Com. v. Levers, J. ( 2019 )

J-S64001-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA LEVERS :
:
Appellant : No. 447 WDA 2018
Appeal from the Judgment of Sentence March 5, 2018
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0002772-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA SETH LEVERS :
:
Appellant : No. 448 WDA 2018
Appeal from the Judgment of Sentence March 5, 2018
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0002773-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA SETH LEVERS :
:
Appellant : No. 449 WDA 2018
Appeal from the Judgment of Sentence March 5, 2018
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0001422-2015
J-S64001-19
BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED DECEMBER 12, 2019
Joshua Levers appeals from the judgment of sentence of an aggregate
term of three-and-one-half to ten years of incarceration imposed after
revoking Appellant’s sentence of state intermediate punishment (“SIP”).1 We
affirm.
The trial court offered the following summary of the factual background
of the cases involved in this appeal.
This case arises out of three separate criminal complaints
filed against [Appellant]. On October 27, 2014, a criminal
complaint was filed whereby the Defendant was charged with one
count of flight to avoid apprehension, trial, or punishment, one
count of resisting arrest or other law enforcement, one count of
possession of a controlled substance, one count of use or
possession of a controlled substance, one count of disorderly
conduct, one count of terroristic threats, and one count of
harassment.
These charges arise from an incident on September 27,
2014, [when] an officer responded to a harassment call at 104
Warren Street, Bentleyville, Pennsylvania, where the victim,
Susan Childs, stated that [Appellant] threatened to “beat the hell
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* Retired Senior Judge assigned to the Superior Court.
1 As this Court has explained:
SIP is a two-year program designed to benefit persons with drug
and alcohol problems. 61 Pa.C.S. §§ 4102-4109. In order to be
eligible for the SIP program, a defendant cannot have a history of
present or past violent behavior and the Pennsylvania Department
of Corrections (“DOC”) must determine that the defendant is in
need of drug and alcohol treatment.
Commonwealth v. Kuykendall, 2 A.3d 559, 560 (Pa.Super. 2010).
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out of her” and to slash her vehicle’s tires. After [Appellant] had
fled from the residence, the officer pursued and apprehended him
in the nearby woods.
Another criminal complaint was filed on October 13, 2014,
whereby [Appellant] was charged with one count of aggravated
assault, one count of recklessly endangering another person, one
count of simple assault, and one count of harassment.
These charges arise out of an incident on October 13, 2014,
when an officer was dispatched to a domestic call on the 500 block
of Main Street in Bentleyville, Pennsylvania. The victim, Deonnia
Paxton, informed the officer that her husband, [Appellant],
grabbed her around the neck and held a knife to her neck. The
victim stated that she escaped the home on foot. As she fled,
[Appellant] put her in a headlock and threw her to the ground,
causing injuries to her right hand and left side of her head.
Finally, the third criminal complaint was filed on March 23,
2015, whereby [Appellant] was charged with one count of
burglary, two counts of criminal trespass, one count of theft by
unlawful taking or disposition, and one count of criminal attempt,
arising from an incident on February 23, 2015, at a residence on
54 Grange Road, in West Pike Run Township, Pennsylvania. The
owner of the residence, Cynthia Yonkers, reported that as she
arrived at her home, she noticed a male exiting the basement door
and carrying a stereo. She yelled at the man, causing him to drop
the stereo and flee. Subsequently, on March 2, 2015, the victim
contacted law enforcement and identified [Appellant] as the male
from the February incident.
Trial Court Opinion, 1/10/19, at 2-3 (footnotes, unnecessary capitalization,
and repetition of amounts in numerical form omitted).
Appellant entered guilty pleas and was sentenced in March 2015 to
county intermediate punishment, including a period of electronic home
monitoring, and counseling. Pleading guilty to new criminal charges in
September 2015, Appellant’s sentence was revoked and Appellant was
sentenced to probation through the mental health court program. Upon
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violation of his probation, Appellant’s probation was revoked and he was
sentenced in August 2016 to be placed in the SIP program, followed by a term
of probation. In February 2018, the DOC informed the trial court that
Appellant was expelled from the SIP program for drug use and lack of
participation. After a hearing, Appellant’s SIP sentence was revoked. On
March 5, 2018, the trial court imposed the term of incarceration of three-and-
one-half to ten years at issue in this appeal.
