, the trial court required Rodland

to pay restitution to Lisa Smithmyer in the amount of $250.00, and to Millvale

Mutual Insurance Company the amount of $2,417.97.              N.T. (Sentencing),

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4/23/01, at 13. At docket number CR 908 of 1999, the trial court directed

that restitution of $2,175.00 be paid to David Gormley, related to the charges

at that docket number. Id. at 23. By contrast, at docket numbers CR 892,

893, 891, 898, 905, 906, 909, 912, 913 and 1108 of 1999, the trial court, at

each number, expressly stated that no claim for restitution was made

regarding the charges at that number. Id. at 3, 4, 5, 9, 12, 15, 25, 26, 28.

      However, at docket numbers CR 890, 894, 907, 910 and 1014 of 1999,

the trial court left open the amount of restitution. See N.T. (Sentencing),

4/23/01, at 11, 13, 17, 21, 29. Rodland is correct that the open restitution

Orders constituted illegal sentences. Because the sentences imposed at each

of these docket numbers were integrated sentences, intended to consist of

both confinement and monetary elements, and because these elements were

not imposed contemporaneously, the illegality of one part invalidates the

whole sentence at that docket number.        See Mariani, 869 A.2d at 487

(stating that because the sentence in that case “was an integrated one

intended from the outset to consist of both confinement and monetary

elements, and because both were not imposed contemporaneously, the

illegality of one part invalidates the whole.”).    We therefore vacate the

sentences imposed at docket numbers CR 890, 894, 907, 910 and 1014 of

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1999, which included open orders of restitution, and remand for resentencing

at those docket numbers.9

       In his fourth claim, Rodland argues that the trial court improperly

allowed evidence of other bad acts/uncharged conduct to be considered by

the jury at his trial on December 5 and 6, 2000. Brief for Appellant at 25.

According to Rodland, evidence of “other crimes and uncharged bad acts was

presented to the jury in [his] trial for offenses charged [at docket numbers]

[CR] 895, 897, 903 and 911 of 1999.” Id. at 26. In particular, Rodland states

that the trial court improperly admitted evidence concerning the offenses

charged at [CR] 902 [of] 1999, and other “uncharged events.” Id. at 26-27.

Rodland states that this ruling “went against the purpose of the [O]rder

severing the cases, entered on October 4, 2000[,] in [CR] 890 [of] 1999 [and]

902 [of] 1999.” Id. at 27. Rodland acknowledges that no limiting instruction

was requested or issued. Id. at 27-28.

       The admission of evidence

       is within the sound discretion of the trial court and will be reversed
       only upon a showing that the trial court clearly abused its
       discretion. An abuse of discretion is not merely an error of
       judgment, but is rather the overriding or misapplication of the law,
       or the exercise of judgment that is manifestly unreasonable, or
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9 In vacating the open restitution Orders, we do not upset the trial court’s
sentencing scheme at the remaining docket numbers.          The trial court
separately considered restitution at each docket number, and provided an
integrated sentence as to the charges listed under each docket number. We
therefore leave intact Rodland’s remaining sentences.

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      the result of bias, prejudice, ill-will or partiality, as shown by the
      evidence of record.

Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015) (en

banc).

      “All relevant evidence is admissible, except as otherwise provided by

law.” Pa.R.E. 402. “Evidence is relevant if … it has any tendency to make a

fact more or less probable than it would be without the evidence … and … the

fact is of consequence in determining the action.” Pa.R.E. 401(a)-(b). “The

court may exclude relevant evidence if its probative value is outweighed by a

danger of … unfair prejudice[.]” Pa.R.E. 403. We recognize that “all evidence

in a criminal proceeding is prejudicial to the defendant, and … relevant

evidence is to be excluded only when it is so prejudicial that it may inflame

the jury to make a decision based upon something other than the legal

propositions relevant to the case.” Commonwealth v. Colon, 846 A.2d 747,

753 (Pa. Super. 2004) (citation and internal quotation marks omitted).

      Pennsylvania Rule of Evidence 404 generally prohibits the admission of

evidence of a crime, wrong or other act to prove a person’s character, in order

to show that on a particular occasion the person acted in accordance with the

character. Pa.R.E. 404(b)(1). However, such evidence may be admissible to

prove motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake or lack of accident, if the probative value of the evidence

outweighs its potential for unfair prejudice. Pa.R.E. 404(b)(2).

