Com. v. Richardson, D. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DEMETRIUS RICHARDSON, : No. 1414 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, July 29, 2014,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0015188-2009
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: September 16, 2016
Demetrius Richardson appeals the judgment of sentence entered by
the Court of Common Pleas of Allegheny County as a result of his conviction
for indecent assault of a person less than 13 years of age, 18 Pa.C.S.A.
§ 3126(a)(7), corruption of minors, 18 Pa.C.S.A. § 6301(a)(1), and for
violation of his probation.
The facts, as recounted by the trial court, are as follows:
[Appellant] was charged with Rape of a Child,
Involuntary Deviate Sexual Intercourse with a Child,
Aggravated Indecent Assault of a Child, Unlawful
Contact with a Minor, Indecent Assault of a Person
* Retired Senior Judge assigned to the Superior Court.
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Under 13 and Corruption of Minors.[1] On
September 7, 2010, [appellant] appeared before this
Court and, pursuant to a plea agreement with the
Commonwealth, pled guilty to the Indecent Assault
and Corruption of Minors charges and the remaining
charges were withdrawn. Per the agreement, he was
immediately sentenced to time served plus a
three (3) year term of probation. No Post-Sentence
Motions were filed and no direct appeal was taken.
On February 26, 2013, [appellant] appeared
before this Court for a probation violation hearing for
the technical violations of failing to register as a sex
offender and for positive drug tests. This Court
revoked [appellant’s] probation and imposed an
additional term of probation of five (5) years. No
Post-Sentence Motions were filed and no direct
appeal was taken.
On June 26, 2013, [appellant] filed a pro se
Post Conviction Relief Act Petition. Scott Coffey,
Esquire, was appointed to represent [appellant], but
he submitted a Turner “no-merit” letter and
requested permission to withdraw. This Court
granted counsel’s Motion and, after giving the
appropriate notice, dismissed the Petition without a
hearing on October 3, 2013. [Appellant] filed a
direct appeal, but it was eventually dismissed on
June 11, 2014 for his failure to file a brief.
[Appellant] next appeared before this Court on
July 29, 2014 for a probation violation hearing.
Upon finding that [appellant] was in technical
non-compliance and also that he had a new
conviction, this Court revoked [appellant’s] probation
and imposed a term of imprisonment of three (3) to
six (6) years. His subsequent Motion to Reconsider
1
18 Pa.C.S.A. § 3121(c) (two counts), 18 Pa.C.S.A. § 3123(c) (one count)
and 18 Pa.C.S.A. § 3123(b) (three counts), 18 Pa.C.S.A. § 3125(b) (two
counts), 18 Pa.C.S.A. § 6318(a)(1) (two counts), 18 Pa.C.S.A. § 3126(a)(7),
and 18 Pa.C.S.A. § 6301(a)(1), respectively.
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Sentence[2] was timely filed and was denied on
August 5, 2014. This appeal followed.
Trial court opinion, 4/28/15 at 1-2 (footnote omitted).
The trial court explained its reasoning for the sentence:
At the time of the plea, this Court noted that
the maximum sentence for Indecent Assault was
seven (7) years and the maximum sentence for
Corruption of Minors was five (5) years. (Plea
Hearing Transcript, p. 3-4). At the revocation
hearing, this Court imposed a term of imprisonment
of three (3) to six (6) years, which sentence was well
below the maximum sentence available.
Additionally, prior to imposing sentence, this
Court placed its reasons for doing so on the record.
It stated:
THE COURT: Okay, [appellant], we’ve
been together for four years, and I have
done everything but stand on my head to
try to give you the ability to rehabilitate
yourself and make something of your
life. I’m just going to hit some of the
highlights. There is a presentence report
that was prepared.
First of all, your original crime, you
sexually assaulted a thirteen-year-old
child at least three times. You violated a
position of trust. As I remember, this
was a neighbor perhaps, or a relative.
The entire time that you’ve been
supervised by me, you’ve been positive
off and on for drugs. You have enough
money to go out and buy drugs but just
not quite enough money to pay the
awarded court costs or anything. You
2
In the motion, appellant asserted that his sentence was excessive because
he did not commit a new offense involving crimes against persons and his
technical violations did not warrant a state sentence.
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failed to report. In fact, one time they
came to the door and you said you were
not who you are. They found you to be
someone else. You used a false
identification. You do not live at the
address that you gave us. You are
arrested for failure to register. We
referred you to the Day Reporting
Center. You failed to appear. Your
failure to register per Megan’s Law was
nolle prossed, and what did you do? Let
me guess. You failed to register again
and you’ve been convicted of that second
crime. In February of 2013 I did give
you about your fifth chance and gave
you a new probation, but again you’re in
technical noncompliance, you are a
convicted violator, and you have a
number of other minor arrests.