Appellant thereafter filed timely notices of appeal.2 The trial court
directed Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and Appellant eventually complied. Appellant
contends on appeal that his sentence is excessive and was based upon
improper factors. Appellant’s brief at 7.
Before we address the merits of Appellant’s claim, we must determine
whether it is properly before us. As the trial court and the Commonwealth
note, Appellant’s 1925(b) statement was filed late. The consequence of a late
1925(b) statement is usually waiver.3 See Pa.R.A.P. 1925(b)(4)(vii).
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2 Although this appeal predates our Supreme Court’s decision
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), we note that Appellant
filed a separate notice of appeal at each docket number implicated by the
March 5, 2019 sentencing proceeding.
3 The Commonwealth argues that Appellant’s failure to file a timely 1925(b)
statement renders this appeal untimely even though the notice of appeal was
timely filed. Commonwealth’s brief at 18-20. There is no support in the law
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However, waiver does not apply in the instant case because the trial court’s
April 12, 2018 order was not entered on the docket in compliance with
Pa.R.Crim.P. 114(C)(2)(c) by indicating the fact and date of service on the
parties.4 See Commonwealth v. Chester, 163 A.3d 470, 472 (Pa.Super.
2017) (holding order to file Rule 1925(b) statement was unenforceable where
there was no indication on the docket of the date of service of the order
requiring its filing). Accordingly, we consider whether Appellant has raised a
viable challenge to the discretionary aspects of his sentence.
The following well-established principles of law guide our review:
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the following
four factors:
(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 has a fatal
defect; and (4) whether there is a substantial question
that the sentence appealed from is not appropriate
under the Sentencing Code.
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for the Commonwealth’s contention that lack of compliance with Rule 1925
negates the timeliness of the appeal.
4 Even if the trial court’s order were enforceable, remand, rather than waiver,
would result pursuant to Rule 1925(c)(3) (providing for remand for a nunc pro
tunc statement where counsel was per se ineffective in failing to file a timely
statement).
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Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)
(internal citations omitted).
Appellant filed a timely notice of appeal, and his brief contains a
statement of reasons relied upon for his challenge to the discretionary aspects
of his sentence as required by Pa.R.A.P. 2119(f). Although he did not preserve
his issue in a post-sentence motion, we conclude that his failure to do so is
not fatal to his challenge. The Rules of Criminal Procedure provide as follows
regarding sentencing upon violation of intermediate punishment:
The judge shall advise the defendant on the record:
(a) of the right to file a motion to modify sentence and to appeal,
of the time within which the defendant must exercise those rights,
and of the right to assistance of counsel in the preparation of the
motion and appeal[.]
Pa.R.Crim.P. 708(D)(3). As the transcript contains no such statement by the
trial court, waiver does not apply. See Commonwealth v. Moore, 453 A.2d
1029, 1030 (Pa.Super. 1982) (“[A]ppellant did not waive his right to
challenge his sentence unless he knew that he had such a right, and he will
not be deemed to have known that he had such a right unless the lower court
told him that he did and also, told him how he could exercise his right.”).
Thus, we consider whether Appellant has raised a substantial question
that his sentence is not appropriate. Appellant contends that the trial court
improperly relied upon the DOC’s stated reasons for expelling Appellant from
SIP in imposing an excessive aggregate sentence. We conclude that Appellant
has raised a substantial question. See, e.g., Commonwealth v. Dodge, 77
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A.3d 1263, 1273 (Pa.Super. 2013) (holding claim that the trial court relied
upon impermissible sentencing factors presented a substantial question).
Therefore, we address the merits of Appellant’s claim, mindful of the following.
“When reviewing sentencing matters, this Court must accord the
sentencing court great weight as it is in the best position to view the
defendant’s character, displays of remorse, defiance or indifference, and the
overall effect and nature of the crime.” Commonwealth v. Ventura, 975
A.2d 1128, 1134 (Pa.Super. 2009). Hence, we review the sentencing court’s
determination for an abuse of discretion.
In this context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish, by
reference to the record, that the sentencing court ignored or
misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).
