Com. v. Leonard, J. ( 2014 )

J-S57027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN CURTIS LEONARD
Appellant No. 191 EDA 2014
Appeal from the Judgment of Sentence November 19, 2013
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0005282-2011
BEFORE: DONOHUE, J., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED OCTOBER 21, 2014
Appellant, John Curtis Leonard, appeals from the November 19, 2013
aggregate judgment of sentence of 23½ to 71 months’ imprisonment
following the trial court’s revocation of Appellant’s parole and probation.
After careful review, we affirm.
We summarize the relevant factual and procedural history of this case
as follows. In November 2011, Appellant, while serving a sentence at
Allentown Community Corrections Center, was granted temporary leave, but
failed to return. Appellant was subsequently charged with one count of
escape, graded as a felony of the third degree.1 On February 9, 2012,
Appellant pled guilty to the aforesaid charge and was sentenced the same
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1
18 Pa.C.S.A. § 5121(a).
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day. At sentencing, Appellant waived the preparation of a presentence
investigation report (PSI), but, in mitigation, informed the trial court of his
history of drug and alcohol abuse and about his personal family
circumstances. N.T., 2/9/12 at 20-21, 22-27. The trial court sentenced
Appellant to 11½ to 23 months’ imprisonment in the Lehigh County Prison,
to be followed by a period of 36 months’ probation. Sentencing Order,
2/9/12, at 1. At the expiration of his minimum sentence, the trial court
paroled Appellant on May 1, 2013. Parole Order, 5/1/13, at 1. Appellant’s
supervision was transferred to Bradford County.
While on parole, Appellant engaged in the use of heroin and bath salts.
In July 2013, Appellant overdosed and was admitted to the hospital. After
he was discharged, Appellant entered a rehabilitation facility. On August 12,
2013, Appellant left the facility against medical advice before his treatment
was complete. Consequently, an arrest warrant was issued on August 20,
2013 by the Lehigh County Office of Adult Probation, alleging Appellant
violated conditions of his parole and probation by noncompliance with
instructions, failure to remain drug free, and failure to successfully complete
treatment. An amended arrest warrant was filed on October 28, 2013 to
add overt behavior to the alleged violations after Appellant attempted
suicide and was hospitalized. Upon his discharge from the hospital,
Appellant was taken into custody in Bradford County.
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On November 4, 2013, Appellant was transferred to the Lehigh County
Prison. On November 19, 2013, Appellant waived his Gagnon I2 hearing
and proceeded to a Gagnon II hearing before the trial court in Lehigh
County. Appellant conceded the violations. At the conclusion of the
Gagnon II hearing, the trial court revoked Appellant’s parole, and he was
remanded to serve the balance of his original sentence at a state
correctional institution. N.T., 11/19/13, at 10. The trial court also revoked
Appellant’s probation and resentenced Appellant to 12 to 48 months’
imprisonment to run consecutively to the balance of his parole. Id.
Appellant’s timely motion for reconsideration of sentence, filed on November
21, 2013, was denied by the trial court on November 22, 2013. Thereafter,
on December 18, 2013, Appellant timely filed a notice of appeal.3
On appeal, Appellant raises the following issue for our review.
[1] Did the lower court err by imposing a
disproportionate sentence based upon the nature of
the violation and by failing to order a presentence
investigation report or otherwise engage in a
presentence inquiry to apprise itself of the
[Appellant’s] circumstances of life and other
significant factors relevant to the sentence?
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2
Pursuant to Gagnon v. Scarpelli, 411 U.S. 778, (1973), before
probation/parole can be revoked, the probationer/parolee is entitled to a
preliminary hearing (Gagnon I) to determine if there is probable cause to
believe a violation occurred and a final revocation hearing (Gagnon II). Id.
at 781-782.
3
Appellant and the trial court have timely complied with Pa.R.A.P. 1925.
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Appellant’s Brief at 7.4
Our standard of review when determining if a trial court erred in
imposing a sentence following the revocation of probation is well-settled.
[O]ur 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. 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. Mazzetti, 9 A.3d 228, 230 (Pa. Super. 2010) (citation
omitted). “[Our] scope of review in an appeal from a revocation of
sentencing includes discretionary sentencing challenges.” Commonwealth
v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc). “An abuse
of discretion is not merely an error of judgment, but if in reaching a
conclusion the law is overridden or misapplied or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will,
as shown by the evidence or the record, discretion is abused.”
Commonwealth v. Burns, 988 A.2d 684, 689 (Pa. Super. 2009) (en banc)
(citation omitted), appeal denied, 8 A.3d 341 (Pa. 2010).
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4
Appellant challenges the imposition of a new sentence following the
revocation of probation, but does not challenge his recommitment for
violation of his parole. See Appellant’s Brief at 5-6.
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In this case, Appellant asserts, “the [s]entencing [c]ourt abused its
discretion by imposing a manifestly harsh and improper sentence for
violations of probation without requiring a [PSI] or engaging in any
purposeful presentence inquiry into [Appellant’s] history, circumstances, and
needs for rehabilitation.” Appellant’s Brief at 11. Accordingly, Appellant
challenges the discretionary aspects of his sentence.
It is well settled that, with regard to the
discretionary aspects of sentencing, there is no
automatic right to appeal. [Therefore, b]efore we
reach the merits of this issue, we must engage in a
four part analysis to determine: (1) whether the
appeal is timely; (2) whether Appellant preserved his
issue; (3) whether Appellant’s brief includes a
concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary
aspects of sentence; and (4) whether the concise
statement raises a substantial question that the
sentence is appropriate under the sentencing code.
