Com. v. Woods, G. ( 2017 )

J-S67024-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY WOODS, :
:
Appellant : No. 639 EDA 2016
Appeal from the Judgment of Sentence June 28, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0508941-2005
BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 29, 2017
Gregory Woods (“Woods”) appeals from the judgment of sentence
imposed following the revocation of his probation. We affirm.
In its Opinion, the trial court set forth the relevant factual and
procedural background, which we adopt for the purpose of this appeal. See
Trial Court Opinion, 11/03/16, at 1-3.
On appeal, Woods raises the following issue for our review: “Must a
sentencing court place on the record the reasons it failed to order a
pre[-]sentence investigation report [(“PSI”)] pursuant to Pa.R.Crim.P. 702?”
Brief for Appellant at 7.1
____________________________________________
1 Although Woods framed his issue somewhat differently in his Pa.R.A.P.
1925(b) Concise Statement, we decline to find waiver on this basis. See
Pa.R.A.P. 1925(b)(3)(vii) (providing that “[i]ssues not included in the
Statement … are waived.”).
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S67024-17
Woods challenges the discretionary aspects of his sentence. See
Commonwealth v. Flowers, 950 A.2d 330, 331 (Pa. Super. 2008) (holding
that “a claim that the court erred in failing to order a PSI report raises a
discretionary aspect of sentencing of which a defendant’s right to appellate
review is exceptionally limited.”). “Challenges to the discretionary aspects of
sentencing do not entitle an appellant to review as of right.”
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). Rather,
we must consider an appellant’s brief on this issue as a petition for
permission to appeal. See Commonwealth v. Yanoff, 690 A.2d 260, 267
(Pa. Super. 1997). Prior to reaching the merits of a discretionary sentencing
issue,
[this Court conducts] 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, [see] 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, [see] 42
Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170 (citation omitted).
In the instant case, Woods filed a timely Notice of Appeal, and
included in his appellate brief a separate Rule 2119(f) statement. However,
Woods failed to properly preserve his discretionary sentencing issue at
sentencing or in a motion to reconsider and modify sentence, in compliance
with Pa.R.Crim.P. 720. Our review of the transcript of the June 28, 2013
-2-
J-S67024-17
sentencing hearing reflects that the issue was not raised at any time during
the sentencing hearing. See N.T., 6/28/13, at 1-37. Further, our review of
the docket reflects no filing of a motion to reconsider and modify sentence.
Because Woods failed to comply with the requirements to challenge the
discretionary aspects of his sentence, he failed to preserve the issue for our
review. See Moury, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/17
-3-
0024_Opinion
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Circulated 12/07/2017 04:06 PM
Firsr:��j:frsrn� J PA
NOV O 3 2016
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUN1cfr· . I I U it
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA : TRIAL DIVISION
v. CP 51-CR-0508941-2005
GREGORY WOODS, APPELLANT No. 639 EDA 2016
OPINION
This opinion addresses issues the Appellant raises by way of his reinstated direct
appellate rights. His issues have no merit for the reasons set forth below.
I. CASE HISTORY
On October 27, 2004, police arrested the Appellant and charged him with Burglary (FI),
Criminal Trespass (F2), Theft by Unlawful Taking (Ml), and Theft by Receiving Stolen
Property (Ml). On February 6, 2006, the Appellant entered an open guilty plea for Burglary
before the Honorable George W. Overton in this case and nine other cases. After the Appellant
pied, Judge Overton sentenced him to 11 Yi - 23 months incarceration followed by four years
probation on each case. Each case was to be served concurrently to one another.
On June 15, 2010, while serving Judge Overton's probationary sentence, the Appellant
was arrested on another Burglary case. 1 On February 9, 2011, the Appellant was placed on
House Arrest by the Honorable Rayford A. Means. On March 19, 2012, the Appellant entered an
open guilty plea before the Honorable Lisette Shirdan-Harris in the open burglary case, and she
deferred sentencing pending a presentence investigatory report. However, the Appellant cut off
CP-51-CR�l-2005Comm v Woods G344 A.2d 636 (Pa.Super. 1975). In Stratton, the Superior Court held
that the trial court's failure to show that the Appellant had received written notice about his
alleged probation violations as part of the probation revocation hearing violated due process, and
therefore, it reversed the Appellant's probation revocation and remanded the case for a new
revocation hearing. Id. at 569.
4
However, in our case, unlike Stratton, the Appellant did receive written notice about his
alleged probation violations. In our case, the Appellant received written notice in the Order of
Sentence as part of his revocation hearing. The Order of Sentence sets forth the Appellant's
probation violations. In this case, the Order notified the Appellant that the Burglary charge was a
violation of his probations, and listed all of the linked sentences given by Judge Overton that he
had violated. The Appellant's claim that he did not receive such notice is not supported by the
record. Therefore, the Appellant's claim is without merit.
