Com. v. Rhody, M. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MICHAEL RHODY, : No. 419 WDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, February 11, 2015,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0011813-2011
BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 12, 2016
Michael Rhody appeals from the judgment of sentence entered by the
Court of Common Pleas of Allegheny County on February 11, 2015, following
revocation of his probation. We are constrained to vacate appellant’s
judgment of sentence and remand for resentencing.
The record reflects that from May 12, 2011 through July 27, 2011,
appellant, then 49 years old, communicated on the internet and through a
webcam with an undercover investigator who appellant believed to be a
14-year-old girl. These communications resulted in appellant being arrested
and charged with two counts of unlawful contact with minor, one count of
criminal use of a communication facility, one count of criminal solicitation,
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and one count of criminal attempt.1 In a negotiated plea, the
Commonwealth agreed to withdraw the criminal solicitation charge, and
appellant agreed to plead guilty to the remaining charges. On April 2, 2012,
the sentencing court sentenced appellant to one year of electronic
monitoring with a concurrent seven-year term of probation on the unlawful
contact with minor charge. The sentencing court assessed no further
penalty with respect to the remaining charges. Following a status
conference on April 26, 2012, the sentencing court entered an order that
amended appellant’s sentence and sentenced him to a seven-year term of
probation.
Following a probation-violation hearing on July 15, 2013, the
sentencing court revoked appellant’s probation because, among other
things, appellant had violated the terms of his probation by viewing
pornography, having contact with minors, failing to participate in therapy,
and initiating an altercation with his probation officer. The sentencing court
then sentenced appellant to 10 to 20 months’ incarceration, followed by
6 months of electronic monitoring and 5 years’ probation.
On February 11, 2015, the sentencing court held another
probation-violation hearing, during which the court revoked appellant’s
probation, and sentenced him to 5 to 10 years’ incarceration.
1
18 Pa.C.S.A. §§ 6318(a)(1) and (a)(4), 18 Pa.C.S.A. § 7512(a),
18 Pa.C.S.A. § 902(a), and 18 Pa.C.S.A. § 901(a), respectively.
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On February 24, 2015, appellant filed a motion to reconsider sentence,
which the sentencing court denied. On March 12, 2015, appellant then filed
a notice of appeal to this court. The sentencing court ordered appellant to
file a concise statement of matters complained of on appeal in accordance
with Pa.R.A.P. 1925(b). Appellant complied, and the sentencing court
addressed the merits of appellant’s claims in its Pa.R.A.P. 1925(a) opinion.
Appellant raises the following two issues for our review:
I. In revoking [appellant’s] probation and
sentencing him to a sentence of total
confinement of 5-10 years[’] state
incarceration, whether the [sentencing] court
abused its sentencing discretion when
[appellant] committed only technical violations
of probation and the requirements of
42 Pa.C.S.A. § 9721(b) and 42 Pa.C.S.A.
§ 9725 were not met?
II. In revoking [appellant’s] probation and
sentencing him to a state sentence of total
confinement of 5-10 years[’] incarceration,
whether the [sentencing] court abused its
sentencing discretion when it failed to order a
pre-sentence investigation report or conduct
an appropriate colloquy at the probation-
violation hearing, and it also relied on
misinformation in imposing sentence?
Appellant’s brief at 5 (footnotes omitted).
Appellant challenges the discretionary aspects of his sentence.
To reach the merits of a discretionary sentencing
issue, we conduct a four-part analysis to determine:
(1) whether Appellant has filed a timely notice of
appeal; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider
and modify sentence; (3) whether Appellant’s brief
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has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from
is not appropriate under the sentencing code.
Commonwealth v. Bromley, 862 A.2d 598, 603 (Pa.Super. 2004).
We must first decide whether appellant’s claims are properly before us.
Where an appellant challenges the discretionary aspects of sentencing,
appellant must raise the claim in a post-sentence motion or during the
sentencing proceedings. Commonwealth v. Mann, 820 A.2d 788, 794
(Pa.Super. 2003).
