Com. v. Colon, D. ( 2015 )

J-S50037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DORIS DENISE COLON
Appellant No. 2895 EDA 2014
Appeal from the Judgment of Sentence September 2, 2014
in the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0001906-2012
BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 30, 2015
Appellant Doris Denise Colon appeals from the judgment of sentence
entered in the Lehigh County Court of Common Pleas following the
revocation of her parole and probation on an underlying conviction for
possession of a controlled substance with intent to deliver.1 After careful
review, we affirm.
The trial court aptly set forth the facts and procedural history of this
case as follows:
On November 16, 2011, Allentown Police executed a
search warrant on the premises located at 148 Chestnut Street,
Allentown, Lehigh County, Pennsylvania. Appellant was in the
residence. During the search, police located fifty-eight bundles
of suspected heroin and $1,855.00 in United States currency.
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1
35 P.S. § 780-113(a)(30).
J-S50037-15
The suspected contraband was tested and was found to contain
heroin and to weigh 27.95 grams.
Appellant pled guilty to one count of [p]ossession with
[i]ntent to [d]eliver a [c]ontrolled [s]ubstance on September 26,
2012. A presentence investigation and mental health evaluation
were performed on Appellant and reviewed by the [c]ourt.
On November 6, 201[2], a sentencing hearing was
conducted. This [c]ourt sentenced Appellant to eleven to
twenty-three months in Lehigh County Prison followed by a two[-
]year probationary period.
On August 16, 2013, Appellant was paroled on her
sentence. On July 15, 2014, Appellant appeared for a Gagnon
II hearing. She admitted to violating the terms of her parole
and was resentenced to serve the balance of her sentence
followed by the same two-year probationary period.
Appellant was paroled again on July 24, 2014. However,
she was picked up on a second parole/probation violation
warrant on July 31, 2014 based on a positive drug screen.
Appellant appeared before the undersigned for a second
Gagnon II hearing on September 2, 2014. At that time, she
conceded the allegation of the violation petition regarding her
drug use. At that time, the [c]ourt revoked Appellant’s parole
and remanded her to serve the balance of her sentence.
Additionally, her probation was revoked and she was sentenced
to one to four years in state prison, followed by a one-year
probationary sentence consecutive to the prison term.
On September 12, 2014, Appellant filed a motion to modify
her sentence. That motion was denied [on] September 25,
2014.
Appellant filed a Notice of Appeal on [October] 2, 2014.[2]
She timely filed a Concise Statement [of Matters Complained of
on Appeal].
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2
Both the trial court and Appellant incorrectly noted the notice of appeal’s
filing date as November 2, 2014, well beyond the 30-day limit to timely
appeal from the trial court’s September 2, 2014 resentencing. See
(Footnote Continued Next Page)
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1925(a) Opinion, at 1-2 (page numbers supplied) (footnote omitted).
Appellant raises the following issue for our review:
Did the lower court err by imposing a disproportionate
sentence based upon the nature of the violation and by failing to
properly consider the requisite statutory factors, thus imposing
an excessive sentence contrary to the fundamental norms of the
sentencing process?
Appellant’s Brief, p. 4 (all capitals omitted).
Appellant’s claim raises a challenge to the discretionary aspects of her
sentence following the trial court’s revocation of her probationary sentence.3
See Appellant’s Brief, pp. 10-14. “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. Kalichak, 943 A.2d 285, 289 (Pa.Super.2008). As this
Court has explained:
To reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether appellant
has filed a timely notice of appeal, Pa.R.A.P. 902 and 903; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, Pa.R.Crim.P. [708];
(3) whether appellant’s brief has a fatal defect, Pa.R.A.P.
_______________________
(Footnote Continued)
Pa.R.A.P. 1925(a) Opinion, November 3, 2014 (“1925(a) Opinion”), p. 2
(page number supplied); Appellant’s Brief, p. 6. However, the certified
record reveals that Appellant dated and timely filed the notice of appeal on
October 2, 2014. See Notice of Appeal; see also Court of Common Pleas of
Lehigh County Docket No. CP-39-CR-0001906-2012, p. 13.
3
Appellant does not challenge the revocation of parole or imposition of back
time for the parole violation. See generally Appellant’s Brief.
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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. § 9781(b)].
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa.Super.2007).
Here, Appellant filed a timely notice of appeal and preserved the issue
by filing a motion for reconsideration. Further, Appellant’s brief includes a
concise statement of the reasons relied upon for allowance of appeal
pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief, p. 9. Accordingly, we
now determine whether Appellant has raised a substantial question for
review and, if so, proceed to a discussion of the merits of the claim.
Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.1987).
“The determination of whether a particular case raises a substantial
question is to be evaluated on a case-by-case basis. Generally, however, in
order to establish that there is a substantial question, the appellant must
show actions by the sentencing court inconsistent with the Sentencing Code
or contrary to the fundamental norms underlying the sentencing process.”
Commonwealth v. Marts, 889 A.2d 608, 612 (Pa.Super.2005) (internal
citations omitted). On appeal from a probation revocation proceeding, this
Court has previously determined a substantial question is presented when a
sentence of total confinement, in excess of the original sentence, is imposed
as a result of a technical violation of probation. See Commonwealth v.
