Com. v. Karvan, C. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTY M. KARVAN
Appellant No. 2028 MDA 2014
Appeal from the Judgment of Sentence October 22, 2014
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0001270-2006
BEFORE: BOWES, OTT and STABILE, JJ.
MEMORANDUM BY BOWES, J.: FILED JULY 15, 2015
Christy M. Karvan appeals from the October 22, 2014 judgment of
sentence of three to six years imprisonment imposed by the trial court
following a probation violation. We affirm.
Appellant was charged at two criminal docket numbers with one count
each of criminal trespass and burglary, six counts each of forgery and access
device fraud, and two counts each of receiving stolen property and theft by
unlawful taking. The charges stemmed from a burglary of an apartment
owned by David Schwartz on or about March 9, 2006, and the theft and
unauthorized use of a credit card obtained therein. Mr. Schwartz was in the
hospital. His neighbor heard someone inside the apartment and used a key
to enter. He found Appellant and her boyfriend inside. Appellant told him
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that she was cleaning the apartment, and the neighbor accepted that
explanation for her presence since he recognized her as a regular visitor.
Over one month later, the police contacted Appellant and asked her to
come to police headquarters regarding a suspected burglary. After being
apprised of her Miranda rights and declining counsel, Appellant admitted in
a signed statement that she entered Mr. Schwartz’s apartment while he was
in the hospital, broke into a secured closet, and stole a credit card that she
used to make purchases, some of which she traded to purchase heroin.
On February 26, 2007, Appellant pled guilty to one count each of
forgery and retail theft and the Commonwealth nolle prossed the remaining
charges. On April 23, 2007, following a pre-sentence investigation (“PSI”),
the Honorable Michael J. Barasse imposed a sentence of two to twelve
months incarceration for retail theft and nine months to twenty-four months
on the forgery charge, plus two years of special probation and restitution.
Appellant filed a motion for reconsideration, which the court denied.
Thereafter, Appellant repeatedly violated both her parole and
probation and Judge Barasse presided over Appellant’s numerous probation
and parole violations, Gagnon II hearings, and re-sentencings. The court
recounted its interactions with Appellant over a nine-year period, and we
summarize them herein. Trial Court Opinion, 5/26/15, at 4-14.
Appellant was first released on parole on May 14, 2008, and the court
was notified that she violated her parole by using un-prescribed suboxne.
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She was sent for in-patient treatment, which she successfully completed,
and released on March 11, 2009. On April 27, 2009, Appellant was a
passenger in a vehicle stopped by Scranton police. Upon questioning, she
admitted to ingesting percocets and suboxne, which triggered a technical
violation of her parole. The court sent her for a mental health evaluation,
and upon receiving the results, sentenced her after a Gagnon II hearing on
the forgery charge to forty-eight months intermediate punishment with the
first three months to be served on home confinement.
Appellant tested positive for opiates on January 21, 2010, and lied
about attending treatment meetings. The court signed an order placing her
in Lackawanna County prison, but ordered her release on February 9, 2010,
and placement in the county drug treatment program. Less than two weeks
later, Appellant tested positive for un-prescribed suboxne, and the court
ordered her to be held in the county jail. On February 18, 2010, the court
entered an order placing Appellant into the county’s work release program,
but she was rejected due to a prison misconduct. The court tried a second
time to afford her work release and ordered Appellant to participate in the
county’s treatment program and outpatient services. On May 28, 2010, the
court ordered her discharged from work release and required Appellant to
participate in the treatment program and attend outpatient drug and alcohol
treatment while residing at Sober House. Within weeks, Appellant again
relapsed, tested positive for unprescribed suboxyne, and was placed in the
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Lackawanna County jail on July 8, 2010. A Gagnon I was filed, and a
Gagnon II hearing was scheduled but postponed for ninety days to provide
Appellant an opportunity to enroll at the Lackawanna Treatment Court
Program. On November 10, 2010, she was released to Harbor House in
Scranton.
Following yet another positive drug test, Appellant was remanded to
the Lackawanna County Prison on November 23, 2010. A Gagnon II
hearing was held and Appellant was sentenced to a new four-year
intermediate punishment sentence with the first ninety days to be served on
home confinement. She was subsequently transferred to work release and
ultimately released to begin again with the Lackawanna County Treatment
Court Program.
On October 20, 2011, Appellant again tested positive for drugs, was
placed in the county prison, and released on November 19, 2011. Less than
three weeks later, she failed to appear and was sanctioned pursuant to the
rules of the Treatment Court by being imprisoned for the weekend. She
subsequently twice violated the rules and served a weekend in jail each
time. After a brief period of compliance, Appellant relapsed and served two
weeks in the county prison. The pattern repeated itself in late 2012, and
again in 2013. The probation office filed a Gagnon I, and a hearing was
held on June 26, 2013, at which Appellant stipulated to her violation. After
the matter was continued to allow Appellant to seek treatment, she was
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released from prison and furloughed to Pyramid Healthcare. Despite
successful completion of that program, she missed a mandatory
appointment at Drug and Alcohol services, and was placed in the county
prison for the November 29, 2013 weekend.