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     Our review of the record discloses that prior to the testimony of

Detective White, defense counsel challenged the admissibility of portions of

Rodland’s inculpatory statement to police. N.T., 12/4/00, at 219. At that

time, the following discussion ensued:

     [The Commonwealth]: [The statement] says … on this day I
     [(Rodland)] had my bicycle in town and I was riding around
     looking for another place I could possibl[y] do for a fire and that
     would have been sort of out of range where me and [Rodland’s
     friend, Nathan,] had previously done fires, had come up to the
     area of Garfield Park. That’s the only reference—is that the only
     reference you’re talking about?

     [Defense Counsel]: That is the one reference.

     [The Commonwealth]: That’s the only one I’m aware of.

     [Defense Counsel]: There’s also [a] reference to in the woods,
     looking to create a brush fire, a reference that since they had to
     start doing a lot of the fires and also at the time of lighter, and
     the time lighter—I had used the lighter that we initially used at
     the other fires, that me and Nathan had used.

     [The Commonwealth]: Your Honor … [the] defense is I didn’t do
     it[,] so it goes to identity and it goes to motive, it goes to why
     he was setting these places—this particular house on fire, I was
     looking to create a fire, a house I could easily do.

     …

     I was on my bicycle looking for another place that could possibly
     do and that would have been out of range for where me and
     Nathan had previously done fires.

     THE COURT: On the last statement[,] he was going to a house
     that he had—was going to burn and he saw the carport and went
     in because that was an easier one, so I think your objection is well
     founded from your viewpoint, overruled, because it goes to a
     continuing course of conduct and it also specifically goes to this
     house at … 2414 11th Avenue, and the rest of it is just background,
     I think makes statements as to other fires (inaudible) other fires

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       today, it doesn’t necessarily mean for other fires (inaudible) brush
       fire, that goes to show what he’s doing, not necessarily what he’s
       trying, so the objection is overruled….

Id. at 221-22 (emphasis added). During his testimony, Detective White read

Rodland’s statement out loud to the jury. Id. at 226-29. When asked about

his knowledge of the fire at 2414 11th Avenue, in Altoona, Rodland stated the

following:

       On this day, I had my bicycle in town and I was riding around
       looking for another place I could possibly do for a fire, that would
       have been sort of out of range where me and Nathan had
       previously done fires and came up to the area of Garfield park,
       found a house that looked abandoned initially. I found brush that
       I was going to attempt to do and I found a house that looked
       abandoned, came up the side of the house, lit, I believe it was
       paper that was sitting on the porch, paper or some type of
       insulation, I believe insulation, for modeling paper that was laying
       on the front porch. I had lit that on fire and then I left the area.

Id. at 227.

       Upon our review of the testimony, we discern no error or abuse of

discretion by the trial court in admitting testimony regarding Rodland’s

statement. As Rodland had denied setting the fires, this evidence was relevant

to the issues of identity and motive.10            Because we discern no abuse of

discretion or error, we cannot grant Rodland relief on this claim. 11

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10Detective White testified that, when asked why Rodland had set the fires,
Rodland responded that he “wanted to create a large, basically a situation
where the City of Altoona couldn’t handle all of the fires in one day.” N.T.,
12/5/00, at 89.

11 Contrary to Rodland’s assertion, it is not clear that the admitted evidence
referred to fires other than those at issue during the trial.

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      In his fifth claim, Rodland argues that the trial court improperly allowed

hard copies of Rodland’s confession to be given to the jury during its

deliberations. Brief for Appellant at 28. According to Rodland, the trial court,

off the record, determined that a portion of Rodland’s statement could be sent

out with the jury during deliberations. Id. at 29.

      Our review of the record discloses nothing that would support Rodland’s

claim. At trial, the trial court directed that the Rodland’s statement would not

be given to the jury.      N.T., 12/4/00, at 47-48.    During the Hearing to

Supplement the Record, conducted on December 18, 2017, Rodland’s trial

counsel testified that he did not recall the statement being given to the jury.

N.T., 12/18/17, at 38, 40.     Rodland confirmed that he did not personally

observe any documents being sent out with the jury during deliberations. Id.

at 15. The trial judge did not recall the documents being given to the jury,

and further stated that he would not have allowed a written confession to be

sent out with the jury during deliberations. Id. at 47. The prosecutor testified

that the statement was not sent out with the jury during deliberations. Id. at

52, 55. Because there is no support for Rodland’s claim in the record, we

cannot grant him relief.

