Com. v. Elliott, D. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DASHIELL ELLIOTT
Appellant No. 3132 EDA 2015
Appeal from the Judgment of Sentence September 10, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011272-2009
BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.*
MEMORANDUM BY MOULTON, J.: FILED JUNE 29, 2017
Dashiell Elliott appeals from the September 10, 2015 judgment of
sentence entered in the Philadelphia County Court of Common Pleas
following his violation of probation (“VOP”). We affirm.
On November 10, 2009, Elliott pled guilty to possession of a firearm
with altered manufacturer number, conspiracy, firearms not to be carried
without a license, and sale or transfer of firearms.1 That same day, the
trial court sentenced Elliott to three concurrent terms of 1½ to 3 years’
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 6110.2(a), 903(a)(1), 6106(a)(1), and 6111(g)(4),
respectively.
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incarceration, followed by 3 years’ probation for the convictions for sale or
transfer of firearms, conspiracy, and firearms not to be carried without a
license. Elliott received no further penalty on the conviction for possession
of a firearm with altered manufacturer number.
While on probation, Elliott committed a second offense. The trial court
set forth the subsequent procedural history as follows:
On May 8, 2014, [Elliott] was arrested on Federal
Firearms charges under federal docket number 2:14-cr-
00204-LDD-1. . . . See N.T. 09/10/15 at pp. 3-4 ([Elliott]
purchased firearms from an undercover informant in July
2013 and November 2013).
On July 21, 2014, [Elliott] pled guilty before the
Honorable Legrome Davis to two counts of Possession of a
Firearm by a Convicted Felon, 18 U.S.C. § 933(g)(1).
On October 28, 2014, [Elliott] was sentenced to twenty-
seven (27) months plus three (3) years probation.
On August 19, 2015, a Gagnon II summary was filed [in
this case]. The Gagnon II states that [Elliott] was in direct
violation of his probation as a result of the underlying
Federal indictment, and that until June 2, 2015, [Elliott]
was under Special Supervision with State Parole; due to
his probation case being past expiration, State Parole
transferred the case to the Philadelphia Adult Probation
and Parole Department to proceed with the violation
process.
On August 26, 2015, Paul Hetznecker, Esq. entered his
appearance as privately retained counsel.
On September 10, 2015, after a hearing, the Court
found [Elliott] in direct violation of his probation. [Elliott]
was sentenced to one (1) to two (2) years, to run
consecutively to the Federal sentence [Elliott] was already
serving under docket number 2:14-cr-00204-LDD-1.
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On October 7, 2015, [Elliott] filed a pro se notice of
appeal to the Superior Court. A criminal docketing
statement was not filed.
On December 22, 2015, the Superior Court issued an
Order remanding the case to the trial court to determine
whether Attorney Hetznecker abandoned [Elliott].
On January 20, 2016, after a hearing, the Court
determined that Attorney Hetznecker did not abandon
[Elliott]; that he was retained to represent [Elliott] on the
VOP hearing only; that [Elliott] did not retain counsel to
file an appeal nor did he request Attorney Hetznecker to
file an appeal; and that new counsel be appointed by the
Court Appointment Unit.
On January 21, 2016, Michael Marryshow, Esq. entered
his appearance.
On February 25, 2016, Attorney Marryshow filed a
1925(b) Statement of Matters Complained of on Appeal . .
..
1925(a) Opinion, 3/15/16, at 1-3 (“1925(a) Op.”) (some internal citations
omitted).
On appeal, Elliott raises the following issue:
Did the court violate [Elliott]’s right to a speedy hearing
following a delay of one year where [Elliott] was prejudiced
as he remained in jail awaiting the violation hearing and
[Elliott] did not receive written notice of the probation
violation charge and the court failed to state what
condition of probation [Elliott] violated?
Elliott’s Br. at 4 (full capitalization omitted).
Elliott first contends that the trial court violated his right to a speedy
hearing. However, Elliott has waived this claim by failing to raise it at the
VOP hearing. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court
are waived and cannot be raised for the first time on appeal.”);
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Commonwealth v. Collins, 424 A.2d 1254, 1254 (Pa. 1981) (holding
failure to raise claim that appellant was denied a speedy revocation hearing
“at any time in the court below precludes their consideration on appeal”).
Even if Elliott had preserved his claim, we would conclude that it lacks
merit. We review a sentence imposed following the revocation of probation
for an abuse of discretion. See Commonwealth v. Simmons, 56 A.3d
1280, 1283 (Pa.Super. 2012). Pennsylvania Rule of Criminal Procedure
708(B) provides that
[w]henever defendant has been sentenced to probation or
intermediate punishment, or placed on parole, the judge
shall not revoke such probation, intermediate punishment,
or parole as allowed by law unless there has been:
(1) a hearing held as speedily as possible at which the
defendant is present and represented by counsel; and
(2) a finding of record that the defendant violated a
condition of probation, intermediate punishment, or
parole.
Pa.R.Crim.P. 708(B). “The language ‘as speedily as possible’ has been
interpreted to require a hearing within a reasonable time.” Commonwealth
v. Woods, 965 A.2d 1225, 1227 (Pa.Super. 2009) (quotation omitted). We
have explained that “[i]n evaluating the reasonableness of a delay, the court
examines three factors: the length of the delay; the reasons for the delay;
and the prejudice resulting to the defendant from the delay.” Id. Where
the probation violation is based on a new conviction, “[t]he measure of delay
extends from the defendant's date of conviction or entry of a guilty plea on
the new charges to the date the court holds the revocation hearing.”
