Com. v. Lazovi, M. ( 2014 )

J. S71042/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
MATTHEW JOHN LAZOVI, :
:
Appellant : No. 1064 MDA 2014
Appeal from the Judgment of Sentence June 16, 2014
In the Court of Common Pleas of Schuylkill County
Criminal Division No(s).: CP-54-CR-0001222-2008
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 12, 2014
Appellant, Matthew John Lazovi, appeals from the judgment of
sentence entered in the Schuylkill County Court of Common Pleas following
the revocation of his probation. He challenges the trial court’s reasoning for
imposing the revocation sentence. We affirm.
We adopt the facts set forth by the trial court’s opinion. See Trial Ct.
Op., 7/22/14, at 1-2. We note that on May 21, 2009, Appellant entered a
negotiated guilty plea to, inter alia, two counts of statutory sexual assault
and was sentenced to two to four years’ imprisonment followed by five
years’ probation. Id. at 1. On June 16, 2014, Appellant stipulated to
*
Former Justice specially assigned to the Superior Court.
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violating his probation for, inter alia, marijuana use and failure to complete
sex offender treatment. Id. at 2. On June 16, 2014, the court imposed a
revocation sentence of six months to five years’ imprisonment and two
years’ probation.
Appellant timely appealed. On June 25, 2014, the court ordered
Appellant to comply with Pa.R.A.P. 1925(b) within twenty-one days, which
was July 16, 2014. Appellant filed an untimely Rule 1925(b) statement on
Friday, July 18, 2014,1 raising the following issue: “At [Appellant’s]
probation violation hearing, the sentencing court abused its discretion by
resentencing [Appellant] to a state prison sentence instead of affording him
the opportunity to attend an inpatient mental health rehabilitation center.”
Appellant’s Pa.R.A.P. 1925(b) Statement, 7/18/14.
In his appellate brief, Appellant raises the following issue: “Whether
the sentence imposed was excessive to the degree that it amounted to an
abuse of discretion?” Appellant’s Brief at 4. In support of his issue,
Appellant argues that the court should have imposed a county sentence. Id.
at 9. He maintains the sentence does not adequately address his
rehabilitative needs. Appellant notes his “desire to spend time in a state
1
We decline to find waiver, however. See Pa.R.A.P. 1925(c)(3);
Commonwealth v. Britt, 83 A.3d 198, 203 (Pa. Super. 2013) (holding
untimely filing of Rule 1925(b) statement by counsel is per se ineffective
assistance of counsel).
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mental hospital” and claims the court made no effort to place him in a
hospital. Id. at 10. We hold Appellant is not entitled to relief.
“[T]he scope of review in an appeal following a sentence imposed after
probation revocation is limited to the validity of the revocation proceedings
and the legality of the sentence imposed following revocation.”
Commonwealth v. Infante, 888 A.2d 783, 790 (Pa. 2005) (citation
omitted). “[I]t is now accepted that it is within our scope of review to
consider challenges to the discretionary aspects of an appellant’s sentence in
an appeal following a revocation of probation.” Commonwealth v.
Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006).
[T]he reason for revocation of probation need not
necessarily be the commission of or conviction for
subsequent criminal conduct. Rather, this Court has
repeatedly acknowledged the very broad standard that
sentencing courts must use in determining whether
probation has been violated:
A probation violation is established whenever it is
shown that the conduct of the probationer indicates
the probation has proven to have been an ineffective
vehicle to accomplish rehabilitation and not sufficient
to deter against future antisocial conduct.
Furthermore, when the basis for revocation arises from the
advent of intervening criminal conduct, a VOP hearing may
be held prior to any trial arising from such criminal
conduct.
Infante, 888 A.2d at 791 (citations omitted).
To be reviewed on the merits, a challenge to the
discretionary aspects of sentence must raise a substantial
question that the sentence imposed is not appropriate. A
substantial question is raised when the appellant advances
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a “colorable argument” that the sentence was either
“inconsistent with a specific provision of the Sentencing
Code” or “contrary to the fundamental norms which
underlie the sentencing process.” This Court determines
whether an appellant has raised a substantial question by
examination of the appellant’s concise statement of the
reasons relied upon for allowance of appeal, which must be
included in the appellant’s brief, pursuant to Pennsylvania
Rule of Appellate Procedure 2119(f). If a Rule 2119(f)
statement is not included in the appellant’s brief and the
appellee objects to the omission, then this Court is
precluded from reviewing the merits of the appellant’s
claim.
Commonwealth v. Faulk, 928 A.2d 1061, 1071-72 (Pa. Super. 2007)
(citations omitted).
