Com. v. Pustelak, T. ( 2018 )

J-S50043-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIMOTHY J. PUSTELAK, :
:
Appellant. : No. 432 WDA 2018
Appeal from the PCRA Order, February 26, 2018,
in the Court of Common Pleas of Erie County,
Criminal Division at No(s): CP-25-CR-0000375-2013.
BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 27, 2018
Timothy J. Pustelak appeals from the order dismissing his petition for
collateral relief. See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On October 14, 2013, Pustelak entered a guilty plea at docket number
375-2013 to DUI at the highest rate1 and careless driving.2 He was sentenced
to restrictive intermediate punishment for twenty-four (24) months starting
with electronic monitoring for ninety (90) days, plus costs, fees and
community service.
Subsequently, Pustelak was revoked three (3) times at this docket
number. At the March 3, 2015 revocation and resentencing, the trial court
revoked Pustelak’s sentence of intermediate punishment/probation on the DUI
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1 75 P.S. §3802(c).
2 75 P.S. §3714(a).
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count; Pustelak was resentenced to 6-12 months of incarceration with credit
for 209 days of time served at the Erie County Prison, followed by one year of
probation. Having already met the minimum time of incarceration, Pustelak
was paroled that same day.
At the August 5, 2015 revocation and resentencing, the trial court
revoked Pustelak’s probation at Count 2; Pustelak was recommitted to the
Erie County Prison with 265 days credit for time served, followed by 24 months
of probation. The next day, Pustelak was transferred to the Erie County
Community Correction Center.
On or about December 23, 2016, Pustelak was charged with simple
assault and harassment for punching his girlfriend in the face. The charge of
simple assault was subsequently reduced to an M-3, and the summary offense
of harassment was withdrawn. Pustelak pled guilty to the reduced charge on
January 20, 2017 before the district justice.
As a result of these new charges and conviction, on February 10, 2017,
the trial court revoked Pustelak’s probation and resentenced him for a third
time on the DUI count; Pustelak was recommitted to the Erie County Prison
with 415 days of credit for time served followed by 24 months of probation.
Having met the minimum period of incarceration, he was again paroled and
released on supervision.
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On February 17, 2017, Pustelak sought to withdraw his plea of guilty to
the simple assault charge under Pa.R.Crim.P. 550(D).3 Subsequently,
pursuant to a newly negotiated plea, Pustelak pled guilty to a summary
offense for harassment; Pustelak was sentenced to pay costs.
On October 13, 2017, Pustelak filed a motion to amend his sentence at
docket number 375-2013, arguing that because he withdrew his plea to the
M-3 offense for punching his girlfriend, and re-plead to a summary offense for
harassment, his sentence should be amended to eliminate the two (2) years
of probation. The court treated Pustelak’s motion as a claim for post-
conviction relief challenging the legality of his sentence. On February 2, 2018,
the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss
Pustelak’s PCRA petition without a hearing. Pustelak did not file a response.
On February 26, 2018, the PCRA court dismissed his petition. Pustelak now
appeals and raises the following issue:
A. Whether the [PCRA] [c]ourt committed legal error and abused
its discretion when it failed to grant collateral relief from
Pustelak’s third revocation sentence, based on a conviction for
an M-3, when his conviction was ultimately changed to a
summary offense?
See Pustelak’s Brief at 2.
In reviewing an appeal from the denial of PCRA relief, our review is
“limited to examining whether the evidence of record supports the
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3 Rule 550(D) provides: “A defendant who enters a plea of guilty under this
rule may, within 30 days after the sentence, change the plea to not guilty . .
. .” Pa.R.Crim.P. 550(D).
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determination of the PCRA court and whether the ruling is free from legal
error.” Commonwealth v. Carpenter, 725 A.2d 154, 159-160 (1999). “The
PCRA court's factual determinations are entitled to deference, but its legal
determinations are subject to our plenary review.” Commonwealth v.
Johnson, 600 Pa. 329, 966 A.2d 523, 532 (2009)
In claiming that he is entitled to relief, Pustelak argues that the trial
court erred by allowing the revocation and resentencing to proceed prior to
final disposition of the offense which served as the basis for the revocation.
According to Pustelak, the trial court should have waited until the thirty (30)
day appeal period on the underlying offense had passed before proceeding
with the revocation and resentencing. “It is a patent procedural error on the
part of the [trial] court to permit a revocation to proceed and be applied even
before the final disposition of the conviction upon which that revocation rests
and thereby is violative of both proceedings.” Pustelak’s Brief at 6. The
offense which prompted Pustelak’s revocation was ultimately a summary
offense, rather than an M-3. Thus, because Pustelak’s revocation and
resentence was predicated upon his conviction of a crime classified as an M-
3, which was nullified by his withdrawal of that plea and subsequent plea to a
summary offense, Pustelak contends that his sentence was illegal and should
be vacated. We disagree.
