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Com. v. Hogan, T. ( 2016 )


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  • J-S78011-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    TROY HOGAN,
    Appellant                 No. 1886 WDA 2015
    Appeal from the Judgment of Sentence Entered November 4, 2015
    In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s): CP-02-CR-0007977-2009
    BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*
    MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 02, 2016
    Appellant, Troy Hogan, appeals from the judgment of sentence of 30
    to 120 months’ incarceration, imposed after the court revoked his prior
    sentence of probation for the offense of possession with intent to deliver
    (PWID). Appellant argues that the court failed to consider his rehabilitative
    needs in fashioning his sentence. After careful review, we affirm.
    The trial court briefly summarized the procedural history of Appellant’s
    case, as follows:
    [Appellant] originally pled guilty to one count of [PWID]
    cocaine on April 26, 2010 and he was sentenced to a term of
    imprisonment of not less than 18 months nor more than 36
    months followed by three years’ probation. The sentence was
    imposed pursuant to a negotiated plea agreement which also
    included [Appellant’s] pleading guilty in another case in this
    ____________________________________________
    *
    Former Justice specially assigned to the Superior Court.
    J-S78011-16
    [c]ourt         (CC         200907633)           to        [PWID]
    Methylenedioxymethamphetamine (Ecstasy) for a concurrent
    period of incarceration of [9] to 18 months[,] and yet another
    case (CC 200918240) for a concurrent period of incarceration of
    [15] to [30] months for a felony charge of Escape. At the time
    of that sentencing (April 26, 2010), [Appellant] had already been
    convicted of possessing cocaine with intent to deliver it in this
    [c]ourt (CC 200400569) and had been sentenced to serve a
    state sentence of [15] to [30] months’ incarceration. In addition
    to the prior felony conviction for [PWID] cocaine …, [Appellant]
    had been convicted of possessing heroin (CC 200709173) and
    possessing heroin and cocaine (CC 200907919).
    On May 28, 2014, [Appellant] appeared before this [c]ourt
    to address allegations that he violated the terms of his
    probation. This [c]ourt revoked the original term of probation
    and imposed a new 3-year term of probation.
    On November 4, 2015, [Appellant] appeared again before
    this [c]ourt to address allegations that he violated probation for
    a second time.        The probation violation was based on
    [Appellant’s] plea of guilty in the Court of Common Pleas of Blair
    County to [PWID] heroin on September 26, 2014. He received a
    sentence of not less than 2 nor more than 5 years[’]
    incarceration relative to that conviction. This [c]ourt revoked
    the term of probation in this case and imposed the sentence set
    forth above to be served consecutively to the Blair County
    sentence.
    Trial Court Opinion (TCO), 1/19/16, at 1-2.
    Appellant filed a timely motion for reconsideration of his sentence,
    which the court denied.   He then filed a timely notice of appeal, and also
    timely complied with the court’s order to file a Pa.R.A.P. 1925(b) concise
    statement of errors complained of on appeal. Herein, he presents one issue
    for our review:
    I. Was the sentence of 30-120 months of incarceration
    manifestly excessive and an abuse of discretion where the court
    did not consider the sufficiency of sanctions already imposed and
    the availability of community-based resources to address
    [Appellant’s] serious rehabilitative needs?
    -2-
    J-S78011-16
    Appellant’s Brief at 4 (unnecessary capitalization and emphasis omitted).
    We begin by noting that:
    An appellant wishing to appeal the discretionary aspects of
    a probation-revocation sentence has no absolute right to do so
    but, rather, must petition this Court for permission to do so.
    Specifically, the appellant must present, as part of the appellate
    brief, a concise statement of the reasons relied upon for
    allowance of appeal. In that statement, the appellant must
    persuade us there exists a substantial question that the sentence
    is inappropriate under the sentencing code.
    In general, an appellant may demonstrate the existence of
    a substantial question by advancing a colorable argument that
    the sentencing court's actions were inconsistent with a specific
    provision of the sentencing code or violated a fundamental norm
    of the sentencing process. While this general guideline holds
    true, we conduct a case-specific analysis of each appeal to
    decide whether the particular issues presented actually form a
    substantial question. Thus, we do not include or exclude any
