Com. v. Luke, B. ( 2017 )

J. S01016/17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN LUKE, :
:
Appellant : No. 724 MDA 2016
Appeal from the Judgment of Sentence April 6, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000833-2014
BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED MARCH 07, 2017
Appellant, Brian Luke, appeals from the Judgment of Sentence entered
in the Luzerne County Court of Common Pleas following revocation of his
probation. Appellant avers that the Commonwealth did not meet its burden
of establishing that Appellant violated the terms of his special probation
when he refused to attend sex offender treatment because the sentencing
court had not specifically ordered such treatment. After careful review, we
affirm on the basis of the trial court’s Pa.R.A.P. 1925(a) Opinion, which
concluded that the terms of Appellant’s probation included the requirement
that he undergo a mental health evaluation and comply with all treatment
recommendations. Accordingly, the Board of Probation and Parole was
authorized to require Appellant to undergo sex offender treatment, and his
refusal to do so constituted a violation of the terms of his probations.
J. S01016/17
The trial court’s Pa.R.A.P. 1925(a) Opinion includes a thorough and
complete narrative of the facts and procedural history in this case, which we
adopt for purposes of this appeal. See Trial Court Opinion, filed 7/20/16, at
1-4. While we will not go into exhaustive detail here, some of the relevant
facts are as follows.
On April 30, 2014, the Luzerne County District Attorney filed a
Criminal Information charging Appellant with False Alarm to Agency of Public
Safety and Disorderly Conduct.1 Those charges arose out of an October 31,
2013 incident in which Appellant called the Wilkes-Barre General Hospital
Crisis Center, claiming to have kidnapped an 11-year-old girl who he wanted
to sexually abuse. While on the phone, Appellant claimed to be actively
abusing the child, putting his fingers and penis inside of the child’s vagina.
Appellant described “how good it felt inside the little girl.” Affidavit of
Probable Cause, 11/15/13, at 1. The Crisis Counselor could hear Appellant
moaning and what sounded like a young girl’s muffled screams. Appellant
then hung up. When police eventually located Appellant, he denied actually
raping an 11-year-old girl, but admitted fantasizing about raping a young
girl he saw riding her bicycle in the neighborhood. At the time that
Appellant was charged, he was awaiting sentencing in two additional cases
on charges of Stalking, Indecent Exposure, Open Lewdness, Disorderly
Conduct, and Harassment.
1
18 Pa.C.S. §§ 4905, and 5503, respectively.
-2-
J. S01016/17
On May 5, 2014, Appellant pled guilty to one count of False Alarm to
Agency of Public Safety and the Commonwealth withdrew the charge of
Disorderly Conduct. The trial court then proceeded to sentencing in all three
cases.
Appellant was sentenced to a term of imprisonment in the two original
cases, and in the instant case, Appellant was sentenced to a term of 12
months of probation, set to run consecutive to all other sentences. In
addition, the trial court ordered Appellant to undergo a Drug/Alcohol
Evaluation and a Mental Health Evaluation, and to comply with all treatment
recommendations made pursuant to those evaluations. As a result of those
evaluations, it was recommended that Appellant undergo sex offender low-
intensive treatment. Appellant refused to attend the treatment, not only
while incarcerated, but also after being released on probation.2
On March 4, 2016, the Pennsylvania Board of Probation and Parole
notified the trial court that Appellant had violated his probation in the instant
case by refusing to complete the recommended sex offender treatment. The
trial court held a probation revocation hearing on April 6, 2016, at which
time the trial court found that Appellant was in violation of the conditions of
his sentence. The trial court revoked Appellant’s probation, and sentenced
him to a term of 4-24 months of incarceration.
2
Because Appellant refused to attend sex offender treatment while
incarcerated, he was not granted parole in either of his two original cases,
and instead served the maximum sentences.
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J. S01016/17
Appellant timely-filed the instant appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
On appeal, Appellant raises a single issue:
Whether the Commonwealth has met its burden of proof that
[Appellant] violated the terms and conditions of his special
probation.
Appellant’s Brief at 1.
In an appeal from a probation revocation order, “[o]ur standard of
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.”
Commonwealth v. Hoover, 909 A.2d 321, 322-23 (Pa. Super. 2006)
(citing 42 Pa.C.S. § 9771(b)). “Revocation of a probation sentence is a
matter committed to the 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. Colon, 102 A.3d 1033, 1041
(Pa. Super. 2014) (citation and quotation omitted). “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. (citation and quotation omitted).
The Honorable David W. Lupas has authored a comprehensive,
thorough, and well-reasoned Pa.R.A.P. 1925(a) Opinion, with references to
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the record and citations to relevant case law. After a careful review of the
parties’ arguments, and the record, we affirm on the basis of that Opinion,
which concluded that although the trial court imposed the general
requirement that Appellant undergo a mental evaluation and comply with all
treatment recommendations, the Board of Probation and Parole could
impose the more specific requirement of sex offender treatment. Trial Court
Opinion, at 4-7 (citing Commonwealth v. Elliot, 50 A.3d 1284, 1292 (Pa.
