Com. v. Campbell, H. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
HARLEE CAMPBELL
Appellant No. 93 EDA 2014
Appeal from the Judgment of Sentence December 19, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009816-2010
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY LAZARUS, J.: FILED MARCH 31, 2015
Harlee Campbell appeals from the judgment of sentence imposed in
the Court of Common Pleas of Philadelphia County after a violation of
probation hearing before the Honorable Rayford A. Means. Upon careful
review, we affirm.
The trial court set forth the facts of this matter as follows:
On May 12, 2010, [Campbell] was arrested and charged with
possession with intent to deliver [(“PWID”)], engaging in
criminal conspiracy to manufacture, deliver, or possess with
intent to manufacture or deliver, and intentional possession of a
controlled substance by a person not registered. The intentional
possession of a controlled substance by a person not registered
charge was nolle prossed. [Campbell] entered into a negotiated
guilty plea on the remaining two charges. On September 27,
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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2010, this [c]ourt sentenced [Campbell] to nine (9) to twenty
three (23) months[’] confinement plus one (1) year probation.
On October 23, 2011, [Campbell] was arrested and charged with
aggravated assault, conspiracy to commit aggravated assault,
possession of a prohibited firearm, firearm not to be carried
without a license, carrying firearms in public in Philadelphia,
possession of [an] instrument of a crime with [intent], simple
assault, and recklessly endangering another person. [Campbell]
entered into a negotiated guilty plea on the aggravated assault
charges. The remaining charges were nolle prossed. On May
31, 2013, [Campbell] was sentenced to six (6) to thirteen (13)
years[’] confinement plus five (5) years[’] probation.
On December 19, 2013, [Campbell] appeared before this [c]ourt
via a video hearing. This [c]ourt found that [Campbell’s] arrest
and subsequent guilty plea for aggravated assault directly
violated his probation for the 2010 charges. This [c]ourt
revoked [Campbell’s] probation on the 2010 charges and
sentenced [Campbell] to four (4) to eight (8) years[’]
confinement on the 2010 possession with intent to deliver
charge and a consecutive four (4) to eight (8) years[’]
confinement on the 2010 engaging in criminal conspiracy
charge. In total, this [c]ourt sentenced [Campbell] to eight (8)
to sixteen (16) years[’] confinement to be served consecutively
to the sentence imposed in May 2013 on the aggravated assault
charge.
Trial Court Opinion, 5/19/14, at 1-2.
On December 23, 2013, while still represented by counsel, Campbell
filed a pro se notice of appeal to this Court. There is no indication on the
docket that the clerk of courts forwarded a copy of Campbell’s notice of
appeal to his counsel pursuant to Pa.R.Crim.P. 576(A)(4). On December 30,
2013, counsel, apparently unaware of Campbell’s pro se filing, filed a motion
to vacate and reconsider Campbell’s VOP sentence. By order docketed on
January 24, 2014, the court granted a hearing on the motion. On February
4, 2014, the VOP court ordered Campbell to file a concise statement of
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errors complained of on appeal, with which Campbell’s counsel complied on
February 24, 2014. After counsel failed to appear at the reconsideration
hearing, the court denied the motion on April 25, 2014.
Prior to considering the merits of Campbell’s appeal, we must address
the Commonwealth’s contention that this appeal should be quashed. The
Commonwealth contends that, by filing a pro se notice of appeal while he
was still represented by counsel, Campbell violated the prohibition against
hybrid representation and, thus, his notice of appeal was a legal nullity.
Brief of Appellee, at 5; Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa.
Super. 1993). Our Supreme Court addressed a similar scenario in
Commonwealth v. Cooper, 27 A.3d 994 (Pa. 2011). There, the appellant
was resentenced at a VOP hearing and, although represented by counsel,
filed a pro se notice of appeal with this Court days later. Counsel
subsequently filed a timely post-sentence motion, which the trial court
denied on its merits. Counsel then filed a notice of appeal to this Court.
This Court administratively quashed counsel’s notice of appeal as
duplicative; the merits panel ultimately quashed Cooper’s pro se appeal as
“premature” and a “nullity.” Id. at 997. On allowance of appeal, the
Supreme Court reversed, holding that, “[t]he proper way to view the pro se
appeal, after the counseled appeal was dismissed, is as a premature appeal
that was perfected upon the trial court’s proper consideration and denial of
the counseled post-sentence motions.” Id. at 1007. Likewise, here, we
conclude that Campbell’s pro se filing was perfected upon the trial court’s
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denial of his post-sentence motion for reconsideration and, accordingly, we
will consider the appeal on its merits.
We now turn to Campbell’s sole appellate claim. Campbell argues his
violation sentence was grossly excessive, unreasonable, and the result of an
abuse of discretion by the court because it was his first probation violation
and it was run consecutively to a thirteen year sentence already being
served. This is a challenge to the discretionary aspects of Campbell’s
sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant
challenging the discretionary aspects of his sentence must
invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct 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, 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, 42 Pa.C.S.A. § 9781(b).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed.
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. A substantial
question exists only when the appellant 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. Griffin, 65 A.3d 932, 935-36 (Pa. Super. 2013)
(citations and quotations omitted).
Here, Campbell preserved his sentencing claim through a post-
sentence motion for reconsideration of sentence. He filed a timely notice of
appeal and included in his brief a statement pursuant to Pa.R.A.P. 2119(f).
In his Rule 2119(f) statement, Campbell first claims that the trial court
imposed a manifestly excessive sentence without sufficiently considering all
the factors set forth in 42 Pa.C.S.A. § 9721(b). This claim raises a
substantial question. Commonwealth v. Riggs, 63 A.3d 780 (Pa. Super.