(Probation Violation Hearing Transcript, July 29,
2014, p. 8-9).
As demonstrated by the record, this Court
clearly placed ample reasons for its sentence on the
record. The sentence imposed was well beneath the
maximum sentence available at the time of the initial
sentencing and therefore, was legal. The sentence
imposed was not in violation of the Sentencing
Guidelines, either due to its length or the reasons
contained in the record for its imposition. The
sentence was legal and did not constitute an abuse
of discretion. Therefore, this claim must fail.
Trial court opinion, 4/28/15 at 3-4.
Appellant raises the following issue for this court’s review:
In revoking [appellant’s] probation and resentencing
him to a sentence of total confinement of
3-6 years[’] state incarceration, whether the trial
court abused its sentencing discretion when the
requirements of 42 Pa.C.S.A. § 9721 (Sentencing
Generally) were not met?
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Appellant’s brief at 5.
Our standard of review is well-settled:
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, or the result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Swope, 123 A.3d 333, 340 (Pa.Super. 2015), quoting
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, “the sentencing
alternatives available to the court shall be the same
as were available at the time of initial sentencing,
due consideration being given to the time spent
serving the order of probation.” 42 Pa.C.S.
§ 9771(b). Thus, upon revoking probation, the trial
court is limited only by the maximum sentence that
it could have imposed originally at the time of the
probationary sentence, although once probation has
been revoked, the court shall not impose a sentence
of total confinement unless it finds that:
(1) the defendant has been convicted of
another crime; or
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(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. § 9771(c).
Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014). We also note
that the sentencing guidelines do not apply to sentences imposed as the
result of probation revocations. Id. at 27 (citations omitted).
An appellant wishing to appeal the discretionary
aspects of a probation-revocation sentence has no
absolute right to do so but, rather, must petition this
Court for permission to do so. [Commonwealth v.
Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)];
42 Pa.C.S.A. § 9781(b). Specifically, the appellant
must present, as part of the appellate brief, a
concise statement of the reasons relied upon for
allowance of appeal. Malovich, 903 A.2d at 1250;
Pa.R.A.P. 2119(f). In that statement, the appellant
must persuade us there exists a substantial question
that the sentence is inappropriate under the
sentencing code. Malovich, 903 A.2d at 1250;
Pa.R.A.P. 2119(f).
Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.Super. 2008).
In general, an appellant may demonstrate the
existence of a substantial question by advancing a
colorable argument that the sentencing court’s
actions were inconsistent with a specific provision of
the sentencing code or violated a fundamental norm
of the sentencing process. Malovich, 903 A.2d at
1252. While this general guideline holds true, we
conduct a case-specific analysis of each appeal to
decide whether the particular issues presented
actually form a substantial question. Id. Thus, we
do not include or exclude any entire class of issues
as being or not being substantial. Id. Instead, we
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evaluate each claim based on the particulars of its
own case. Id.
Id. at 289-290.
Appellant included a Rule 2119(f) statement in his brief, in which he
avers that even though he expressed his sincere remorse for violating
probation and failing to comply with registration requirements, took
significant steps to rehabilitate himself, and demonstrated that he could
become a productive, law-abiding member of society, the trial court was not
swayed by his testimony and his plea for mercy as well as the fact that he
cared for his mother after she suffered two heart attacks. (Appellant’s brief
at 16-17.) Appellant does not deny that he was convicted of another crime.
The trial court stated that it received a pre-sentence investigation
report. “[W]here the trial court is informed by a pre-sentence report, it is
presumed that the court is aware of all appropriate sentencing factors and
considerations[.]” Commonwealth v. Ventura, 975 A.2d 1128, 1135
(Pa.Super. 2009). As a result, the trial court was aware of appellant’s
efforts to obtain education, his efforts to care for his mother after her heart
attacks, and his expression of remorse in court. The only possible violation
of the Sentencing Code mentioned by appellant is the court’s failure to
consider appellant’s character and personal history. It is presumed that the
trial court did so. Further, allegations that a sentencing court failed to
consider certain factors does not constitute a substantial question.
Commonwealth v. Petaccio, 764 A.2d 582, 587 (Pa.Super. 2000). This
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court concludes that appellant failed to establish a substantial question that
the trial court’s decision violated the Sentencing Code or a fundamental
norm of the sentencing process. As a result, this court need not consider
the merits of appellant’s argument.3
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2016
3
Where the appellant claims the trial court failed to consider certain factors
and impose an individualized sentence, it can raise a substantial question.
See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.Super. 2015).
On the other hand, “this court has held on numerous occasions that a claim
of inadequate consideration of mitigating factors does not raise a substantial
question for our review.” Commonwealth v. Matroni, 923 A.2d 444, 455
(Pa.Super. 2007).
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