II. The Court did not fail to serve the Appellant with notice about the revocation
bearing.
The Appellant next contends that the Court erred by failing to serve him with notice
about the revocation hearing. This claim also lacks merit because the Appellant was served with
Notice about his June 18, 2013 Gagnon II hearing on June 7, 2013.
In Com. v. Davis, 336 A.2d 616, 620 (Pa.Super. 1975), the Pennsylvania Superior Court
determined that Gagnon v. Scarpelli, 411 U.S. 778 (1973) requires that minimum due process be
accorded to a probationer because revocation of probation entails a loss of liberty. Gagnon
established that minimum due process required a two step revocation procedure: "a parolee is
entitled to two hearings, one a preliminary hearing at the time of his arrest and detention to
determine whether there is probable cause to believe that he has committed a violation of his
parole, and the other a somewhat more comprehensive hearing prior to the making of a final
revocation decision." Gagnon at 781-782. The Superior Court in Davis determined that "it will
be convenient to refer to the 'preliminary hearing' to which a parolee or probationer is entitled as
a 'Gagnon I hearing,' and to the second 'somewhat more comprehensive hearing' as a 'Gagnon
If hearing.'" Davis at 620-621.
5
Minimum standards of Due Process require that an Appellant be given written notice
about his revocation hearing prior to the actual hearing. Commonwealth v. Ziegler, 286 A.2d 26,
(Pa. Super. 1981 ). In Ziegler, the record was silent as to whether the Appellant received written
notice about his revocation hearing. Id. at 30. Therefore, the Superior Court reversed the
Appellant's probation revocation and remanded the case for an evidentiary hearing to determine
whether the Appellant received proper notice. Id.
In our case, the Appellant alleges that he was not served with notice about his revocation
hearing. However, the record shows that the Appellant was, in fact, served with Notice on June
7, 2013 about his Gagnon II hearing, but he refused to sign the written notice. The Appellant was
actually served with the Notice ofNSJ Hearing eleven days prior to the hearing, but there is a
handwritten note on the document indicating that he refused to sign. The Appellant cannot now
argue that he was not properly notified about the hearing when he refused to sign the written
notice. Moreover, the docket itself also reflects that on June 7, 2013, the Appellant was notified
about his June 18, 2013 Gagnon II hearing date.'? Therefore, the Appellant's claim that he was
not properly notified about his revocation hearing is factually incorrect.
III. The Court did not fail to hold a Gagnon I hearing.
The Appellant further claims that the Court erred by failing to hold a Gagnon I hearing.
However, the Court held a Gagnon I hearing on June 7, 2013, when the Appellant was present.
When a probationer is detained pending a Gagnon II (or revocation) hearing, Due Process
requires that a preliminary or Gagnon I hearing be scheduled to determine whether probable
cause exists that a violation has been committed. Commonwealth v. Ferguson, 761 A.2d 61� (Pa.
Super. 2000). At the Gagnon I hearing, the probationer is entitled to notice about the alleged
JO Criminal Docket for CP-5 l-CR-0311411-2004, p.21.
6
probationary violations, an opportunity to appear and to present evidence on his own behalf, a
conditional right to confront adverse witnesses, an independent decision-maker, and a written
report of the hearing. Id. at 617. Where the Commonwealth has shown that there is probable
cause to believe an Appellant committed a probation violation, a second hearing is required to
determine whether a judge should revoke an Appellant's probation. Id.
Under 42 Pa.C.S. § 9771(d), "there shall be no revocation or increase of conditions of
sentence ... except after a hearing at which the court shall consider the record of the sentencing
proceeding together with the evidence of the conduct of the defendant on probation." Under Pa.
R. Crim. P. 708(B)(1 ), "the judge shall not revoke such probation ... unless there has been a
hearing held as speedily as possible at which the defendant is present and represented by
counsel." Both the Pennsylvania Rules of Criminal Procedure and the Pennsylvania Statute§
9771 require an initial hearing, which the courts refer to as a Gagnon I hearing.
In this case, the Appellant asserts that he was not given a Gagnon I hearing. This is
incorrect. The Court held a Gagnon I hearing on June 7, 2013, and the Appellant was present for
this hearing. The Criminal Docket for CP-51-CR-0508941-2004 shows that his Gagnon I
Hearing took place on June 7, 2013 at 9:00arn in room 888 before Trial Commissioner Richard
T. Mcsorley. The Appellant, who had been in custody since May 30, 2013, was brought down
for the hearing. Therefore, this claim is without merit.
IV. The Court did not err in sentencing the Appellant without conducting a
presentence investigation.
