Com. v. Hill, K. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KHALIL HILL
Appellant : No. 1296 EDA 2018
Appeal from the Judgment of Sentence Entered March 29, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0202811-2005,
CP-51-CR-0202821-2005
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 12, 2019
Khalil Hill appeals from the judgment of sentence of two and one-half to
five years' incarceration entered following his revocation of probation. Hill
challenges the discretionary aspects of his sentence. We affirm.
The revocation court laid out the factual and procedural history as
follows:
On March 27, 2004, [Hill] was arrested in connection with two
home invasion burglaries. On March 29, 2005, [Hill] appeared
before this [c]ourt and pleaded guilty to two counts of Criminal
Trespass and one count of Criminal Conspiracy, all graded as
second degree felonies. Pursuant to the negotiated sentence, this
[c]ourt sentenced him to 11 1/2 to 23 months county incarceration
plus one year reporting probation. On October 7, 2005, this
[c]ourt granted [Hill] early parole. [Hill] reported to his probation
officer on November 2, 2005 and then absconded from
supervision. Wanted cards were issued on April 18, 2006.
Apparently, [Hill] moved to Delaware, where he incurred several
arrests between 2008-2013, including charges of criminal
mischief, offensive touching, assault, and possession of
Former Justice specially assigned to the Superior Court.
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marijuana. These charges were dismissed without prejudice. He
was arrested in Pennsylvania and taken into custody on November
9, 2014.
On November 20, 2014, [Hill] appeared before this [c]ourt
for a violation hearing. This [c]ourt found him in technical violation
for absconding from supervision. As a result, this [c]ourt
terminated his parole and revoked his probation. [Hill] was
sentenced to 5 years reporting probation on each count to run
concurrently with one another. This [c]ourt ordered [Hill] to obtain
his GED, pay costs and fines, seek and maintain employment,
undergo random urinalysis, and complete parenting classes. [Hill]
told the [c]ourt that he did not have a drug or alcohol problem.
[Hill] reported to his probation officer once on December 16,
2014 and then absconded from supervision. His whereabouts
remained unknown until he was arrested in February 2015. On
April 2, 2015, this [c]ourt found [Hill] in technical violation for
absconding from supervision for the second time; sentencing was
deferred. On June 29, 2015, this [c]ourt sentenced him to 11 1/2
to 23 months county incarceration plus 3 years reporting
probation on each count to run concurrently. This [c]ourt stated
that [Hill] would be eligible for work release upon completion of
parenting classes and anger management classes. [Hill] was
ordered to undergo random urinalysis, seek and maintain
employment, pay fines and costs at a rate of $25/month, and,
upon release, report every two weeks to the probation
department.
On May 20, 2016, this [c]ourt granted [Hill] early parole and
notified him that there would be a status listing in this matter on
November 21, 2016. After his release on parole, [Hill] absconded
from supervision yet again. He failed to appear on November 21,
2016 and his whereabouts remained unknown until he was
arrested on March 8, 2018.
On March 29, 2018, [Hill] appeared before this [c]ourt for
his third violation hearing. First, this [c]ourt reviewed his conduct
and criminal history since his first appearance before this [c]ourt
in 2005 noting that he had absconded from supervision again and
tested positive for benzodiazepines and marijuana. This [c]ourt
stated that the probation department recommended revocation.
Next, defense counsel Danielle Yacono, Esquire, stated that
[Hill] had supporters present in the courtroom, including his
girlfriend who was pregnant with twins. She argued that [Hill] was
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working regularly for a janitorial company owned by his uncle and
would continue to do so. Ms. Yacono further argued that [Hill] had
a prescription for Percocet and had turned to using marijuana
when he went through a hard time in his life and lost several
members of his family. She argued that [Hill] failed to report
because he "panicked and he didn't want to go upstate." Ms.
Yacono recommended a sentence of 11 1/2 to 23 months county
incarceration with work release eligibility. The Commonwealth
gave no argument, but recommended a county sentence.
Next, [Hill] spoke on his own behalf. He stated that he was
homeless after his grandparents died and his wife left him. He
stated that he was "not a troubled person" and was "just a working
man trying to get my life together to take care of my family."
This [c]ourt found [Hill] in technical violation for absconding
from supervision yet again, for testing positive for marijuana, and
for not paying fines, costs, and supervision fees. This [c]ourt
revoked his probation and terminated his parole. [Hill] was
sentenced to 2 1/2 to 5 years state incarceration, to run
concurrently on all counts, with credit for time served. This [c]ourt
stated that this sentence is absolutely necessary to vindicate the
authority of the court.
On April 5, 2018, [Hill] filed a petition to Vacate and
Reconsider Sentence. On April 27, 2018, [Hill] filed a Notice of
Appeal to the Superior Court. On July 24, 2018, upon receipt of
all notes of testimony, this [c]ourt ordered that [Hill] file a Concise
Statement of Errors Complained on Appeal Pursuant to Pa.R.A.P.
1925(b) and defense counsel did so on August 14, 2018.
Trial Court Opinion, filed 9/21/18 at 1-4 (citations to the record omitted).
Hill raises one issue on appeal, which we reproduce verbatim:
Did not the lower court abuse its discretion when it imposed a
sentence of two and a half to five years total confinement for
technical violations of probation where the sentence was not
individualized, disproportionate to the conduct at issue, manifestly
excessive and unreasonable, and not in conformity with the
requirements of the Sentencing Code?
Hill's Br. at 3.
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Hill contends that his sentence for technical violations of probation is
excessive and unreasonable because for most of the probationary period, he
remained employed, and he has paid the court fines and costs and produced
paystubs, tax forms, his diploma, and prescriptions for drugs he had taken.
