Com. v. Walker, E. ( 2015 )

J. S06042/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
EBONIE WALKER, :
:
Appellant : No. 1513 EDA 2014
Appeal from the Judgment of Sentence April 17, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0001510-2007
CP-51-CR-0006524-2011
BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 30, 2015
Appellant, Ebonie Walker, appeals from the judgment of sentence
imposed after the Philadelphia County Court of Common Pleas revoked her
probation in two cases and discharged her from Mental Health Court. She
asserts the aggregate violation of probation (VOP) sentence of two-and-a-
half to five years’ imprisonment was manifestly excessive. We affirm.
On March 26, 2007, Appellant was sentenced to a ten-year
probationary term in CR-0001510-2007, after she pleaded guilty to one
count of robbery. That probationary term was revoked after Appellant, in
CR-0006524-2011, pleaded guilty to a second robbery. The trial court, on
*
Former Justice specially assigned to the Superior Court.
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September 29, 2011, sentenced Appellant to an aggregate six to twenty-
three months’ imprisonment followed by three years’ probation for the
probation violation in CR-0001510-2007 and the new conviction in CR-
0006524-2011. Appellant was accepted into Mental Health Court, but was
sanctioned for failing three drug screens between April and August of 2013.
Her probation was again revoked after she failed to report to her probation
officer and did not appear for a hearing in October of 2013. On December
12, 2013, the trial court imposed aggregate VOP sentences of eleven-and-a-
half to twenty-three months’ imprisonment followed by five years’ probation.
On December 23, 2013, the trial court paroled Appellant to Eagleville
Hospital, where she remained until an anticipated discharge to Fresh Start
on February 17, 2014. However, following an interview, Fresh Start denied
her placement at their recovery home. Appellant was taken into custody the
following day for noncompliance with treatment. The trial court, on April
17, 2014, found Appellant was in “technical violation” of her probation. That
same day, the court imposed the instant concurrent sentences of two-and-a-
half to five years’ imprisonment on the underlying robbery convictions and
terminated her from Mental Health Court. This timely appeal followed.
Appellant presently claims the trial court imposed a “manifestly
excessive” VOP sentence. Appellant’s Brief at 3. She argues the court’s
“failure to consider [her] individualized circumstances and rehabilitative
needs demonstrates that the lower court abused its discretion and must be
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reversed.” Id. at 15. According to Appellant, the present VOP sentences
related only to the technical violations that occurred during treatment at
Eagleville and the interview for placement at Fresh Start. Id. at 12-14. She
contends the “gravity of her offenses, that is, her poor attitude during
treatment and her uncooperative responses during an interview [for
placement following discharge], did not rise to the extreme level of
infractions requiring a lengthy sentence.” Id. at 14. Furthermore, she
suggests that her “compliance with the terms of probation outweighed the
violations she incurred.” Id. No relief is due.
At the outset, we note Appellant has preserved her challenge to the
discretionary aspects of sentence by timely filing a motion to modify her
sentence and a notice of appeal, and setting forth her claim in a timely
Pa.R.A.P. 1925(b) statement. See Commonwealth v. Cartrette, 83 A.3d
1030, 1042 (Pa. Super. 2013) (en banc). Moreover, Appellant has complied
with the procedural requirement to include in her brief a Pa.R.A.P. 2119(f)
statement of reasons for allowance of appeal. See id.
We next consider whether Appellant’s Pa.R.A.P. 2119(f) statement
raises a substantial question.
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. A
substantial question [exists] only when the [defendant]
advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.
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Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations
omitted), appeal denied, 77 A.3d 1258 (Pa. 2013).
Instantly, according to Appellant’s Pa.R.A.P. 2119(f) statement, the
trial court “imposed a sentence that was grossly disproportionate to [her]
violations, which were technical in nature, and the court gave little
consideration to [her] mental health.” Appellant’s Brief, at 9. Appellant’s
contention that the sentence was grossly disproportionate to the technical
violation presents a substantial question. See Commonwealth v.
Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006); Commonwealth v.
Sierra, 752 A.2d 910, 913 (Pa. Super. 2000). Her remaining argument that
the court inadequately weighed her mental health issues generally does not
raise a substantial question. See Commonwealth v. Matroni, 923 A.2d
444, 455 (Pa. Super. 2007). Nevertheless, we will address the merits of
Appellant’s claim that the sentence was manifestly excessive in light of the
totality of the circumstances.
Our standard of review is well settled.
[S]entencing is vested in the discretion of the trial court,
and will not be disturbed absent a manifest abuse of that
discretion. An abuse of discretion involves a sentence
which was manifestly unreasonable, or which resulted from
partiality, prejudice, bias or ill will. It is more than just an
error in judgment.
Malovich, 903 A.2d at 1252-53 (citations omitted).
Section 9721(b) constrains a sentencing court’s
discretion in that it requires that any sentence imposed be
“consistent with the protection of the public, the gravity
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of the offense[,] . . . and the rehabilitative needs of the
defendant.” 42 Pa.C.S. § 9721(b) (emphasis added). A
sentence that disproportionally punishes a defendant in
excess of what is necessary to achieve consistency with
the section 9721(b) factors violates the express terms of
42 Pa.C.S. § 9721(b), as would a sentence that is
disproportionately lenient. Certainly consistency with
section 9721(b) factors does not require strict
proportionality in sentencing, and the non-quantifiable
nature of the factors considered would not permit such a
rule in any event. However, a sentence that is clearly and
excessively disproportionate is, by definition, inconsistent
with “the protection of the public, the gravity of the
offense [,] ... and the rehabilitative needs of the
defendant.” 42 Pa.C.S. § 9721(b).
Commonwealth v. Williams, 69 A.3d 735, 742 (Pa. Super. 2013), appeal
denied, 83 A.3d 415 (Pa. 2014).
Following our review, we discern no basis upon which to conclude that
the trial court abused its discretion or that the instant total sentence of two-
and-a-half to five years’ imprisonment was manifestly excessive. We
emphasize that the trial court found that Appellant failed to remain in
treatment as required by the terms of her probation. The court’s finding was
supported by undisputed reports that Appellant sabotaged the interview for
placement at Fresh Start and stated she would rather go to jail than go to a
recovery house. Moreover, the trial court, when fashioning its sentence, was
entitled to consider Appellant’s entire history under supervision. In light of
the present record, the court’s determinations, namely that Appellant’s
conduct and history under supervision evinced lack of rehabilitative
potential, the potential for reoffending, and a need to protect the public,
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were not manifestly unreasonable. Accordingly, we affirm the sentence
imposed by the trial court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2015
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