      In his sixth claim, Rodland claims that the trial court erred in not

granting his Motion to dismiss the charges based upon a violation of

Pa.R.Crim.P. 600 (formerly Rule 1100). Brief for Appellant at 30. According

to Rodland, there were over 400 days of non-excludable time, for purposes of

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the Rule 600 calculation. Id. at 36. Specifically, Rodland directs our attention

to the following time periods: May 5, 1999, through December 29, 1999;

January 31, 2000, through May 2, 2000; from May 8, 2000, through July 7,

2000; and from July 11, 2000, through November 9, 2000. Id. at 37-38.

Citing Commonwealth v. Hill, 736 A.2d 578 (Pa. 1999), Rodland contends

that the filing of a pretrial motion does not automatically render him

unavailable; “rather, he is unavailable if a delay in the commencement of a

trial is cause[d] by the motion.” Brief for Appellant at 37. If there is a delay,

Rodland argues, the Commonwealth must establish that it exercised due

diligence in responding to the motion. Id. Rodland asserts that either the

time period is excludable, because it caused no delay of the trial, or that the

time is attributable to the Commonwealth, as it did not take action to oppose

or respond to the Motion. Id.

       “In evaluating Rule [600] issues, our standard of review of a trial court’s

decision is whether the trial court abused its discretion.” Hill, 736 A.2d at

581.

       As our Supreme Court has explained,

       [b]y the terms of Rule 600, the Commonwealth must bring a
       defendant to trial within 365 days from the date upon which a
       written criminal complaint is filed. Pa.R.Crim.P. 600(A)(2)(a).
       However, the Rule 600 run date may be adjusted pursuant to the
       computational directives set forth in Subsection (C) of the Rule.
       For purposes of the Rule 600 computation, “periods of delay at
       any stage of the proceedings caused by the Commonwealth[,]
       when the Commonwealth has failed to exercise due diligence[,]
       shall be included in the computation of the time within which trial
       must commence.” Id. 600(C)(1). “Any other periods of delay,”

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      including those caused by the defendant, “shall be excluded from
      the computation.” Id. When considering a Rule 600 motion, the
      court must identify each period of delay and attribute it to the
      responsible party, then adjust the 365-day tally to arrive at the
      latest date upon which the Commonwealth may try the defendant.
      Absent a demonstration of due diligence, establishing that the
      Commonwealth has done “everything reasonable within its power
      to guarantee that [the] trial begins on time,” Commonwealth v.
      Matis, 551 Pa. 220, 710 A.2d 12, 17 (Pa. 1998), the
      Commonwealth’s failure to bring the defendant to trial before the
      expiration of the Rule 600 time period constitutes grounds for
      dismissal of the charges with prejudice.        See Pa.R.Crim.P.
      600(D)(1).

Commonwealth v. Barbour, 189 A.3d 944, 947 (Pa. 2018).

      In Hill, our Supreme Court opined that the filing of a pretrial motion

does not automatically render a defendant unavailable for trial for purposes

of the Rule:

      When a defendant is deemed unavailable for trial, the time is
      excludable from the Rule [600] calculation; however, the mere
      filing of a pretrial motion by a defendant does not automatically
      render him unavailable.         Rather, a defendant is only
      unavailable for trial if a delay in the commencement of trial
      is caused by the filing of the pretrial motion. If a delay is
      created, in order to establish that the delay is excludable, the
      Commonwealth must demonstrate, by a preponderance of the
      evidence, that it exercised due diligence in opposing or responding
      to the pretrial motion. A delay caused by the Commonwealth’s
      lack of due diligence will not constitute excludable time.

Hill, 736 A.2d at 587 (emphasis added).

      The Commonwealth filed its Criminal Complaint against Rodland on May

5, 1999. Thus, the mechanical run date for Rule 600 purposes was May 4,

2000. Rodland’s trial commenced on December 4, 2000, 214 days beyond

the mechanical run date.

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      Our review discloses that the trial court initially set a trial date of

November 20, 1999.      On November 19, 1999, Rodland filed a Motion for

Change of Counsel. The trial court denied the Motion on November 23, 1999.

However, on December 29, 1999, the trial court granted defense counsel’s

Motion for a continuance until February 17, 2000.      Thus, the time periods

between November 19, 1999, and November 23, 1999, and from December

29, 1999, to February 17, 2000, a total of 54 days, are excludable for purposes

of Rule 600.

      On January 31, 2000, Rodland filed Omnibus Pretrial Motions. The trial

court scheduled and conducted a hearing on the Omnibus Pretrial Motions on

May 2, 2000. We conclude that the time period from February 17, 2000, to

May 2, 2000, 75 days, was excludable time, as the delay was caused by the

filing of the Omnibus Pretrial Motions, and the trial court’s scheduling of a

hearing on those Motions. See Commonwealth v. McCarthy, 180 A.3d 368,

376 (Pa. Super. 2018) (recognizing that a delay that resulted from the

unavailability of time on trial court’s calendar was excludable from the Rule

600 calculation); Commonwealth v. Frye, 909 A.2d 853, 859 (Pa. Super.

