Com. v. Diaz, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOHN DIAZ,
Appellant No. 3436 EDA 2014
Appeal from the Judgment of Sentence Entered October 14, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006571-2010
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 05, 2015
Appellant, John Diaz, appeals from the judgment of sentence of an
aggregate term of 8 to 16 years’ imprisonment, imposed after the court
revoked his term of probation based on new convictions in an unrelated
case. Appellant challenges the legality of his post-revocation sentence,
alleging that the trial court failed to consider time served for the original
sentence. He also challenges discretionary aspects of his sentence. We
affirm.
The procedural history of this case was summarized by the trial court
in its Pa.R.A.P. 1925(a) opinion as follows:
After a waiver trial before this [c]ourt on October 4, 2010,
[Appellant] was found guilty of Possession With Intent To Deliver
Cocaine (PWID), 35 P.S. § 780-113(a)(30); Conspiracy to
Deliver Cocaine, 18 Pa.C.S. § 903; and Knowingly or
Intentionally Possessing a Controlled Substance by an
Unregistered Person, 35 P.S. § 780-113(a)(16). This [c]ourt
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found [Appellant] not guilty on the charges of: Possession of a
Firearm by a Prohibited Person, 18 Pa.C.S. § 6105(a)(1);
Carrying a Firearm Without a License, 18 Pa.C.S. § 6106(a)(1);
and Possession of an Instrument of Crime, 18 Pa.C.S. § 907(1).
After finding [Appellant] guilty of the above charges, this [c]ourt
ordered a Presentence Investigation Report (PSI Report).
On December 12, 2010, after reviewing the PSI Report,
this [c]ourt sentenced [Appellant] to 3-6 years[’] confinement
followed by 3 years of reporting probation for PWID; and 109
months reporting probation, consecutive to the 3-6 year
confinement, for Conspiracy to Deliver Cocaine. [Appellant] was
credited with time served.
On March 3, 2013, [Appellant] was arrested and later pled
guilty in the Schuylkill County Court of Common Pleas on April
23, 2014 to two (2) counts of Aggravated Assault, 18 Pa.C.S. §
2702(a)(4) and one (1) count of Possession of a Firearm by a
Prohibited Person[,] 18 Pa.C.S. §6106(a)(1). [Appellant] was
sentenced by the Honorable John E. Domalakes to a total of 4-8
years of confinement. These new crimes constituted a direct
violation of this [c]ourt’s probation.
On August 12, 2014, following a Violation of Probation
(VOP) hearing, this [c]ourt revoked [Appellant’s] probation due
to the direct violation that occurred in Schuylkill County and
ordered a PSI Report. On October 14, 1014, after reviewing the
new PSI Report, this court sentenced [Appellant] to 3-6 years[’]
confinement followed by 3 years of reporting probation on the
PWID charge, and 5-10 years of confinement for the Conspiracy
charge.
A notice of appeal was filed by [Appellant] on November
12, 2014. On November 21, 2014, this [c]ourt issued an order
pursuant to Pa.R.A.P. 1925(b), directing [Appellant] to file a
Statement of Errors Complained of on Appeal (1925(b)
Statement) by December 12, 2014. On December 18, 2014,
[Appellant] filed a Motion for Extension of Time. On December
30, 2014[,] this [c]ourt granted a seventeen day extension,
allowing [Appellant] until January 16, 2015 to file a 1925(b)
Statement. On February 20, 2015, [Appellant] filed a
“Statement of Matters to Be Raised on Appeal.”
Trial Court Opinion (TCO), 3/11/15, 1-3.
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Appellant states the following sole issue in his Statement of Questions
Involved for our review: “Was the sentence imposed on Appellant an illegal
sentence because [the court] failed to consider the time served for the
original sentence?” Appellant’s Brief at 7. While his Statement of Questions
only references the legality of the sentence, Appellant’s arguments also
pertain to the discretionary aspects of his sentence.
