Com. v. Russaw, W. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
WILLIAM TIHIEVE RUSSAW :
:
Appellant : No. 256 MDA 2017
Appeal from the Judgment of Sentence January 17, 2017
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0004591-2016,
CP-22-CR-0004769-2015, CP-22-CR-0005187-2015
BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 18, 2017
William Tihieve Russaw appeals from his judgment of sentence of 1½ to
4 years’ imprisonment, entered in the Court of Common Pleas of Dauphin
County, imposed after he violated the terms of his probation and the
conditions of his intermediate punishment (“IP”). After careful review, we
affirm.
On September 20, 2016, Russaw pled guilty to stalking,1 three counts
of selling a non-controlled substance as a controlled substance,2 two counts
of possession of drug paraphernalia,3 and tampering with evidence.4 The
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1 18 Pa.C.S.A. § 2709.1.
2 35 Pa.C.S.A. § 780-113(a)(35)(ii).
3 35 Pa.C.S.A. § 780-113(a)(32).
4 18 Pa.C.S.A. § 4910(a).
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* Retired Senior Judge assigned to the Superior Court.
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same day, the trial court sentenced Russaw to an aggregate term of 60
months of IP, 12 months’ electronic monitoring, and 12 months’ probation.
The trial court summarized the procedural and factual history following
Russaw’s sentencing as follows:
[Russaw] was arrested on November 15, 2016, less than two
months after his sentenc[ing], for multiple violations of probation
and the conditions of intermediate punishment. [Russaw] violated
probation by failing to allow the probation officer access to his
house, lying to the officer, failing to follow the officer’s
instructions, failing to pay any of his fines or costs, using drugs,
having access to drug paraphernalia, and possessing more than
one cell phone. [Russaw] also violated the electronic monitoring
requirements by having multiple unapproved outs and allowing
the device to die. There were a total of 246 violations during the
two[-]month period that appellant was on probation and
intermediate punishment.
[Russaw] asserted that he hesitated to open the door for [his]
probation [officer] because a [woman] was not properly clothed[,]
and he did not follow the officer’s direction because he was unsure
that it was his probation officer. [Russaw] claimed that he was
unable to make payments on his fines and costs because he had
only been out of prison for one month. He then explained that he
possessed three cellphones because of work and failed to charge
the electronic monitor because he was working three jobs.
Further, [Russaw] claims that the drug paraphernalia was only a
girl’s hair beads.
Trial Court Opinion, 3/6/17, at 1-3. On January 17, 2017, following a
revocation and sentencing hearing, the trial court resentenced Russaw to 1½
to 4 years’ imprisonment for violating technical probation rules 246 times. On
January 26, 2017, Russaw filed a timely post sentence motion for modification
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of sentence, and on February 3, 2017, Russaw filed a timely notice of appeal.5
Both Russaw and the trial court have complied with Pa.R.A.P. 1925. Russaw
raises the following issue on appeal:
Was not the imposition of a probation violation sentence of 1½ to
4 years’ incarceration clearly unreasonable, so manifestly
excessive as to constitute an abuse of discretion, and inconsistent
with the protection of the public, the gravity of the offenses, and
defendant’s rehabilitative needs where the revocation conduct
involved technical violation of parole/probation?
Brief of Appellant, at 5.
When reviewing the outcome of a revocation proceeding, this Court is
limited to determining the validity of the proceeding, the legality of the
judgment of sentence imposed, and the discretionary aspects of sentencing.
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5 Pa.R.C.P. 720(B)(3)(d) provides that “[i]f the [trial court] judge denies [a]
post-sentence motion, the judge promptly shall issue an order and the order
shall be filed and served as provided in [Pa.R.C.P. 114].” Additionally, “[i]f
the judge fails to decide [a post-sentence motion] within 120 days . . . the
motion shall be deemed denied by operation of law.” Pa.R.C.P. 720(B)(3)(a).
“When a post-sentence motion is denied by operation of law, the clerk of
courts shall forthwith enter an order on behalf of the court[.]” Pa.R.C.P.
720(B)(3)(c). A timely written order, by either the trial court or the clerk of
courts upon denial of a post-sentence motion by operation of law, is intended
to protect a defendant’s right to appeal. Commonwealth v. Braykovich,
664 A.2d 133 (Pa. Super. 1995).
Absent from the certified record and/or docket is an order by Honorable
Richard A. Lewis denying Russaw’s post-sentence motion or an order entered
by the clerk of courts denying his motion by operation of law. However,
Russaw filed his notice of appeal on February 3, 2017, and thus, even if the
trial court had denied Russaw’s motion the day he filed it, his appeal would
have been timely, as only eight days had tolled. See Pa.R.A.P. 903.
Therefore, although we acknowledge the absence of an order denying
Russaw’s post-sentence motion in the certified docket and record, we do not
find that Russaw’s appeal right was prejudiced.
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Commonwealth v. Carterette, 83 A.3d 1031, 1033-34 (Pa. Super. 2013).
Here, Russaw claims that the trial court abused its discretion in sentencing
him to total confinement following the revocation of his probation and
intermediate punishment. The imposition of a sentence following the
revocation of probation is “vested within the sound discretion of the trial court,
which, absent an abuse of discretion, will not be disturbed on appeal.”
