Com. v. Demiko, W. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
WAYNE ELLIS DEMIKO
Appellant No. 3385 EDA 2014
Appeal from the Judgment of Sentence October 29, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002638-2010
BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 28, 2015
Appellant, Wayne Ellis Demiko, appeals from the judgment of sentence
entered in the Delaware County Court of Common Pleas, following
revocation of his probation. We affirm.
The relevant facts and procedural history of this case are as follows.
On October 18, 2011, Appellant pled nolo contendere to aggravated assault
after he slashed a prison guard with a razor blade. The court sentenced
Appellant to two (2) to four (4) years’ imprisonment, followed by three (3)
years’ probation. On April 16, 2014, Appellant assaulted an individual in a
mental health facility. Appellant pled guilty to simple assault on September
25, 2014, and the court sentenced him to six (6) to twelve (12) months’
imprisonment.
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On October 29, 2014, the court conducted a Gagnon II1 hearing and
revoked Appellant’s probation on the 2011 aggravated assault conviction.
The court immediately resentenced Appellant to two (2) to six (6) years’
imprisonment, consecutive to his 2014 simple assault sentence. On
November 6, 2014, Appellant timely filed a motion to reconsider his
revocation sentence, which the court denied on November 10, 2014.
Appellant timely filed a notice of appeal on November 25, 2014. The court
ordered Appellant on December 1, 2014, to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely
complied on December 15, 2014.
Appellant raises the following issue for our review:
WHETHER THE SENTENCE OF TWO TO SIX YEARS
IMPRISONMENT IMPOSED AT THE GAGNON II HEARING
HELD IN THIS MATTER ON OCTOBER 29, 2014 WAS
HARSH AND EXCESSIVE UNDER THE CIRCUMSTANCES
WHERE THE COURT RELIED ON AN IMPERMISSIBLE
FACTOR THAT AMOUNTED TO THE COURT SENDING A
MESSAGE TO A THIRD PARTY UNRELATED TO
[APPELLANT].
(Appellant’s Brief at 7).
Appellant argues his revocation sentence of two (2) to six (6) years’ of
state time is harsh and excessive because the court relied on an
impermissible factor in resentencing Appellant. Specifically, Appellant
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1
Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656(1973).
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contends the court used Appellant’s circumstances as an opportunity to
address a personal issue the court had with a supervisor of the Pennsylvania
Board of Probation and Parole (“Board”). Appellant alleges the court used
his revocation sentence to send a message to a Board supervisor on how the
court felt about the Board’s recommended sentence of six (6) to twelve (12)
months’ county imprisonment. Appellant maintains the court’s actions were
outside the norms of sentencing, and that the court dismissed the agent’s
reasoning because of personal bias against the state, unrelated to
Appellant’s conduct on probation. Appellant concludes this Court should
vacate his revocation sentence and remand for resentencing. As presented,
Appellant challenges the discretionary aspects of his revocation sentence.
See Commonwealth v. Anderson, 830 A.2d 1013 (Pa.Super. 2003)
(stating claim that court considered improper factors at sentencing refers to
discretionary aspects of sentencing).
When reviewing the outcome of a revocation proceeding, this Court is
limited to determining the validity of the proceeding and the legality of the
judgment of sentence imposed. Commonwealth v. Heilman, 876 A.2d
1021 (Pa.Super. 2005). Notwithstanding the stated scope of review
suggesting only the legality of a sentence is reviewable, an appellant may
also challenge the discretionary aspects of a sentence imposed following
revocation. Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super. 2000).
See also Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013)
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(en banc) (discussing that scope of review following revocation proceedings
includes discretionary sentencing claims).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Sierra, supra. Prior to reaching the
merits of a discretionary sentencing issue:
[W]e 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
(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).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
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 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). The concise statement must indicate “where the sentence falls in
relation to the sentencing guidelines and what particular provision of the
code it violates.” Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.Super.
