Com. v. McKinney, D. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID MCKINNEY :
:
Appellant : No. 1567 EDA 2020
Appeal from the Judgment of Sentence Entered September 11, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012574-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID MCKINNEY :
:
Appellant : No. 1573 EDA 2020
Appeal from the Judgment of Sentence Entered August 23, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004519-2015
BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: Filed: May 27, 2021
David McKinney (“McKinney”) appeals from the judgments of sentence
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imposed following the revocation of his probation.1 We affirm.
On November 16, 2015, McKinney entered a negotiated guilty plea to
possession of an instrument of crime and simple assault at No. 12574-2012.
The trial court sentenced McKinney, pursuant to the plea agreement, to time
served to 23 months in prison, with immediate parole, followed by an
aggregate term of 5 years of probation.
On March 4, 2016, McKinney entered a negotiated guilty plea to
burglary, criminal trespass, and violation of a protective order at No. 4519-
2015. The trial court sentenced McKinney, pursuant to the plea agreement,
to 18-36 months in prison, with credit for time served, followed by 3 years of
probation, to be supervised by the mental health unit.
The revocation court summarized what next transpired as follows:
During probation, [McKinney] tested positive for
amphetamines, cocaine and marijuana. He eventually completed
a program at the Keystone Center on January 11, 2019[,] and
upon release, failed to follow through and go to the recovery
house as planned[.] [McKinney] could not be located for
approximately 60 days after he was discharged from the Keystone
Center. Wanted cards were issued on or about February 15, 2019.
On or about March 14, 2019, [McKinney] phoned his probation
officer and admitted to her that he had relapsed. [McKinney] was
instructed to turn himself into the probation officer on Tuesday,
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1The revocation court revoked McKinney’s probation and resentenced him at
docket numbers CP-51-CR-0012574-2012 (“No. 12574-2012”) and CP-51-
CR-0004519-2015 (“No. 4519-2015”) on August 23, 2019. On September
11, 2019, the revocation court amended the revocation sentence imposed at
No. 12574-2012. McKinney filed a separate Notice of Appeal at each docket
number. Because McKinney’s briefs in each appeal present identical claims
and arguments, we will address his appeals together.
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March 19, 2019; however, on March 17[, 2019, McKinney] was
detained on the probation warrant.
On May 31, 2019, a Gagnon II[2] hearing was held and
[McKinney] was found to be in violation of probation[,] and [his]
probation was revoked [at both docket numbers]. A pre-sentence
[investigation] report [(“PSI”)] and mental health evaluation
w[ere] ordered. On August 23, 2019, [McKinney] was sentenced
to a term of two[-]and[-]one[-]half (2½) to five (5) years of
incarceration on the conviction of possessing an instrument of
crime[,] and a concurrent term of one (1) to two (2) years of
incarceration for simple assault was imposed under [No. 12574-
2012]. [McKinney] was also sentenced to a consecutive term of
two[-]and[-]one[-]half (2½) to five (5) years of incarceration[,]
plus five (5) years of probation on the burglary … conviction under
[No. 4519-2015]. The aggregate[] sentence imposed was five (5)
to ten (10) years of incarceration[,] followed by five (5) years of
probation. Credit for time served was ordered.
On September 3, 2019, [McKinney’s] counsel filed a Motion
to Modify Sentence. On September 11, 2019, a hearing was held
on the [M]otion[,] and the [M]otion was denied as to [No. 4519-
2015]. Under [No.12574-2012], the [M]otion was granted in part,
[and] denied in part; reducing [McKinney’s] sentence to a term of
one[-]and[-]one[-]half (1½) to three (3) years of incarceration on
the conviction of possessing an instrument of crime[,] … and a
concurrent term of one (1) to two (2) years of incarceration for
simple assault. Thereby reducing the aggregate[] sentence
imposed to four (4) to eight (8) years of incarceration[,] followed
by five (5) years of probation. Credit for time served was ordered.
…
Trial Court Opinion, 12/1/20, at 2-3 (footnote added).
On October 18, 2019, McKinney filed a Petition for relief pursuant to the
Post Conviction Relief Act (“PCRA”)3 at both docket numbers, arguing that
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2 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
3 See 42 Pa.C.S.A. §§ 9541-9546.
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counsel mistakenly failed to file a timely notice of appeal, as requested by
McKinney, and seeking reinstatement of McKinney’s direct appeal rights, nunc
pro tunc. The PCRA court granted McKinney relief, and McKinney filed his
Notices of Appeal, nunc pro tunc, on July 31, 2020. The revocation court
subsequently ordered McKinney to file a Pa.R.A.P. 1925(b) Concise Statement
of errors complained of on appeal, and McKinney timely complied.
