Com. v. Stoudt, A. ( 2017 )

J-S58034-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ALFRED STOUDT :
:
Appellant : No. 427 MDA 2017
Appeal from the Judgment of Sentence February 13, 2017
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000690-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ALFRED STOUDT :
:
Appellant : No. 428 MDA 2017
Appeal from the Judgment of Sentence February 13, 2017
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002416-2002
BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 27, 2017
Appellant, Alfred Stoudt, appeals from the judgment of sentence
entered in the Berks County Court of Common Pleas, following revocation of
his probation. We affirm and grant counsel’s petition to withdraw.
The relevant facts and procedural history of this case are as follows.
At Docket CP-06-CR-0002416-2002 (“2416-02”),
[Appellant] pled guilty to three counts of Theft By
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Deception-False Impression on [October 21, 2002].[1]
Judge Ludgate, now retired, sentenced Appellant to not
less than nine (9) nor more than twenty-three (23)
months’ incarceration, and fourteen (14) years’ probation.
No further action was needed on this docket for several
years.
In 2015, Appellant was arrested on new charges related to
sexual offenses. On March 31, 2015, at Docket CP-06-CR-
0000690-2014 (“690-14”), [Appellant] pled guilty to two
charges, indecent assault and stalking.[2] As pursuant to
the Commonwealth’s procedure with sexual offenses,
sentencing was deferred until the Pennsylvania Sexual
Offender Assessment Board could evaluate Appellant. On
July 16, 2015, [at docket 690-14, the court] sentenced
[Appellant] to 364 to 729 days’ incarceration to be
followed by five (5) years’ probation. [Appellant] was
found not to be a sexually violent predator.
Appellant’s new conviction resulted in a violation of the
terms of his probation, which had been imposed at 2416-
02. On September 21, 2015, following Appellant’s
admission to his probation violation, [the court] sentenced
him to an additional seven (7) years’ probation, to
commence at the expiration of the five (5) years’ probation
given at 690-14.
Once paroled from his sentence of incarceration at 690-14,
Appellant violated the terms of his parole and probation. A
[Gagnon II] hearing was held and Appellant admitted
these violations on June 23, 2016. In an attempt to avoid
a state sentence, Appellant was sentenced in two parts. At
part one of the stalking charges [Appellant] was
incarcerated for a period of 77 days to 23 months, which
was a time served sentence. At part two of the stalking
charges, [Appellant] received three years’ probation
consecutive to part one.
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1 18 Pa.C.S.A. § 3922(a)(1).
2 18 Pa.C.S.A. §§ 3126(a)(8), 2709.1(a)(2), respectively.
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The instant matter began on November 30, 2016[,] and
was based on averments that Appellant had failed to
comply with a special condition of his parole/probation,
failure to comply with sex offender treatment. A formal
[Gagnon II] hearing was held for this matter on February
13, 2017. After hearing testimony, [the court] found that
Appellant was in violation of the terms of his parole and
probation. Resultant from this finding, at 690-14 part 1,
Appellant’s parole was revoked and [Appellant] was
recommitted to serve the maximum sentence originally
imposed or until such time as [Appellant] could present a
suitable parole plan. Additionally, at part two of the
stalking charges, [Appellant] was sentenced to a period of
incarceration of one (1) to three (3) years. Concurrent
with this period of incarceration, at 2416-02, [the court]
sentenced Appellant to a period of incarceration of one (1)
to three (3) years.
Following sentencing, a timely [post-sentence] motion was
filed on both dockets. [The court] denied both motions on
February 27, 2017. Appellant then [timely] filed two
appeals, one for each docket, on [March 8, 2017].
Subsequently, Appellant [timely] filed two concise
statements of errors pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure.
(Trial Court Opinion, filed May 4, 2017, at 1-2 unpaginated). This Court sua
sponte consolidated Appellant’s appeals on March 23, 2017. On June 22,
2017, Appellant’s counsel filed a motion to withdraw and an Anders brief.
As a preliminary matter, appellate counsel seeks to withdraw her
representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa.
159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)
petition the Court for leave to withdraw, certifying that after a thorough
review of the record, counsel has concluded the issues to be raised are
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wholly frivolous; 2) file a brief referring to anything in the record that might
arguably support the appeal; and 3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points the appellant deems worthy of review.
Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance
with these requirements is sufficient. Commonwealth v. Wrecks, 934
A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent
requirements have been met, this Court must then make an independent
evaluation of the record to determine whether the appeal is, in fact, wholly
frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.
2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982
(Pa.Super. 1997)).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor McClendon[3] requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
references to anything in the record that might arguably
support the appeal.