Id. at 12. He also contends that while the court put weight on his arrests in
Delaware, those arrests were for alleged misdemeanor offenses, which were
subsequently nolle prossed or dismissed. Id. He asserts that his repeated
absconding from supervision unfairly overshadowed his steady employment
and that he was not convicted of additional crimes. Id. at 13.
Conversely, the Commonwealth contends that the revocation court did
not abuse its discretion. It notes that while it had requested a more lenient
sentence, the revocation court was still within its discretion to impose the
instant sentence. Commonwealth's Br. at 7. It further notes that the sentence
was necessary to vindicate the authority of the court, given Hill's record of
absconding from supervision whenever the revocation court showed him
leniency. Id. at 10. Additionally, it argues that the record does not support
Hill's claims that he remained employed and conviction -free, yet even if it did,
the court was still within its discretion. Id.
The right to appeal the discretionary aspects of a sentence is not an
absolute right. Commonwealth v. Shugars, 895 A.2d 1270, 1274
(Pa.Super. 2006). Prior to reaching the merits of the sentencing issue, we
employ a four-part test to determine:
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(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. 1410 [now Rule 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).
Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005) (quoting
Commonwealth v. Martin, 611 A.2d 731, 735 (Pa.Super. 1992)).
Here, Hill has complied with the first three requirements of challenging
the discretionary aspects of his sentence. After filing a timely motion to
reconsider, Hill filed a timely notice of appeal and a Rule 2119(f) statement of
reasons for allowance of appeal. Thus, we now turn to whether Hill has raised
a substantial question.
A substantial question exists when the appellant advances a colorable
argument that the sentencing judge's actions were either inconsistent with a
specific provision of the Sentencing Code or contrary to the fundamental
norms which underlie the sentencing process. Commonwealth v. Moury,
992 A.2d 162, 170 (Pa.Super. 2010). In the revocation context, there is a
substantial question when a sentence of total confinement is imposed as a
result of a technical violation of parole or probation. See Commonwealth v.
Sierra, 752 A.2d 910, 913 (Pa.Super. 2000). That raises a substantial
question because "the imposition of a sentence of total confinement after the
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revocation of probation for a technical violation, and not a new criminal
offense, implicates the 'fundamental norms which underlie the sentencing
process.' Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super.
2010) (quoting Sierra, 752 A.2d at 913)).
Here, Hill asserts that the sentence is excessive and disproportionate to
the violations he committed. As the sentence of total confinement is in excess
of the original sentence, and was imposed for a technical violation, we will
review the merits of Hill's claim. See Sierra, 752 A.2d at 913.
"The imposition of a sentence following the revocation of probation is
vested within the sound discretion of the trial court[.]" Commonwealth v.
Swope, 123 A.3d 333, 340 (Pa.Super. 2015) (quoting Commonwealth v.
Colon, 102 A.3d 1033, 1043 (Pa.Super. 2014)). To succeed on a challenge to
the discretionary aspects of a sentence following a revocation hearing, the
appellant must make a showing that the sentence was manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill will. Id. (quoting
Colon, 102 A.3d at 1043). Absent such an abuse of discretion, we will not
disturb the sentence imposed by the revocation court. Id. (quoting Colon,
102 A.3d at 1043).
A revocation court may employ the same sentencing alternatives that
were available to it at the time of initial sentencing. 42 Pa.C.S.A. § 9771(b).
However, the revocation court should not impose a sentence of total
confinement unless:
(1) the defendant has been convicted of another crime; or
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(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.
Id. at § 9771(c)(1)-(3).
Hill's claims that the sentence is excessive are unavailing. As the
revocation court noted, it had already given Hill multiple opportunities to
rehabilitate himself through work release, probation, and early parole. Tr. Ct.
Op. at 7. Each time, Hill absconded from supervision. When Hill was first
released on early parole in 2005, he absconded for nine years. Id. at 6. When
he was apprehended and brought back to court, the court leniently sentenced
him to five years of probation. Id. Hill absconded again until he was arrested
seven months later. Id. at 7. After he was sentenced to county incarceration,
Hill was paroled at his minimum and, yet again, absconded. Id.
This Court's decision in Commonwealth v. Malovich, 903 A.2d 1247
(Pa.Super. 2006), is instructive. There, the defendant was serving 18 months'
probation when he absconded from supervision for four days. Id. at 1250.
The revocation court sentenced him to 18 to 36 months' incarceration. Id.
This Court determined that because the defendant had not complied with
previous judicial efforts, including drug court, probation, or prior revocations,
and had not been "putting anything into" the court -imposed rehabilitation
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efforts, a sentence of total confinement was necessary to vindicate the court's
authority. Id. at 1254.1
Similar to Malovich, we find that the revocation court was acting within
its discretion by sentencing Hill to two and one-half to five years of
incarceration. Over the past decade, Hill has shown disregard for the court's
authority by repeatedly absconding from supervision. While Hill asserts he has
remained employed and paid his fines and costs, that does not outweigh the
violations to the point of constituting an abuse of discretion. Hill does not
appear to be amenable to treatment and he has failed to comply with all
previous judicial efforts to ensure his success. In other words, he had not been
"putting anything into" the court -imposed rehabilitation efforts. See Id.
Thus, the sentence of total confinement was necessary to vindicate the
authority of the court. There was no abuse of discretion.
We affirm.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 8/12/19
1 We also concluded that the record reflected that the defendant had
committed another criminal offense, as his probation officer had found him in
possession of marijuana, and supported the conclusion that he was likely to
commit another crime. Malovich, 903 A.2d at 1254.
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