On appeal, McKinney raises the following issue for our review:
Is the sentence imposed for a technical violation of probation
unduly harsh and excessive, and greater than that necessary to
vindicate the [c]ourt’s authority under the circumstances where:
a. [C]onfinement in a state correctional facility for the term
imposed is not the least restrictive sentence necessary to
effectuate the aims of Pennsylvania’s sentencing laws[,] and is
the sentence greater than that which would be consistent with
[the] protection of the public, the gravity of [McKinney’s]
conduct as it relates to the impact on the life of others in the
community, and the rehabilitative needs of [McKinney];
b. [A]nd where the [trial] court did not adequately consider
[McKinney’s] age, rehabilitative needs, his acceptance of
responsibility for his crime and violation, his progress toward
rehabilitation and the supportive environment available to
[McKinney]?
Brief for Appellant at 4.
McKinney argues that his sentence was excessive, particularly because
he committed a technical violation of probation, rather than a new criminal
offense. Id. at 34-35. McKinney points to several pieces of information
included in his PSI, including, inter alia, his history of substance abuse and
mental health issues, and his treatment history for both issues. Id. at 37.
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According to McKinney, his behavior does not indicate that he is likely to
commit another crime, and a prison sentence is not necessary to vindicate the
court’s authority. Id. at 40-41. Specifically, McKinney points out that he
turned himself into his probation officer, and argues that he has accepted
responsibility, shown remorse, and taken steps toward rehabilitation. Id. at
40. McKinney also argues that the sentence is not consistent with his
rehabilitative needs, because he is already enrolled and “flourishing” in
rehabilitative programs outside of prison. Id. at 41-42.
McKinney challenges the discretionary aspects of his sentence, from
which there is no automatic right to appeal. See Commonwealth v.
Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010). In considering such a
challenge,
[w]e conduct a four-part analysis to determine: (1) whether the
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
Pa.R.Crim.P. [720]; (3) whether the appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
***
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. A substantial question
exists only when the appellant advances a colorable argument
that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.
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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation
marks and some citations omitted).
Here, McKinney filed Notices of Appeal, nunc pro tunc, preserved his
claim in his Motion to Modify Sentence, and included a separate Pa.R.A.P.
2119(f) Statement in his appellate briefs. Additionally, McKinney’s claim that
the revocation court imposed an excessive sentence, following a technical
violation, without adequately considering the required sentencing factors and
his rehabilitative needs, raise a substantial question for our review. See
Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en
banc) (stating that “[t]his Court has [] held that an excessive sentence claim—
in conjunction with an assertion that the [trial] court failed to consider
mitigating factors—raises a substantial question.” (citing Commonwealth v.
Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014)); Commonwealth v. Colon,
102 A.3d 1033, 1043 (Pa. Super. 2014) (concluding that “[a]ppellant’s claim
that the trial court sentenced him to a term of total confinement based solely
on a technical violation raises a substantial question for our review.”). Thus,
we will address the merits of McKinney’s discretionary sentencing claim.
Our standard of review is well settled:
The imposition of sentence following the revocation of probation
is vested within the sound discretion of the trial court, which,
absent an abuse of that discretion, will not be disturbed on appeal.
An abuse of discretion is more than an error in judgment—a
sentencing court has not abused its discretion unless the record
discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.
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Colon, 102 A.3d at 1043.
The reason for this broad discretion and deferential standard
of appellate review is that the sentencing court is in the best
position to measure various factors and determine the proper
penalty for a particular offense based upon an evaluation of the
individual circumstances before it. Simply stated, the sentencing
court sentences flesh-and-blood defendants[,] and the nuances of
sentencing decisions are difficult to gauge from the cold transcript
used upon appellate review. Moreover, the sentencing court
enjoys an institutional advantage to appellate review, bringing to
its decisions an expertise, experience, and judgment that should
not be lightly disturbed.
