Com. v. Steinman, J. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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
v. :
:
JAMES E. STEINMAN, JR., : No. 1334 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, July 15, 2014,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0011367-2009
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER, J.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 08, 2015
This is an appeal from the judgment of sentence imposed on July 15,
2014, following the revocation of probation in the Court of Common Pleas of
Allegheny County that was made final by the July 28, 2014 order denying
appellant’s post-sentence motion. We affirm.
On September 14, 2009, appellant was charged with involuntary
deviate sexual intercourse with a child, indecent assault of a person under
13, indecent exposure, endangering the welfare of a child, and corruption of
minors.1 On May 3, 2010, the Commonwealth summarized the facts of this
case at appellant’s guilty plea and sentencing hearing:
* Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3123(b), 3126(a)(7), 3127(a), 4304(a) and 6301(a)(1),
respectively.
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THE COMMONWEALTH: If this case were to proceed
to trial, the Commonwealth would have called
Allegheny County police detectives and the victim in
this case, the 13-year-old John Doe, who would have
testified that the victim disclosed at a forensic
interview that he had been sexually assaulted by
way of indecent contact by a relative of his biological
father, that relative being the defendant.
He reported that the abuse occurred when he,
the victim, was approximately 7 years of age and
was residing with his biological mother. And the
victim stated that the indecent contact occurred
while the actor was babysitting him in the residence.
It would have been at that point, Your Honor,
that the Commonwealth would have rested.
Guilty plea and sentencing hearing, 5/3/10 at 4-5.
Pursuant to a plea agreement with the Commonwealth, appellant pled
guilty to indecent assault and corruption of minors, the remaining charges
were withdrawn, and appellant agreed to a sentence of probation to be set
by the trial court. Appellant was immediately sentenced to a term of
probation for three years. Registration under Megan’s Law was also
imposed. In addition to having no contact with the victim, appellant was
ordered to comply with any condition imposed by the probation office.
Neither post-sentence motions nor a direct appeal were filed.
Appellant appeared before the trial court on March 27, 2012, for a
Gagnon I2 hearing. Appellant’s probation had been transferred to
Westmoreland County where he failed to attend six appointments.
2
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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(Gagnon I hearing, 3/27/12 at 2.) Appellant’s probation was transferred
back to Allegheny County where the trial court lifted the detainer and
ordered appellant released from jail. (Id. at 2-3.) Appellant received a new
three-year term of probation with credit for 175 days of incarceration from
October 5, 2011 to March 27, 2012. (Id.) Appellant was again ordered to
comply with all of the original conditions of his sentence including sex
offender treatment. (Id. at 3.)
On February 13, 2013, appellant appeared before the trial court for a
probation violation hearing. Appellant had failed to report to the probation
office as directed. Appellant told the probation office that he did not have a
permanent address, which resulted in his arrest and criminal charges for
failing to comply with Megan’s Law registration requirements; however,
those charges were withdrawn. (Probation violation hearing, 2/13/13 at
2-3.) The trial court agreed to impose a new term of probation during which
appellant agreed to live with his mother and attend sex offender treatment.
(Id. at 3-4). Appellant received a new four-year term of probation with
credit for 341 days of incarceration from October 5, 2011 to March 27, 2012,
and from September 1, 2012 to February 13, 2013.
On July 15, 2014, appellant appeared before the trial court for another
probation violation hearing. Appellant had failed to report and have contact
with the probation office, and he failed to comply with Megan’s Law
registration upon his release in February of 2013. The trial court revoked
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appellant’s probation and sentenced him to 1 to 4 years’ incarceration to be
served consecutively to another sentence he was already serving from
Westmoreland County.3 On July 21, 2014, appellant filed a timely motion to
reconsider sentence that was denied on July 28, 2014. This appeal followed.
Appellant timely complied with the trial court’s order to file a concise
statement of errors complained of on appeal. The trial court issued its
opinion on January 9, 2015.
Appellant raises one issue for our review:
I. WHETHER [APPELLANT’S] REVOCATION
SENTENCE OF 1-4 YEARS[’] INCARCERATION
IS MANIFESTLY EXCESSIVE AND, THEREFORE,
AN ABUSE OF DISCRETION WHEN THE TRIAL
COURT DID NOT HAVE THE BENEFIT OF A
PRE-SENTENCE INVESTIGATION REPORT OR
ANY OTHER INFORMATION CONCERNING HIS
STATUS, CHARACTER, AND SERIOUS
REHABILITATIVE NEEDS?