Commonwealth v. Smith, 669 A.2d 1008, 1011 (Pa. Super. 1996). An
abuse of discretion is more than an error of judgment, such that a sentencing
court will not be found to have abused its discretion unless the record discloses
that it ignored or misapplied the law, or that the judgement exercised was
manifestly unreasonable, or the result of partiality, prejudice, bias or ill will.
Commonwealth v. Highland, 875 A.2d 1175, 1184 (Pa. Super. 2005).
However, “[c]hallenges to the discretionary aspects of sentencing do not
entitle an appellant to an appeal as of right.” Commonwealth v. Sierra, 752
A.2d 910, 912 (Pa. Super. 2010). Prior to reaching the merits of a
discretionary sentencing issue,
we conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, [s]ee 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,
[s]ee Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (internal
citations omitted).
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Accordingly, when appealing the discretionary aspects of a sentence, an
appellant must invoke the appellate court’s jurisdiction by including in his brief
a separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002);
Pa.R.A.P.2119(f). The concise statement must indicate “where the sentence
falls in relation to the sentencing guidelines and what particular provision of
the code it violates.” Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.
Super. 2004) (quoting Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.
Super. 2000)). 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.”
Sierra, 752 A.2d at 912-13.
Russaw has complied with the requirements necessary for us to reach
the merits of his discretionary sentencing issue. Evans, supra. Russaw filed
a motion for reconsideration of sentence on January 26, 2017, after which he
filed a timely notice of appeal on February 3, 2017. Russaw has also included
a Rule 2119(f) statement in his brief. Brief of Appellant, at 10-12. Instantly,
Russaw argues that his sentence of total confinement following the revocation
of his probation for a technical violation, rather than a new criminal offense,
raises a substantial question; we agree. For the purpose of challenging the
discretionary aspect of a sentence, the imposition of a sentence of total
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confinement after the revocation of probation for a technical rule violation,
and not a new criminal offense, implicates the fundamental norms underlying
the sentencing process, thus, raising a substantial question. Commonwealth
v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010); Sierra, supra.
When imposing a sentence of total confinement after a probation
revocation, the sentencing court need not undertake a lengthy discourse for
its reasons for imposing a sentence or specifically reference the statute in
question, but the record as a whole must reflect the sentencing court’s
consideration of the facts of the crime and character of the offender. Crump,
995 A.2d at 1282-83. Further,
Under [section] 9771(c), a court may sentence a defendant to
total confinement subsequent to revocation of probation if any of
the following conditions exist:
1. the defendant has been convicted of another crime; or
2. the conduct of the defendant indicates that it is likely that
he will commit another crime if he is not imprisoned; or
3. such a sentence is essential to vindicate the authority of
this court.
Id.
Russaw concedes that his sentence falls within the sentencing
guidelines, however, he avers that his “case involves circumstances where the
application of the guidelines would be clearly unreasonable.” 42 Pa.C.S.A. §
9781(c)(2). His claim is meritless. Here, Russaw violated his probation an
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extraordinary 246 times in less than two months.6 Russaw’s violations
included, but were not limited to, the following: (1) not allowing his probation
officer to access his residence; (2) failing to pay fines and costs; (3) smoking
marijuana and possessing suspected drug paraphernalia; (4) not reporting his
new residential address to his probation officer; (5) returning to a prohibited
residence 16 times; (6) possessing multiple cellphones in violation of signed
drug rules; (7) numerous unapproved outings while on house arrest; and (8)
allowing his electronic monitoring device to die 16 times. N.T. Revocation and
Sentencing, 1/17/17, at 2-4.
Based on these violations, Russaw’s tendency to abscond from
supervision, and his continued inability to follow the rules of probation and
parole, the trial court determined that Russaw was likely to commit another
crime if he was not imprisoned.7 Crump, supra. After review, we discern no
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6 Russaw contests several of the violations his probation officer alleged. At
Russaw’s revocation hearing, Judge Lewis, acting as the factfinder, found
credible the testimony of Probation Officer Bruce Cutter. See generally N.T.
Revocation and Sentencing Hearing, 1/17/17; see also Flowers v.
Pennsylvania Board of Probation and Parole, 987 A.2d 1269, 1271 (Pa.
Cmwlth. 2010) (Board of Probation and Parole, as ultimate fact-finder in
parole revocation hearing, evaluates witness credibility, resolves conflicts in
evidence, and assigns evidentiary weight).
7 Russaw argues that he poses no threat to the public, as his probation
violations are not violent in nature, and thus total confinement is unnecessary.
However, section 9771(c) does not require that a defendant’s conduct indicate
it is likely he will commit another violent crime. Rather, section 9711(c)
provides that a court may sentence a defendant to total confinement
subsequent to revocation of probation where “the conduct of the defendant
indicates that it is likely that he will commit another crime if he is not
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evidence that the trial court was motivated by partiality, prejudice, bias or ill
will, or that Russaw’s sentence was manifestly unreasonable.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2017
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imprisoned.” 42 Pa.C.S.A. § 9771(c)(2). Therefore, Russaw’s argument is
unavailing.
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