Com. v. Cannon, J ( 2016 )

J. S69020/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAMES P. CANNON III, : No. 1595 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, April 27, 2015,
in the Court of Common Pleas of Chester County
Criminal Division at No. CP-15-CR-0005047-2005
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 13, 2016
James P. Cannon, III, appeals from the judgment of sentence of
April 27, 2015, following revocation of his probation. Appointed counsel,
Erin N.B. Bruno, Esq., has filed a petition to withdraw and accompanying
Anders brief.1 After careful review, we grant the withdrawal petition and
affirm the judgment of sentence.
In a prior published opinion affirming appellant’s original judgment of
sentence on direct appeal, this court set forth the history of this case as
follows:
On February 17, 2006, Cannon entered an
open guilty plea to twenty-five counts of possession
of child pornography,[Footnote 1] two counts of
solicitation to prostitution,[Footnote 2] two counts of
1
See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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solicitation to indecent assault,[Footnote 3] and one
count of corruption of minors.[Footnote 4] The
factual basis for the plea follows:
In July 2005, the West Whiteland Police
were contacted regarding an incident
involving a 14 year old boy. The boy’s
mother called the police to report that
her son had been chatting online with a
man later identified as defendant,
39 year old James Cannon.
On July 4th, 2005 the victim had gone to
the area of Pierce Middle School to meet
[Cannon]. [Cannon] had been chatting
online with the victim for several
months. The victim was using the screen
name of Alley Hopping and [Cannon] was
using the screen name of Agent 975.
Over the course of time [Cannon]
chatted with the victim and learned that
the boy was 14 years old. During these
online computer chats [Cannon] engaged
in conversations with the victim in which
he requested that the victim and
[Cannon] meet for the purpose of
engaging in sexual acts.
On July 4th, 2005 [Cannon] instant
messaged, or IMed, the victim, and once
against [sic] asked him sexually related
questions and offered to give the boy
money in exchange for the acts.
On July 4th, 2005 during this online chat
[Cannon] arranged to meet the boy in
the area of Pierce Middle School at
approximately 5:30 p.m. The victim
arrived in the area of the middle school
and [Cannon] arrived in the vehicle. The
boy got in the car and spoke with
[Cannon] for approximately 15 minutes.
[Cannon] would provide only his first
name to the victim.
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The victim would testify that [Cannon]
requested masturbation and oral sex
from the victim. [Cannon] drove the boy
to Wawa where he purchased cigarettes
for the boy. The victim declined to
engage in any sexual acts and left the
vehicle.
The victim told police after he left the
vehicle he walked around for 15 minutes,
then contacted his mother who contacted
the police. The West Whiteland Police
and Chester County Detectives created a
photographic lineup from which the
victim was able to identify [Cannon].
A search warrant was then executed at
[Cannon’s] residence in West Whiteland
Township in Chester County. The
computer equipment was seized and
searched. Over 100 images of child
pornography were located on the
computer along with several web cam
videos of teenage boys masturbating.
He admitted to IMing the victim on
several occasions, but less than a year,
unquote.
Initially [Cannon] told the police he met
the victim for the purpose of buying him
cigarettes. [Cannon] denied asking for
sexual acts for money. However, the
information from the computer showed
discussions consistent with what the
victim had disclosed to the police.
These conversations clearly showed that
[Cannon] was offering the victim money
for sexual acts.
N.T. Guilty Plea Hearing, 2/17/06, at 4-6.
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The trial court ordered the Sexual Offender’s
Assessment Board (“SOAB”), to assess whether
Cannon was a sexually violent predator (“SVP”) and
also ordered a pre-sentence report. Id. at 19-20.
In the interim, on August 3, 2006, Cannon filed a
motion for a court-appointed psychological expert,
claiming that he could not afford one. Following an
evidentiary hearing, the trial court denied the motion
because it determined that Cannon was not indigent.
N.T. Motion Hearing, 8/9/06, at 7-9. A Megan’s Law
hearing was held on September 18, 2006. The court
heard testimony from SOAB assessor Dr. Bruce
Mapes. After extensive discussion of the basis for
his decision in accordance with the dictates of the
pertinent statutory framework, Dr. Mapes concluded
that Cannon was an SVP. N.T. SVP Hearing, 9/18/06,
at 4-86. The court subsequently accepted that
testimony and determined that Cannon was an SVP.
Id. at 87-90.
The case proceeded to sentencing that same
date, where Cannon was sentenced to an aggregate
sentence of 34 to 68 months of imprisonment
followed by 12 years of probation. Post-sentence
motions were filed on October 10, 2006; and the
sentence was vacated by order entered October 18,
2006. On October 27, 2006, the trial court
re-sentenced Cannon to an aggregate sentence of 29
to 59 months of imprisonment followed by 12 years
of probation. This timely appeal followed.