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Commonwealth v. Christmas, 995 A.2d 1259, 1263 (Pa.Super. 2010).
With regard to prejudice, we have stated:
If a defendant is already incarcerated on the charges that
triggered the probation revocation, he cannot claim the
delay in holding his revocation hearing caused him any
loss of personal liberty. Likewise, where a conviction on
new charges conclusively establishes the defendant's
probation violation, the defendant cannot claim a delay in
his VOP hearing prejudiced him because he lost favorable
witnesses and evidence.
Id. at 1263-64 (internal citations omitted).
Here, we conclude that Elliott failed to establish prejudice. As the trial
court stated, Elliott “was not deprived of any witnesses or evidence since the
sole reason [his] probation was revoked was because he pled guilty to the
Federal firearms charges.” 1925(a) Op. at 5. Further, he “did not suffer
prejudice arising from a loss of personal liberty during the delay because he
was already incarcerated on the Federal charges that triggered the probation
revocation.” Id. at 6. Therefore, the trial court did not abuse its discretion
in finding Elliott failed to establish the delay was unreasonable.
Next, Elliot claims that he did not receive written notice of the
probation violation charge. However, Elliott has waived this claim by failing
to include it in his Rule 1925(b) statement. See Commonwealth v. Lord,
719 A.2d 306, 309 (Pa. 1998) (“Any issues not raised in a [Rule] 1925(b)
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statement will be deemed waived.”).2
Finally, Elliott claims that the Commonwealth did not present sufficient
evidence that Elliott violated a condition of his probation. Elliot argues that
the Commonwealth presented no evidence at the VOP hearing that he had
pled guilty to firearms charges in federal court. Elliott further claims the trial
court failed to state which condition of probation Elliott had violated.
In reviewing whether a determination of violation is supported by
sufficient evidence, we apply the following principles:
The imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial
court, which, absent an abuse of that discretion, will not be
disturbed on appeal. An abuse of discretion is more than
an error in judgment—a sentencing court has not abused
its discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will.
...
When assessing whether to revoke probation, the trial
court must balance the interests of society in preventing
future criminal conduct by the defendant against the
possibility of rehabilitating the defendant outside of prison.
In order to uphold a revocation of probation, the
Commonwealth must show by a preponderance of the
evidence that a defendant violated his probation.
____________________________________________
2
We further note that Elliott’s argument regarding lack of notice is half
a paragraph embedded within his speedy trial argument and consists of a
conclusory statement followed by two citations. See Commonwealth v.
Johnson, 985 A.2d 915, 924 (Pa. 2009) (“[W]here an appellate brief fails to
. . . develop the issue in [a] meaningful fashion capable of review, that claim
is waived.”)
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Simmons, 56 A.3d at 1283-84 (quoting Commonwealth v. Allhouse, 333
A.3d 31, 37 (Pa.Super. 2011)).
Section 9771(b) of the Sentencing Code provides that “[t]he court
may revoke an order of probation upon proof of the violation of specified
conditions of the probation.” 42 Pa.C.S. § 9771(b). Section 9771(c) further
states that “[t]he court shall not impose a sentence of total confinement
upon revocation unless it finds that . . . the defendant has been convicted of
another crime[.]” 42 Pa.C.S. § 9771(c).
Here, the trial court concluded:
Attorney Hetzbecker stated on the record at the VOP
hearing that [Elliott] pled guilty to Federal firearms
charges after he purchased two separate firearms from an
undercover informant in July and November of 2013. N.T.
09/10/15 at p. 4. Although the Court had a copy of the
federal docket, [Elliott] conceded at the VOP hearing that
he “got this indictment for selling [to] an undercover
office[r] firearms,” that he “made a bad choice,” and that
“it came about as a profit thing, trying to make a little bit
of extra money[.]” Id. at p. 8. Thus, [Elliott]’s sufficiency
claim is without merit.
1925(a) Op. at 7. We agree.
The record reflects that the trial court revoked Elliott’s probation
because he committed a new crime.
THE COURT: So, we’re here on direct violation for a gun
offense that [Elliott] was convicted of, or pled guilty to, I
don’t know which it was. Was [he] convicted in Federal
Court?
[DEFENSE COUNSEL]: He pled guilty, yes.
THE COURT: He pled guilty. And I wanted to know the
facts of the underlying offense since his sentence in my
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case was on a gun charge where he was providing false
information during a firearms transfer.
So, what was the underlying indictment?
[DEFENSE COUNSEL]: Your Honor, the underlying
indictment, which constitutes a direct violation here,
involved Mr. Elliott purchasing from an undercover
informant two separate firearms, and these occurred in
July and November 2013.
THE COURT: Okay.
[DEFENSE COUNSEL]: He then admitted his guilt, pled
guilty in front of Judge Davis.
N.T., 9/10/15, at 3-4.
Therefore, we conclude the trial court did not abuse its discretion in
finding that the evidence was sufficient to uphold Elliott’s revocation of
probation.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2017
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