Sierra, 752 A.2d 910, 913 (Pa.Super. 2000). Because the instant matter
involves a sentence of total incarceration as a result of a technical violation
of probation, we examine Appellant’s claim.
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“Revocation of a probation sentence is a matter committed to the
sound discretion of the trial court and that court’s decision will not be
disturbed on appeal in the absence of an error of law or an abuse of
discretion.” Commonwealth v. Ahmad, 961 A.2d 884, 888
(Pa.Super.2008). “The Commonwealth establishes a probation violation
meriting revocation when it shows, by a preponderance of the evidence, that
the probationer’s conduct violated the terms and conditions of his probation,
and that probation has proven an ineffective rehabilitation tool incapable of
deterring probationer from future antisocial conduct.” Id. “[I]t is only when
it becomes apparent that the probationary order is not serving this desired
end [of rehabilitation] the court’s discretion to impose a more appropriate
sanction should not be fettered.” Id. at 888-89.
“Upon revocation [of probation] the sentencing alternatives available
to the court shall be the same as were available at the time of initial
sentencing[.]” 42 Pa.C.S. § 9771(b). “Thus, if the original offense was
punishable by total confinement, such a penalty is available to a revocation
court, subject to the limitation that the court shall not impose total
confinement unless it finds that: (1) the defendant has been convicted of
another crime; (2) the defendant’s conduct indicates a likelihood of future
offenses; or (3) such a sentence is necessary to vindicate the court’s
authority.” Kalichak, 943 A.2d at 289. “Sentencing Guidelines do not
apply to sentences imposed following a revocation of probation.”
Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa.Super.2006)
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(citation omitted). Instead, pursuant to 42 Pa.C.S. § 9721(b), the
sentencing court must consider the protection of the public, the gravity of
the offense in relation to the impact on the victim and the community, and
the rehabilitative needs of the defendant. Id. Further, technical probation
violations “can support revocation and a sentence of incarceration when such
violations are flagrant and indicate an inability to reform.” Commonwealth
v. Carver, 923 A.2d 495, 498 (Pa.Super.2007); see also Sierra, 752 A.2d
at 912 (failure to keep probation appointments); Commonwealth v.
Malovich, 903 A.2d 1247, 1254 (Pa.Super.2006) (possession of controlled
substances); Commonwealth v. Cappellini, 690 A.2d 1220, 1225
(Pa.Super.1997) (continued drug use and resistance to treatment).
Appellant contends that, given the technical nature of her violation,
the sentence she received upon revocation was excessive. See Appellant’s
Brief, pp. 13-14. She is incorrect.
Upon revoking Appellant’s probation, the trial court properly sentenced
her to total confinement because she flagrantly violated her probation – for a
second time – by using controlled substances. The nature of Appellant’s
technical violation, the haste with which she violated upon being paroled,
and the fact that her violation was a carbon-copy of her previous violation,
all indicated that she would likely commit another crime if not imprisoned.4
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4
In addition to indicating a likelihood that Appellant will commit another
crime, we note that Appellant’s second drug-use violation, occurring, as did
(Footnote Continued Next Page)
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The trial court explained its imposition of incarceration upon the
revocation of the probationary portion of Appellant’s sentence as follows:
In this case, the sentence Appellant received is appropriate
and was fully warranted under the circumstances. Appellant
appeared before the undersigned on July 15, 2014 conceding
that she violated the terms of her parole. The [c]ourt
resentenced her to the balance of her parole and reimposed the
two-year probationary sentence she originally received.
Additionally, the [c]ourt made Appellant eligible for early parole
upon verification of residence. She was paroled approximately
one week later and was detained for drug use within a single
week of being paroled for the second time on the within case.
Appellant’s presentence investigation reports performed
prior to her original sentencing date made reference to her
extensive drug problems. The fact that she resumed using drugs
within a week of being paroled is illustrative of the challenges
she faces. It is also a strong indicator of the high likelihood that
Appellant would reoffend.
The sentence imposed reflects due consideration of the
gravity of Appellant’s offenses and her treatment needs. A
structured environment with greater supervision is more likely to
lead to Appellant’s rehabilitation and encourage her addressing
her substance abuse challenges than allowing her to serve a
shorter period of time and be back on the streets where there is
a greater temptation to resume her drug use. The subsequent
probationary sentence following Appellant’s parole serves to
allow supervisory authorities to monitor her in order to aid in
keeping Appellant on a drug-free life path after her
incarceration.
_______________________
(Footnote Continued)
the previous drug-use violation, so soon after being paroled, also indicates
that a sentence of incarceration is essential to vindicate the trial court’s
authority.
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1925(a) Opinion, pp. 4-5 (footnote omitted) (page numbers supplied). We
find no abuse of discretion in the trial court’s imposition of sentence
following the revocation of Appellant’s probation.
Moreover, the trial court sentenced Appellant within the statutory
limits for her conviction. Possession of a controlled substance with intent to
deliver a Schedule I drug (heroin), graded as a felony, carries a possible
sentence of up to 15 years’, or 180 months’, incarceration. 35 P.S. § 780-
113(f). Appellant’s probation revocation sentence of 1 to 4 years’
incarceration, together with the full back time of her revoked parole
sentence of 11 to 23 months’ incarceration, amounted to a sentence of 23 to
71 months’ incarceration for the crime. This sentence was within statutory
limits and, thus, legal. Therefore, we find no abuse of discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2015
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