When we consider an appeal from a sentence imposed following the
revocation of probation, our standard of review is well settled:
Sentencing is a matter vested within the discretion of the trial
court and will not be disturbed absent a manifest abuse of
discretion. An abuse of discretion requires the trial court to have
acted with manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support so as to be clearly
erroneous. It is also now accepted that in an appeal following
the revocation of probation, it is within our scope of review to
consider challenges to both the legality of the final sentence and
the discretionary aspects of an appellant’s sentence.
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010)
(citations omitted).
To the extent that Appellant raises issues regarding the discretionary
aspects of his sentence, we note the following:
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant
challenging the discretionary aspects of his sentence must
invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
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(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations
and internal quotations omitted).
Here, Appellant argues that his sentence is manifestly excessive and
that the trial court failed to consider certain environmental factors, his
rehabilitative needs, and the severity of his previous crimes. Appellant’s
Brief at 12. However, Appellant failed to raise these objections at the
sentencing hearing, nor did he file a motion to reconsider and modify
sentence. Therefore, as the Commonwealth suggests, the discretionary
aspects of sentencing claims are waived. See Commonwealth v.
Hartman, 908 A.2d 316, 319 (Pa. Super. 2006) (finding the appellant’s
discretionary aspect of sentencing claim waived where he failed to raise it
during sentencing proceedings or in timely post-sentence motion).
The Commonwealth further asserts that this Court cannot consider
Appellant’s discretionary sentence claims, as he failed to include a separate
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of his sentence, pursuant to Pa.R.A.P.
2119(f). We agree with the Commonwealth. As we stated in
Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2013), “if
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[A]ppellant fails to comply with Pa.R.A.P. 2119(f) and the Commonwealth
objects, the issue is waived for purposes of review.”
Despite this fatal flaw in Appellant’s brief and Appellant’s failure to
properly preserve these claims before the trial court, we are further
precluded from reviewing these claims because Appellant failed to raise a
substantial question to meet the fourth requirement of the four-part test
outlined above. As we explained in Moury:
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 a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the
sentencing process.
Moury, 992 A.2d at 170 (citations and internal quotations omitted).
Appellant contends that his sentence was excessive where “there were
no violent or potentially violent offenses included in this specific matter.”
Appellant’s Brief at 11. Appellant also alleges that the trial court failed to
“consider environmental facts which when discovered could [have] serve[d]
to assist in the rehabilitation of the offender,” and notes that he was
exposed to drugs at a young age and had very little education. Id. at 12.
“[A] bald assertion that Appellant’s sentence was excessive, devoid of
supporting legal authority…does not present a substantial question,” and
therefore, is not reviewable by this Court. Commonwealth v. Fisher, 47
A.3d 155, 159 (Pa. Super. 2012). Moreover, “this Court has held on
numerous occasions that a claim of inadequate consideration of mitigating
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factors does not raise a substantial question for our review.”
Commonwealth v. DiSalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (internal
citation omitted). See also Commonwealth v. Griffin, 65 A.3d 932, 936
(Pa. Super. 2013) (finding that defendant’s claim that his sentence failed to
take into account his rehabilitative needs did not raise a substantial
question); Commonwealth v. Cannon, 954 A.2d 1222, 1228-29 (Pa.
Super. 2008) (concluding that a claim that trial court failed to consider the
defendant’s rehabilitative needs, age, and educational background did not
present a substantial question).
We now address Appellant’s remaining claim that his sentence is illegal
because the court failed to give credit for time served on the original
sentence. As this Court has previously stated: “The issue of whether a
sentence is illegal is a question of law; therefore our task is to determine
whether the trial court erred as a matter of law and, in doing so, our scope
of review is plenary.” Commonwealth v. Maxwell, 932 A.2d 941, 942 (Pa.
Super. 2007) (internal citation omitted).
Specifically, Appellant asserts that he served a total of approximately
thirty (30) months on his original sentence, and that the trial court never
gave any consideration to this time served when imposing his sentence after
the revocation of his probation. Appellant’s Brief at 12. In support of his
claim, Appellant references Section 9760 of the Sentencing Code, which
provides, in relevant part, as follows:
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(1) Credit against the maximum term and any minimum term
shall be given to the defendant for all time spent in
custody as a result of the criminal charge for which a
prison sentence is imposed or as a result of the conduct on
which such a charge is based. Credit shall include credit
for time spent in custody prior to trial, during trial, pending
sentence, and pending the resolution of an appeal.