Here, the sentencing court revoked appellant’s probation and
sentenced him on February 11, 2015. Trial counsel filed a timely notice of
appeal, but did not object at sentencing. As for his post-sentencing motion,
appellant concedes that the certificate of service attached to his motion is
dated February 18, 2015, but that the document is time stamped as having
been filed of record on February 24, 2015. (Appellant’s brief at 13 n.5.)
The sentencing court, however, accepted appellant’s motion for filing and
then denied it. Appellant then filed a timely notice of appeal to this court
and raised the discretionary aspects of his sentence in his Rule 1925(b)
statement. Thereafter, in its Rule 1925(a) opinion, the sentencing court
acknowledged appellant’s post-sentence motion as timely filed and then it
addressed the merits of appellant’s issues. (Sentencing court opinion,
7/21/15 at 2-4.) In its brief, the Commonwealth raised appellant’s
untimeliness, but then addressed appellant’s claims and suggested that we
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address them in the interests of judicial economy because if we find waiver,
appellant will merely raise the claims in a Post Conviction Relief Act 2 petition.
Because the sentencing court deemed appellant’s post-sentence
motion as timely and addressed the merits of appellant’s challenges to the
discretionary aspects of sentence in its Rule 1925(a) opinion, and because
the Commonwealth also addressed the merits of appellant’s claims in its
brief, we find that appellant’s claims are properly before us.
Sentencing is a matter vested in the sound discretion
of the sentencing judge, whose judgment will not be
disturbed absent an abuse of discretion. Appellant
challenges the discretionary aspects of sentencing
for which there is no automatic right to appeal. This
appeal is, therefore, more appropriately considered a
petition for allowance of appeal. Two requirements
must be met before a challenge to the judgment of
sentence will be heard on the merits. First, the
appellant must set forth in his brief a concise
statement of reasons relied upon for allowance of
appeal with respect to the discretionary aspects of
his sentence. Second, he must show that there is a
substantial question that the sentence imposed is not
appropriate under the Sentencing Code.
The determination of whether a particular issue
raises a substantial question is to be evaluated on a
case-by-case basis.
Bromley, 862 A.2d at 604 (citation omitted).
Appellant has set forth a concise statement of reasons relied upon for
allowance of appeal with respect to the discretionary aspects of his sentence
pursuant to Pa.R.A.P. 2119(f). Moreover, it is within the scope of our review
2
42 Pa.C.S.A. §§ 9541-9546.
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to consider challenges to the discretionary aspects of sentence in an appeal
following a probation revocation. Commonwealth v. Ferguson, 893 A.2d
735, 737 (Pa.Super. 2006). “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. Simmons, 56 A.3d 1280, 1283 (Pa.Super.
2012) (citation omitted). “When assessing whether to revoke probation, the
trial court must balance the interests of society in preventing future criminal
conduct by the defendant against the possibility of rehabilitating the
defendant outside of prison.” Id. at 1284 (citation omitted).
Here, appellant’s challenge focuses upon the trial court’s failure to
order a pre-sentencing investigation report (“PSI”) and the trial court’s
failure to conduct an appropriate colloquy at the sentencing hearing. This
challenge presents a substantial question. See Commonwealth v. Kelly,
33 A.3d 638, 640 (Pa.Super. 2011) (“[A]n appellant’s allegation that the
trial court imposed sentence without considering the requisite statutory
factors or stating adequate reasons for dispensing with a pre-sentence
report [raises] a substantial question.”).
At the outset, we note that based upon our review of the record before
us, we are unable to determine what “technical violations” necessitated
appellant’s February 11, 2015 probation-violation hearing. Although
probation officer Heather Bradford testified that “[d]ue to [appellant’s]
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technical violations, we are recommending that his probation be revoked,”
she stated that she is not appellant’s probation officer, and that after
speaking with her supervisor prior to the February 11, 2015 hearing, her
understanding as to why revocation was recommended was that appellant
“had a history of passive aggressiveness.” (Notes of testimony, 2/11/15 at
2-3.) Ms. Bradford then testified to an incident involving another probation
officer that resulted in appellant’s probation being revoked on July 15, 2013.