On January 15, 2014, Appellant was sentenced on her previously
stipulated probation violation. The court revoked her four-year intermediate
punishment program sentence and replaced it with a straight probationary
period of two years. Appellant failed to comply with the terms of her
sentence by violating the rules of the Treatment Court Program, and the
court sanctioned her by remanding her to the county prison for the February
2, 2014 weekend. After several more violations and weekends in the county
prison, Appellant wrote to the court asking that the court not consider
treatment in state intermediate punishment. She was subsequently served
with notice of another Gagnon I hearing, and the court deferred the
Gagnon II sentencing to permit the parties to come up with alternative
sentencing options.
On October 22, 2014, Appellant’s Gagnon II counsel advised the
court that Appellant did not want state intermediate punishment and wanted
to proceed with sentencing. Counsel asked the court to consider the
Probation Office’s prior recommendation of two and one-half to five years
imprisonment. The court sentenced Appellant to three to six years in a state
correctional facility and imposed additional terms upon her release. Her
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motion for reconsideration of sentence was denied and this appeal followed.
Appellant complied with the trial court’s order to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal, and the trial court
issued its Rule 1925(a) opinion.
Appellant presents three issues for our review:
A. Whether the lower court erred when it imposed a sentence
without ordering a pre-sentence investigation report or
without giving reasons for not doing so?
B. Whether the lower court erred when it imposed a term of
imprisonment for a technical violation?
C. Whether the lower court failed to articulate reasons for the
sentence imposed as required?
Appellant’s brief at 4.
Appellant presents challenges to the discretionary aspects of her
sentence imposed upon revocation of probation. Our scope of review
includes such discretionary sentencing challenges. Commonwealth v.
Cartrette, 83 A.3d 1030, 1034, (Pa.Super. 2013) (en banc). However, the
right to assert such a challenge is not absolute. Commonwealth v.
Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010); 42 Pa.C.S. § 9781(b).
"[I]ssues challenging the discretionary aspects of a sentence must be raised
in a post-sentence motion or by presenting the claim to the trial court during
the sentencing proceedings.” Commonwealth v. Kittrell, 19 A.3d 532,
538 (Pa.Super. 2011). Failure to do so results in waiver. Furthermore, a
defendant is required to preserve the issue in a court-ordered Pa.R.A.P.
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1925(b) concise statement and a Pa.R.A.P. 2119(f) statement.
Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa.Super. 2012). Finally,
such an appeal will only be permitted “after this Court determines that there
is a substantial question that the sentence was not appropriate under the
sentencing code.” Crump, supra at 1282.
Appellant complied with all of the prerequisites for review. She filed a
post-sentence motion articulating the challenges, identified the sentencing
issues in her Pa.R.A.P. 1925(b) concise statement of issues complained of on
appeal, and filed a Pa.R.A.P. 2119(f) statement in her appellate brief. In
support of her claim that her allegations raise a substantial question, she
relies upon Commonwealth v. Flowers, 950 A.2d 330 (Pa.Super. 2008)
(allegation that court failed to order a pre-sentence investigation held to
pose a substantial question) and Commonwealth v. Sierra, 752 A.2d 910(Pa.Super. 2000) (imposition of sentence of total confinement in excess of
the original sentence for a technical violation of parole or probation presents
a substantial question). We find that Appellant has presented a substantial
question for our review.
We review a discretionary sentencing challenge for an abuse of
discretion. Such review “requires us to determine consider whether a
sentencing court exhibited prejudice, bias, ill-will or partiality” or committed
an error of law. Sierra, supra. We are mindful, however, that the trial
court is in the best position to consider the defendant’s character and display
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of remorse and we will not disturb the trial court’s sentence absent a
manifest abuse of discretion.
In revocation proceedings, our sentencing guidelines do not apply.
204 Pa.Code. § 303.1(b). However, the sentencing court must "follow the
general principle that the sentence imposed should call for confinement that
is consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant." 42 Pa.C.S. § 9721(b). In addition,
where the court resentences an offender following revocation of probation, it
should state its reasons for doing so on the record. Id.
Appellant’s first claim is that the trial court, by dispensing with a pre-
sentence investigation, failed to satisfy the dictates of Pa.R.Crim.P. 702.
That rule provides that if a PSI is not ordered, the court “must place on the
record the reasons for dispensing with the pre-sentence investigation report
. . . when incarceration for one year or more is a possible disposition under
the applicable sentencing statutes.” Pa.R.Crim.P. 702(A)(2)(a). She
maintains the court did neither.
The Commonwealth counters that a PSI is within the court’s discretion.
Pa.R.Crim.P. 702(A). Furthermore, technical non-compliance with the
requirement that the court state its reasons on the record for not ordering a
PSI has been found to be harmless where the court had sufficient
information to make a fully informed, individualized sentencing decision.
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Commonwealth v. Carillo-Diaz, 64 A.3d 722, 726-27 (Pa.Super. 2013).
