Com. v. Garland, C. ( 2015 )

J-S66002-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
COREY L. GARLAND,
Appellant No. 878 WDA 2014
Appeal from the Judgment of Sentence of April 28, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0007068-2008
BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 30, 2015
Appellant, Corey L. Garland, appeals from the judgment of sentence of
eighteen to thirty-six months of incarceration entered on April 28, 2014,
following the revocation of Appellant’s probation. Upon review, we affirm.
The trial court summarized the factual and procedural background of
this case as follows:
On January 16, 2008, [A]ppellant was charged with
one count of rape, one count of sexual assault, one
count of aggravated indecent assault, one count of
corruption of the morals of a minor and one count of
indecent assault. On January 7, 2009, [Appellant]
entered a plea of guilty to the charge of sexual
assault in exchange for the dismissal of the other
charges and a sentence of incarceration of not less
than two nor more than four years, with a period of
probation to be set by the [trial c]ourt. On April 2,
2009, following the receipt and review of a
presentence report, th[e trial c]ourt sentenced
[Appellant] in accordance with the plea agreement to
a period of incarceration of not less than two nor
*Retired Senior Judge assigned to the Superior Court.
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more than four years, to be followed by a period of
probation of three years, during which he was to
have no contact with the victim and he was to
undergo random drug screening.
In August 2012, [Appellant] violated his [] parole
when he missed his curfew and was found in
possession of a knife. A probation violation hearing
was held on November 5, 2012, at which time he
was sentenced to a period of incarceration of not less
than six nor more than twelve months to be followed
by a period of probation of three years, he was to
have no contact with the victim, undergo random
drug screening and enroll and complete sexual
offenders treatment. On June 3, 2013, another
probation violation hearing was held at which time
his probation was revoked and a new period of
probation of three years was imposed with the same
terms and conditions previously imposed upon him.
At that hearing, [Appellant] stated that he
understood fully what he was supposed to do and he
was going to abide by all of those rules and
conditions. Another probation violation hearing was
held on November 4, 2013, at which hearing
[Appellant’s] state parole officer indicated that Mercy
Behavioral Clinic did not want him back since he
violated all of their rules, but requested that Justice-
Related Services formulate a treatment plan for
[Appellant]. Accordingly, his case was continued for
sixty days to allow that treatment plan to be
developed. On January 6, 2014, another violation
hearing was held, at which point in time th[e trial
c]ourt ordered a presentence report in aid of
sentencing. On April 28, 2014, another violation
hearing was held and as a result of the receipt and
review of the presentence report and the probation
violation report, together with the testimony of the
state parole officer, [Appellant] was sentenced to a
period of incarceration of not less than eighteen nor
more than thirty-six months, to be followed by a
period of probation of three years, with all of the
other conditions that had previously been imposed
upon him.
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Trial Court Opinion, 2/13/15, at 2-3.
Appellant filed a motion for reconsideration of sentence on April 30,
2014, which the trial court denied on May 1, 2014. Thereafter, Appellant
filed this timely appeal. Both Appellant and the trial court have complied
with Pa.R.A.P. 1925.
Appellant presents two sentencing issues for our review:
I. DID THE TRIAL COURT FAIL TO PLACE
ADEQUATE REASONS ON THE RECORD FOR
THE LENGTHY SENTENCE IT IMPOSED?
II. DID THE TRIAL COURT FAIL TO ADEQUATELY
CONSIDER AND APPLY ALL OF THE RELEVANT
SENTENCING CRITERIA, INCLUDING THE
PROTECTION OF THE PUBLIC, THE GRAVITY OF
THE OFFENSE/VIOLATION, AND [APPELLANT’S]
CHARACTER AND REHABILITATIVE NEEDS, AS
REQUIRED UNDER 42 Pa.C.S.A. § 9721(b)?
Appellant’s Brief at 5.
We initially note that “when a court revokes probation and imposes a
new sentence, a criminal defendant needs to preserve challenges to the
discretionary aspects of that new sentence either by objecting during the
revocation sentencing or by filing a post-sentence motion.”
Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008)
(citation omitted). In this case, Appellant did not object to his sentence at
the revocation hearing, however, he did file a post-sentence motion in which
he challenged the discretionary aspects of his sentence. We thus review the
trial court’s sentence imposed following the revocation of probation for an
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error of law or an abuse of discretion. Commonwealth v. Colon, 102 A.3d
1033, 1041 (Pa. Super. 2014).
“[Our] scope of review in an appeal from a revocation [sentence]
includes discretionary sentencing challenges.” Commonwealth v.
Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc). “An abuse of
discretion is not merely an error of judgment, but if in reaching a conclusion
the law is overridden or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown
by the evidence or the record, discretion is abused.” Commonwealth v.
Burns, 988 A.2d 684, 689 (Pa. Super. 2009) (en banc) (citation omitted),
appeal denied, 8 A.3d 341 (Pa. 2010).
Appellant specifically claims that the trial court “did not place adequate
reasons on the record to justify the length of the sentence it imposed,” and
“announced [Appellant’s] sentence before getting and reviewing the
[Presentence Investigative Report (PSI)].” Appellant’s Brief at 15. Appellant
also contends that the trial court “did not adequately consider the protection
of the public, the gravity of the violation, and [Appellant’s] character and
rehabilitative needs….” Id.Appellant’s challenge to the discretionary aspects of his sentence is not
appealable as of right. Colon, supra at 1042.