2004) (quoting Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super.
2000), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000)). “The
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requirement that an appellant separately set forth the reasons relied upon
for allowance of appeal ‘furthers the purpose evident in the Sentencing Code
as a whole of limiting any challenges to the trial court’s evaluation of the
multitude of factors impinging on the sentencing decision to exceptional
cases.’” Commonwealth v. Williams, 562 A.2d 1385, 1387 (Pa.Super.
1989) (en banc).
[O]nly 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, will
such a statement be deemed adequate to raise a
substantial question so as to permit a grant of allowance of
appeal of the discretionary aspects of the sentence. See
[Commonwealth v. Koehler, 558 Pa. 334, 370, 737 A.2d
225, 244 (1999)] (party must articulate why sentence
raises doubts that sentence was improper under the
Sentencing Code).
Mouzon, supra at 435, 812 A.2d at 627.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Anderson, supra. 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.” Sierra, supra at 912-13. An
appellant raises a substantial question where he alleges an excessive
sentence due to the court’s reliance on impermissible factors.
Commonwealth v. McNabb, 819 A.2d 54 (Pa.Super. 2003).
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“In general, 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.”
Commonwealth v. Hoover, 909 A.2d 321, 322 (Pa.Super. 2006). A
sentence should not be disturbed where it is evident the court was aware of
the appropriate sentencing considerations and weighed them in a meaningful
fashion. Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.Super. 2000).
The Sentencing Guidelines do not apply to sentences imposed
following 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). A court can sentence a
defendant to total confinement after revoking probation if the defendant was
convicted of another crime, the defendant’s conduct indicates it is likely that
he will commit another crime if he is not imprisoned, or such a sentence is
essential to vindicate the court’s authority. Commonwealth v. Crump,
995 A.2d 1280 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475(2010).
Instantly, Appellant properly preserved his discretionary aspects of
sentencing claim. See Evans, supra. Moreover, Appellant’s claim raises a
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substantial question. See McNabb, supra. Nevertheless, the court
concluded:
This [c]ourt imposed the sentence because [Appellant] is a
violent recidivist who has serious mental illness and cannot
be effectively supervised by the County of Delaware. He
has a criminal record with arrests for Retail Theft, Criminal
Trespass, Resisting Arrest, Theft, Criminal Mischief,
Reckless Endangerment, Disorderly Conduct, Simple
Assault, [and] Attempt to Commit Aggravated Assault.
While in prison, he incurred a new criminal charge of
aggravated harassment and had 39 misconducts. He
committed a new violent offense within a few weeks of his
release.
Although the State Probation Officer who appeared at the
Gagnon II hearing recommended that [Appellant] be
given a County sentence, the State has superior resources
to contend with a man with such violent propensities as a
result of severe mental illness. The County lacks the
resources to supervise him once he is released.
This [c]ourt did not fashion the sentence with the intent to
send a message to any third party about an issue
unrelated to [Appellant]. The State dispatched a probation
officer to the Gagnon II hearing to advocate for a County
sentence. This [c]ourt saw this maneuver as a tactical
ploy by the State to rid itself of responsibility for
[Appellant]. The State provided [Appellant] with little
assistance when he was in its custody, and it made an
effort to ensure that he would not return to any form of
State responsibility. This [c]ourt believes that the State,
not the County, has the superior, relevant resources.
Thus, it asked that the probation officer advise Ms. Mackie
of the local State probation and parole office that she
should employ State resources. The admonition was
directly relevant to [Appellant’s] needs; it was not
“unrelated.”
(Trial Court Opinion, filed February 12, 2015, at 2-3) (citation to record
omitted). The record supports the court’s decision. Thus, Appellant’s
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discretionary aspects of sentencing claim merits no relief. Accordingly, we
affirm the judgment of sentence.
Judgment of sentence affirmed.
Judge Lazarus joins this memorandum.
Judge Shogan concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2015
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