Appellant’s brief at 4.
In this appeal, appellant challenges the discretionary aspects of his
sentence after probation revocation. In Commonwealth v. Cartrette, 83
A.3d 1030, 1034 (Pa.Super. 2013) (en banc), an en banc panel of this
court concluded that “this Court’s scope of review in an appeal from a
3
Two separate criminal cases were filed against appellant in Westmoreland
County for failing to register under Megan’s Law. In each of the
Westmoreland County cases, appellant received 18 months to 5 years’
incarceration with 410 days credit. These sentences were run concurrent.
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revocation sentencing includes discretionary sentencing challenges.”
Therefore, appellant’s claim is properly before us.
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right. Commonwealth v. Moury, 992 A.2d 162,
170 (Pa.Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue,
[this Court conducts] a four-part analysis to
determine: (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 modify
sentence, see Pa.R.Crim.P. [720]; (3) whether
appellant’s brief has a fatal defect, [see]
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, [see]
42 Pa.C.S.A. § 9781(b).
Id. (citation omitted).
Here, appellant filed a timely notice of appeal. He also has included a
concise statement of the reasons relied upon for allowance of appeal in his
brief pursuant to Pa.R.A.P. 2119(f). In his Rule 2119(f) statement, appellant
claims: (1) “the Trial Court did not have the benefit of a pre-sentence
investigation (“PSI”) report, nor did it provide any reasons for its failure to
order a PSI report” and (2) “the Trial Court gave no consideration to relevant
sentencing criteria such as the [protection] of the public, the gravity of
[appellant’s] violation and the rehabilitative needs of [appellant]” which is an
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allegation that the trial court did not consider the factors outlined in
42 Pa.C.S.A. § 9721(b). (Appellant’s brief at 10.)
Our review of the certified record reveals that most of appellant’s
arguments were not preserved during his probation violation hearing or in
his post-sentence motion. Appellant’s counsel failed to object to the lack of
a PSI report at the probation violation hearing or request that sentencing be
postponed for the preparation of a PSI report. Additionally, counsel did not
lodge an objection to the lack of a PSI report in his post-sentence motion.
Consequently, this court cannot consider appellant’s argument regarding
lack of a PSI report. See Commonwealth v. Gibbs, 981 A.2d 274, 282-
283 (Pa.Super. 2009) (stating that “[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.
Absent such efforts, an objection to a discretionary aspect of a sentence is
waived.”); Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa.Super.
2004) (in order to preserve an issue pertaining to the discretionary aspects
of sentence, the issue must first be raised either at the time of sentencing,
or in a post-sentence motion), appeal denied, 860 A.2d 122 (Pa. 2004).
Regarding his second argument that the trial court failed to consider
relevant sentencing criteria, appellant failed to allege at sentencing or in his
post-sentence motion that the trial court “gave no consideration . . . [to] the
[protection] of the public.” As a result, this claim is waived. Id. See also
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Cartrette, 83 A.3d at 1042-1043 (while claim that the trial court failed to
adequately consider Section 9721(b) factors raised a substantial question, it
was waived where it was not included in a post-sentence motion or raised
before the trial court at sentencing). However, appellant’s arguments that
the trial court did not adequately consider the gravity of his probation
violation and his rehabilitative needs were preserved, and they raise a
substantial question. Commonwealth v. Fullin, 892 A.2d 843, 847
(Pa.Super. 2006).
The imposition of sentence following the revocation of probation is
vested within the sound discretion of the probation revocation court, which,
absent an abuse of that discretion, will not be disturbed on appeal.
Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000). On
review, we determine the validity of the probation revocation proceedings
and the authority of the probation revocation court to consider the same
sentencing alternatives that it had at the time of the initial sentencing. See
42 Pa.C.S.A. § 9771(b); Commonwealth v. Gheen, 688 A.2d 1206, 1207-
1208 (Pa.Super. 1997). When imposing a sentence of total confinement
after a probation revocation, the sentencing court must consider the factors
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set forth in Sections 9771(c)4 and 9721(b) of the Sentencing Code.
Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa.Super. 2006); see
also 42 Pa.C.S.A. § 9721(b) (providing that when determining an
appropriate sentence, the 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). Following the
revocation of probation, a probation revocation court need not undertake a
lengthy discourse for its reasons for imposing a sentence of total
confinement, but the record as a whole must reflect the probation revocation
court’s consideration of the facts of the crime and character of the offender.
Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010).
Instantly, appellant initially received three years’ probation. For his
two prior probation violations, he received new terms of probation and was
credited with 341 days served. At his original sentencing hearing and two
probation violation hearings, appellant was directed to report to the
4
Pursuant to 42 Pa.C.S.A. § 9771(c), a court may sentence a defendant to
total confinement subsequent to revocation of probation if any of the
following conditions exist:
(1) the defendant has been convicted of another
crime; or
(2) the conduct of the defendant indicates that it is
likely that he will commit another crime if he is
not imprisoned; or,
(3) such a sentence is essential to vindicate the
authority of court.
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probation office, comply with the conditions of probation, and register with
the state police pursuant to Megan’s Law. Clearly, on three separate
occasions, the trial court afforded appellant the opportunity for treatment of
his issues and rehabilitation outside a prison setting.
When appellant appeared before the trial court on July 15, 2014, for
his third probation violation, he was a convicted violator having received two
new criminal convictions and was a technical violator, as he never reported
to the probation office and could not be located. The trial court explained:
THE COURT: The difficulty I have with this
case is, one, was the seriousness of the offense
where you had sex with a 13-year-old child.
I have been supervising you four years. You
have done just nothing right during the four years. I
mean not even the minimal amount.
You have been arrested three times for not
registering for Megan's Law which, according to the
reports that I received, was explained to you not
only by me, but also by the probation officers.
You've been convicted of two of those things.
I see you making no effort to rehabilitate
yourself, and because of the seriousness of the
original charge, at Count 2, I'm going to revoke, and
I'm going to order you to serve one-to-four years
consecutive with the sentence you're serving in
Westmoreland County.
Probation violation hearing, 7/15/14 at 7.
Based on the above, the trial court was aware of and considered the
gravity of appellant’s probation violation; i.e., appellant repeatedly failed to
abide by the terms of his plea agreement which called for him to register
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under Megan’s Law and comply with any conditions imposed by the
probation office. Appellant made no effort to rehabilitate himself, failed to
report to the probation office, and did not take part in sex offender
treatment. Additionally, the trial court was also aware that appellant was on
disability for borderline mental functioning and that his new convictions for
failing to report in Westmoreland County did not involve any victims. (See
id. at 3-6.)
Undoubtedly, after four years of failing to comply with the terms of his
probation, the trial court believed that a sentence of incarceration was
necessary to vindicate the authority of the trial court. Although the
sentencing guidelines do not apply to sentences imposed as a result of
revocation of probation, the sentence imposed in this case was within the
guideline range at the time of the initial sentencing. See Commonwealth
v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (observing that the sentencing
guidelines do not apply to sentences imposed as a result of revocation of
probation).
After review, we conclude that the trial court did not abuse its
discretion by imposing appellant’s sentence of total confinement which is
neither excessive nor contrary to the Sentencing Code. See Sierra, 752
A.2d at 915 (holding that the sentencing court’s imposition of a prison
sentence following a probation violation was not an abuse of discretion, since
the sentence was based upon the judge’s in-depth knowledge of the
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individual, a finding that parole and probation were not effective in
rehabilitating the defendant, and a further prison term was appropriate).
Last, we address the following statement that appears at the end of
appellant’s brief: “[Appellant] had served 1 year, 5 months, and 1 day in
jail for a crime having a maximum possible sentence of 5 years. Thus, the
Trial Court imposed an illegal sentence, which is further evidence that it
abused its sentencing discretion.” (Appellant’s brief at 17.) We note this
statement concerns the legality of appellant’s sentence and was not raised in
either appellant’s post-sentence motion or in his Rule 1925(b) statement.