2012) (averment that court failed to consider relevant sentencing criteria,
including protection of public, gravity of underlying offense and rehabilitative
needs of defendant raised substantial question). Campbell also claims that
the sentence was disproportionate to the conduct at issue and not justified
by sufficient reasons. A claim that imposition of consecutive sentences is
disproportionate to the crimes committed, in combination with allegations
that a sentencing court did not consider the nature of the offenses or provide
adequate reasons for its sentence, has been found to raise a substantial
question. Commonwealth v. Dodge, 77 A.3d 1263, 1271-72 (Pa. Super.
2013). Accordingly, we will review the merits of these claims.
Campbell claims that his sentence was grossly disproportionate to the
gravity of the offense, the need for protection of the public, and his own
rehabilitative needs. Campbell asserts that the VOP court conducted an
“abbreviated hearing” and considered only the “fact of a direct violation.”
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Brief of Appellant, at 16. In support of his argument, Campbell relies upon
Commonwealth v. Parlante, 823 A.2d 927 (Pa. Super. 2003), in which the
defendant was sentenced to four to eight years’ incarceration after violating
her probation six times. Upon review of the record, we find that the trial
court did not abuse its discretion in resentencing Campbell.
Upon a finding that a defendant has violated probation, the sentencing
alternatives available to the court are the same as were available at the time
of initial sentencing. See 42 Pa.C.S.A. § 9721(b). Here, Campbell was
resentenced for PWID and conspiracy to commit PWID. The statutory
maximum penalty for both crimes is ten years’ imprisonment. See 35 P.S. §
780-113(f)(1.1). Upon resentencing, Campbell received sentences of four to
eight years’ imprisonment on each charge, a range well within the statutory
limit.
Our Supreme Court recently stated the following with regard to the
deference to be accorded sentencing courts on VOP resentencing:
Simply stated, the sentencing court sentences flesh-and-blood
defendants and the nuances of sentencing decisions are difficult
to gauge from the cold transcript used upon appellate review.
Moreover, the sentencing court enjoys an institutional advantage
to appellate review, bringing to its decisions an expertise,
experience, and judgment that should not be lightly disturbed.
The sentencing court’s institutional advantage is, perhaps, more
pronounced in fashioning a sentence following the revocation of
probation, which is qualitatively different than an initial
sentencing proceeding. At initial sentencing, all of the rules and
procedures designed to inform the court and to cabin its
discretionary sentencing authority properly are involved and play
a crucial role. However, it is a different matter when a
defendant reappears before the court for sentencing proceedings
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following a violation of the mercy bestowed upon him in the form
of a probationary sentence. For example, in such a case,
contrary to when an initial sentence is imposed, the Sentencing
Guidelines do not apply, and the revocation court is not cabined
by Section 9721(b)’s requirement 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.”
Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014).
Moreover, “since the defendant has previously appeared before the
sentencing court, the stated reasons for a revocation sentence need not be
as elaborate as that which is required at initial sentencing.” Pasture, 107
A.3d at 28. Finally, “there is no absolute requirement that a trial judge, who
has already given the defendant one sentencing break after having the
benefit of a full record, including a PSI, must order another PSI before
fashioning the appropriate revocation sentence.” Id.
In its Rule 1925(a) opinion, the VOP court noted the following:
[Campbell] was convicted of another crime while he was on
probation. [Campbell] entered into a negotiated guilty plea on
the charge of [a]ggravated [a]ssault on May 31, 2013. This
conviction alone is sufficient to allow this [c]ourt to impose a
sentence of total confinement upon revocation of probation
under 42 Pa.C.S. § 9771(c)(1). Furthermore, [Campbell’s]
conduct in committing two aggravated assaults while on
probation indicates that a sentence of total confinement is
necessary to vindicate the authority of the court under [section
9771(c)(3)]. [Campbell’s] behavior also indicates that it is likely
he will commit another crime if not imprisoned. [Campbell] was
not able to abide by the terms of his original probation, and, in
committing another crime while on probation, acted with blatant
disregard for this [c]ourt’s original sentence and authority. More
importantly, his criminal activity escalated from non-violent
drug-related activity to acts of violence during his probationary
period, which indicates he does not respect the authority of the
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[c]ourt and has no intention of ceasing criminal activity, and that
he will continue to pose a threat to public safety if not confined.
Trial Court Opinion, 5/19/14, at 3-4.
Campbell’s reliance on Parlante, supra, is misplaced. In that case,
this Court overturned a revocation sentence of four to eight years’
incarceration following seven probation violations. Unlike in the instant
matter, however, four of Parlante’s violations which were technical and none
of the substantive violations involved violence. Indeed, the Court
emphasized this fact in concluding that the trial court had abused its
discretion. See id. at 930 (“The record indicates that the trial court failed to
consider . . . the fact that all of [Parlante’s] offenses were non-violent in
nature and that her last two probation violations were purely technical.”).
Here, unlike Parlante, Campbell’s criminal behavior actually escalated
to violent, gun-related offenses while under the supervision of the trial court.
The trial court, in fashioning its sentence, concluded that a sentence of total
confinement was necessary to protect the public from Campbell’s
increasingly violent criminal behavior and to vindicate the court’s authority.
Having previously sentenced Campbell, the court was familiar with his
background and character. In addition, prior to the imposition of sentence,
Campbell was given the opportunity to inform the court about his current
circumstances and the rehabilitative efforts he made since being
incarcerated. In light of the foregoing, we cannot conclude that Campbell’s
sentence was manifestly excessive or the result of partiality, ill-will, or such
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lack of support so as to be clearly erroneous. Commonwealth v. Perry, 32
A.3d 232 (Pa. 2011).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/2015
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