The Commonwealth maintains that the trial court’s experience with Appellant
provided the requisite information to make an informed sentencing decision.
The record confirms that the court had extensive personal knowledge
of Appellant acquired throughout her lengthy history with the court, a fact
acknowledged by Appellant’s counsel. N.T., Gagnon II Hearing, 9/24/14,
at 2 (“Your Honor, we are not going to dwell too much about Christy Karvan.
We know that you are very familiar with her.”). In addition, the court stated
that it relied upon its personal knowledge, prior PSIs, and utilized the
extensive probation files at its disposal in sentencing Appellant. Trial Court
Opinion, 5/26/15, at 21-22.
Notably, Appellant has not pointed to any specific information that she
believes the court should have considered or that would have been revealed
in an updated PSI. She faults the court, however, for not inquiring into the
details of her efforts at rehabilitation, how long she remained drug free, and
her work history. Appellant’s brief at 13. We submit that Appellant had the
opportunity to present such information at sentencing and chose not to do
so. Furthermore, since Appellant frequently appeared before the court for
the imposition of sanctions for violating the rules of the various drug
treatment programs, the court was extremely familiar with her rehabilitation
efforts. Moreover, the court had the probation files detailing Appellant’s
rehabilitation efforts and frequent relapses. This claim fails.
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Next, Appellant claims the court abused its discretion in imposing a
term of total confinement for a technical probation violation. She argues
that 42 Pa.C.S. § 9771(c) governs. That statute provides three instances
when total confinement is proper upon revocation: when a defendant is
convicted of another crime; where the defendant’s conduct demonstrates
that he is likely to commit another crime if not imprisoned; or where such a
sentence is essential to vindicate the authority of the court. Id. at §
9771(c)(1-3).
Appellant maintains that incarceration was not warranted where she
had merely relapsed, not committed a new crime, and where a sentence of
such length was not necessary to vindicate the authority of the court.
Appellant concedes, however, that technical violations of probation can
support total confinement where the violations are flagrant and indicate an
inability to reform. Commonwealth v. Cappellini, 690 A.2d 1220(Pa.Super. 1997) (focus must be on whether probation can still be an
effective tool for rehabilitation); accord Commonwealth v. Riley, 384
A.2d 1333 (Pa.Super. 1978) (brief period of unemployment was insufficient
to convince court that probation had not been effective).
The Commonwealth contends that Appellant’s violation was flagrant
and her positive drug test for heroin demonstrated an inability to reform.
Commonwealth’s brief at 15. Additionally, the Commonwealth relies upon
our decision in Commonwealth v. McAfee, 849 A.2d 270 (Pa.Super.
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2004), for the proposition that Appellant’s heroin use made it likely that she
would commit a crime if not imprisoned.
The trial court stated that it considered the factors set forth in §
9721(b) and § 9771(c) in imposing its sentence. Trial Court Opinion,
5/26/15, at 19. Preliminarily, the court noted that this was Appellant’s
nineteenth violation of supervision on this one case. Id. Maintaining that it
made every attempt to help Appellant to better herself, it imposed the
sentence only as a “last resort.” Id. Appellant simply failed repeatedly to
comply with probationary supervision and the ongoing pattern of violation
left the court with no other viable options in sentencing. Id. at 20. The trial
court also relied upon Cappellini, supra, where continued drug use,
combined with resistance to treatment and supervision, were viewed as
evidence that the appellant would commit another crime for purposes of §
9771(c). Id. at 24.
Appellant’s attack on the total confinement aspect of the sentence is
undermined by her own request that the trial court sentence her to two and
one-half to five years of imprisonment. N.T., Sentencing, 10/22/14, at 3.
Furthermore, given Appellant’s pattern of violation and failure to comply with
probationary supervision, we find no abuse of discretion in the trial court’s
imposition of the sentence of total confinement on the facts herein.
Finally, Appellant assails the trial court for failing to articulate its
reasons for imposing the sentence and argues that the purpose of the
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requirement is to permit effective appellate review. She maintains that that
the three to six year sentence “constituted a harsh, unreasonable and
excessive sentence due to the nature of her violation.” Appellant’s brief at
16.
The Commonwealth counters that the trial court’s failure to state its
reasons on the record is excused by the trial court’s knowledge of
Appellant’s history and circumstances. Furthermore, the Commonwealth
resists any inference that the sentence was imposed to penalize Appellant
because she did not want to participate in what the court viewed as the best
alternative, the State Intermediate Punishment (“SIP”) program.
Appellant’s allegedly “harsh, unreasonable and excessive [three to six
year] sentence” is only slightly more arduous than the two and one-half to
five year sentence the probation office had previously recommended and
that Appellant hoped the court would impose. Furthermore, in imposing the
slightly more severe sentence, the trial court noted on the record that the
probation office’s recommendation pre-dated Appellant’s most recent
violation. We find no support for an inference that in imposing its sentence,
the trial court was punishing Appellant for her unwillingness to participate in
SIP. We find no basis to disturb the trial court’s sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/15/2015
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