[T]he Rule 2119(f) statement must specify where the
sentence falls in relation to the sentencing guidelines and
what particular provision of the Code is violated (e.g., the
sentence is outside the guidelines and the court did not
offer any reasons either on the record or in writing, or
double-counted factors already considered). Similarly, the
Rule 2119(f) statement must specify what fundamental
norm the sentence violates and the manner in which it
violates that norm (e.g., the sentence is unreasonable or
the result of prejudice because it is 500 percent greater
than the extreme end of the aggravated range.).
Commonwealth v. Googins, 748 A.2d 721, 727 (Pa. Super. 2000) (en
banc).
Instantly, Appellant’s Rule 2119(f) statement complies with Googins,
supra, and his claim that his sentence violates one of the fundamental
norms underlying the sentencing process raises a substantial question. See
Faulk, 928 A.2d at 1071-72. Accordingly, we address the merits. After
careful review of the record, the parties’ briefs, and the opinion of the
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Honorable John E. Domalakes, we affirm on the basis of the trial court’s
opinion. See Trial Ct. Op. at 1-3 (holding Appellant’s probation violations
and failure to complete sex offender treatment justified sentence). We
therefore affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2014
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Circulated 11/19/2014 03:22 PM
COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY - CRIMINAL
COMMONWEALTH OF PENNSYLVANIA NO. 1222 - 2008
v.
MATTHEW LAZOVI
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AND NOW, this 22 nd day of July, 2014, it is'tlereby ORDERED thafthe ~rk of;
Courts of Schuylkill County transmit the record papers of the within proceeding, together
with the Opinion of this Court to the Pennsylvania Superior Court.
Circulated 11/19/2014 03:22 PM
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Defendant has appealed a resentence imposed upon him after his probation was
revoked. In his Statement of Matters Complained of on Appeal, he alleges that the
sentencing court abused its discretion by resentencing the Defendant to a state prison
sentence instead of affording him an opportunity to attend an inpatient mental health
rehabilitation center.
The Defendant pled guilty and was sentenced via a negotiated plea on May 21,
2009. His offenses were sexual in nature. He was sentenced to two (2) to four (4)
years on two (2) Statutory Sexual Assault counts. The victims were minor females who
were twelve (12) and fourteen (14) years of age respectively. The Defendant was
twenty (20) years of age and, therefore, more than four (4) years older than the victims.
Those sentences had expired. He was also sentenced to five (5) additional years of
probation, consecutive to the prison sentence, on Corruption of Minors and Indecent
Assault counts. On June 16, 2014, while on probation, he stipulated to violating the
conditions of his probation. His probation was revoked, and he was resentenced upon
Circulated 11/19/2014 03:22 PM
recommendation of the State Parole Officer to a period of incarceration of not less than
six (6) months nor more than five (5) years in a state correctional institution on each of
three counts, concurrent with each other, and two (2) years re-probation one two (2)
other Indecent Assault counts, concurrent with the prison sentence. He was also
ordered to undergo a mental health and drug and alcohol evaluations with follow-up
treatment as recommended.
All of the Defendant's resentencings were within statutory limits. The Defendant
does not allege that the resentencings were illegal.
When a defendant is resentenced after a probation revocation, the sentencing
guidelines are inapplicable. See 204 Pa. Code §303.1 (b).
The Defendant's probation violations include marijuana use and diluting a urine
sample. He also did not have an appropriate address, as his father had moved and
would not allow Defendant to reside with him. His state parole officer also established
that Defendant was unsuccessfully discharged from sex offender treatment at
Psychological Associates because he did not attend the required amount of sessions.
Alternative treatment programs were provided, and he was unsuccessfully discharged
from drug and alcohol treatment, also for non-attendance (see p. 9 of transcript of
6/16/14). It is noted that Defendant's sexual offenses involve twelve (12) and fourteen
(14) year old females. It is also noted that, in resentencing the Defendant, the Court
ordered that he undergo both mental health and drug and alcohol evaluations with
follow-up treatment. Under the circumstances the Court believes that its re-sentencing
was appropriate.
2
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The Court may revoke an order of probation upon proof of the violation of specific
conditions of probation. Upon revocation, the sentencing alternatives available to the
Court shall be the same as were available at the time of the initial sentencing with due
consideration being given to the time spent serving the order of probation. A sentence
of total confinement upon revocation is applicable when the conduct of the Defendant
indicates that it is likely that he will commit another crime if he is not in prison or where
such a sentence is essential to vindicate the authority of the Court. 42 Pa. C.SA
§9771. The Defendant's illegal drug use and deceptive behavior in attempting to dilute
his urine sample suggest that a sentence of total confinement upon revocation was
appropriate. Moreover, Department of Corrections officials will make certain that he
receives the evaluations and treatment ordered by the Court.
3