However, “[i]t is settled that a legality-of-sentence issue ‘may be
reviewed sua sponte by this Court,’ due to the fact that an ‘illegal sentence
must be vacated.’” Commonwealth v. Stradley, 50 A.3d 769, 774
(Pa.Super. 2012), quoting Commonwealth v. Randal, 837 A.2d 1211,
1214 (Pa.Super. 2003). Moreover,
[C]laims pertaining to the legality of sentence are
non-waivable, [and] may be leveled for the first time
on appeal . . . . Commonwealth v. Dickson, [918
A.2d 95, 99 (Pa. 2007)] (“challenges to sentences
based upon their legality” are not subject to waiver);
see also Commonwealth v. Robinson, 931 A.2d
15, 19-20 (Pa.Super. 2007) (en banc) (“A challenge
to the legality of the sentence may be raised as a
matter of right, is non-waivable, and may be
entertained [as] long as the reviewing court has
jurisdiction.”). In fact, such a claim is not even
waived by a party’s failure to include it in a
Pa.R.A.P.1925(b) statement. Commonwealth v.
Edrington, 780 A.2d 721 (Pa.Super. 2001)
(Commonwealth did not waive position that trial
court erred in failing to impose mandatory minimum
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sentence under recidivist statute, 42 Pa.C.S. § 9714,
even though claim was not included in
Commonwealth’s Pa.R.A.P.1925(b) statement).
Commonwealth v. Foster, 960 A.2d 160, 163 (Pa.Super. 2008),
affirmed, 17 A.3d 332 (Pa. 2011).
In his brief, appellant fails to present any type of explanation or cite to
any statutory authority nor does he refer us to any place in the certified
record to prove that his current sentence of 1 to 4 years’ exceeded the
statutory maximum. We observe it is not this court’s role to develop and
substantiate appellant’s illegal sentence claim. Nonetheless, the
Commonwealth has supplied us with the following information:
[T]here is no information contained in the certified
record to support Appellant’s assertion that his
July 15, 2014 sentence is illegal. Count 2, Indecent
Assault, was graded as a first-degree misdemeanor
punishable by a term of incarceration not to exceed
five years. (DE 2). 18 Pa.C.S.A. § 1104(1). Prior to
his July 15, 2014 probation violation sentence,
Appellant received credit for 341 days incarceration -
from October 5, 2011 to March 27, 2012 and from
September 1, 2012 to February 13, 2013. (DE 9).
When that incarcerated time is added to his current
sentence of 1 to 4 years’ incarceration, it does not
exceed the five year statutory maximum term of
incarceration. Thus, the sentence is not illegal.
42 Pa.C.S.A. §§ 9756, 9760. See also
Commonwealth v. Yakell, 876 A.2d 1040
(Pa.Super. 2005); Commonwealth v. Williams,
662 A.2d 658 (Pa.Super. 1995), appeal denied,
674 A.2d 1071 (Pa.1996).
If Appellant is somehow contending that he did
not receive all the time-credit due to him, his claim
is inadequately developed and unsupported by the
certified record. See [Commonwealth v.]
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Rahman, [75 A.3d 497, 504 (Pa.Super. 2013)]. At
Appellant’s May 1, 2014 guilty plea and sentencing
for the Westmoreland County cases he received
18 months to 5 years’ incarceration effective that
day with 410 days credit. 42 Pa.C.S.A. § 9760(1)
(statutory law provides that credit must be given “for
all time spent in custody as a result of the criminal
charge for which a prison sentence is imposed or as
a result of the conduct on which such a charge is
based. Credit shall include credit for time spent in
custody prior to trial, during trial, pending sentence,
and pending the resolution of an appeal.”). His
current Allegheny County sentence of 1 to 4 years’
imposed on July 15, 2014 is running consecutive to
the Westmoreland County sentences, and it is of
note that he was transported from SCI Camp Hill for
his probation violation hearing. (DE 10, 11). The
certified record does not contain any information on
Appellant’s arrest for his Westmoreland County
cases, but the Commonwealth would note that there
were 442 days between Appellant’s second Allegheny
County probation violation hearing on February 13,
2013 and his May 1, 2014 sentencing in
Westmoreland County. Given that Appellant
received 410 days credit in his Westmoreland County
cases, a logical deduction is that he was arrested in
Westmoreland County shortly after his second
February 13, 2013 probation violation hearing in
Allegheny County and the time-credit due to him
went to Westmoreland County. There is nothing in
the certified record that indicates Appellant would be
due any credit towards his present probation
violation sentence. Since Appellant has failed to
develop his argument and provide this Court with
any supporting information from the certified record,
his issue is not ripe for review. He must await
collateral review.
Commonwealth’s brief at 16-18.
We agree with the Commonwealth’s rationale and affirm appellant’s
judgment of sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/08/2015
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