Com. v. Plummer, C. ( 2017 )

J-S71045-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
CATINA PLUMMER,
Appellant No. 92 EDA 2017
Appeal from the Judgment of Sentence December 15, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-1201802-2004
BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 29, 2017
Appellant, Catina Plummer, appeals from the judgment of sentence
imposed on December 15, 2016, following revocation of her probation.
Specifically, she challenges the discretionary aspects of her sentence. We
affirm.
We take the procedural and factual history in this matter from our
review of the certified record and the trial court’s April 19, 2017 opinion.
May 20, 2005, [Appellant] appeared before [the trial court]
and pled guilty to possession with intent to deliver a controlled
substance[, cocaine]. Pursuant to the negotiated plea agreement,
[Appellant] was sentenced to one year in the county intermediate
punishment (IP) program, including [six] months of house arrest
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* Retired Senior Judge assigned to the Superior Court.
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with outpatient drug treatment, plus [two] years [of] reporting
probation.[1]
On September 14, 2006, [Appellant] appeared before [the
trial court] for her first violation hearing. [The trial court] found
[Appellant] in technical violation of her IP probation for
absconding from supervision. [It] sentenced her to a [ninety-]day
modified IP sentence, and ordered a Forensic Intensive Recovery
(FIR) evaluation for dual diagnosis treatment.
On June 13, 2007, [Appellant] appeared before [the trial
court] for her second violation hearing. [The trial court] found her
in technical violation for failing to undergo a FIR evaluation and
not complying with the terms and conditions of her sentence.
Sentencing was deferred to July 18, 2007. On June 21, 2007,
[Appellant] was arrested and charged with arson so the sentence
was deferred again. On October 26, 2007, [Appellant] finally
appeared for sentencing. [The trial court] revoked her IP
probation and sentenced her to [eleven and one-half] to [twenty-
three] months [of] county incarceration with immediate parole to
Phoenix II, an inpatient drug treatment facility. . . .
On February 8, 2008, [Appellant] appeared for her third
violation hearing. [The trial court] found [Appellant] in technical
violation for absconding from Phoenix II. [The trial court]
terminated her parole and revoked her probation. [Appellant] was
sentenced to [two] to [five] years [of] state incarceration plus
[five] years [of] reporting probation. [The trial court] ordered
[Appellant] to receive drug and mental health treatment while
incarcerated.
On April 1, 2010, [Appellant] was released on parole and
was supervised by the State Parole Board. [Appellant] committed
several technical violations while on state parole. She left three
different drug treatment programs. Most recently, on March 9,
2016, she was terminated from the drug treatment program at
Chances due to lack of attendance. She absconded from
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1 We observe that Appellant failed to include copies of the notes of testimony
of her May 20, 2005 sentencing, the negotiated plea agreement, or copies of
the notes of testimony of any of the previous three violation of probation
hearings. Such omission could result in waiver; however, in the interest of
judicial economy, we decline to find waiver. See Commonwealth v.
Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc), appeal denied, 916 A.2d
632 (Pa. 2007).
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supervision and failed to report twice in November 2016 after
being given verbal instructions by her parole officer to do so,
telling him, “Oh well. Good luck with that.” On November 21,
2016, [Appellant] appeared at the parole/probation office to
supply a urine sample and instead defecated in the urine cup. She
then admitted to the probation staff that she had been using
cocaine. At that point, [Appellant] was taken into custody.
Three weeks later, on December 15, 2016, [Appellant]
appeared before [the trial court] for her fourth violation hearing.
. . . The State Parole Board’s report dated December 7, 2016[,]
was incorporated into the record by reference. ([See] N.T.[,
Hearing,] 12/15/16, [at] 3-6).
* * *
[The trial court] found [Appellant] to be in technical violation
for the fourth time and revoked her probation. [Appellant] was
sentenced to [not less than two and one-half nor more than five
years’] state incarceration with credit for time served. [It]
ordered that [Appellant] receive drug abuse treatment, mental
health treatment, as well as treatment for any other medical
conditions. [The trial court] stated that this sentence was
“absolutely necessary to vindicate the authority of the [trial
court].” ([Id.] at 20).
On December 20, 2016, [Appellant] filed a Petition to Vacate
and Reconsider Sentence. On December 23, 2016, [Appellant]
filed a Notice of Appeal with [the] Superior Court. On January 19,
2017, [the trial court] ordered that [Appellant] file a Concise
Statement of Errors Complained of on Appeal Pursuant to
Pa.R.A.P. 1925(b), and [Appellant] did so on February 10, 2017.
[The trial court entered its opinion on April 19, 2017. See
Pa.R.A.P. 1925.]