[Footnote 1] 18 Pa.C.S.A. § 6312(d).
[Footnote 2] 18 Pa.C.S.A. § 902, 5902(b).
[Footnote 3] 18 Pa.C.S.A. § 902, 3126(a)(8).
[Footnote 4] 18 Pa.C.S.A. § 6301(a)(1).
Commonwealth v. Cannon, 954 A.2d 1222, 1223-1225 (Pa.Super. 2008),
appeal denied, 964 A.2d 893 (Pa. 2009) (footnote 5 omitted). On
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August 6, 2008, this court affirmed the judgment of sentence. Id. On
January 22, 2009, our supreme court denied appellant’s petition for
allowance of appeal.
Appellant was paroled in 2011. He completed his state parole and was
being supervised by the Pennsylvania Board of Probation and Parole
(“the Board”) on the 12-year consecutive period of probation. According to
his probation officer, appellant was uncooperative and unwilling to
participate in sex offender treatment, which was a condition of his probation.
Appellant was unsuccessfully discharged from the sex offenders program on
or about January 25, 2015. On January 30, 2015, the Board filed a petition
to find appellant in technical violation of his probation, and a detainer was
lodged.
A probation violation hearing was held on April 27, 2015. Appellant
was found to be in violation of his probation and was sentenced to 34 to
68 months’ incarceration, followed by 14 years of probation. The trial court
granted appellant’s motion to modify or reduce sentence; and on May 22,
2015, following a hearing, the trial court sentenced appellant to 24 to
68 months’ incarceration, followed by 14 years of probation.
This timely appeal followed. On June 5, 2015, appellant was ordered
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b) within 21 days. On June 11, 2015, counsel for appellant
filed a statement of intent to file an Anders brief in lieu of filing a concise
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statement, pursuant to Rule 1925(c)(4). On June 16, 2015, the trial court
filed a Rule 1925(a) opinion, directing this court to the sentencing hearings
of April 27, 2015 and May 22, 2015, as providing the reasons for its
sentence.
Appellant raises a single issue for this court’s review, challenging the
discretionary aspects of sentencing:
Does imposition of a state prison sentence for a
[probation] violation in a Child Pornography case
raise a substantial question that the Sentencing Code
was violated by the trial Court, who imposed the
sentence after a decision that the Appellant had
failed to meet terms of the Court’s [probation]
supervision by failure to successfully complete sex
offender treatment? Is such a sentence an abuse of
the Judge’s discretion?
Appellant’s brief at 3.
Counsel having filed a petition to withdraw, we reiterate that “[w]hen
presented with an Anders brief, this court may not review the merits of the
underlying issues without first passing on the request to withdraw.”
Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007)
(en banc) (citation omitted).
In order for counsel to withdraw from an appeal
pursuant to Anders, certain requirements must be
met, and counsel must:
(1) provide a summary of the procedural
history and facts, with citations to the
record;
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(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., quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Upon review, we find that Attorney Bruno has complied with all of the
above requirements. In addition, Attorney Bruno served appellant a copy of
the Anders brief, and advised him of his right to proceed pro se or hire a
private attorney to raise any additional points he deemed worthy of this
court’s review. Appellant has not responded to counsel’s motion to
withdraw. As we find the requirements of Anders and Santiago are met,
we will proceed to the issues on appeal.
Essentially, appellant is arguing that his technical violations of
probation by failing to participate in sex offender treatment did not support a
state sentence. “The imposition of a sentence of total confinement after the
revocation of probation for a technical violation, and not a new criminal
offense, implicates the ‘fundamental norms which underlie the sentencing
process.’” Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super.
2010), appeal denied, 13 A.3d 475 (Pa. 2010), quoting Commonwealth
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v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000). “Additionally, a substantial
question that the sentence was not appropriate under the Sentencing Code
may occur even where a sentence is within the statutory limits.” Id., citing
Commonwealth v. Titus, 816 A.2d 251 (Pa.Super. 2003). We determine
appellant has raised a substantial question regarding the appropriateness of
his sentence, and will proceed to review the merits of his claim.2
Our standard of review is well-settled. We have
explained:
The imposition of sentence following the
revocation of probation is vested within
the sound discretion of the trial court,
which, absent an abuse of that
discretion, will not be disturbed on
appeal. An abuse of discretion is more
than an error in judgment—a sentencing
court has not abused its discretion unless
the record discloses that the judgment
exercised was manifestly unreasonable,
2
Pa.R.A.P. 2119(f) states:
(f) Discretionary aspects of sentence. An
appellant who challenges the discretionary
aspects of a sentence in a criminal matter shall
set forth in his brief a concise statement of the
reasons relied upon for allowance of appeal
with respect to the discretionary aspects of a
sentence. The statement shall immediately
precede the argument on the merits with
respect to the discretionary aspects of
sentence.
