Com. v. Russell, R. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RASHEEN RUSSELL
Appellant No. 2823 EDA 2014
Appeal from the Judgment of Sentence September 8, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004315-2012
BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 12, 2016
Appellant, Rasheen Russell, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following
revocation of his probation. We affirm and grant counsel’s petition to
withdraw.
The relevant facts and procedural history of this case are as follows.
On October 23, 2012, the court convicted Appellant of criminal trespass,
possessing instruments of crime (“PIC”), criminal attempt to commit theft,
and criminal attempt to commit receiving stolen property.1 The court
sentenced Appellant on December 5, 2012, to six (6) to twelve (12) months’
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1
18 Pa.C.S.A. §§ 3503(a); 907; 901 (§ 3921 related); 901 (§ 3925 related),
respectively.
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imprisonment for criminal trespass, plus one year of probation for PIC and
one year of probation for attempted theft;2 the court imposed no further
penalty for the remaining conviction. On or about April 14, 2013, Appellant
was paroled. After parole expired and while on probation, Appellant
committed technical violations. Specifically, Appellant tested positive for
drugs multiple times, failed to report to his probation officer, did not
complete a drug program, and failed to make payments toward the costs
associated with his case. The court held a revocation of probation hearing
on September 8, 2014. At the conclusion of the hearing, the court revoked
Appellant’s probation for PIC, and resentenced Appellant to six (6) to twelve
(12) months’ imprisonment.
Appellant timely filed a motion for reconsideration on September 15,
2014. While the motion was still pending, Appellant timely filed a notice of
appeal on October 7, 2014.3 On October 31, 2014, the court ordered
Appellant to file a concise statement of errors pursuant to Pa.R.A.P. 1925(b).
Counsel subsequently filed a statement of intent to file an Anders4 brief per
Pa.R.A.P. 1925(c)(4).
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2
The court imposed the probationary tails consecutively.
3
See Pa.R.Crim.P. 708(E) (stating motion to modify sentence imposed after
revocation shall be filed within 10 days of date of imposition; filing of motion
to modify sentence will not toll 30-day appeal period).
4
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493
(1967).
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As a preliminary matter, appellate counsel seeks to withdraw his
representation pursuant to Anders and Commonwealth v. Santiago, 602
Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)
petition the Court for leave to withdraw, certifying that after a thorough
review of the record, counsel has concluded the issues to be raised are
wholly frivolous; 2) file a brief referring to anything in the record that might
arguably support the appeal; and 3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points the appellant deems worthy of review.
Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance
with these requirements is sufficient. Commonwealth v. Wrecks, 934
A.2d 1287, 1290 (Pa.Super. 2007).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor McClendon[5] requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
references to anything in the record that might arguably
support the appeal.
* * *
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5
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that
arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (1) provide a
summary of the procedural history and facts, with citations
to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set
forth counsel’s conclusion that the appeal is frivolous; and
(4) state counsel’s reasons for concluding that the appeal
is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Id. at 178-79, 978 A.2d at 361.
Instantly, appellate counsel filed a petition to withdraw representation.
The petition states counsel fully reviewed the record and concluded the
appeal would be wholly frivolous. Counsel indicates he notified Appellant of
the withdrawal request. Counsel also supplied Appellant with a copy of the
brief and a letter explaining Appellant’s right to proceed pro se or with new
privately retained counsel to raise any points Appellant believes have merit.
(See Letter to Appellant, dated May 21, 2015, at 1). In his Anders brief,
counsel provides a summary of the procedural history of the case. Counsel
refers to evidence in the record that may arguably support the issues raised
on appeal, and he provides citations to relevant law. The brief also provides
counsel’s reasons for his conclusion that the appeal is wholly frivolous.
Therefore, counsel has substantially complied with the requirements of
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Anders and Santiago. See Wrecks, supra.
As Appellant has filed neither a pro se brief nor a counseled brief with
new privately retained counsel, we review this appeal based on the issues
raised in the Anders brief:
WAS EVIDENCE THAT [APPELLANT] TESTED POSITIVE FOR
MARIJUANA MULTIPLE TIMES, FAILED TO COMPLETE HIS
DRUG PROGRAM, AND ABSCONDED FROM SUPERVISION
SUFFICIENT FOR REVOCATION?