2006) (stating that, “[i]n conducting the due diligence inquiry, our

jurisprudence has excused such delay resulting from court congestion.”).

      Our review of the record discloses that a continuation of the hearing was

scheduled to take place on June 26, 2000, and the Commonwealth moved to

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continue the hearing until July 7, 2000. We conclude that this time period is

not excludable for purposes of Rule 600.

      Defense counsel requested a continuance from July 7, 2000, until July

14, 2000. This time period, 8 days, is excludable time.

      The trial court concluded its hearing on Rodland’s Omnibus Pretrial

Motion on July 14, 2000.     The trial court received the briefs on Rodland’s

Motions on September 15, 2000, and entered its Opinion and Order resolving

the Motions on October 4, 2000. The time period from July 14, 2000, through

October 4, 2000, 83 days, is excludable time caused by judicial scheduling.

See McCarthy, 180 A.3d at 376.

      Factoring in the 220 days of excludable time, the adjusted run date for

Rule 600 purposes was December 10, 2000.             Because Rodland’s trial

commenced on December 4, 2000, we discern no abuse of discretion by the

trial court in rejecting Rodland’s Rule 600 claim.

      In his seventh claim, Rodland argues that the trial court improperly

considered his expunged juvenile record, and a threatening letter received by

the prosecutor, at sentencing. Brief for Appellant at 39. Rodland asserts that

the sentencing court had incorrect information that he began committing

crimes at age 9, and that the prosecutor had received a threatening letter and

intimated that it was from Rodland. Id. at 41. Rodland asserts that the court

should not have considered such information at sentencing. Id.

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J-S20001-19

        Rodland’s claim that the trial court considered impermissible factors at

sentencing is a challenge to the discretionary aspects of sentencing. “The

right to appeal a discretionary aspect of sentence is not absolute.”

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011). Rather,

where an appellant challenges the discretionary aspects of a sentence, we

should     regard   his   appeal     as   a    petition   for   allowance   of   appeal.

Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). Before a

challenge to the sentence will be heard on the merits, an appellant, in order

to invoke the Court’s jurisdiction, must set forth in his brief a separate and

concise statement of reasons relied upon in support of his appeal. Pa.R.A.P.

2119(f);12    Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa. Super.

2006). Where an appellant fails to comply with Pa.R.A.P. 2119(f), and the

Commonwealth objects, the issue is waived for purposes of review.

Commonwealth v. Montgomery, 861 A.2d 304, 308 (Pa. Super. 2004).

____________________________________________

12   Rule 2119(f) states the following:

            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. The statement shall immediately precede the
            argument on the merits with respect to the discretionary
            aspects of sentence.

 Pa.R.A.P. 2119(f).

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J-S20001-19

        Here, Rodland’s brief does not include a Rule 2119(f) statement, and

the Commonwealth has objected to its omission. See Commonwealth’s Brief

at 35.      Accordingly, Rodland has waived this issue for review.          See

Montgomery, 861 A.2d at 308.

        In his eighth claim, Rodland argues that the Commonwealth withheld

favorable evidence, i.e., a note stating that one of the fires could have been

accidental. Brief for Appellant at 41. Rodland asserts that the Commonwealth

withheld this evidence, in violation of Brady v. Maryland, 373 U.S. 83

(1963), and that the omission caused him to tender an unknowing guilty plea.

Brief for Appellant at 41.        Rodland asserts that on January 20, 2011, he

received a “Complaint Summary” regarding the fire at 619 Crawford Avenue.13

Id. at 43. Rodland contends that this Complaint Summary indicated that the

fire appeared to be electrical in nature. Id. Rodland asserts that, had he

known of this report, he would not have tendered a guilty plea. Id.

        In Brady, the United States Supreme Court held that a defendant’s due

process rights are violated when the prosecution withholds favorable, material

evidence from the defense.          Brady, 373 U.S. at 87.    To prove a Brady

violation, the defendant bears the burden of demonstrating that (1) the

prosecutor has suppressed evidence; (2) the evidence, whether exculpatory

or impeaching, is helpful to the defendant; and (3) the suppression prejudiced

____________________________________________

13   Rodland pled guilty to arson related to this fire at CR 892 of 1999.

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J-S20001-19

the defendant. Commonwealth v. Koehler, 36 A.3d 121, 133 (Pa. 2012)

(citation omitted).   “Therefore, even if the first two prongs have been

established, a defendant must establish that he was prejudiced by the failure

to disclose.” Commonwealth v. Pugh, 101 A.3d 820, 825 (Pa. Super. 2014).