Even in the Anders context, the Rule 2119(f) statement is required with
respect to discretionary sentencing challenges. Commonwealth v. Wilson,
578 A.2d 523, 525 (Pa.Super. 1990). Appellant has complied with this
requirement. (Appellant’s brief at 3.)
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or the result of partiality, prejudice, bias
or ill-will.
Commonwealth v. Simmons, 56 A.3d 1280, 1283-
84 (Pa.Super.2012).
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).
Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa.Super. 2014), appeal
denied, 109 A.3d 678 (Pa. 2015). See also Commonwealth v. Cartrette,
83 A.3d 1030 (Pa.Super. 2013) (en banc) (this court’s scope of review in an
appeal from a revocation sentencing includes discretionary sentencing
challenges).
Upon revoking probation, a sentencing court may
choose from any of the sentencing options that
existed at the time of the original sentencing,
including incarceration. 42 Pa.C.S.A. § 9771(b).
“[U]pon 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.
Infante, 63 A.3d 358, 365 (Pa.Super.2013)
(internal quotation marks and citations omitted).
However, 42 Pa.C.S.A. § 9771(c) provides that once
probation has been revoked, a sentence of total
confinement may only be imposed if any of the
following conditions exist:
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(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
(3) such a sentence is essential to vindicate
the authority of the court.
42 Pa.C.S.A. § 9771(c).
Id. at 1044. We also note that the sentencing guidelines do not apply to
sentences imposed as the result of probation revocations. Commonwealth
v. Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001) (citations omitted).
Instantly, both Section 9771(c)(2) and (3) apply. The record indicates
that appellant did not complete sex offender classes while incarcerated.
(Notes of testimony, 5/22/15 at 14.) Once released, while on probation,
appellant continued to refuse to cooperate with treatment. Appellant was
discharged in 2012 from a program called Human Services in Downingtown,
after failing a polygraph examination. (Notes of testimony, 4/27/15 at 25.)
Appellant was referred to a different treatment provider, Pennsylvania
Forensics, but continued to arrive late or miss appointments without
legitimate excuse. (Id. at 26-27.) In August 2014 appellant failed another
polygraph. (Id. at 6.) Dr. David Holden stated that in his opinion, appellant
is not amenable to treatment. Dr. Holden described appellant’s demeanor in
group therapy as “oppositional, argumentative.” (Id. at 5.) Dr. Holden
recommended appellant be discharged because he did not want to
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meaningfully participate in a productive manner. (Id. at 5-6.) Dr. Holden
testified, “[I]n my opinion the reason that -- the largest reason, I guess I
would have characterized it that way, is [appellant] was discharged from
treatment was his presentation in treatment. His oppositional, his defiant
nature, his refusal to take feedback. His, basically, his refusal to be
treated.” (Id. at 22-23.)
As the trial court remarked,
. . . almost five years you didn’t engage in any
treatment there [(while in prison)]. And then, upon
your parole, you were discharged from two
additional treatment programs. That’s the reality.
Whatever the excuse is that you run through your
head that makes it difficult for you to complete this,
are your own reasons, but not satisfactory to the
Court.
Notes of testimony, 5/22/15 at 15. “So you were paroled after your
statutory maximum. And then you could not avoid going to treatment at
that point, and yet the treatments never went well. The record was replete
with people trying to bend over backwards to help you get treatment.” (Id.
at 16.)
Appellant has been classified a sexually violent predator, and his
continuing refusal to accept sex offender treatment both increases the
likelihood of re-offense and indicates a lack of respect for the court and for
the conditions of his supervision. As Attorney Bruno observes,
Counsel believes that this sentence is long, but the
Court viewed it as warranted given the failure, over
a course of almost ten years, to engage in sexual
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offender treatment, both because failure to comply
with treatment undermines the authority of the
Court, and a failure to engage in such a way gives
the Court no confidence that further crimes of this
nature will not be committed. The reasons were
explained as a sanctioning [of] a defendant who, if
he has refused to comply with the order of the Court,
posed a threat to the community as well as having
thwarted the Court’s orders.
Appellant’s brief at 10-11.
For the reasons discussed above, we determine that appellant’s issues
on appeal are wholly frivolous and without merit. Furthermore, after our
own independent review of the record, we are unable to discern any
additional issues of arguable merit. Therefore, we will grant
Attorney Bruno’s petition to withdraw and affirm the judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2016
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