Com. v. Walker, E. ( 2015 )

J-S28013-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD JOSEPH WALKER,
Appellant No. 1939 MDA 2014
Appeal from the Judgment of Sentence October 15, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0003813-1999
BEFORE: BOWES, ALLEN, and LAZARUS, JJ.
MEMORANDUM BY BOWES, J.: FILED JUNE 05, 2015
Edward Joseph Walker appeals from the October 15, 2014 judgment of
sentence of two to four years incarceration, which was imposed following his
violation of probation. We affirm.
The record reveals the following. Appellant pled guilty to statutory
sexual assault, indecent assault, and corruption of minors on February 12,
2001. On the statutory sexual assault charge, Appellant was sentenced to
time served to two years less one day at the Lancaster County Prison and
eight years of probation to be served consecutively. On the remaining
charges, the court sentenced Appellant to probation to be served
concurrently.
Thereafter, Appellant violated his probation on two occasions by using
illegal drugs, but he was paroled immediately. In September 2005,
J-S28013-15
Appellant violated his probation when new charges were filed against him
and he was sentenced to the unexpired balance of his parole sentence and a
consecutive eight years of probation. Following violation of probation in
August 2009 for new charges, Appellant was sentenced to two to four years
incarceration, followed by four years of probation.
After his release, and while on probation in 2013, Appellant violated
his probation on two occasions when he was charged with false identification
to law enforcement and disorderly conduct. In January and February 2014,
Appellant twice failed to report to the probation office. Appellant appeared
on July 17, 2014, for a probation and parole violation hearing and was found
in violation. He was sentenced on October 15, 2014, to two to four years
incarceration in a state facility.
Appellant filed a timely post-sentence motion in which he alleged that
his sentence was excessive because the court did not consider his psychiatric
issues and drug abuse problems. The motion was denied and this appeal
followed on November 14, 2014. Appellant complied with the court’s order
to file a Pa.R.A.P. 1925(b) concise statement of issues complained of, the
court penned its Rule 1915(a) opinion, and the matter is now ripe for
disposition.
Appellant raises one question for our review:
I. Was a sentence of two to four years incarceration for a
probation violation manifestly excessive as to constitute
-2-
J-S28013-15
too severe a punishment and contrary to the fundamental
norms underlying the sentencing process?
Appellant’s brief at 4.
Appellant’s claim relates to the discretionary aspects of his sentence.
To adequately preserve such a claim, he must first present the issue at
sentencing or in a post-sentence motion. Commonwealth v. Cartrette, 83
A.3d 1030, 1042 (Pa.Super. 2013) (en banc). He must also “preserve the
issue in a court-ordered Pa.R.A.P. 1925(b) concise statement and a
Pa.R.A.P. 2119(f) statement.” Id. Even then, there is no absolute right to
an appeal when challenging the discretionary aspect of a sentence. An
appellant must also raise a substantial question, which is a colorable claim
that the sentence was not appropriate under the sentencing code.
Appellant has satisfied the prerequisites to discretionary sentencing
review. He timely filed a motion to modify his sentence raising the same
issue he argues herein. He filed the within appeal and again raised the issue
in his Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. Appellant’s brief contains the requisite Pa.R.A.P. 2119(f) statement.
He avers therein that in sentencing him to total confinement for a probation
violation, the sentencing court failed to consider his need for inpatient
rehabilitation and mental health treatment. We have held that such claim
presents a substantial question. See Commonwealth v. Riggs, 63 A.3d
780, 786 (Pa.Super. 2012) (failure to consider, inter alia, the rehabilitative
-3-
J-S28013-15
needs of the appellant as required under 42 Pa.C.S. § 9721(b) presents a
substantial question).
Hence, we turn now to the merits of Appellant’s claim. The sentencing
court has broad discretion because we recognize that it is in the “best
position to measure factors such as the nature of the crime, the defendant's
character and the defendant's display of remorse, defiance, or indifference."
Commonwealth v. Riggs, 63 A.3d 780, 785 (Pa.Super. 2012) (quoting
Commonwealth v. Andrews, 720 A.2d 764, 768 (Pa.Super. 1998)). In
order to find that a trial court imposed an "unreasonable" sentence, we must
determine that the sentencing court imposed the sentence irrationally and
that the court was "not guided by sound judgment." Commonwealth v.
Walls, 926 A.2d 957, 961 (Pa. 2007).
Appellant argues that an aggregate sentence of two to four years
incarceration for a probation violation was manifestly excessive and contrary
to the fundamental norms underlying the sentencing process. He avers that
the sentencing court failed to properly consider his need for mental health
treatment and drug rehabilitation in fashioning his sentence. For the
reasons that follow, we find no support in the record for Appellant’s
contentions.
The sentencing court was aware that Appellant had been addicted to
drugs since he was seventeen years old and that he suffered from
-4-
J-S28013-15
schizophrenia and bi-polar disorder. N.T. Sentencing, 10/15/14, at 3.
Counsel advised the court that his client needed dual diagnosis treatment
and was willing to participate in a long-term mental health program and
address his substance abuse. Id. at 4. According to Appellant, the trial
court focused exclusively on his seven prior probation and parole violations
and the nature of the underlying offense and did not give these factors
proper consideration.
The record belies Appellant’s claim. The trial court had the benefit of a
pre-sentence investigation and two psychological reports that detailed
Appellant’s addiction and mental illness. In addition, the court stated on the
record that it had received four letters and pictures from Appellant and that
it had read everything. Id. at 6. Certainly, the court was aware of
Appellant’s seven or eight probation and parole violations for drug use,
failure to report, new offenses, and failure to provide a change of address.
The court also noted that Appellant had the ability and skills to work steadily
but had no history of consistent employment. Id. at 7. However, despite
“help from Philhaven, the Lancaster Guidance Center, Family Services,
Pathfinders, The Boys and Girls Club, HAS, Ponessa, Lynn Anderson,
Brenneman Consulting, Ephrata Community Hospital, Krug Counseling,
Sotomayer Counseling, Dr. Dougherty, and Ponessa again,” the court noted
-5-
J-S28013-15
that Appellant continued to “thumb his nose at his obligations on Probation
and Parole” in order to use drugs. Id. at 8.
At the sentencing hearing, the court demonstrated extensive
knowledge of Appellant’s mental health history and drug use. Regardless,
the court found that “incarceration is warranted because a lesser sentence
would depreciate the seriousness of his continued violations of his position
on either parole or probation.” Id. at 9-10. The court specifically
recommended, however, that Appellant be sent to a state institution with a
dual diagnosis program and that he be given all opportunities for educational
and vocational programs. Id. at 10.
The record indicates that the sentencing court considered all of the
relevant sentencing factors in fashioning its sentence. Based on our review,
we do not find the sentence excessive or any abuse its discretion in its
imposition.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2015
-6-
J-S28013-15
-7-