* * *
Under Anders, the right to counsel is vindicated by
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3 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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counsel’s examination and assessment of the record and
counsel’s references to anything in the record that
arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (1) provide a
summary of the procedural history and facts, with citations
to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set
forth counsel’s conclusion that the appeal is frivolous; and
(4) state counsel’s reasons for concluding that the appeal
is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Id. at 178-79, 978 A.2d at 361.
Instantly, appellate counsel filed a petition for leave to withdraw. The
petition states counsel performed a conscientious review of the record and
concluded the appeal is wholly frivolous. Counsel also supplied Appellant
with a copy of the withdrawal petition, the brief, and a letter explaining
Appellant’s right to proceed pro se or with new privately-retained counsel to
raise any additional points Appellant deems worthy of this Court’s attention.
In her Anders brief, counsel provides a summary of the facts and
procedural history of the case. Counsel refers to facts in the record that
might arguably support the issues raised on appeal and offers citations to
relevant law. The brief also provides counsel’s reasons for concluding that
the appeal is frivolous. Thus, counsel has substantially complied with the
requirements of Anders and Santiago.
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Appellant has filed neither a pro se brief nor a counseled brief with
new privately-retained counsel. We will review the issues raised in the
Anders brief:
WHETHER APPELLANT’S SENTENCE TO BE RECOMMITTED
TO SERVE THE MAXIMUM SENTENCE ORIGINALLY
IMPOSED FOLLOWED BY A SENTENCE OF NOT LESS THAN
ONE NOR MORE THAN THREE YEARS TO THE BUREAU OF
CORRECTIONS FOR CONFINEMENT IN A STATE
CORRECTIONAL FACILITY WAS MANIFESTLY EXCESSIVE,
CLEARLY UNREASONABLE, AND CONTRARY TO THE
FUNDAMENTAL NORMS UNDERLYING THE SENTENCING
CODE GIVEN THE CIRCUMSTANCES OF THE CASE, NAMELY
THE TECHNICAL NATURE OF THE VIOLATIONS AS WELL AS
APPELLANT’S ADVANCED AGE AND HEALTH
CONDITIONS[?]
WHETHER THE SENTENCING COURT ERRED AND ABUSED
ITS DISCRETION IN DENYING APPELLANT’S POST
SENTENCE MOTION FOR MODIFICATION OF SENTENCE,
WHERE SUCH DENIAL WAS CONTRARY TO THE GENERAL
PRINCIPLES UNDERLYING THE SENTENCING CODE, IN
THAT THE PROTECTION OF THE PUBLIC, THE GRAVITY OF
THE OFFENSE AS IT RELATES TO THE IMPACT ON THE
LIFE OF THE VICTIM AND THE COMMUNITY, AND
APPELLANT’S INDIVIDUAL REHABILITATIVE NEEDS WERE
NOT CONSIDERED WHERE LESS RESTRICTIVE MEANS TO
UPHOLD THE PRINCIPLES OF THE SENTENCING CODE ARE
AVAILABLE GIVEN APPELLANT’S ADVANCED AGE AND
HEALTH CONDITIONS AS WELL AS THE TECHNICAL
NATURE OF THE VIOLATION[?]
(Anders Brief at 7).
When reviewing the outcome of a revocation proceeding, this Court is
limited to determining the validity of the proceeding, the legality of the
judgment of sentence imposed, and the discretionary aspects of sentencing.
Commonwealth v. Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013)
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(en banc) (explaining that, notwithstanding prior decisions which stated our
scope of review in revocation proceedings is limited to validity of
proceedings and legality of sentence, we unequivocally hold that this Court’s
scope of review on appeal from revocation sentencing also includes
discretionary sentencing challenges).
Appellant argues the court ignored the sentencing factors set forth at
42 Pa.C.S.A. § 9721(b), which requires the court to consider 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 Appellant’s rehabilitative needs.
Specifically, Appellant insists the court ignored the rehabilitative needs of an
87-year-old man with numerous medical problems. Appellant contends staff
at his treatment facility told him that if he could not afford to pay for
treatment, then he should not attend treatment sessions. Appellant admits
this misunderstanding resulted in a technical violation, but he maintains his
attendance at treatment sessions over a six-month period shows his
willingness to engage in rehabilitation. Appellant submits the court violated
fundamental fairness under the Sentencing Code, which creates a
substantial question regarding the appropriateness of the sentence.