2012) (“[T]he Board and its agents may impose conditions of supervision
that are germane to, elaborate on, or interpret any conditions of probation
that are imposed by the trial court.”).
The parties are directed to attach a copy of the trial court’s July 20,
2016 Pa.R.A.P. 1925(a) Opinion to all future filings.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2017
-5-
Circulated 02/15/2017 02:33 PM
11TH JUDICIAL DISTRICT OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
OF LUZERNE COUNTY
v.
CRIMINAL DIVISION
BRIAN LUKE Defendant I Appellant
NO. 833 OF 2014
OPINION
BY: THE HONORABLE DAVID W. LUPAS
I. FACTS AND PROCEDURAL HISTORY:
On January 17, 2013, and February 11, 2014, the Luzerne County District
Attorney filed Criminal Informations 3592 of 2013 and 4049 of 2013, charging the above
named Defendant with Stalking,1 Indecent Exposure,2 Open Lewdness," Disorderly
Conduct, and Harassment,4 stemming from incidents that occurred on August 25, 2013.
and September 20, 2013. On March 17, 2014, represented by counsel, the Defendant
pleaded guilty to two counts of Indecent Exposure, one count of Stalking, and one count
of Open Lewdness. As part of the plea agreements, the Defendant was to undergo a
drug/alcohol evaluation, and a mental health evaluation, and to follow the
recommendations made as part of those evaluations. N.T. 3/17/14 at 4-5. A Pre-
Sentence Investigation was ordered and completed, but prior to sentencing, an
additional Criminal Information (833 of 2014) was filed by the Luzerne County District
1
18 Pa.C.S.A. § 2709.1(a)(2)
2 18 Pa.C.S.A. § 3127(a).
3 18 Pa.C.S.A. § 5901.
4 18 Pa.C.S.A. § 5503(a)(4).
1
Attorney on April 30, 2014, charging the Defendant with False Alarm to Agency of
Public Safety5 and Disorderly Conduct, stemming from an incident that occurred on
October 31, 2013.
A hearing was conducted on May 5, 2014. The Court accepted the Defendant's
guilty plea to False Alarm to Agency of Public Safety, and then proceeded to sentencing
on all three informations. N.T. 5/5/14 at 2-6. At 3592 of 2013, the Defendant was
sentenced to fourteen (14) to twenty-eight (28) months' imprisonment in a State
Correctional Institution on Counts 1 and 2, and a period of six (6) months' probation on
Count 3, all sentences to run concurrently. Id. at 8-9. At 4049 of 2013, the Defendant
was sentenced to six (6) to twenty-four (24) months' imprisonment in a State
Correctional Institution, to run concurrently with the sentences imposed at 3592 of 2013.
Id. at 9. At 833 of 2014, the Defendant was sentenced to twelve (12) months' probation,
to run consecutively to the other imposed sentences. Id. The Defendant was
additionally ordered to undergo drug/alcohol and mental health evaluations, and to
comply with all treatment recommended by those evaluations. Id. at 10. The Defendant
was subsequently advised by this Court of his post-sentence rights before the hearing
concluded. Id. at 11.6
On May 13, 2014, the Defendant filed a counseled Motion to Modify Sentence,
asking that his sentence be reduced and that he be permitted to serve the sentence at
the Luzerne County Correctional Facility. Then, while the Motion to Modify Sentence
was pending, a pro se Notice of Appeal dated May 19, 2014 was filed. This Court
subsequently denied the Motion to Modify Sentence on May 28, 2014, and on June 2,
518
Pa.C.S.A. § 4905(a).
6
The Defendant was not ordered to register as a Megan's Law offender, but was classified as a sexual
offender by the state correctional institution in which he was to serve his sentence.
2
2014 the Defendant file a Motion for Change of Counsel. Defense counsel was
permitted to withdraw on July 28, 2014, and conflict counsel entered her appearance on
August 14, 2014. Thereafter, however, the Defendant discontinued the appeal of his
May 5, 2014 sentence, and it was marked as discontinued by the Superior Court on
October 9, 2014.
On March 4, 2016, the Pennsylvania Board of Probation and Parole notified the
Court that while incarcerated, the Defendant had refused to participate in sex offender
programing that was recommended for him. Based on the failure to comply with this
recommendation during incarceration, the Board of Probation and Parole sought to
revoke the probationary sentence the Defendant was still serving, which had been
imposed pursuant to Information 833 of 2014 consecutive to the periods of incarceration
imposed.7
At an April 6, 2016 probation revocation hearing, Jeffrey Bernosky, a special
operations field agent with the Pennsylvania State Parole Board, testified that the
Defendant had not completed recommended sex offender low intensive programming
while he was incarcerated. N.T. 4/16/16 at 3.8 The Defendant disputed that completion
of a sex offender treatment program was a condition of his probation, and maintained
that no health care professional had ever directed him to attend such treatment. bl at
4, 9.
