Com. v. Powell, M. ( 2014 )

J-S38037-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MAURICE POWELL, :
:
Appellant : No. 372 EDA 2014
Appeal from the Judgment of Sentence Entered October 9, 2013,
In the Court of Common Pleas of Delaware County,
Criminal Division, at No. CP-23-CR-0006939-2011.
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MAURICE POWELL, :
:
Appellant : No. 400 EDA 2014
Appeal from the Judgment of Sentence Entered October 9, 2013,
In the Court of Common Pleas of Delaware County,
Criminal Division, at No. CP-23-CR-0006875-2011.
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MAURICE POWELL, :
:
Appellant : No. 402 EDA 2014
Appeal from the Judgment of Sentence Entered October 9, 2013,
In the Court of Common Pleas of Delaware County,
Criminal Division, at No. CP-23-CR-0007295-2010.
J-S38037-14
BEFORE: FORD ELLIOTT, P.J.E., BOWES and SHOGAN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 17, 2014
Appellant, Maurice Powell, appeals nunc pro tunc from three separate
judgments of sentence that were entered on October 9, 2013, following the
revocation of his parole.1 After review, we affirm.
The relevant facts of this case were set forth by the trial court as
follows:
The pertinent history of this appeal begins on October 9,
2013, when this Court held a Gagnon II[2] hearing. Appellant
appeared via video conference and stipulated, through his
attorney, to waiving his physical presence and to the time, date,
place, and notice of the hearing. N.T., 10/9/2013, p. 3.
placed in an in-patient rehabilitation center in lieu of receiving a
prison sentence. This request was based pri
most recent drug and alcohol evaluation that recommended
Appellant would benefit from in-patient treatment. N.T., p.4.
Dawn McDonald, disagreed with the request for inpatient
tr
that, while under her supervision, Appellant has been evaluated
twice. N.T., p. 5. Both times it was recommended that he receive
intensive out-patient treatment. The first time, Appellant failed
to enroll in any program. N.T., p. 5. The second time, after
appearing in front of The Honorable Judge Nilon, Appellant was
ordered to complete Prep 1. After successful completion,
Appellant was ordered to enroll in out-patient treatment, which
1
The appeals were docketed at Pennsylvania Superior Court docket numbers
372 EDA 2014, 400 EDA 2014, and 402 EDA 2014. On March 25, 2014,
these separate appeals were consolidated by stipulation of the parties
pursuant to Pa.R.A.P. 513.
2
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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he again failed to do. N.T., p. 5. Then, in 2010, Appellant was
again evaluated at George W. Hill Correctional Facility. The
evaluation recommended short term residential in-patient
treatment. Appellant was paroled to Conawago Place and left;
thereby failing to complete the program. N.T., p. 5.
This Court agreed with Ms. McDonald that Appellant has
shown no signs that he was amendable [sic] to successfully
completing treatment.1 N.T., p. 6. This Court told Appellant
taxpayers of
1
The Court also considered the Gagnon II Hearing
Report.
This Court followed the recommendation provided by Ms.
McDonald and sentenced Appellant as follows: On transcript
7295-2010, Appellant was found in violation of his parole and
parole was revoked, Appellant received full back time of 218
days to be served in Delaware County Prison (DCP) and released
on the maximum date. N.T., p. 7. On transcript 6939-2011,
Appellant was found in violation of his parole, parole revoked,
and sentenced to full back time of 508 days to be served in DCP,
with release on the maximum date. N.T., p. 7[.] Lastly, on
transcript 6875-2011, Appellant was found in violation of his
parole, parole revoked, and sentenced to full back time of 501
days to be served in DCP with release on the maximum date.
N.T., p. 8. The new sentences were ordered to run concurrent to
one another;
recent case on transcript 2400-2013.2
2
This Court did not run the sentences concurrent, as
requested, because of the severity of the new case
where defendant was charged [with] arson and
recklessly endangering another person.
-sentencing
rights. The notes of testimony show that Appellant wanted to file
an appeal and that the Officer of the Public Defender, who was
representing Appellant, would in fact pass the information off to
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their appellate unit and would have them contact Appellant.
N.T., p. 13.
On 1/2/2014, after the thirty days to appeal had past, this
Court received a pro se motion from Appellant indicating that he
never heard from his attorney and that he never received any
statement that an appeal was filed. The motion was for new
counsel as well as the right to file an appeal. After inquiring into
ever filed on behalf of Appellant, despite the agreement to
handle the appeal at the Gagnon II hearing. On 1/10/2014, this
Court held a hearing on the motion. At the hearing, the Public
but agreed that she never filed anything on behalf of Appellant
despite agreeing to do so.
motion and appointed Thomas Dreyer, Esquire, as new counsel
appeal nunc pro tunc from the Gagnon II hearing. On January
January 27, 2014, this Court ordered Appellant to file a 1925(b)
Statement of Matters Complained of on Appeal. Appellant filed a
timely 1925(b) on February 18, 2014.
Trial Court Opinion, 2/24/14, at 2-4.
consideration:
1. Whether the trial court erred in failing to comply with
-patient drug
rehabilitation facility in lieu of jail?
2. Whether the trial court violated Pa.R.Crim.P. 708(D)(2) by
failing to state on the record the reasons for the sentence
imposed?
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llenge the discretionary aspects
of his sentence, such challenges are unavailable in parole revocation cases.
Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008).
is whether the revocation court erred, as a matter of law, in deciding to
Id. (citing Commonwealth v. Mitchell, 632 A.2d 934, 936 (Pa. Super.
1993)). Accordingly, an appeal of a parole revocation is not an appeal of the
discretionary aspects of sentence. Id.3
Here, however, Appellant presents no argument that the trial court
erred in revoking his parole. Rather, in the argument section of his brief,
Appellant focuses on the issues listed above that present challenges to the
3
Compare Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013)
(holding that an appellant may raise a challenge to the discretionary aspects
of a sentence imposed following the revocation of probation and that this
case, we are not faced with a challenge to a new sentence following the
revocation of probation. Here, there was a revocation of parole. An order
revoking parole, as opposed to probation, does not impose a new sentence
rather, it requires the appellant to serve the balance of a valid sentence
previously imposed. Mitchell
recommittal is just that Id. (citation
omitted). When parole is revoked, the court is not free to impose a new
sentence. Id.
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challenges are not available in parole revocation cases. Kalichak, 943 A.2d
at 293. Therefore, Appellant is entitled to no relief.
Additionally
that the trial court erred as a matter of law in deciding to revoke parole, we
would conclude there was no error. It is undisputed that Appellant violated
his parole by failing to complete drug and alcohol rehabilitation and by
committing the new crimes of arson and recklessly endangering another
person. N.T., Gagnon II Hearing, 10/9/13, at 7-9. Appellant has been
afforded previous opportunities for drug rehabilitation, and the fact that
Appell
than order treatment in lieu of confinement. Id. at 5-7. Moreover, the trial
new convictions provide ample reasons for recommitment. Id. at 5-11.
Accordingly, because there is no dispute that Appellant violated his parole,
there was no error in the trial court revoking Appella
recommitting him. Kalichak, 943 A.2d at 291; 42 Pa.C.S.A. § 9776.
For the reasons set forth above, we conclude that Appellant failed to
affirm the judgments of sentence entered on October 9, 2013.
Judgments of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2014
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