Appellant asserts he does not meet the standard required for a
sentence of total confinement under the three prongs of 42 Pa.C.S.A. §
9771(c). Appellant states he did not commit a new crime, his age and
medical conditions indicate he is unlikely to commit a new crime, and
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imprisonment for an ill, elderly man is not essential to vindicate the court’s
authority. Appellant complains the court abused its discretion when it
resentenced Appellant following revocation of probation. As presented,
Appellant’s issues challenge the discretionary aspects of his sentence.4 See
Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (explaining
claim that sentence is manifestly excessive challenges discretionary aspects
of sentencing); Commonwealth v. Cruz-Centeno, 668 A.2d 536(Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996)
(stating allegation court ignored mitigating factors challenges discretionary
aspects of sentencing).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);
Pa.R.A.P. 2119(f). This Court must evaluate what constitutes a substantial
question on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825(Pa.Super. 2007). A substantial question exists “only when the appellant
advances a colorable argument that the sentencing judge’s actions were
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4 Appellant preserved this claim in his motion for modification of sentence
and counsel included a statement pursuant to Pa.R.A.P. 2119(f) in her
Anders brief.
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either: (1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000).
A claim of excessiveness can raise a substantial question as to the
appropriateness of a sentence under the Sentencing Code, even if the
sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at
624. Bald allegations of excessiveness, however, do not raise a substantial
question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather,
a substantial question exists “only where the appellant’s Rule 2119(f)
statement sufficiently articulates the manner in which the sentence violates
either a specific provision of the sentencing scheme set forth in the
Sentencing Code or a particular fundamental norm underlying the sentencing
process….” Id. See, e.g., Cartrette, supra (indicating claim that
revocation court ignored appropriate sentencing factors raises substantial
question). An allegation that the sentencing court failed to consider a
specific mitigating factor, however, does not necessarily raise a substantial
question. Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001)
(holding claim that sentencing court ignored appellant’s rehabilitative needs
failed to raise substantial question).
In the context of probation revocation and resentencing, the
Sentencing Code provides, in pertinent part:
§ 9771. Modification or revocation of order of
probation
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(a) General rule.—The court may at any time
terminate continued supervision or lessen or increase the
conditions upon which an order of probation has been
imposed.
(b) Revocation.—The court may revoke an order of
probation upon proof of the violation of specified conditions
of the probation. Upon revocation the sentencing
alternatives available to the court shall be the same as
were available at the time of initial sentencing, due
consideration being given to the time spent serving the
order of probation.
(c) Limitation on sentence of total
confinement.—The court shall not impose a sentence of
total confinement upon revocation unless it finds that:
(1) the defendant has been convicted of another
crime; or
(2) the conduct of the defendant indicates that it
is likely that he will commit another crime if he is not
imprisoned; or
(3) such a sentence is essential to vindicate the
authority of the court.
* * *
42 Pa.C.S.A. § 9771(a)-(c). “The reason for revocation of probation need
not necessarily be the commission of or conviction for subsequent criminal
conduct. Rather, this Court has repeatedly acknowledged the very broad
standard that sentencing courts must use in determining whether probation
has been violated.” Commonwealth v. Colon, 102 A.3d 1033, 1041
(Pa.Super. 2014), appeal denied, 631 Pa. 710, 109 A.3d 678 (2015).
“[T]he revocation of a probation sentence is a matter committed to the
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sound discretion of the trial court and that court’s decision will not be
disturbed on appeal in the absence of an error of law or an abuse of
discretion.” Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa.Super.
2006). Following the revocation of probation, the court may impose a
sentence of total confinement if any of the following conditions exist: the
defendant has been convicted of another crime; the conduct of the
defendant indicates it is likely he will commit another crime if he is not
imprisoned; or, such a sentence is essential to vindicate the authority of the
court. See 42 Pa.C.S.A. § 9771(c).
Pursuant to Section 9721(b), “the 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.” 42 Pa.C.S.A. § 9721(b). “[T]he
court shall make as part of the record, and disclose in open court at the time
of sentencing, a statement of the reason or reasons for the sentence
imposed.” Id. Nevertheless, “[a] sentencing court need not undertake a
lengthy discourse for its reasons for imposing a sentence….”
Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal
denied, 608 Pa. 661, 13 A.3d 475 (2010). Rather, “the record as a whole
must reflect the sentencing court’s consideration of the facts of the crime
and character of the offender.” Id. See also Commonwealth v. Carrillo-
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Diaz, 64 A.3d 722 (Pa.Super. 2013) (explaining where revocation court
presided over defendant’s no contest plea hearing and original sentencing,
as well as his probation revocation hearing and sentencing, court had
sufficient information to evaluate circumstances of offense and character of
defendant when sentencing following revocation).