The Appellant's final issue is that the Court erred by sentencing the Appellant without a
presentence investigation or report about the Appellant's conduct while on probation. This claim
is disingenuous.
7
A sentencing judge who presides over a revocation hearing has discretion whether to
order a presentence investigative report. Commonwealth v. Carillo-Diaz, 64 a.2d 722, 725 (Pa.
Super. 2013). At the very least, the judge must have sufficient information about the Appellant's
violations and character. Id. This requirement ensures that the Appellant is judged based on his
violations, personal history, and background. Id. at 726. The information the judge considers
could include a description of the offense and the circumstances surrounding it; a full description
of any prior criminal record; a description of the Appellant's education and employment
backgrounds; a social history; the Appellant's medical history; information about the
environments to which the Appellant might return; supplementary reports from climes,
institutions, or other social agencies with which the Appellant has been involved; and
recommendations regarding the sentence. Id.
Under Pa. Crim. P. 702(A)(l), "the sentencing judge [in a revocation matter] may, in the
judge's own discretion, order a presentence investigation report" to familiarize himself with an
Appellant's history. Nevertheless, this rule is not mandatory.
In this case, the court did not order a presentence investigative report because it was very
familiar with the Appellant's personal and criminal history. On December 16, 2003, the
Appellant was arrested and charged in an unrelated case. 11 Judge Hill presided over the waiver
trial on July 21, 2004, and found the Appellant guilty of Criminal Mischief, Carrying Firearms in
Public, and Carrying Firearms Without a License. On October 7, 2004, after reviewing a
presentence investigative report, the court sentenced him to 3 years probation for Carrying
Firearms in Public and Carrying Firearms without a License with no further penalty for Criminal
IIMC-5 J-CR-J 217611-2003. The Appellant was charged with Attempted Burglary, Carrying Firearms without a
License, Carrying Firearms in Public, Criminal Mischief, Attempted Theft by Unlawful Taking, Criminal Trespass,
and Criminal Conspiracy. All charges were held for court on March 31, 2004 and the case became CP-51-CR-
0311411-2004.
8
Mischief. On October 27, 2004, the Appellant was arrested for the current Burglary case, and
that case, along with the nine other cases, were adjudicated before Judge Overton. On February
10, 2006, Judge Hill then presided over the Appellant's violation of probation (VOP) hearing for
his gun offenses and resentenced the Appellant to 11 \4-23 months incarceration followed by 2
years probation for Carrying a Firearm Without a License with no further penalty for Carrying
Firearms in Public and Criminal Mischief.
At the June 28, 2013 VOP hearing for his gun offenses, the court heard from the
Appellant, the Commonwealth's attorney, the probation officer, the defense attorney, and the
Appellant's step-father. At this hearing, the Court learned that the Appellant had been gainfully
employed, obtained a GED, 12 had a child on the way, had ill parents, 13 came from a poor
economic background, and lacked resources.14 The Appellant's probation officer" also
suggested that the Appellant did not want to change.16 Finally, the Commonwealth'? argued that
the Appellant was a smart and scheming criminal. 18 From all this information, the court was
familiar with the Appellant's social, familial, criminal, employment, educational, and financial
background as well as the recommendations made by his probation officer and the attorneys.
Hence, even though the court did not order a presentence report for the revocation hearing, it was
well familiar with the Appellant's background. Therefore, this last claim is also unpersuasive.
12 Notes of Testimony dated June 28, 2013, p.14.
13 Id. at p.16.
14
Id. at p.24.
15 James
Kelly
16
Id. at p. 17.
17
Damoun Delaviz, Esq.
18
Id. at p.20.
9
CONCLUSION
The Appellant contends that the Court erred in four ways, but each contention lacks
merit. The Appellant's first assertion that the Court erred by failing to provide him with written
notice about his probation violations lacks merit because he received written notice about his
violations in the Order of Sentence that was part of the June 28, 2013 revocation hearing. The
Appellant's second contention that the Court failed to notify him about the revocation hearing
lacks merit because (as the docket reflects) he was served with written notice on June 7, 2013
about the hearing. Moreover, the Appellant refused to sign the notice. The Appellant's third
claim that the Court erred by failing to hold a Gagnon I hearing is disingenuous because (as the
docket also reflects) the Court held a Gagnon I hearing on June 7, 2013. Furthermore, the
Appellant was present at the Gagnon I hearing. Finally, the Appellant's assertion that the Court
erred by sentencing him at the VOP hearing without the benefit of a presentence investigative
report is not persuasive. A court is not required to order a presentence investigative report if it
can make an informed decision without such a report. In our case, the Court was well familiar
with the Appellant's overall social and criminal history, and oral reports were given at the bar of
the court from a variety of individuals. For these reasons, this court respectfully submits that the
Appellant's claims should be rejected.
By the Court,
10