The sentencing court’s institutional advantage is, perhaps,
more pronounced in fashioning a sentence following the revocation
of probation, which is qualitatively different than an initial
sentencing proceeding. At initial sentencing, all of the rules and
procedures designed to inform the court and to cabin its
discretionary sentencing authority properly are involved and play
a crucial role. However, it is a different matter when a defendant
appears before the court for sentencing proceedings following a
violation of the mercy bestowed upon him in the form of a
probationary sentence. For example, in such a case, contrary to
when an initial sentence is imposed, the Sentencing Guidelines do
not apply, and the revocation court is not cabined by Section
9721(b)’s requirement that “the sentence imposed should call for
confinement that is consistent with the protection of the public, the
gravity of the offense as it relates to the impact on the life of the
victim and on the community, and the rehabilitative needs of the
defendant.” 42 Pa.C.S.A. § 9721.
Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (some citations and
quotation marks omitted).
Upon revocation of probation, a sentencing court may choose from any
of the sentencing options that existed at the time of the original sentence,
including incarceration. 42 Pa.C.S.A. § 9771(b). However, the imposition of
total confinement upon revocation requires a finding that either “(1) the
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defendant has been convicted of another crime; or (2) the conduct of the
defendant indicates that it is likely that he will commit another crime if he is
not imprisoned; or (3) such a sentence is essential to vindicate the authority
of the court.” Id. § 9771(c).
Moreover, “[i]n every case in which the court … resentences an offender
following revocation of probation, … the court shall make as part of the record,
and disclose in open court at the time of sentencing, a statement of the reason
or reasons for the sentence imposed.” Id. § 9721(b); see also Pa.R.Crim.P.
708(D)(2) (providing that “[t]he judge shall state on the record the reasons
for the sentence imposed.”). However, following the revocation of probation,
a sentencing court need not undertake a lengthy discourse for its reasons for
imposing a sentence or specifically reference the statutes in question. See
Pasture, 107 A.3d at 28 (stating that “since the defendant has previously
appeared before the sentencing court, the stated reasons for a revocation
sentence need not be as elaborate as that which is required at initial
sentencing.”).
Here, the revocation court sentenced McKinney to an aggregate term of
4-8 years in prison, with credit for time served, plus 5 years of probation,
following the revocation of his probation. During the revocation hearing, the
revocation court heard from McKinney’s counsel, who acknowledged
McKinney’s long history of substance abuse, but explained that McKinney was
in treatment and doing well. See N.T., 8/23/19, at 6, 8. Counsel also
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recounted McKinney’s difficult upbringing and family history of substance
abuse. Id. at 7.
McKinney also spoke on his own behalf. McKinney personally recounted
his experiences in treatment programs. Id. at 14. Additionally, McKinney
stated as follows:
This might have been a long road for me, taking a long time to
come to the conclusion that I have an addiction, but it’s not
something that you address -- you have to address it day-to-day,
not, I gotta beat it, I’m clean for 13 years and then relapse. You
have to stay with the program. I didn’t take advantage of
everything that was offered to me. …
Id. at 12.
McKinney’s father, David McKinney, Sr., also testified regarding his own
history with substance abuse, his sobriety, and his intention to help McKinney
after his release. See id. at 18-23.
After hearing testimony, the revocation court stated its reasons for
imposing the sentence:
To say that you broke a few rules is putting it mildly.
Mr. McKinney, at this point in your life, you should have
been well beyond that. I dare say we’re nowhere near where you
need to be before you can be out on the street sober. Can you do
it? Absolutely. But I would be remiss if I were to allow you at this
point in time, because to do so is to invite potential violence and
continued drug use and/or a possible death to you from overdose.
The efforts to rehabilitate you since a juvenile have gone on
to date. Obviously, relapses are a part of addiction, but with you
it’s a lot more than that. 13 arrests, 12 convictions, 9
commitments, 11 violations, three pending, including two before
this [c]ourt, eight revocations.
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You reported an extremely difficult childhood, to which I
alluded and I was referring to what you had noted in the [PSI]. I
do think that quite a bit of what you have to say is self-serving
and manipulative. I don’t doubt that there were great difficulties.
Your dad completely admits that. But I also sense that even when
you were a juvenile there were attempts to reign you in and not
exhibit a lack of control of your behavior that you continued to do
in terms of the upbringing.
I do note that you are an extremely intelligent human being.
And as you indicated, you have vocational training in various
trades that can help you. You attended -- you were educated,
after you moved out of Bucks County, educated in Florida at a
program for academically gifted children. You attended an
academy in Melbourne. You were expelled. You transferred to a
different location, dropped out of ninth grade at age 15, left
school, did obtain your GED while incarcerated in one of your prior
stays at SCI Coal Township.