WAS THE PROBATION REVOCATION SENTENCE ILLEGAL
OR EXCESSIVE?
(Anders Brief at 2).
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.
Commonwealth v. Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013)
(en banc) (explaining that, notwithstanding prior decisions which stated our
scope of review in revocation proceedings is limited to validity of
proceedings and legality of sentence, this Court’s scope of review on appeal
from revocation sentencing can also include discretionary sentencing
challenges).
In his first issue, Appellant argues the court revoked his probation
where he tested positive for drugs on multiple occasions, failed to report for
supervision, and did not remain active in his drug treatment program.
Appellant asserts he sustained no arrests while on probation. Appellant
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contends he also worked while on probation. Appellant maintains the reason
he failed to report for supervision was due to his employer’s mandatory
ninety-day “probationary period,” during which Appellant could not take days
off from work to see his probation officer. Appellant concludes the court
abused its discretion when it revoked Appellant’s probation based solely on
technical violations, and this Court should reverse. We disagree.
In the context of probation revocation and resentencing, the
Sentencing Code provides, in pertinent part:
§ 9771. Modification or revocation of order of
probation
(a) General rule.—The court may at any time
terminate continued supervision or lessen or increase the
conditions upon which an order of probation has been
imposed.
(b) Revocation.—The court may revoke an order of
probation upon proof of the violation of specified conditions
of the probation. Upon revocation the sentencing
alternatives available to the court shall be the same as
were available at the time of initial sentencing, due
consideration being given to the time spent serving the
order of probation.
(c) Limitation on sentence of total
confinement.—The court shall not impose a sentence of
total confinement upon revocation unless it finds that:
(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
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(3) such a sentence is essential to vindicate the
authority of the court.
* * *
42 Pa.C.S.A. § 9771(a)-(c).
“[T]he 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.” Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa.Super.
2006). “The reason for revocation of probation need not necessarily be the
commission of or conviction for subsequent criminal conduct. Rather, this
Court has repeatedly acknowledged the very broad standard that sentencing
courts must use in determining whether probation has been violated.”
Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa.Super. 2014), appeal
denied, ___ Pa. ___, 109 A.3d 678 (2015). “The Commonwealth establishes
a probation violation meriting revocation when it shows, by a preponderance
of the evidence, that the probationer’s conduct violated the terms and
conditions of his probation, and that probation has proven an ineffective
rehabilitation tool incapable of deterring [the] probationer from future
antisocial conduct.” Commonwealth v. Perreault, 930 A.2d 553, 558
(Pa.Super. 2007), appeal denied, 596 Pa. 729, 945 A.2d 169 (2008).
Instantly, the court initially sentenced Appellant on December 5, 2012,
to an aggregate term of six (6) to twelve (12) months’ imprisonment, plus
two (2) years’ probation. Appellant was paroled on or about April 14, 2013.
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The court held a revocation of probation hearing on September 8, 2014,
based on allegations that Appellant had committed various technical
violations while on probation. At the September 8, 2014 hearing, Nashia
Williams, Appellant’s probation officer, stated Appellant had failed to report
for probation, necessitating the issuance of wanted cards for Appellant. Ms.
Williams indicated police subsequently arrested Appellant on that detainer.
Ms. Williams also informed the court Appellant was referred to outpatient
treatment at Men and Women of Excellence, but Appellant failed to remain
active in that program. Ms. Williams further confirmed that Appellant tested
positive for drugs five times while on probation—once for THC (marijuana)
and opiates; and the other four times for THC.
Significantly, Appellant did not dispute that he committed these
technical violations.6 Rather, defense counsel highlighted Appellant’s
employment while on probation. Defense counsel offered that Appellant
failed to report for supervision due to his employer’s mandatory ninety-day
“probationary period,” during which Appellant could not take days off from
work to see his probation officer. Defense counsel also claimed Appellant
made payments to the First Judicial District of Philadelphia, but counsel
insisted those payments had been applied to other cases and not the instant
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6
Appellant claimed he had a prescription for Percocet (as a result of having
teeth pulled), to explain his positive drug test for opiates. Ms. Williams
denied that Appellant supplied a prescription for Percocet. Appellant
admitted he had no prescription for THC (marijuana).