Here, the court explained its revocation sentencing rationale as
follows:
Appellant claims that the [c]ourt erred and abused its
discretion because of the technical nature of the violations
and Appellant’s advanced age and health conditions.
However, the record is clear that [the court] considered
such factors among several others. [The court] stated:
I have taken into account — I’ve been the judge on
this case since it started so I’m well familiar with the
general background of the case, the disposition of
the case, I was the judge when the violations from
last summer were adjudicated and I’m here today in
the continuing saga. I’ve taken into account the
information that I have received both from the
testimony that was heard [at the February 13, 2017
Gagnon II hearing] and from Appellant.
By this statement, [the court] included [its] previous
knowledge of the case and [its] prior decisions made in
sentencing. Additionally, by taking into account
[Appellant’s] testimony [the court] considered his
advanced age and health conditions. [Appellant] only
moments before, in his allocution, made statements about
his poor hearing and use of a pacemaker. The [c]ourt did
not believe it necessary to repeat this testimony. Also, the
[c]ourt, having just completed the formal [Gagnon II]
hearing, was well aware of the technical nature of the
violations, which [the court] considered during sentencing.
(Trial Court Opinion, supra, at 3-4 unpaginated) (internal citations omitted).
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We see no reason to disrupt the court’s analysis. See MacGregor, supra.Additionally, Appellant’s complaint that the sentencing court did not
adequately consider specific mitigating factors (his age and medical
conditions) and his bald claim of sentence excessiveness arguably do not
raise substantial questions meriting review. See Mouzon, supra; Berry,
supra. Nevertheless, we observe the revocation court presided over
Appellant’s original sentencing on docket number 690-14, and his first
violation of probation (“VOP”) under docket number 2416-02. During the
Gagnon II hearing on February 23, 2017, the Commonwealth presented
evidence of Appellant’s technical VOP for failure to attend sex offender
treatment. The court stated it was familiar with the general background of
the case and took into account Appellant’s testimony about his age and
health conditions. The court subsequently revoked Appellant’s probation and
resentenced him under both dockets. The record as a whole makes clear the
revocation court considered the facts of Appellant’s case and his character
per Section 9721(b), and set forth adequate reasons to justify the VOP
sentence. See Carrillo-Diaz, supra; Crump, supra. The record also
confirms the court imposed a sentence of total confinement consistent with
Section 9771(c). See 42 Pa.C.S.A. § 9771(c). See also Commonwealth
v. Malovich, 903 A.2d 1247 (Pa.Super. 2006) (holding record evidenced
that court imposed sentence of total confinement following revocation of
appellant’s probation to vindicate court’s authority, where appellant had not
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complied with previous judicial efforts such as drug court, had not “been
putting anything into” court-imposed rehabilitation efforts, and it was
important for appellant to appreciate seriousness of his actions; record as
whole reflected court’s reasons for sentencing as well as court’s
consideration of circumstances of appellant’s case and character);
Commonwealth v. Cappellini, 690 A.2d 1220 (Pa.Super. 1997) (holding
appellant’s continued drug use as well as his resistance to treatment and
supervision, was sufficient for court to determine appellant would likely
commit another crime if not incarcerated); Commonwealth v. Aldinger,
436 A.2d 1196 (1981) (explaining sentence of total confinement was proper
where record reflected appellant had violated probation by using drugs;
court considered circumstances giving rise to revocation proceeding and
appellant’s character). Following our independent review of the record, we
conclude the appeal is wholly frivolous.5 See Palm, supra. Accordingly, we
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5 The record showed Appellant pled guilty to indecent assault, a Tier II
offense under the Sexual Offender Registration and Notification Act
(“SORNA”), which required him to report as a sex offender for twenty-five
(25) years. We are aware of our Supreme Court’s recent decision that held
SORNA violated the ex post facto clauses of the United States and
Pennsylvania Constitutions, and this Court’s recent decision that held
unconstitutional the sexually violent predator designation under SORNA
because it required additional fact-finding after trial. See Commonwealth
v. Muniz, ___ Pa. ___, 164 A.3d 1189 (2017); Commonwealth v. Butler,
___ A.3d ___, 2017 PA Super 344 (filed October 31, 2017). These recent
decisions, however, do not affect the present case, because Appellant’s
guilty plea to indecent assault and the imposition of SORNA reporting
requirements occurred after the effective date of SORNA, Appellant was not
(Footnote Continued Next Page)
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affirm the judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/27/17
(Footnote Continued) _______________________
designated as a sexually violent predator, the Tier II classification for the
offense is defined by statute and requires no additional fact-finding after
trial.
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