(Trial Court Opinion, 4/19/17, at 1-5).
Appellant raises three questions on appeal.
1. Did not the sentencing court violate the requirements of §
9771(c) of the Sentencing Code when, after revoking her
probation, it sentenced [A]ppellant to a period of total
confinement where: 1) she had not been convicted of or
charged with a new crime, 2) the record did not demonstrate
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any likelihood that she would commit a new crime if not
incarcerated, and 3) incarceration was not essential to
vindicate the authority of the court?
2. Was not the [trial] court’s imposition of a two and one-half []
to five [] year sentence of incarceration for technical violations
of probation, manifestly excessive and an abuse of discretion
where the court failed to give individualized consideration to
[A]ppellant’s personal history, rehabilitative needs or
background, and without explaining how, as a matter of law,
this sentence was the least stringent one adequate to protect
the community and to serve the rehabilitative needs of the
[A]ppellant?
3. Did not the trial court err and abuse its discretion by sentencing
[Appellant] to an excessive period of incarceration?
(Appellant’s Brief, at 4).
Appellant challenges the discretionary aspects of her sentence.
Such a challenge to the discretionary aspects of a sentence is not
appealable as of right. Rather, Appellant must petition for
allowance of appeal pursuant to 42 Pa.C.S.A. § 9781.
Before we reach the merits of this [issue], we must
engage in a four part analysis to determine: (1) whether the
appeal is timely; (2) whether Appellant preserved [this]
issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a substantial
question that the sentence is appropriate under the
sentencing code. The third and fourth of these requirements
arise because . . . [Appellant] must petition this Court, in
his concise statement of reasons, to grant consideration of
his appeal on the grounds that there is a substantial
question. Finally, if the appeal satisfies each of these four
requirements, we will then proceed to decide the
substantive merits of the case.
Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014),
appeal denied, 109 A.3d 678 (Pa. 2015) (citations omitted).
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Here, Appellant properly preserved her claims in her motion for
reconsideration and timely filed notice of appeal. She included a Rule 2119(f)
concise statement of reasons relied upon in her brief. (See Appellant’s Brief,
at 9-11). Furthermore, her claims, that the trial court sentenced her to a term
of total confinement based solely on a technical violation, and that it imposed
a manifestly excessive sentence because her violation was merely technical,
raise substantial questions for our review. See Commonwealth v. Crump,
995 A.2d 1280, 1282 (Pa. Super. 2010), appeal denied, 13 A.3d 475 (Pa.
2010) (“The imposition of a sentence of total confinement after the revocation
of probation for a technical violation, and not a new criminal offense,
implicates the fundamental norms which underlie the sentencing process.”)
(citation and quotation marks omitted); Commonwealth v. Sierra, 752 A.2d
910, 913 (Pa. Super. 2000) (holding that total confinement sentence following
revocation for technical probation violation implicates fundamental norms that
underlie sentencing process). Therefore, we review Appellant’s claims on the
merits. See Colon, supra at 1042-43.
Our standard of review of an appeal from a sentence imposed following
the revocation of probation is well-settled: “Revocation of a probation
sentence is a matter committed to the sound discretion of the trial court and
that court’s decision will not be disturbed on appeal in the absence of an error
of law or an abuse of discretion.” Id. at 1041 (citation omitted). “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
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was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-
will.” Sierra, supra at 913 (citation and quotation marks omitted).
In her first issue, Appellant claims that the trial court abused its
discretion when it imposed a sentence of total confinement following her
technical violation of her parole. (See Appellant’s Brief, at 15-21).
Specifically, she argues that the court did not have the authority to impose a
sentence of incarceration because she had not been convicted of a new crime,
the record does not reveal she is likely to commit a new crime, and the
sentence was not essential to vindicate the authority of the court. (See id.).
We disagree.
When imposing a sentence of total confinement after a
probation revocation, the sentencing court is to consider the
factors set forth in 42 Pa.C.S.[A.] § 9771. Under 42 Pa.C.S.[A.]
§ 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 [s]he will commit another crime if [s]he is
not imprisoned; or
3. such a sentence is essential to vindicate the
authority of this court.
A 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, supra at 1282–83 (citations omitted).
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In the instant case, the trial court explained that it imposed a sentence
of total confinement because it was necessary to vindicate the authority of the
court. See 42 Pa.C.S.A. § 9771(c)(3). The court explained:
This was [Appellant’s] fourth violation hearing; each time she
violated her probation/parole in the past, [the trial c]ourt had
continued to give her additional opportunities to get mental health
and drug treatment. Each time, [Appellant] failed to do so. She
absconded from multiple treatment centers and admitted to using
cocaine just three weeks prior to her most recent violation
hearing. In addition, the record shows that from April 2010 (when
she was released on state parole) until November 2016 (when she
was taken into custody in the instant matter), [Appellant]
committed several technical violations, including repreated failure
to report to her state parole agents and continued drug use. . . .