(2) Credit against the maximum term and any minimum term
shall be given to the defendant for all time spent in
custody under a prior sentence if he is later reprosecuted
and resentenced for the same offense or for another
offense based on the same act or acts. This shall include
credit in accordance with paragraph (1) of this section for
all time spent in custody as a result of both the original
charge and any subsequent charge for the same offense or
for another offense based on the same act or acts.
42 Pa.C.S. § 9760(1), (2).
As we explained in Crump, “while the language of Section 9760 does
not discuss an illegal sentence or the situation where a person receives a
new sentence as a result of a probation violation, our case law analyzing the
statute has outlined the necessary considerations we must make in
determining whether a sentence is illegal.” Crump, 995 A.2d at 1284.
Our statutory and case law are clear. Subsequent to revocation
of probation, the sentencing court has available to it all the
options permissible at the time of initial sentencing, giving due
consideration “to the time spent serving the order of probation.”
42 Pa.C.S. § 9771(b). As long as the new sentence imposed
does not exceed the statutory maximum when factoring in the
incarcerated time already served, the sentence is not illegal.
Additionally, the sentencing court cannot give a new split
sentence where the period of incarceration and period of
probation exceed the statutory maximum.
Id. at 1285 (internal citations omitted). Moreover, we have held that “a
defendant is not entitled to credit for time served following revocation of
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probation if the new sentence of incarceration does not reach the statutory
maximum.” Id. (emphasis added).
In the case at bar, the trial court provided the following detailed
explanation of the sentence it imposed on Appellant:
In this case, [Appellant] was found guilty of PWID and
Conspiracy. The maximum period of incarceration for PWID,
involving 6.3 grams of cocaine, is 5-10 years. 35 P.S. § 780-
113(f)(1.1). However, because this was [Appellant’s] second
PWID conviction[,] the maximum penalty is doubled. 35 P.S. §
780-115(a). Therefore, at the time of sentencing[,] this [c]ourt
could have sentenced [Appellant] to 10-20 years[’] incarceration
for PWID.
The maximum period of incarceration for Conspiracy to
Deliver Cocaine is 5-10 years. After [Appellant’s] waiver trial
before this [c]ourt, [Appellant] was sentenced to 109 months of
reporting probation and no incarceration for Conspiracy.
Therefore, this [c]ourt’s sentence of 5-10 years[’] for Conspiracy
after revoking [Appellant’s] probation is a legal sentence that
does not exceed the statutory maximum since [Appellant]
served no time in prison for his original Conspiracy sentence.
On the PWID charge, [Appellant] was originally sentenced
to 3-6 years of confinement[,] followed by 3 years of reporting
probation. [Appellant ] was sentenced on December 10, 2010
and was released on March 12, 2012, meaning [Appellant]
served one year, three months and two days on the original
sentence. After revoking [Appellant’s] probation, this [C]ourt
had the ability to choose from any sentencing option existing at
the time of the original sentencing. This [c]ourt’s sentence was
limited only by the statutory maximum for a second PWID
offense involving 6.3 grams of cocaine, which is 10-20 years.
This court imposed a VOP sentence of 3-6 years of
confinement followed by 3 years of reporting probation. That
maximum prison sentence of 6 years, in addition to the amount
of time served by [Appellant] on the original sentence—1 year, 3
months[,] and 2 days—does not exceed, or even approach, the
statutory maximum of 10-20 years of incarceration. Because
the combination of the VOP sentence and time served on the
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original sentence does not exceed the statutory maximum, credit
for time served was not required. Therefore, the sentence
imposed by this court upon revocation of [Appellant’s] probation
is a legal sentence.
TCO at 4-5.
Based on our review of the record, Appellant’s sentence does not come
close to reaching the statutory maximum and, therefore, Appellant was not
entitled to credit for time served. Appellant’s claim regarding the legality of
his sentence is without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/5/2015
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