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case, by no fault of Appellant. Appellant conceded that he continues to
smoke marijuana. Appellant also admitted he failed to remain active in his
treatment program. The Commonwealth acknowledged Appellant’s
employment while on probation but pointed out that the court had already
imposed a lenient sentence, given Appellant’s prior record. The
Commonwealth maintained Appellant’s multiple failed drug tests and his
failure to remain active in drug treatment demonstrate Appellant is unwilling
or unable to remedy his substance abuse issues.
At the conclusion of the hearing, the court revoked Appellant’s
probation and resentenced him for the PIC conviction to six (6) to twelve
(12) months’ imprisonment. We see no reason to disrupt the court’s
decision to revoke probation based on Appellant’s various technical
violations. See MacGregor, supra. See also Commonwealth v.
Cappellini, 690 A.2d 1220 (Pa.Super. 1997) (affirming revocation of
probation where defendant stopped reporting to drug care facility assigned
for treatment and refused to submit to drug testing, admitted using cocaine,
and tested positive for cocaine and heroin); Commonwealth v. Newman,
310 A.2d 380 (Pa.Super. 1973) (affirming revocation of probation based
solely on appellant’s commission of technical probation violation by failing to
report to probation office; power to grant privilege of probation to convicted
defendant carries with it right to revoke privilege if it is abused). Therefore,
Appellant’s first issue merits no relief.
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In his second issue, Appellant argues the court imposed an excessive
sentence given that Appellant was working while on probation and incurred
no arrests. Appellant asserts the court failed to specify one of the statutory
enumerated reasons under Section 9771(c) for imposing a sentence of total
confinement, following revocation based on technical violations of probation.
As presented, Appellant’s issue challenges the discretionary aspects of his
sentence.7 See Commonwealth v. Crump, 995 A.2d 1280 (Pa.Super.
2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010) (explaining claim
that court erred by imposing sentence of total confinement for technical
violations of probation presents challenge to court’s sentencing discretion);
Commonwealth v. Malovich, 903 A.2d 1247 (Pa.Super. 2006) (stating
claim that court failed to consider factors under Section 9771(c) before
imposing sentence of total confinement following probation revocation
implicates discretionary aspects of sentencing); Commonwealth v. Lutes,
793 A.2d 949 (Pa.Super. 2002) (explaining claim that sentence is manifestly
excessive challenges discretionary aspects of sentencing); Commonwealth
v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa.
653, 676 A.2d 1195 (1996) (stating allegation court ignored mitigating
factors challenges discretionary aspects of sentencing).
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7
Notwithstanding Appellant’s statement of questions presented, Appellant
concedes his sentence is legal and complains only of the court’s sentencing
discretion. Appellant preserved this claim in his motion for reconsideration
of sentence.
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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, 571 Pa. 419, 812 A.2d 617 (2002);
Pa.R.A.P. 2119(f). This Court must evaluate what constitutes a substantial
question on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825
(Pa.Super. 2007). 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.” Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000).
A claim of excessiveness can raise a substantial question as to the
appropriateness of a sentence under the Sentencing Code, even if the
sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at
624. Bald allegations of excessiveness, however, do not raise a substantial
question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather,
a substantial question exists “only where the appellant’s Rule 2119(f)
statement sufficiently articulates the manner in which the sentence violates
either a specific provision of the sentencing scheme set forth in the
Sentencing Code or a particular fundamental norm underlying the sentencing
process….” Id. See, e.g., Cartrette, supra (indicating claim that
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revocation court ignored appropriate sentencing factors raises substantial
question); Malovich, supra (holding defendant’s claims that sentencing
court did not state on record any reasons for sentence, imposed sentence of
total confinement without discussing necessary factors, and imposed
sentence excessive and disproportionate to underlying technical probation
violations raised substantial questions warranting appellate review). An
allegation that the sentencing court failed to consider a specific mitigating
factor, however, does not necessarily raise a substantial question.
Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001) (holding claim
that sentencing court ignored appellant’s rehabilitative needs failed to raise
substantial question).
To the extent Appellant complains the sentencing court did not
adequately consider specific mitigating factors—his employment while on
probation and the fact that he incurred no new arrests—this allegation does
not raise a substantial question. See id. Likewise, Appellant’s bald claim of
excessiveness does not warrant our review. See Mouzon, supra.