You enrolled in Seminole Community College at some point
in the early 2000s. And I think that’s where you picked up the
classes in sheet metal work, duct installation. Your dad had
apparently offered several methods to continue to work, mostly
employed by a general contracting company, between April and
August [] 2018.
Your substance abuse history includes alcohol, marijuana,
methamphetamines, cocaine, LSD, psilocybin mushrooms. First
claimed to be drinking at the age of three. Continual relapses.
Positive testings as well under [the c]ourt’s supervision. Various
attempts at treatment, not the least of which at age 15, inpatient,
admitted to [a] treatment center in Florida, Keystone Center in
Chester, PA, later discharged [o]n January 11, 2019. Directed to
enter a recovery house in Levittown, did not go. Checked into
Gaudenzia, checked out. Open warrants.
The reports I received from the probation department that
generated the request for detention, I reviewed them as well, and
they describe the litany, particularly within the Gagnon
summaries, of efforts on the part of your probation department -
- our probation department to reign you back in.
In May 2018, you transferred to [the] mental health unit,
released from custody, submitted a diluted drug test [in July and
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August 2018], positive for cocaine and marijuana. … And then
they were trying to get you into JFK Behavioral Health, claimed to
be there enrolled. Then apparently in September last year, after
various attempts to contact you, they became aware of the fact
that the address listed was a vacant house. Attempted routine
visits. Reported address, homeowner denied that you ever lived
there. Updated address. Positive testing for amphetamines at
final office visit [in] October 2018. …
November 2018[, you] tested positive[ for] amphetamines,
marijuana again. Then the incident in December involving waking
up, wherever you woke up, with a dead body at that residence.
Checked yourself into Keystone. Plan was to get you into Life’s
Journey Recovery House in Levittown. Discharged in January.
Plan to rent at Decatur Street.
Attempt to locate you unsuccessful. Voicemail contact,
claimed you would eventually show up again, but you wanted to
take care of whatever health concern you said you had. Check at
Decatur Street[;] actually, you had not been residing there as
previously stated. Wanted cards were issued. Whereabouts were
unknown in February.
In March, voice message from you to the officer, admitted
relapse, informed of the warrant, and then he was finally
detained….
….
The bail commissioner, trial commissioner decided, for
whatever reason, to let you out and released the detainer on two
cases…. Claimed you’re going to go find employment, find
treatment. Off we go. …
…[You c]heck in and out [of] Friends Hospital. And then you
became aggressive with the officer when she was trying to figure
out what was going on with you.
And I just reviewed the highlights in addition to the other
positive testings that were listed here and the review of your PSI.
It is clear to me, sir, that you did not heed any of this [c]ourt’s
direction, and that if left to your own devices, like you have been
left on multiple occasions, you would be right back here again with
new cases. That’s why I detained you. Quite frankly, I couldn’t
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trust you out there. And I do sense that you couldn’t trust
yourself.
Id. at 23-29; see also Trial Court Opinion, 12/1/20, at 8-9 (stating that the
revocation court imposed a prison sentence “only after [McKinney] had
violated probation with multiple failed drug tests, refused treatment and
demonstrated overall non-compliant behavior that clearly indicated that
probation had been ineffective as a rehabilitative or crime deterrent tool.”).
Moreover, the revocation court explicitly stated that it had reviewed the PSI
and mental health assessment. Id. at 6; see also Commonwealth v.
Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (stating that “where the
trial court is informed by a [PSI], it is presumed that the court is aware of all
appropriate sentencing factors and considerations, and that where the court
has been so informed, its discretion should not be disturbed.”).
The record therefore confirms that the revocation court was provided
with sufficient information to make a fully-informed sentencing decision
following the revocation of McKinney’s probation, and that the court
adequately considered the relevant sentencing factors. Additionally,
McKinney’s aggregate post-revocation sentence is not manifestly excessive.
See generally Commonwealth v. Schutzues, 54 A.3d 86, 99 (Pa. Super.
2012) (stating that “[a] trial court does not necessarily abuse its discretion in
imposing a seemingly harsh post-revocation sentence where the defendant
originally received a lenient sentence and then failed to adhere [to] the
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conditions imposed on him.”). Discerning no abuse of discretion by the trial
court, we will not disrupt McKinney’s sentence on appeal.
Judgment of sentence affirmed.
Judge Lazarus joins the memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/21
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