After careful consideration of [Appellant’s] history while under
[the trial c]ourt’s supervision, as well as the supervision of the
State Parole Board, [the trial c]ourt concluded that revocation and
a period of state incarceration were necessary to vindicate the
authority of [the trial c]ourt. . . .
(Trial Ct. Op., at 6-7 (emphasis in original); see N.T. Hearing, at 20 (“This
sentence is absolutely necessary to vindicate the authority of [the trial
c]ourt.”)).
Upon review, we discern no abuse of discretion. See Colon, supra at
1041. The record reflects the trial court’s consideration of the both the facts
of the probation violations and Appellant’s history, and supports the trial
court’s decision that a sentence of total confinement was necessary to
vindicate its authority. See Crump, supra at 1282-83. Appellant’s first issue
does not merit relief.
In her second issue, Appellant claims that the trial court erred because
it did not consider her personal history, rehabilitative needs or background,
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and that it did not explain “how, as a matter of law, this sentence was the
least stringent one adequate to protect the community and to serve the
rehabilitative needs of the Appellant.” (Appellant’s Brief, at 21 (most
capitalization omitted); see id. at 21-25). We disagree.
Upon revocation of probation, “the sentencing court must follow the
general principle 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.” Commonwealth v. Cartrette, 83
A.3d 1030, 1040–41 (Pa. Super. 2013) (citation and quotation marks
omitted). In addition, “the court shall make as a 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. at 1041 (citation and quotation mark
omitted).
In the instant case, the trial court explained that it had a long history
with Appellant, which included several probation violations. (See N.T.
Hearing, at 3). The court detailed Appellant’s history of absconding from
supervision on multiple occasions, leaving treatment facilities, failing to report
to probation, and continued drug abuse. (See id. at 3-6). It explained that
it considered this history, as well as Appellant’s mental health and medical
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conditions,2 when it imposed a sentence of incarceration. (See id. at 20).
Finally, the court stated that it imposed a sentence without a probation tail to
attempt to help Appellant, and hoped that Appellant would take advantage of
prison programs to obtain the help that she needed. (See id. at 21).
Therefore, the record reveals that the sentencing court properly considered
the required factors and set forth its reasons prior to imposing sentence. See
Cartrette, supra at 1041. Appellant’s second issue does not merit relief.
In her third issue, Appellant claims that her sentence is manifestly
excessive because she was “in technical violation of the conditions of probation
due to substance abuse that was exacerbated by her mental illness.”
(Appellant’s Brief, at 25; see id. at 25-27). We disagree.
When imposing a sentencing following revocation of probation, the trial
court has “the same sentencing alternatives that it had at the time of the initial
sentencing.” Commonwealth v. Simmons, 56 A.3d 1280, 1286 (Pa. Super.
2012), aff’d, 91 A.3d 102 (Pa. 2014), cert. denied, 135 S.Ct. 366 (2014)
(citations omitted); see 42 Pa.C.S.A. § 9771(b). “[U]pon sentencing following
a revocation of probation, the trial court is limited only by the maximum
sentence that it could have imposed originally at the time of the probationary
sentence.” Simmons, supra at 1286-87 (citation omitted).
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2 In response to Appellant’s concern about receiving medical care for her
breast cancer diagnosis while incarcerated, the court explained that the
prisons are required to provide that type of medical care. (See N.T. Hearing,
at 9).
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Here, Appellant originally pleaded guilty to possession with intent to
deliver a controlled substance, pursuant to a negotiated guilty plea with an
underlying sentence of one year in the intermediate punishment program, plus
two years of probation. (See Trial Ct. Op., at 1-2). The maximum sentence
for PWID cocaine is ten years. See 35 P.S. §§ 780-113(a)(30), (f)(1.1). After
determining that Appellant violated her probation, the court sentenced her to
a period of incarceration of not less than two and one-half nor more than five
years, within the maximum sentence that the trial court could have originally
imposed. See Simmons, supra at 1286-87. Thus, Appellant’s allegation
that the court abused its discretion and sentenced her to a manifestly
excessive sentence is without merit. Appellant’s third issue does not merit
relief.
Accordingly, we conclude that the trial court properly considered all of
the relevant factors that it was required to consider, and acted within its
discretion when imposed a sentence of total confinement for this, Appellant’s
fourth probation violation. See Colon, supra at 1041. Therefore, we affirm
the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/17
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