Com. v. Torres, L. ( 2015 )

J-S33024-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LUIS TORRES, :
:
Appellant : No. 1734 EDA 2014
Appeal from the Judgment of Sentence May 8, 2014,
Court of Common Pleas, Philadelphia County,
Criminal Division at No(s): CP-51-CR-0004244-2011
and CP-51-CR-0008462-2011
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and LAZARUS, JJ.
MEMORANDUM BY DONOHUE, J.: FILED JUNE 10, 2015
Luis Torres (“Torres”) appeals from the judgment of sentence entered
following the revocation of his probation. We affirm.
The trial court summarized the factual history underlying this appeal
as follows:
On June 2, 2011, [Torres] entered a negotiated plea
to possession with intent to deliver a controlled
substance (PWID) before the Honorable Joan Brown
and was sentenced to [three] years [of] probation.
On December 1, 2011, [Torres] again entered a
negotiated plea to a second PWID before Judge
Brown and received a sentence of [six to twenty-
three] months [of] incarceration plus [three] years
[of] probation. Although this was a direct violation,
probation on the first sentence was continued. It was
subsequently requested that supervision of [Torres’]
cases be transferred to the Mental Health Court. On
May 10, 2012, Judge Brown relinquished jurisdiction
and [Torres] was formally admitted into Mental
Health Court (MHC) upon his agreement to comply
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with all the conditions of MHC, treatment, and
probation/parole. As is the procedure in MHC,
[Torres] was given initial mental health and other
evaluations to determine his needs, and scheduled
for status of mental health and treatment hearings at
regular intervals to monitor his compliance and
progress. At [Torres’] June 14, 2012 status hearing,
his probation officer reported that [Torres] was not
in compliance with his treatment program, was
involved with the Latin Kings gang, was selling
drugs, and had submitted two positive drug screens.
However, despite these clear technical violations,
[Torres] received no formal sanction, but was
instead placed on increased reporting. At the June
28, 2012 status hearing [Torres] remained non-
compliant. This time [Torres] received a jury box
sanction for his technical violations. At the July 12,
2012 status hearing [Torres] was reported to be in
compliance with his program. However, at the July
19, 2012 hearing, [Torres] was again noncompliant
and received a [thirty] day custody sanction for his
technical violations. [Torres] completed his sanction
and was reported in compliance with his program at
the September 6, 2012 listing. On October 5, 2012,
the [c]ourt was informed that [Torres] had incurred
a new arrest for PWID on October 3, 2012. A
violation hearing was scheduled but was continued
pending the resolution of the open case. At the April
25, 2013 status hearing, it was reported that the
open case had been discharged and [Torres’]
probation was continued. At the May 30, 2013
status hearing, [Torres] was reported in compliance
with treatment but that he had not had contact with
his case manager. At the June 20, 2013 and July 11,
2013 status hearings, it was reported that [Torres]
had been hospitalized for seizures but was still
attending treatment. However, [Torres] failed to
appear for the August 8, 2013 status hearing. His
probation officer reported that [Torres] was not
doing well and refusing help. On November 16,
2013, [Torres] was arrested and charged with PWID
and simple possession. On December 12, 2013, the
[c]ourt ordered a forthwith mental health evaluation.
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At the April 3, 2014 hearing, [Torres] pleaded guilty
to possession in exchange for a sentence of [nine]
months [of] probation. After a violation hearing, the
[c]ourt granted the Commonwealth's motion to
revoke [Torres’] probation based on his direct and
technical violations. Sentencing on the violation was
deferred so that [Torres] could provide the [c]ourt
documentation from his physician regarding the
interactions between his medications. At the May 8,
2014, sentencing hearing, [Torres] failed to provide
the documentation. Following the arguments of both
counsel and testimony from [Torres], the [c]ourt
sentenced [Torres] to concurrent sentences of [two
to four] years [of] incarceration and made him
[b]oot [c]amp eligible. Post[-]sentence motions were
subsequently denied.
Trial Court Opinion, 9/16/14, at 1-3. This timely appeal follows, in which
Torres presents the following issue for our review: “Was not the sentence of
two to four years [of] incarceration for [a] probation violation excessive and
unreasonable?” Torres’ Brief at 4. With this claim, Torres challenges
discretionary aspects of his sentence.1 “Challenges to the discretionary
aspects of sentencing do not entitle an appellant to review as of right.”
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011) (citation
omitted).
An appellant challenging the discretionary aspects of
his sentence must invoke this Court’s jurisdiction by
satisfying a four-part test: (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
1
We note that “this Court's scope of review in an appeal from a revocation
sentencing includes discretionary sentencing challenges.” Commonwealth
v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc).
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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).
