Com. v. Tedrow, S. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
SHAWN TEDROW :
: No. 569 WDA 2017
Appellant
Appeal from the Order February 27, 2017
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0000649-2010
BEFORE: BOWES, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED DECEMBER 08, 2017
Appellant, Shawn Tedrow, appeals from the judgment of sentence of
eight months to five years of incarceration, entered on February 27, 2017,
following the revocation of his probation for technical violations.1 We affirm.
We derive the following facts from the revocation court’s opinion.
Appellant entered a plea of [n]olo [c]ontendre to Count 1 (18
Pa.C.S.A. § 3126(a)(7) – Indecent Assault) on January 13, 2011.
Prior to sentencing, the [c]ourt held a hearing to determine
whether [Appellant] was a sexually violent predator as defined by
42 Pa.C.S.A. § 9792.
On May 23, 2011, Appellant was sentenced to a period of 24
months of probation with conditions that he (a) report daily in
person to Beaver County Adult Probation; (b) have no contact with
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1 Appellant purported to appeal the March 10, 2017 Order denying his motion
for post-trial relief. However, “[i]n a criminal action, appeal properly lies from
the judgment of sentence made final by the denial of post-sentence motions.”
Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001).
Therefore, we have corrected the caption accordingly.
* Former Justice specially assigned to the Superior Court.
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the victim or victim’s family members; (c) have no contact with
minor children unless supervised by an adult; and (d) complete a
mental health evaluation and all recommended treatment.
In an Order of June 20, 2011 issued by [ ] Judge Tesla, the [c]ourt
denied Appellant’s motion to reconsider the [c]ourt’s previous
finding that [Appellant] was a sexually violent predator as defined
by 42 Pa.C.S.A. § 9792.
On June 3, 2013, the Commonwealth filed a Petition for
Administrative Hearing on Violation alleging Appellant had failed
to complete sexual offender treatment, drug and alcohol
treatment and failed to pay court monies owed. On August 6,
2013, [ ] Judge John P. Dohanich issued an Order revoking and
reinstating probation under the condition that Appellant complete
sex offender evaluation and any recommended treatment.
On August 11, 2015, the Commonwealth again filed a Petition for
Administrative Hearing on Violation alleging Appellant failed to
comply with the sex offender treatment condition of his probation.
Appellant again had his probation revoked and reinstated by Order
of November 24, 2015, with the condition that he complete sex
offender treatment as directed.
On February 6, 2017, the Commonwealth, for the third time, filed
a Petition for Administrative Hearing on Violation alleging
Appellant again failed to comply with the condition that he
complete sex offender training as well as the condition that he
abstain from drug use.
Following a hearing before [ ] Judge Knafele on February 27,
2017, this [c]ourt found Appellant to be in violation of his
probation once again for failure to comply with the conditions of
his probation, specifically: failure to complete sex offender
treatment as directed and failure to abstain from drug use.
At the February 27th hearing, Appellant’s Probation Officer
Christina Sturgeon [“P.O. Sturgeon”], testified that Appellant had
admitted to using marijuana before his incarceration, and that
Appellant had been discharged unsuccessfully from sex offender
treatment for missing four consecutive appointments. P.O.
Sturgeon also testified that Appellant could receive alternative
treatment once he was released from the Beaver County Jail but
that he could not receive any treatment while in the Beaver
County Jail [alternatively] he would receive the treatment he has
avoided if he were incarcerated at the state prison. On direct
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examination by the Commonwealth, P.O. Sturgeon stated that the
Appellant had not been incarcerated at all previously and also
expressed concerns about sending the Appellant to a state
correctional facility because “. . . If I sent him to a state
penitentiary . . . he may not come out better than when he went
in.”
Judge Knafele, exercising his discretion in desiring to ensure
Appellant received the treatment he had failed for years to
complete, determined to revoke Appellant’s probation and
sentence him to eight [ ] months to five [ ] years in a state penal
or correctional institution by Order of February 27, 2017.
Following this ruling, Appellant sought reconsideration of the
sentence by Motion which was denied by Judge Knafele on March
10, 2017, and Appellant then sought review of Judge Knafele’s
sentence by the Superior Court.
Revocation Court Opinion, 7/18/17, at 1-3 (unpaginated) (citations omitted).
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement. The court issued a responsive opinion.
Appellant presents the following question for our review:
1. Whether a Judge can abuse his discretion in sentencing a
Defendant when testimony as to treatment and punishment of
Defendant are contrary to the sentence pronounced by the
Judge.
Appellant’s Brief at 5.
This Court’s standard of review regarding an appeal from a sentence
imposed following the revocation of probation is as follows:
[o]ur review is limited to determining the validity of the probation
revocation proceedings and the authority of the sentencing court
to consider the same sentencing alternatives that it had at the
time of the initial sentencing.
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Commonwealth v. Perreault, 930 A.2d 553, 557 (Pa. Super. 2007) (internal
citation omitted).