With these principles in mind, we turn to the substance of Appellant’s
argument. Appellant acknowledges that he was expelled from SIP because
he had relapsed and fallen back into using illegal drugs. However, Appellant
complains that his sentence is excessively long insofar as it is based in part
upon the trial court’s focus on documents supplied by the DOC that Appellant’s
“lack of meaningful participation” in the program as well as drug use motivated
his expulsion. Appellant’s brief at 11. Relying upon this Court’s decision in
Commonwealth v. Schultz, 116 A.3d 1116, 1121 (Pa.Super. 2015),
Appellant contends that the reasons why Appellant was expelled from the SIP
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program were irrelevant and improperly considered at the sentencing hearing.
Id. at 11-13.
In Schultz, the issue was whether the trial court erred in entertaining
at a revocation hearing testimony from a DOC SIP coordinator about the
reasons for the defendant’s expulsion from the program. The Court began by
examining the statutes regarding expulsion from the SIP program on the one
hand, and revocation of an SIP sentence on the other. The statute concerning
the former provides as follows in relevant part:
(f) Expulsion from program.--
(1) A participant may be expelled from the drug offender
treatment program at any time in accordance with
guidelines established by the department, including failure
to comply with administrative or disciplinary procedures or
requirements set forth by the department.
(2) The department shall promptly notify the court, the
defendant, the attorney for the Commonwealth and the
commission of the expulsion of a participant from the drug
offender treatment program and the reason for such
expulsion. The participant shall be housed in a State
correctional institution or county jail pending action by the
court.
(3) The court shall schedule a prompt State intermediate
punishment revocation hearing pursuant to 42 Pa.C.S.
§ 9774 (relating to revocation of State intermediate
punishment sentence).
61 Pa.C.S. § 4105.
The statute governing revocation of a SIP sentence states as follows:
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(a) General rule.--The court may at any time terminate a
sentence of State intermediate punishment pursuant to 61 Pa.C.S.
Ch. 41 (relating to State intermediate punishment).
(b) Revocation.--The court shall revoke a sentence of State
intermediate punishment if after a hearing it determines that the
participant was expelled from or failed to complete the program.
(c) Proceedings upon revocation.--Upon revocation of a State
intermediate punishment sentence, the sentencing alternatives
available to the court shall be the same as the alternatives
available at the time of initial sentencing. The attorney for the
Commonwealth must file notice, at any time prior to resentencing,
of the Commonwealth’s intention to proceed under an applicable
provision of law requiring a mandatory minimum sentence.
42 Pa.C.S. § 9774
Noting that the decision whether to expel someone from the program is
the sole province of the DOC, this Court held that the only question to be
decided by a court at a revocation hearing held pursuant to 42 Pa.C.S.
§ 9774(b) is if the DOC expelled the defendant or he failed to complete the
program. “Section 9774(b) . . . only requires the Commonwealth to prove the
fact of expulsion or non-completion. Once the trial court finds this fact, it is
required to revoke under Section 9774(b).” Schultz, supra at 1121.
Accordingly, we held that testimony about why the defendant was expelled
from SIP by the DOC was legally irrelevant at the § 9774(b) hearing. Id.
The Commonwealth aptly points out that Schultz is inapposite because
the hearing at which the trial court discussed the reasons for Appellant’s
expulsion from SIP by the DOC was a resentencing hearing pursuant to
§ 9774(c), not merely a § 9744(b) revocation hearing. See
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Commonwealth’s brief at 22-24. It is axiomatic that the trial court’s sentence
is to be based upon consideration of, inter alia, the defendant’s rehabilitative
needs. See, e.g., 42 Pa.C.S. § 9721(b) (detailing general sentencing
standards). Appellant asked the court to allow him to live with his father and
receive outpatient treatment, promising that this time he was ready to follow
through with recovery through NA and AA. See, e.g., N.T. Revocation and
Sentencing, 3/5/18, at 6-7. As such, the fact that Appellant was expelled
from the SIP drug offender treatment program for both drug use and lack of
meaningful participation was certainly relevant to Appellant’s amenability to
rehabilitation through treatment.
Accordingly, Appellant has failed to demonstrate that the trial court
“ignored or misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable
decision.” Antidormi, supra at 760. We thus have no reason to disturb the
trial court’s exercise of discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2019
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