Nevertheless, Appellant’s claim the court failed to articulate or consider the
factors under Section 9771(c) prior to imposing a sentence of total
confinement for technical violations of probation, does raise a substantial
question. See Cartrette, supra; Malovich, supra.
“In general, the imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial court, which,
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absent an abuse of that discretion, will not be disturbed on appeal.”
Commonwealth v. Hoover, 909 A.2d 321, 322 (Pa.Super. 2006).
Following the revocation of probation, the court may impose a sentence of
total confinement if any of the following conditions exist: the defendant has
been convicted of another crime; the conduct of the defendant indicates it is
likely he will commit another crime if he is not imprisoned; or, such a
sentence is essential to vindicate the authority of the court. See 42
Pa.C.S.A. § 9771(c). The Sentencing Guidelines do not apply to sentences
imposed following a revocation of probation. Commonwealth v.
Ferguson, 893 A.2d 735, 739 (Pa.Super. 2006), appeal denied, 588 Pa.
788, 906 A.2d 1196 (2006). “[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.”
Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001).
Pursuant to Section 9721(b), “the court shall 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.” 42 Pa.C.S.A. § 9721(b). “[T]he
court shall make as 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. Nevertheless, “[a] sentencing court need not undertake a
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lengthy discourse for its reasons for imposing a sentence or specifically
reference the statute in question….” Crump, supra at 1283. Rather, the
record as a whole must reflect the sentencing court’s consideration of the
facts of the case and the defendant’s character. Id. See also
Commonwealth v. Carrillo-Diaz, 64 A.3d 722 (Pa.Super. 2013)
(explaining where revocation court presided over defendant’s no contest plea
hearing and original sentencing, as well as his probation revocation hearing
and sentencing, court had sufficient information to evaluate circumstances of
offense and character of defendant when sentencing following revocation).
Instantly, the court initially imposed a lenient sentence on December
5, 2012, of only six (6) to twelve (12) months’ imprisonment plus two (2)
years’ probation, for Appellant’s convictions of criminal trespass, PIC,
criminal attempt to commit theft, and criminal attempt to commit receiving
stolen property. While on probation, Appellant committed various technical
violations by testing positive for drugs on five occasions, failing to remain
active in drug treatment, failing to report to his probation officer, and failing
to make payment toward the costs associated with his case. Upon the
court’s revocation of Appellant’s probation, defense counsel asked the court
if it would consider sending Appellant to the Forensic Intensive Recovery
program instead of confinement. The court rejected defense counsel’s offer,
explaining Appellant was a “veteran criminal” with a record of nine prior
arrests and convictions. The court indicated it had given Appellant a chance
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to reform, which Appellant simply did not take. As the judge who presided
over Appellant’s probation revocation hearing was the same jurist who had
presided over Appellant’s initial bench trial and sentencing, the court had
sufficient information to evaluate the circumstances of Appellant’s case as
well as Appellant’s character. See id. The record confirms the court
imposed a sentence of total confinement consistent with Section 9771(c).
See 42 Pa.C.S.A. § 9771(c). See also Malovich, supra (holding record
evidenced that court imposed sentence of total confinement following
revocation of appellant’s probation to vindicate court’s authority, where
appellant had not complied with previous judicial efforts such as drug court,
had not “been putting anything into” court-imposed rehabilitation efforts,
and it was important for appellant to appreciate seriousness of his actions;
court did not quote from Section 9771(c) when imposing sentence or even
mention statute by citation, but record as whole reflected court’s reasons for
sentencing, and court’s consideration of circumstances of appellant’s case
and appellant’s character); Cappellini, supra (holding appellant’s continued
drug use, combined with his resistance to treatment and supervision, was
sufficient for court to determine appellant would likely commit another crime
if not incarcerated); Commonwealth v. Aldinger, 436 A.2d 1196 (1981)
(explaining sentence of total confinement was proper where trial court
expressly found and record reflected that appellant violated probation by
using drugs; record showed court considered circumstances giving rise to
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revocation proceeding and appellant’s character; even though court did not
state on record that it made specific finding pursuant to Section 9771(c)(2),
court is not required to parrot criteria of Sentencing Code). Thus,
Appellant’s second issue merits no relief. Accordingly, we affirm.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2016
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