Com. v. Peters, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CLARENCE RAY PETERS,
Appellant No. 1133 MDA 2014
Appeal from the Judgment of Sentence entered June 4, 2014,
in the Court of Common Pleas of Lackawanna County,
Criminal Division, at No(s): CP-35-CR-0001316-2013
and CP-35-CR-0002006-2013
BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.
MEMORANDUM BY ALLEN, J.: FILED FEBRUARY 03, 2015
Clarence Peters, (“Appellant”), appeals from the judgment of sentence
imposed following his convictions for possession of drug paraphernalia at
Docket No. 1316 of 2013, and possession of drug paraphernalia at Docket
No, 2006-2013.1 We affirm.
On July 29, 2013, Appellant pled guilty at Docket No. 1316-2013 to
one count of possession of drug paraphernalia. On October 29, 2013, the
trial court sentenced Appellant to county intermediate punishment (“CIP”)
with work release, with three months to be served in the Lackawanna
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1
35 Pa.C.S.A. §§ 780-113(a)(32).
*Retired Senior Judge assigned to the Superior Court.
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County Prison, to be followed by three months of house arrest, and a
consecutive 18 months of probation.2
On October 19, 2013, Appellant pled guilty at Docket No. 2006-2013
to one count of possession of drug paraphernalia and was sentenced that
same day to one (1) year of probation consecutive to the sentence imposed
at Docket No. 1316-2013.
On April 2, 2014, the trial court scheduled a revocation hearing based
on Appellant’s failure to comply with his CIP sentence. At the hearing,
Appellant informed the trial court that he refused to participate in either
house arrest or work release because of his problems with drug addiction,
which he feared would recur if he left the Lackawanna County Prison;
Appellant also asserted that he did not have a residence plan necessary for
participation in the house arrest program. N.T., 4/2/14, at 2. Thereafter,
on June 4, 2014, the trial court revoked Appellant’s original sentences and
resentenced him to a term of imprisonment of six (6) to twelve (12) months
at Docket No. 1316-2013, and a consecutive six (6) to twelve (12) months
of imprisonment at Docket No. 2006-2013, for an aggregate sentence of
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2
“Intermediate punishment is an alternative to total confinement.”
Commonwealth v. Stevenson, 850 A.2d 1268, 1272 (Pa. Super. 2004)
(en banc) (citing 42 Pa.C.S.A. § 9721(a). “Intermediate punishment is
described as the conditions that a court can place on a defendant in lieu of
total or partial confinement.” Commonwealth v. Koskey, 812 A.2d 509,
512 (Pa. 2002).
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twelve (12) to twenty-four (24) months of imprisonment in a state
correctional institution.
Appellant filed a post-sentence motion on June 9, 2014, which the trial
court denied on June 10, 2014. This appeal followed. Both Appellant and
the trial court have complied with Pa.R.A.P. 1925.
On appeal, Appellant argues that the trial court abused its discretion
when it sentenced him to a term of imprisonment of twelve (12) to twenty-
four (24) months in a state correctional institution. Specifically, Appellant
claims that his sentence is unduly harsh and excessive, and that the trial
court failed to place adequate reasons on the record for the sentence.
Appellant’s Brief at 8-13.
A challenge to the discretionary aspects of a sentence is not
appealable as of right. Rather, Appellant must petition for allowance of
appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856
A.2d 1254, 1257 (Pa. Super. 2004).
Before we reach the merits of this [issue], we must engage
in a four part analysis to determine: (1) whether the appeal is
timely; (2) whether Appellant preserved his issue; (3) whether
Appellant's brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence is
appropriate under the sentencing code. The third and fourth of
these requirements arise because Appellant's attack on his
sentence is not an appeal as of right. Rather, he must petition
this Court, in his concise statement of reasons, to grant
consideration of his appeal on the grounds that there is a
substantial question. Finally, if the appeal satisfies each of these
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four requirements, we will then proceed to decide the
substantive merits of the case.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations
omitted).
Appellant has preserved his claim by filing a post-sentence motion and
timely notice of appeal. Appellant has additionally included in his brief a
concise statement pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief at
29-30. Moreover, Appellant’s argument that the trial court failed to state
adequate reasons on the record for the sentence presents a substantial
question for our review. Commonwealth v. Booze, 953 A.2d 1263, 1268
(Pa. Super. 2008). We therefore proceed to address the merits of this
appeal.
Appellant was sentenced to an aggregate term of twelve (12) to
twenty-four (24) months of imprisonment after he was originally sentenced
to CIP, but refused to be released on work release or house arrest as
required by the terms of the sentence. As a result, Appellant was found to
be in violation of the conditions of his CIP sentence, and the trial court
revoked his sentence and resentenced him in accordance with 42 Pa.C.S.A. §
9773 (Revocation of county intermediate punishment sentence) which
provides:
(a) General rule.--The court may at any time terminate a sentence
of county intermediate punishment or increase or decrease the
conditions of a sentence pursuant to section 9763 (relating to
sentence of county intermediate punishment).