Id. (citation omitted). Torres filed a timely notice of appeal, raised this
claim in his post-sentence motion, and included a statement pursuant to
Pa.R.A.P. 2119(f) in his brief. Accordingly, we consider whether he has
presented a substantial question that his sentence is not appropriate under
the Sentencing Code.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Glass, 50 A.3d
720, 727 (Pa. Super. 2012).
A substantial question exists where an appellant
advances a colorable argument that the trial court's
actions were inconsistent with a specific provision of
the sentencing code, or contrary to the fundamental
norms underlying the sentencing process. In
determining whether a substantial question exists,
our inquiry must focus on the reasons for which the
appeal is sought in contrast to the facts underlying
the appeal, which are necessary only to decide the
appeal on the merits.
Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012)
(internal citations omitted). Furthermore, this Court may not look beyond
the content of the 2119(f) statement to determine whether the appellant has
raised a substantial question. Id.-4-
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In his Rule 2119(f) statement, Torres alleges that his “sentence is
disproportionate to the conduct at issue, and not justified by sufficient
reasons[.]” Torres’ Brief at 8. This Court has previously held that this
presents a substantial question so as to invoke our review, see
Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa. Super. 2003), and so
we will review Torres’ claim.
We begin by recognizing that
[s]entencing is a matter vested within the discretion
of the trial court and will not be disturbed absent a
manifest abuse of discretion. An abuse of discretion
requires the trial court to have acted with manifest
unreasonableness, or partiality, prejudice, bias, or
ill-will, or such lack of support so as to be clearly
erroneous.
Commonwealth v. Schutzues, 54 A.3d 86, 98-99 (Pa. Super. 2012)
(internal citations omitted). Additionally, “[a] court may revoke an order of
probation upon proof of the violation of specified conditions of the probation.
Upon revocation 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 PaC.S.A. § 9771(b). Furthermore,
in all cases where the court resentences an offender
following revocation of probation ... the court shall
make as a part of the record, and disclose in open
court at the time of sentencing, a statement of the
reason or reasons for the sentence imposed and
failure to comply with these provisions shall be
grounds for vacating the sentence or resentence and
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resentencing the defendant. A trial court need not
undertake a lengthy discourse for its reasons for
imposing a sentence or specifically reference the
statute in question, but the record as a whole must
reflect the sentencing court's consideration of the
facts of the crime and character of the offender.
Commonwealth v. Colon, 102 A.3d 1033, 1044 (Pa. Super. 2014)
(internal citations omitted).
Torres argues that his sentence was excessive in light of the nature of
his probation violation and the fact that this was his first violation. Torres’
Brief at 13. He compares his situation with Parlante, arguing that if the
sentence in that case, “for a probationer who had violated her probation six
times, was deemed excessive at a maximum of eight years, surely [] Torres’
first violation of probation sentence should not mandate four years of
incarceration.” Id.The very premise of Torres’ argument – that this is his first probation
violation – is faulty. It is clear from the record that the violation that led to
the revocation of his probation was not an isolated or unique event. It is
notable that in making his argument, Torres does not acknowledge the
number and nature of his many probation violations, as detailed in the trial
court’s recitation of the facts above and as supported by the evidence of
record. See N.T., 5/8/14, at 8-10.
Torres does not present argument regarding the second aspect of the
claim he presented in his Rule 2119(f) statement: that the trial court did not
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place sufficient reasons for the sentence imposed on the record. As such,
this argument is waived. See Commonwealth v. Hunzer, 868 A.2d 498,
516 (Pa. Super. 2005); Pa.R.A.P. 2119. Nonetheless, we note that our
review of the record reveals that the trial court satisfied its obligation to
state the reasons for the sentence. See Colon, 102 A.3d at 1044. It
stated,
Mr. Torres, you are a young individual who has a
lifetime ahead of him. You have so many
opportunities available to you and I know when one
is young sometimes we make very stupid mistakes
because we really don’t understand all the
consequences that are going to occur because of our
actions.
But, as I review your history I do believe that the
non-reporting, the testing positive, failing to appear
for court and your basic refusal to comply with all
the conditions of mental health court and of course a
direct violation with the new case, all of which
indicates that you are not willing to follow the rules
or regulations of this [c]ourt and so in order to
vindicate the authority of this [c]ourt, protect the
public, I do think that … a sentence of incarceration
in the state in necessary.
I will say, what I really believe will help you in terms
of responsibility is [b]oot [c]amp, and what I’m
going to do is sentence you on the violation matters
to [two] to [four] years of incarceration. I’ll make
you eligible for [b]oot [c]amp, you’ll receive credit
for all times served.
N.T., 5/8/14, at 13-14. Having found no merit to Torres’ claims, we affirm
the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2015
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