7
At the time revocation of probation was sought, the Defendant had served his maximum sentences at
Informations 3592 of 2013 and 4049 of 2013. N.T. 4/6/16 AT 13, 15.
8
Agent Bernosky specifically testified that offenders are required to complete sex offender therapy within
the institution in order to receive a positive board action, and that upon completing that therapy and
receiving the positive board action, the offender is also required upon release to enroll in sex offender
treatment in the community. Id. at 9. Agent Bernosky further clarified that all offenders who have been
classified as a sex offender must complete such therapy, not just Megan's law registrants. Id. at 10.
3
At the conclusion of the April 6, 2016 hearing, the Court determined that the
Commonwealth met its burden of proving that the Defendant was in violation of the
conditions of his sentence, which included a requirement that he undergo mental health
evaluations and comply with any recommended treatment. Id. at 17. The Court then
revoked the sentence imposed upon the Defendant at 833 of 2014, and resentenced
him to a minimum of four (4) to a maximum of twenty-four (24) months incarceration in a
state correctional institution. Id. at 20.
The Defendant appealed the revocation and resentencing on April 29, 2016, and
was directed to file a Pa.RA.P. 1925(b) Statement of Errors Complained of on Appeal.
He complied on May 18, 2016, and the Commonwealth has filed a response thereto.
This matter is now ripe for an Opinion addressing the alleged errors raised by the
Defendant.
For the reasons set forth below, we believe the Defendant's allegations of error
are without merit and, therefore, the revocation and resentencing should be affirmed.
II. LAW AND DISCUSSION:
Appellate counsel raises the following issue on appeal:
1. Whether the Commonwealth has met the burden of proof that the
Defendant violated the terms and conditions of his special probation.
While the Commonwealth alleges that the Defendant was somehow
obligated to complete any type of sex offender treatment even though no
sex offender treatment was ordered by the court at sentencing.
Concise Statement of Errors Complained of on Appeal filed 5/18/16. The
Commonwealth responds that this matter is controlled by Commonwealth v. Elliot, 50
A.3d 1284 (Pa. 2012). In that case, the Pennsylvania Supreme Court reconciled the
4
trial court's exclusive authority to attach conditions of probation with the Board of
Probation and Parole's power to impose conditions of supervision as follows.
(T]he Board and its agents may impose conditions of supervision that are
germane to, elaborate on, or interpret any conditions of probation that are
imposed by the trial court. This interpretation gives meaning to all of the
statutory provisions relevant to this case and thus: (1) maintains the
sentencing authority solely with a trial court; (2) permits the Board and its
agents to evaluate probationers on a one-on-one basis to effectuate
supervision; (3) sustains the ability of the Board to impose conditions of
supervision; and (4) authorizes that a probationer may be detained,
arrested, and "violated" for failing to comply with either a condition of
probation or a condition of supervision. In summary, a trial court may
impose conditions of probation in a generalized manner, and the Board or
its agents may impose more specific conditions of supervision pertaining
to that probation, so long as those supervision conditions are in
furtherance of the trial court's conditions of probation.
Elliott, 50 A.3d at 1292 (footnote omitted) (holding that revocation was proper based on
a violation of the Board's condition of supervision that defendant not be within 1, 000 feet
of areas where primary activity involves minors, as that condition derived from the trial
court's condition of probation that defendant not have unsupervised contact wiH1
minors).
Here, this Court imposed as a condition of probation that the Defendant undergo
drug/alcohol and mental health evaluations, and to comply with all treatment
recommended by those evaluations. N.T. 5/5/14 at 10. The Board then imposed a
more specific condition of supervision, i.e, that the Defendant complete sex offender
low-intensive programming treatment. Pursuant to Elliot, since this more specific
condition of supervision was in furtherance of the trial court's conditions, it was properly
imposed by the Board. This condition of supervision is certainly warranted to insure or
assist the Defendant in leading a law abiding life and is necessary to ensure
rehabilitation of the defendant and permits the Board of Probation and its agents to
5
evaluate probationers on a one-on-one basis to effectuate supervision. It is undisputed
that the Defendant failed to complete the sex offender low-intensive programming
treatment, and thus, despite his assertions to the contrary, the Commonwealth has met
its burden of proof that the Defendant violated the terms and conditions of his special
probation.
For the foregoing reasons, the Defendant's appeal should be denied in its
entirety, and the judgment of sentence entered April 6, 2016 affirmed.
END OF OPINION
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