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(b) Revocation.--The court may revoke a sentence of county
intermediate punishment upon proof of a violation of specific
conditions of the sentence. Upon revocation and subject to
section 9763(d), the sentencing alternatives available to the
court shall be the same as the alternatives available at the time
of initial sentencing. Upon a revocation of county intermediate
punishment for any reason specified by law, the attorney for the
Commonwealth may 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. Consideration shall be given to the time served in the
county intermediate punishment program.
(c) Hearing required.--A court shall not revoke or increase the
conditions of a sentence of county intermediate punishment
without a hearing at which the court shall consider the record of
the initial sentencing proceeding as well as the conduct of the
defendant while serving a sentence of county intermediate
punishment. A hearing is not required to decrease the
conditions of the sentence.
Appellant argues that in resentencing, the trial court failed to provide
on the record adequate reasons in accordance with 42 Pa.C.S.A. § 9721(b),
which sets forth the general standards applicable to sentencing, in pertinent
part as follows:
[T]he court shall 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. The court shall also consider any
guidelines for sentencing and resentencing adopted by the
Pennsylvania Commission on Sentencing ...
In every case in which the court ... resentences an
offender following revocation of probation, county
intermediate punishment or State intermediate
punishment ... the court shall make as a part of the
record, and disclose in open court at the time of
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sentencing, a statement of the reason or reasons for
the sentence imposed.
42 Pa.C.S.A. § 9721(b) (emphasis added).
Here, the record reflects that the proceedings to revoke Appellant’s
original CIP sentence were initiated after Appellant’s refusal to comply with
the conditions which required him to participate in a work release program
and serve a portion of his sentence on house arrest. See Trial Court
Opinion, 10/31/14, at 4. Based on Appellant’s refusal to comply with his CIP
sentence, the trial court scheduled a revocation hearing on April 2, 2014. At
the hearing, Appellant’s counsel explained Appellant’s refusal to comply with
his CIP sentence:
[Regarding Appellant’s] refusal to do either work release or
house arrest, basically, [Appellant] told me he has an addiction.
It’s heroin. He doesn’t want to risk drug use which is why he
doesn’t want to go on work release. And he doesn’t really have
a legitimate home plan for him to go on house arrest.
N.T., 4/2/14, at 2.
The trial court responded by offering Appellant a sentence of State
Intermediate Punishment (“SIP”), instructing Appellant that “with State IP ...
you could get yourself some treatment if that’s your concern.” Id. at 3. The
trial court then continued the sentencing hearing for Appellant to evaluate
whether he would like to participate in a SIP program.
On June 4, 2014, the trial court convened a second hearing, at which
Appellant rejected the trial court’s proposal of a SIP sentence, and asked the
trial court to instead impose a sentence that would allow him to remain in
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Lackawanna County rather than be transferred to the State Department of
Corrections. Specifically, Appellant stated:
I just want to say I don’t want you to take me refusing
State IP as disrespect by any means. [With regard to the
original County IP sentence] when it was time for me to go to
house arrest ... it wasn’t a good time for me to go home. I
wasn’t ready. It was only 90 days. I still had things to work
out.
N.T., 6/4/14, at 2-3. Thereafter, the trial court resentenced Appellant to
twelve (12) to twenty-four (24) months of imprisonment in a state
correctional institution.
Based on our review of the record, we disagree with Appellant’s
contention that the trial court failed to place adequate reasons on the record
for the sentence. The record is replete with the trial court’s efforts to
accommodate Appellant’s rejection of a CIP sentence that required him to be
released on work release/house arrest. To this end, the trial court offered
Appellant the option of participating in a SIP program, through which
Appellant could receive treatment for his drug addiction. After Appellant
rejected the offer of SIP, the trial court sentenced him to a term of
imprisonment of twelve (12) to twenty-four (24) months. Appellant is
dissatisfied with the trial court’s decision to sentence him to serve his term
of imprisonment in a state correctional facility rather than the Lackawanna
County Jail. Appellant’s dissatisfaction with the trial court’s refusal to place
him in the Lackawanna County jail for the remainder of his sentence does
not constitute an abuse of discretion in light of the trial court’s efforts to
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accommodate Appellant’s rehabilitative needs by offering him both county
and state intermediate punishment, both of which Appellant rejected. “A
sentencing court has broad discretion in choosing the range of permissible
confinements which best suits a particular defendant and the circumstances
surrounding his crime. However, the choices must be consistent with the
protection of the public, the gravity of the offense, and the rehabilitative
needs of the defendant.” Commonwealth v. Moore, 617 A.2d 8, 12 (Pa.
Super. 1992). The trial court clearly considered Appellant’s rehabilitative
needs and the protection of the public and the various sentencing
alternatives available. The fact that Appellant elected not to proceed with
his CIP sentence and also rejected the trial court’s offer of SIP with drug
rehabilitation services, does not constitute an abuse of the trial court’s
discretion.
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2015
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