Appellant contends that his sentence is manifestly unreasonable and the
trial court should have sentenced him according to the probation officer’s
recommendation. See Appellant’s Brief at 9. When reviewing a challenge to
the discretionary aspects of sentencing, we adhere to the following standard:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Raybuck, 915 A.2d 125, 128 (Pa. Super. 2006)
Appellant’s challenge to the discretionary aspects of his sentence does
not entitle him to review as of right. Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa. Super. 2011). Prior to addressing a discretionary challenge, this
Court engages in a four-part analysis: 1) whether the appeal is timely; 2)
whether Appellant preserved his issue; 3) whether Appellant’s brief contains
a concise statement of the reasons relied upon for allowance of appeal
pursuant to Pa.R.A.P. 2119(f); and 4) whether that statement raises a
substantial question that the sentence is inappropriate under the sentencing
code. See Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013);
see also Pa.R.A.P. 2119(f).
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Initially, we note that Appellant timely filed a notice of appeal and
preserved his claim in a post-sentence motion. However, Appellant failed to
include a concise prefatory statement of reasons relied upon for allowance of
appeal. Such a statement is required under Pa.R.A.P. 2119(f) in cases where
discretionary aspects of sentences are challenged. In Pa.R.A.P.(f), it is
provided:
(f) Discretionary Aspects of Sentence. 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.
See Pa.R.A.P.(f).
The Commonwealth, having elected not to file a brief in this matter, has
raised no objection to Appellant’s failure to provide a Rule 2119(f) statement.
Thus, we will overlook this error. See Commonwealth v. Raybuck, 915
A.2d at 127 n.3. Next, we examine whether Appellant’s claim presents a
substantial question.
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 specific provisions of the Sentencing Code; or (2) contrary to
the fundamental norms which underlie the sentencing process.
As to what constitutes a substantial question, this Court does not
accept bald assertions of sentencing errors. An appellant must
articulate the reasons the sentencing court’s actions violated the
[S]entencing [C]ode.
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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
Appellant failed to file a Rule 2119(f) statement. Nevertheless, we infer
from Appellant’s brief that he challenges his sentence as “manifestly
unreasonable” because he was sentenced to a term of state incarceration, as
opposed to the county sentence recommended by his probation officer. See
Appellant’s Brief at 9. Appellant fails to explain how his sentence is
inconsistent with the Sentencing Code or contrary to the fundamental norms
underlying the sentencing process. Moury, 922 A.2d at 170; see
Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (“[I]n order
to establish a substantial question, the appellant must show actions by the
sentencing court inconsistent with the Sentencing Code or contrary to the
fundamental norms underlying the sentencing process.”). Thus, Appellant
fails to raise a substantial question.
Even if we were to determine that Appellant’s claim did raise a
substantial question, we find no merit to the underlying allegation. The
revocation court need not accept the recommendation of a probation officer.
Commonwealth v. Moore, 583 A.2d 1, 2 (Pa. Super. 1990) (“We emphasize
that a trial court must not delegate its sentencing decision to any person or
group.”). Rather, imposition of sentence following revocation of probation is
vested in the sound discretion of the revocation court. Commonwealth v.
Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001) (citing Commonwealth v.
Sierra, 752 A.2d 910, 913 (Pa. Super. 2000)). Furthermore, the court clearly
stated its reasons for imposing a term of state incarceration:
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In making its determination, the [c]ourt cited as its rationale for
imposing a sentence of total confinement – specifically, total
confinement in a state prison – Appellant’s repeated failures to
comply with the terms of his probation. At Appellant’s revocation
hearing, acting in compliance with 18 Pa.C.S.A. § 1301 et seq.,
Judge Knafele stated on the record, “I’m going to impose a state
sentence of eight months to five years. He’s going to be on parole
because I believe he’ll never comply unless somebody’s holding a
hammer over his head, and it’s going to be there for four years.”
In short, the [c]ourt found such a sentence essential to vindicate
the authority of the [c]ourt following years of Appellant’s apparent
disregard for this [c]ourt and its authority. Furthermore, the
[c]ourt specifically sought a state sentence so that Appellant
would have the opportunity to fulfill his obligation to obtain and
complete sex-offender treatment, which is seen as necessary for
the safety of the community as this [c]ourt fears that without the
appropriate treatment Appellant will likely offend again.
Revocation Court Opinion, 7/18/17, at 6-7 (unpaginated) (footnote and
citation omitted).
Accordingly, we conclude that even if a substantial question had been
raised, the court did not abuse its discretion in sentencing Appellant.2
Application for extension to file brief denied. Judgement of sentence
affirmed. Jurisdiction relinquished.
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2 The Commonwealth did not timely file a brief in this matter. The
Commonwealth’s brief was due September 28, 2017. On October 10, 2017,
the Commonwealth filed an application for extension of time to file brief. As
this application for relief was filed after its brief was due, the application is
denied.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2017
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