“To establish prejudice, the defendant must prove that there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of

the proceeding would have been different.” Id. (internal quotation marks and

citation omitted).

      In its Opinion, the PCRA court addressed this claim as follows:

      The record reflects that in the case of the report that “the fire
      appeared to be electrical in nature,” the first on the scene
      reporting officer only had a cursory look at the initial scene of the
      crime. This report would likely have had little, if any, effect on
      the jury in light of further investigation disproving the electrical
      fire statement….

PCRA Court Opinion, 6/13/17, at 16-17.         We agree with and adopt the

reasoning of the PCRA court, in rejecting this claim. See id. Rodland further

fails to establish how knowledge of the initial statement would have altered

his decision to plead guilty to setting this fire. Because Rodland has failed to

establish prejudice resulting from the Commonwealth’s alleged failure to

disclose, we cannot grant him relief on this claim. See Pugh, supra.

      In his ninth and final claim, Rodland argues that the PCRA court erred

by determining that his claim of ineffective assistance by his trial counsel at

sentencing, John Siford, Esquire (“Attorney Siford”), lacks merit.      Brief for

Appellant at 44. Rodland asserts that Attorney Siford should have presented

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J-S20001-19

evidence regarding his mental health at sentencing.        Id. at 46.   Rodland

directs our attention to his testimony, during the PCRA hearing, that he had

received treatment through the Blair County Mental Health Agency for

behavior problems at school and at home. Id. at 47. Rodland also detailed

his mental health treatment through the juvenile justice system.            Id.

According to Rodland, there is “no indication that Attorney Siford ever sought

any of the providers to discuss [] Rodland’s conditions and how they could

relate to his offenses.”   Id. at 47-48.      Rodland claims that his counsel’s

inaction deprived the sentencing court of mitigating information and

information regarding his potential for rehabilitation. Id. at 48.

      As our Supreme Court has explained,

      [c]ounsel is presumed to be effective, …; to overcome the
      presumption, [the petitioner] has to satisfy the performance and
      prejudice test set forth in Strickland [v. Washington, 466 U.S.
      668 (1984)]. In Pennsylvania, we have applied the Strickland
      test by looking to three elements[:] whether[] (1) the underlying
      claim has arguable merit; (2) no reasonable basis existed for
      counsel’s actions or failure to act; and (3) the defendant has
      shown that he suffered prejudice as a result of counsel’s lapse,
      i.e., that there is a reasonable probability that the result of the
      proceeding … would have been different if counsel had objected.
      If a claim fails under any necessary element of the Strickland
      test, the court may proceed to that element first.

Commonwealth v. Bennett, 57 A.3d 1185, 1195-96 (Pa. 2012) (some

citations omitted).

      In its Opinion, the PCRA court addressed this claim as follows:

      [Rodland] has not provided specific evidence to establish that
      Attorney Siford’s failure to present [Rodland’s] mental health
      history was not a strategy of the attorney. Attorney Siford may

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      have reasonably concluded that introduction of such evidence
      would be ineffective or even harmful to [Rodland]. [Rodland] has
      failed to overcome the presumption of effectiveness required by
      law. Additionally, [Rodland] has failed to establish [that] the
      information would have changed the outcome of the trial.

PCRA Court Opinion, 6/13/17, at 22-23. We agree with and affirm on the

basis of the PCRA court’s reasoning, as set forth above. See id.

      In summary, we vacate the judgments of sentence imposed at docket

numbers CR 890, 894, 907, 910 and 1014 of 1999, and remand for

resentencing at those docket numbers. In all other respects, we affirm the

judgments of sentence and Order of the PCRA Court.

      We additionally note that Rodland filed a Motion to Strike certain

documents attached as exhibits to the Commonwealth’s Brief. Because we

address the inclusion of the documents in the certified record, in Rodland’s

appeals filed at Nos. 1244-1271 WDA 2018, we deny the instant Motion to

Strike as moot.

      Motion to Strike denied as moot.         PCRA Court Order affirmed.

Judgments of sentence entered at CR 890, 894, 907, 910 and 1014 of 1999

vacated.   Case remanded for resentencing at those docket numbers,

consistent with this Memorandum.         Remaining judgments of sentence

affirmed. Superior Court jurisdiction relinquished.

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J-S20001-19

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/2/2019

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