(Id. at 3.) Ms. Bradford never definitively articulated what “technical
violations” necessitated the subject probation-violation hearing. Although
she testified that appellant assaulted a resident at a halfway house, she then
testified that simple assault charges filed against appellant in connection
with that incident were withdrawn on December 3, 2014. (Id. at 3.)
Ms. Bradford offered no further testimony concerning that alleged incident.
Therefore, we are unable to discern what “technical violations” necessitated
the probation-violation hearing that is the subject of this appeal.
Additionally, at the subject hearing, the record reflects that the
sentencing court addressed previous hearings that it held in connection with
appellant and this case, as follows:
THE COURT: Mr. Rhody, this is our sixth hearing,[ 3]
and I have done whatever I could within my power
to get you on the straight and narrow to get you to
comply with the terms and conditions of your
3
The record reflects that the probation-revocation hearing that is the
subject of this appeal was the fourth hearing that appellant had before the
sentencing court.
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probation. I have been supervising you over two
years. Well, it’s been almost three years. I
originally sentenced you and allowed you to live in
Westmoreland County. As a result, one of the
sheriffs found you were living in a communal type of
situation where there were many children around,
and there were many houses very close, and this
was in spite of the fact that you knew you weren’t to
have any contact with minors.
We had a hearing because you apparently decided
you were going to go on a camping trip to Dubois,
and you did this when you weren’t allowed to leave
the jurisdiction. You failed two polygraphs, and the
polygraphs indicated you had contact with minors
against the terms and conditions of your probation,
and that you had used the internet, and you were
drinking. On top of all of that, you weren’t
participating in therapy.
Id. at 4-5. The conduct of appellant described by the sentencing court in
the above colloquy, however, constituted the reasons why the sentencing
court revoked appellant’s probation and sentenced him to 10 to 20 months’
incarceration in a prior proceeding that took place on July 15, 2013. With
respect to the instant probation revocation and sentencing hearing, the
sentencing court merely stated:
THE COURT: You were in alternative housing at
Remnant House, and you got in a fight there, and
you were thrown out.[4] You have been
incarcerated, and you are in total noncompliance
with your probation. This is my sixth hearing.[5]
4
Nothing in the record demonstrates that appellant was “thrown out” of
alternative housing.
5
Again, the record reflects that the probation-revocation hearing that is the
subject of this appeal was the fourth hearing that appellant had before the
sentencing court.
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You have worn me out. I can’t supervise you
[anymore]. Somebody else has to do it. For the
reasons I have stated at the CC 201111813, I revoke
your probation and order you to serve five to ten
years at the State Correctional Institution at Camp
Hill, with credit for the time you have served on this
case.
Id. at 6.
The above colloquy fails to satisfy Pa.R.Crim.P. 702.6 Although a
sentencing court may dispense of a PSI, it must place its reasons for doing
6
Rule 702. Aids in Imposing Sentence
(A) Pre-sentence Investigation Report
(1) The sentencing judge may, in the judge’s
discretion, order a pre-sentence
investigation report in any case.
(2) The sentencing judge shall place on the
record the reasons for dispensing with
the pre-sentence investigation report if
the judge fails to order a pre-sentence
report in any of the following instances:
(a) when incarceration for one
year or more is a possible
disposition under the
applicable sentencing statutes;
(b) when the defendant is less
than 21 years old at the time
of conviction or entry of a plea
of guilty; or
(c) when a defendant is a first
offender in that he or she has
not heretofore been sentenced
as an adult.
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so on the record.7 Id.; see also Commonwealth v. Flowers, 950 A.2d
330, 332-333 (Pa.Super. 2008).
Finally, technical non-compliance with Rule 702(A)(2) might be
rendered harmless when the sentencing court elicits sufficient information
during the colloquy to substitute for a PSI. Flowers, 950 A.2d at 333(citation omitted). A court’s previous contact with an appellant, however,
does not approach the level of thoroughness afforded by a properly-crafted
PSI report.8 Id.(3) The pre-sentence investigation report
shall include information regarding the
circumstances of the offense and the
character of the defendant sufficient to
assist the judge in determining sentence.