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 his issue; (3) whether Appellant’s brief
includes a concise statement of the reasons relied
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upon for allowance of appeal with respect to the
discretionary aspects of sentence [as required by
Rule 2119(f) of the Pennsylvania Rules of Appellate
Procedure]; 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’s attack on his sentence is not an appeal
as of right. Rather, he must petition this Court, in
his [Rule 2119(f)] concise statement of reasons, to
grant consideration of his appeal on the grounds that
there is a substantial question. [I]f the appeal
satisfies each of these four requirements, we will
then proceed to decide the substantive merits of the
case.
Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)
(citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
Here, Appellant filed a timely notice of appeal, preserved his
sentencing challenge in his motion for reconsideration of sentence, and
included a separate Rule 2119(f) concise statement in his appellate brief.
See Appellant’s Brief at 17-22. Moreover, Appellant has raised a substantial
question for our review by asserting that the trial court failed to state
adequate reasons on the record for its sentence, and failed to properly
consider the factors enumerated in 42 Pa.C.S.A. § 9721(b).
Commonwealth v. Jones, 613 A.2d 587, 590 (Pa. Super. 1992) (en banc);
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013).
Having determined that Appellant has met these threshold
requirements, we proceed to review the merits of his appeal. “Revocation of
a probation sentence is a matter committed to the sound discretion of the
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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.
Mazzetti, 9 A.3d 228, 230 (Pa. Super. 2010) (citation omitted), affirmed,
44 A.3d 58 (Pa. 2012). Upon revocation of probation, a sentencing court
has all of the sentencing options that existed at the time of the original
sentence. 42 Pa.C.S.A. § 9771(b).
In determining whether a sentence is manifestly
excessive, the appellate court must give great
weight to the sentencing court’s discretion, as he or
she 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. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003).
[However,] in all cases where the court “resentences
an offender following revocation of probation … 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.”
Failure to comply with these provisions “shall be
grounds for vacating the sentence or resentence and
resentencing the defendant.”
Cartrette, supra at 1041, quoting 42 Pa.C.S.A. § 9721(b). “A trial 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.” Commonwealth v. Crump, 995 A.2d
1280, 1283 (Pa. Super. 2010), appeal denied, 13 A.3d 475 (Pa. 2010).
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Here, our review of the record reveals no abuse of sentencing
discretion by the trial court relative to Appellant’s latest violation of his
probation. As stated by Appellant’s probation officer, Ashlee Lynn, at the
most recent probation violation on April 28, 2014:
We are here revisiting the violation hearing for
[Appellant]. We have been here a few times on this
case, beginning on November 4th of 2013. …
[Appellant] has had a continued failure and
noncompliance with sex offender treatment … he has
been given numerous opportunities with treatment.
There are numerous issues. And he once again has
been unsuccessfully discharged.
N.T., 4/28/14, at 2.
Consonant with Ms. Lynn, Thomas Wolfe, an agent from the
Pennsylvania Board of Probation and Parole, testified, “We have tried our
best to give [Appellant] every opportunity to succeed in society, but he
refuses to participate in treatment, refuses to get gainful employment, and
continues to utilize marijuana. And he does [Appellant’s] way [sic] and
doesn’t follow conditions at all, Your Honor.” Id. at 3.
The trial court then heard from Appellant, who, inter alia, expressed
that he had “tried so hard to maintain myself,” and “just want[ed] another
shot.” Id. at 5.
After hearing from the three witnesses, the trial court, without further
commentary, succinctly stated:
I read the [PSI] report. I also read a report of the
Pennsylvania Department of Probation and Parole.
What we are going to do, we are going to revoke
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[Appellant’s] period of probation and sentence [him]
to a period of incarceration of not less than 18, nor
more than 36 months, followed by a period of
probation of three years, with the requirement of
random drug screening, and [he is] to have no
contact with the victim.
Id. at 6-7.
Although the trial court spoke tersely in rendering its sentence, and
was required to state, in open court at the time of sentencing, the reasons
for its sentence, this requirement can be satisfied by the trial court
indicating, on the record, that it has been informed by a PSI report.
Commonwealth v. Reynolds, 835 A.2d 720, 734 (Pa. Super. 2003).
Moreover, the trial court’s commentary, supra, belies Appellant’s assertion
that the trial court “announced” Appellant’s sentence prior to reviewing the
PSI report. We therefore find Appellant’s first issue to be without merit.
With regard to Appellant’s second issue, we recognize that pursuant to
42 Pa.C.S.A. § 9721(b), the trial court must consider the protection of the
public, the gravity of the offense, and the defendant's rehabilitative needs.
However, we again rely on well-settled jurisprudence, which holds that,
“[W]here the sentencing judge had the benefit of a presentence
investigation report, it will be presumed that he or she was aware of the
relevant information regarding the defendant's character and weighed those
considerations along with mitigating statutory factors.” See e.g.,
Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013).
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In sum, our review of the record confirms the trial court’s familiarity
with Appellant, the nature and gravity of his offenses and serial probation
violations, and the clear need to protect the public in this case. The trial
court established as much when it stated, “[Appellant’s original] sentence of
two to four years with a period of probation of three years was a mitigated
range sentence, which sentence [Appellant] repeatedly violated as
witnessed by the number of violation hearings held.” Trial Court
Opinion, 2/13/15, at 4 (emphasis added).
Based on the foregoing, we discern no abuse of discretion by the trial
court, and affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2015
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