“Notwithstanding timely challenges to the original conviction and
sentence of probation, where a petitioner's probation is subsequently revoked
and a new sentence is imposed, PCRA relief is potentially available ‘only as to
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the issues of the validity of the revocation proceedings and the legality of the
new sentence.’” Commonwealth v. Ballard, 814 A.2d 1242, 1244 (2003)
(emphasis in original) (quoting Commonwealth v. Anderson, 788 A.2d
1019, 1022 (Pa. Super. 2001)). Although Pustelak’s claim is characterized as
illegality of sentence, we think it relates more to the validity of the revocation
proceedings themselves—the timing thereof and the burden of proof needed
to establish a probation violation.4
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4 Regarding illegality of sentence,
[a] claim that implicates the fundamental legal authority of
the court to impose a particular sentence constitutes a
challenge to the legality of the sentence. If no statutory
authorization exists for a particular sentence, that sentence
is illegal and subject to correction. Likewise, a sentence that
exceeds the statutory maximum is illegal. If a court
imposes a sentence outside of the legal parameters
prescribed by the applicable statute, the sentence is illegal
and should be remanded for correction.
Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013) (internal
citations and quotations omitted).
As discussed below, the trial court clearly had the authority to
resentence Pustelak. Furthermore, Pustelak does not claim that the two years
of probation given to him upon revocation was outside the appropriate
sentencing parameters applicable at the time of his initial sentencing on the
DUI. “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 time spent serving the order of probation.” 42
Pa.C.S.A. 9771(b). Thus, we do not find that Pustelak’s sentence was illegal.
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We first note that Pustelak cites no legal authority for his contention that
the trial court should have waited until his underlying offense was resolved
before proceeding with his revocation and resentencing. “Whenever a
defendant serving a sentence of probation or intermediate punishment has
been alleged to have violated that sentence, a court must have a hearing as
speedily as possible.” Pa.R.Crim.P. 708 (emphasis added). To delay the
hearing as suggested by Pustelak would contradict this requirement.
Moreover, a review of the law on probation revocation reveals that Pustelak
has misconstrued what must be shown to establish a probation violation and
prompt revocation and resentencing.
“The court may revoke an order of probation upon proof of the violation
of specified conditions of the probation.” 42 Pa.C.S.A. § 9771. Here, as
noted by the PCRA court, the basis for Pustelak’s probation revocation was
that he violated condition number 5 of his supervision—failure to comply with
“all municipal, county, state, and federal law, ordinances, and orders.” By the
time of his resentencing, Pustelak had already pled guilty to simple assault.
At the revocation and resentencing hearing, Pustelak did not dispute the fact
that he punched his girlfriend in the face. He acknowledged that although he
had made progress with his sobriety, “this was a very unfortunate four or five
minutes of a situation” that he regretted. He also did not dispute the fact that
he violated the terms of his probation. Thus, at the time of the hearing, as
concluded by the PCRA court, the trial court had the authority and sufficient
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grounds to revoke his probation and resentence him. That Pustelak
subsequently withdrew his plea was of no consequence.
“‘[T]he reason for revocation of probation need not necessarily be the
commission of or conviction for subsequent criminal conduct.’”
Commonwealth v. Ortega, 995 A.2d 879, 886 (Pa. Super. 2010) (quoting
Infante, 888 A.2d at 791). Rather, “‘[a] probation violation is established
whenever it is shown that the conduct of the probationer indicates the
probation has proven to have been an ineffective vehicle to accomplish
rehabilitation and not sufficient to deter against future antisocial conduct.’”
Id. Contrary to Pustelak’s contention, the fact that he was not ultimately
convicted of simple assault is irrelevant. Thus, it was not necessary for the
lower court to await the final disposition of the underlying offense before it
revoked his probation and resentenced him.
Moreover, other factors, consistent with the law, were present in this
case which warranted continued supervision. The summary offense for
harassment was still a violation of law, and thus a violation of his probation.
Indisputably, Pustelak acted in an antisocial manner by punching his girlfriend
in the face. This was his third violation. Recognizing these, the PCRA court
correctly denied Pustelak’s request for relief.
For the foregoing reasons, we conclude that the PCRA court did not err
or commit an abuse of discretion in concluding that Pustelak was not entitled
to relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/27/2018
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