(4) The pre-sentence investigation report
shall also include a victim impact
statement as provided by law.
7
We note that in its Rule 1925(a) opinion, the sentencing court stated that it
dispensed with the PSI report because appellant waived it. The record,
however, reflects that appellant waived the PSI report in his original
sentencing hearing because of the negotiated plea and the agreement to
probation, as opposed to incarceration. (Notes of testimony, 1/4/12 at 8.)
8
A properly crafted PSI report must address at least the following factors:
(A) a complete description of the offense and the
circumstances surrounding it, not limited to
aspects developed for the record as part of the
determination of guilt;
(B) a full description of any prior criminal record of
the offender;
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(C) a description of the educational background of
the offender;
(D) a description of the employment background of
the offender, including any military record and
including his present employment status and
capabilities;
(E) the social history of the offender, including
family relationships, marital status, interests
and activities, residence history, and religious
affiliations;
(F) the offender’s medical history and, if desirable,
a psychological or psychiatric report;
(G) information about environments to which the
offender might return or to which he could be
sent should probation be granted;
(H) supplementary reports from clinics, institutions
and other social agencies with which the
offender has been involved;
(I) information about special resources which
might be available to assist the offender, such
as treatment centers, residential facilities,
vocational training services, special educational
facilities, rehabilitative programs of various
institutions to which the offender might be
committed, special programs in the probation
department, and other similar programs which
are particularly relevant to the offender’s
situation;
(J) a summary of the most significant aspects of
the report, including specific recommendations
as to the sentence if the sentencing court has
so requested.
Flowers, 950 A.2d at 333 n.2 (citations omitted).
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Indeed, this Court has held expressly that even
where repeated probation violation hearings have
rendered the sentencing judge substantially familiar
with the defendant’s criminal history, a PSI report
remains necessary. See Commonwealth v.
Carter, 336 Pa. Super. 275, 485 A.2d 802, 804 (Pa.
Super. 1984) (vacating judgment of sentence based
upon trial judge’s failure to obtain a PSI report
following second Gagnon[9] revocation hearing).
This mandate springs from the imperative of
individualized sentencing; “[e]ach person sentenced
must receive a sentence fashioned to his or her
individual needs.” Id. To achieve that objective, the
trial judge, before imposing sentence, even on a
probation or parole revocation, must actively explore
the defendant’s character and his potential response
to rehabilitation programs. See id. (admonishing
that the responsibility of a sentencing judge to
consider the character of the defendant in
conjunction with the offense “is no less urgent where
the defendant comes before the court as a probation
violator”). Indeed, given the defendant’s failure to
respond to the original sanction of probation, the
need for scrutiny of his character and underlying
social influences is arguably enhanced, confirming
the need of a current PSI report contoured to reflect
the defendant’s most recent offenses. Such a report
is invaluable to informed sentencing and cannot be
duplicated by the trial court’s “unconfirmed assertion
of familiarity with the [defendant’s] prior record[.]”
Flowers, 950 A.2d at 333-334 (citation omitted).
Here, although this court has great respect for the experience of the
learned sentencing judge, and although we can understand her frustration
with appellant, we cannot find that the record contains sufficient information
9
Gagnon v. Scarpelli, 411 U.S. 778 (1973) (due process requires
appellant to be given preliminary (Gagnon I) and final (Gagnon II) hearing
prior to revoking probation).
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to have enabled her to fashion a sentence to meet appellant’s individual
needs, to guard against recidivism, to promote rehabilitation, and to balance
the interests of society in preventing future criminal conduct by the
defendant against the possibility of rehabilitating the defendant outside of
prison. Consequently, we vacate judgment of sentence and remand for
re-sentencing on the basis of a PSI report or, alternatively, a thorough
colloquy that sets forth the information that a PSI report would otherwise
provide.
Judgment of sentence vacated. Case remanded with instructions.
Jurisdiction relinquished.
Mundy, J. joins the Memorandum.
Jenkins, J. files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2016
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