Com. v. Geyer, R. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ROBERT GEYER
Appellant No. 384 WDA 2014
Appeal from the Judgment of Sentence February 3, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003418-2008
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED MAY 22, 2015
Appellant, Robert Geyer, appeals from the judgment of sentence
entered following the revocation of his probation on February 3, 2014, in the
Court of Common Pleas of Allegheny County. We affirm.
We take the underlying facts and procedural history in this matter
from the trial court’s opinion.
Geyer was originally charged with two counts of rape, one
count of sexual assault, one count of statutory sexual assault,
one count of indecent assault and one count of simple assault as
a result of his raping a fourteen-year-old female. On November
18, 2009, Geyer plead guilty to one count of sexual assault in
exchange for the dismissal of all of the remaining counts.
Geyer’s plea was the result of a plea agreement, which
envisioned that he would be sentenced to time served, and a
period of probation of five years. Geyer was to follow a service
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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plan that was prepared for him which envisioned that he would
undergo random drug screening and that he would seek
psychiatric treatment at Western Pennsylvania Psychiatric
Hospital.
Geyer was cited as a probation violator for his continued
use and abuse of drugs. It was noted in the violation report that
Geyer tested positive for drug use on twelve different occasions
and his drug use included marijuana, cocaine and
benzodiazepine. In addition to his drug abuse, the violation
report noted that he had threatened the staff at Western
Pennsylvania Psychiatric Hospital, the Day Reporting Center and
the psychiatric community treatment team. Threats made by
Geyer to these individuals were such that representatives from
the psychiatric community treatment team refused to go to
Geyer’s home since they feared for their safety. In addition to
this violation, it was noted that Geyer had been charged with
failure to comply with the [sex offender] registration
[requirements]…. Two violation hearings were held and
following the first hearing, a presentence report was ordered to
aid this [c]ourt in formulating a sentence for Geyer’s violations.
On February 3, 2014, following the second hearing and a review
of the presentence report, Geyer was sentenced to a period of
incarceration of not less than three nor more than six years, to
be followed by a period of probation of two years, during which
he would undergo random drug screening and he was to have no
contact with the victim.
Trial Court Opinion, 1/8/15 at 2-3. Geyer filed a post-sentence motion,
which the lower court denied following a hearing. This timely appeal
followed.
On appeal, Geyer raises the following issue for our review:
[Did the] trial court abuse its sentencing discretion by imposing
an excessive sentence without adequately addressing all
required sentencing factors, such as Appellant’s rehabilitative
needs?
Appellant’s Brief at 8 (unnecessary capitalization omitted).
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Our standard when reviewing a sentence imposed following the
revocation of probation is as follows.
Our review is limited to determining the validity of the probation
revocation proceedings and the authority of the sentencing court
to consider the same sentencing alternatives that it had at the
time of the initial sentencing. Also, upon sentencing following
revocation of probation, the trial court is limited only by the
maximum sentence that it could have imposed originally at the
time of the probationary sentence.
Commonwealth v. Tann, 79 A.3d 1130, 1132 (Pa. Super. 2014) (citation
omitted), appeal denied, 94 A.3d 1009 (Pa. 2014).
Geyer challenges the discretionary aspects of his sentence. In
Commonwealth v. Cartrette, 83 A.3d 1030 (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 revocation sentencing includes discretionary sentencing
challenges.” Id., at 1034. Therefore, Geyer’s claim is properly before us.
A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted).
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
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question that the sentence appealed from is not appropriate
under the Sentencing Code, 42. Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(quotation marks and some citations omitted).
Here, Geyer filed a timely appeal and challenged his sentence in a
post-sentence motion. Geyer’s appellate brief also contains the requisite
Rule 2119(f) concise statement, in which he contends that “trial court did
not sufficiently consider his drug problems and his rehabilitative needs in
order to adequately deal with his drug dependence or his mental problems.”
Appellant’s Brief at 14-15. We must now determine whether Geyer’s
challenge to the discretionary aspects of his sentence raises a substantial
question.
“A substantial question will be found where an appellant advances a
colorable argument that the sentence imposed is either inconsistent with a
specific provision of the Sentencing Code or is contrary to the fundamental
norms which underlie the sentencing process.” Commonwealth v. Zirkle,
107 A.3d 127, 132 (Pa. Super. 2014) (citation omitted). “[A]rguments that
the sentencing court failed to consider the factors proffered in 42 Pa.C.S. §
9721 does present a substantial question whereas a statement that the
court failed to consider facts of record, though necessarily encompassing the
factors of § 9721, has been rejected.” Commonwealth v. Buterbaugh, 91
A.3d 1247, 1266 (Pa. Super. 2014) (en banc), appeal denied, 104 A.3d
1 (Pa. 2014) (citation omitted).
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While Geyer frames his argument by claiming that the trial court failed
to consider certain statutory sentencing factors, in substance Geyer merely
argues that the trial court failed to sufficiently address factors of record, i.e.,
his drug and mental health problems. We note in this regard that the trial
court had prepared and reviewed a pre-sentence report. See N.T.,
Sentencing, 2/3/14 at 8. Where the trial court had the benefit of reviewing
a pre-sentence report, we must
presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and weighed
those considerations along with mitigating statutory factors. A
pre-sentence report constitutes the record and speaks for itself.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly that
sentencers are under no compulsion to employ checklists or any
extended or systematic definitions of their punishment
procedure. Having been fully informed by the pre-sentence
report, the sentencing court's discretion should not be disturbed.
This is particularly true, we repeat, in those circumstances where
it can be demonstrated that the judge had any degree of
awareness of the sentencing considerations, and there we will
presume also that the weighing process took place in a
meaningful fashion. It would be foolish, indeed, to take the
position that if a court is in possession of the facts, it will fail to
apply them to the case at hand.
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citing
Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988)).
As the trial court in this case had the benefit of a pre-sentence report, we
must presume that he considered all relevant sentencing factors, including
Geyer’s rehabilitative needs.
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Accordingly, we are constrained to find that Geyer’s claim that the trial
court did not adequately consider relevant factors of record fails to raise a
substantial question. See Buterbaugh, 91 A.3d at 1266.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2015
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