    entire class of issues as being or not being substantial. Instead,
    we evaluate each claim based on the particulars of its own case.
    It is important to note that this Court is not persuaded by
    bald assertions or the invocation of special words in a concise
    statement of reasons. To the contrary, a concise statement must
    articulate the way in which the court's conduct violated the
    sentencing code or process.
    Commonwealth v. Kalichak, 
    943 A.2d 285
    , 289-90 (Pa. Super. 2008)
    (citations omitted).
    Appellant has provided us with a concise statement of the reasons
    relied upon for allowance of appeal in accordance with Pa.R.A.P. 2119(f). In
    that statement, Appellant asserts that the trial court violated 42 Pa.C.S. §
    9721(b) by imposing a sentence without considering his rehabilitative needs.
    See Appellant’s Brief at 9-11. We conclude that Appellant has presented a
    substantial question for our review.    See Commonwealth v. Riggs, 63
    -3-
    J-S78011-
    16 A.3d 780
    , 786 (Pa. Super. 2012) (finding the appellant presented a
    substantial question by arguing “that the trial court failed to consider
    relevant sentencing criteria, including the protection of the public, the
    gravity of the underlying offense and the rehabilitative needs of [the]
    [a]ppellant, as 42 Pa.C.S.A. § 9721(b) requires….”). Therefore, we now will
    assess the merits of Appellant’s sentencing claim.
    When we do so, our standard of review is clear: Sentencing is
    vested in the sound discretion of the court and will not be
    disturbed absent an abuse of that discretion. Moreover, an abuse
    of discretion is not merely an error in judgment. Instead, it
    involves bias, partiality, prejudice, ill-will, or manifest
    unreasonableness.
    Kalichak, 
    943 A.2d at 290
     (citations omitted).
    Here, Appellant argues that the trial court abused its discretion in
    fashioning his sentence by failing to consider his rehabilitative needs, and
    also by not taking into account the fact that Appellant “had already served a
    substantial period of incarceration in a state correctional institution and had
    been engaged in rehabilitative programming at the prison.” Appellant’s Brief
    at 13. Essentially, Appellant stresses that “periods of incarceration [have]
    had little impact on controlling [his] continued use of controlled substances”
    and, thus, his “rehabilitative needs would best be met by continued out-
    patient treatment available in the community setting.” 
    Id.
    Appellant’s argument fails to convince us that the trial court abused its
    sentencing discretion.   In its Rule 1925(a) opinion, the trial court explains
    the considerations and rationale underlying Appellant’s sentence, as follows:
    -4-
    J-S78011-16
    This [c]ourt considered the contents of the presentence
    report. [Appellant] is forty-one years old. He has been involved
    in drug-dealing activity for well over ten years. This [c]ourt
    noted that [Appellant] was provided with ample opportunities to
    conform his conduct to the dictates of the law but he continues
    to choose not to do so. [Appellant] has had multiple prior drug-
    dealing convictions that resulted in state prison sentences being
    imposed. Although [Appellant] claims that drug use was the
    cause of his problems and this [c]ourt believes that some sort of
    rehabilitation may be beneficial, this [c]ourt was and is
    convinced that [Appellant’s] conscious, repeated decisions to
    distribute drugs on the street require a substantial period of
    incarceration. This [c]ourt believes that any rehabilitation and
    treatment should occur while [Appellant] is incarcerated. In
    sum, this [c]ourt imposed the sentence it did because of
    [Appellant’s] persistence in participating in drug trafficking
    despite having already served substantial prison sentences and
    probationary terms for the same conduct. The need to protect
    society from [Appellant’s] drug dealing and his need for
    regimented treatment in a state prison facility warranted the
    sentence imposed in this case.
    TCO at 4-5.
    Clearly, the trial court and Appellant both agree that his prior
    incarceration has had little impact on his rehabilitation. However, contrary
    to Appellant’s argument in favor of out-patient treatment, the court found
    that the interest in protecting the public must now outweigh Appellant’s
    rehabilitative needs. In light of Appellant’s unrelenting criminal conduct, we
    ascertain no abuse of discretion in the trial court’s decision.
    Judgment of sentence affirmed.
    -5-
    J-S78011-16
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/2/2016
    -6-
    

Document Info

Docket Number: 1886 WDA 2015

Filed Date: 12/2/2016

Precedential Status: Precedential

Modified Date: 12/2/2016