The third and fourth of these requirements arise
because Appellant’s attack on his sentence is not an
appeal as of right. Rather, he must petition this
Court, in his concise statement of reasons, to grant
consideration of his appeal on the grounds that there
is a substantial question. [I]f the appeal satisfies
each of these four requirements, we will then
proceed to decide the substantive merits of the case.
Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)
(citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
We conclude Appellant has met all of the technical requirements for
this Court to review the merits of his claim. Appellant preserved his issue by
filing a motion for reconsideration of sentence, averring, inter alia, the trial
court did not order a PSI or conduct a thorough inquiry, as required in the
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absence of a PSI and the sentence was unduly harsh and violative of the
Sentencing Code under the circumstances. After the motion for
reconsideration was denied, a timely appeal was filed. Finally, Appellant
included a statement pursuant to Rule 2119(f) in his brief, claiming the trial
court “violated fundamental norms underlying the sentencing process when
it imposed a sentence of total confinement for technical violations of
probation and did so without ordering a [PSI] or undertaking a meaningful
presentence inquiry.” Appellant’s Brief at 10.
To raise a substantial question, Appellant must proffer a “plausible
argument that the sentence violates a provision of the sentencing code or is
contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1269 (Pa. Super. 2013), appeal
denied, 91 A.3d 161 (Pa. 2014), quoting Commonwealth v. Naranjo, 53
A.3d 66, 79 (Pa. Super. 2012) (citations omitted). “[A]n appellant’s
allegation that the trial court imposed sentence without considering the
requisite statutory factors or stating adequate reasons for dispensing with a
[PSI raises] a substantial question.” Commonwealth v. Kelly, 33 A.3d
638, 640 (Pa. Super. 2011), quoting Commonwealth v. Flowers, 950 A.2d
330, 332 (Pa. Super. 2008) (further citation omitted). We conclude
Appellant raised a substantial question by arguing the trial court “violated
fundamental norms underlying the sentencing process when it imposed a
sentence of total confinement for technical violations of probation and did so
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without ordering a [PSI] or undertaking a meaningful presentence inquiry.”
Appellant’s Brief at 10; see also Kelly, supra at 641.
Having determined that Appellant has met the threshold requirements
of review, we turn to the merits of his appeal.
[W]e are mindful of the general rule that a
sentencing court should impose a sentence
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. Where the
court imposes a sentence for a felony or
misdemeanor, the court shall make part of the
record, and disclose in open court during sentencing,
a statement for the reasons for the sentence
imposed. At the same time, the court is not required
to parrot the words of the sentencing code. …
Instead, the record as a whole must reflect due
consideration by the court of the offense and the
character of the offender.
Commonwealth v. Kalichak, 943 A.2d 285, 290 (Pa. Super. 2008)
(internal citations omitted), quoting Commonwealth v. Malovich, 903
A.2d 1247, 1253 (Pa. Super. 2006). Further, total confinement may be
imposed subsequent to revocation of probation if the probationer has
committed another crime, the conduct of the probationer indicates he will
likely commit another crime, or it is necessary to vindicate the authority of
the court. See Commonwealth v. Crump, 995 A.2d 1280, 1283-1284 (Pa.
Super. 2010); accord 42 Pa.C.S.A. § 9771(c).
Appellant argues, “[the trial court] should have either ordered a [PSI]
be prepared or engaged in some worthwhile examination of reasonable
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information about [Appellant] that could have affected the type and length
of sentence imposed upon him.” Appellant’s Brief at 13. We conclude the
record as a whole reflects the trial court did engage in a meaningful inquiry
into Appellant’s circumstances. At Appellant’s initial sentencing after he pled
guilty to escape, the trial court was informed of Appellant’s prior record
score and the circumstances that led to his escape. Also, Appellant
addressed the court at length regarding his history of substance abuse.
N.T., 2/9/12, at 14-15; 21-27. Appellant waived the requirement for a PSI
at this proceeding. Id. at 20-21. Further, the trial court noted, “I
structured the sentence so that if you do violate during those four years, I
can send you back into the state. So, it’s up to you.” Id. at 35-36.
At the Gagnon II hearing, the trial court learned of the details of
Appellant’s violation, including overdosing and attempts at self-harm. N.T.,
11/19/13, at 3-4. Appellant testified about his continuing struggle with
drugs and alcohol. Id. at 7. Specifically, Appellant testified, “… I just don’t
know how I went from OD’ing to still using.” Id. Upon sentencing, the trial
court addressed Appellant as follows.
I heard you [Appellant]. I’ve also looked back, that
you had a burglary, a retail theft, criminal trespass
and forgery, for a prior record score of 5. Your
underlying conviction was for an escape.
I think you have been quite candid. The local
resources have been exhausted. …
…
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I’m concerned that you have a lot of factors going
on, both in terms of your substance abuse issues,
picking up on using a needle after you almost OD’d
on bath salts, in combination with trying to harm
yourself, I think is really a toxic combination for you.
And while this sentence is probably a bit shocking, I
think it’s going to create enough time for the
personnel of the state prison system to help find the
right combination of treatment for you so that you
are not falling back in the same problem.
Id. at 10-11. The record, as a whole, reflects that the trial court, in
fashioning the instant sentence, was concerned with the rehabilitative needs
of Appellant and his continual issues with drug abuse. It is clear from the
record that the trial court was familiar with Appellant and his particular
circumstances and considered the nature of the offense and the character of
the offender. See Kalichak, supra. Further, the trial court informed
Appellant that a violation could result in a state sentence. Despite this,
Appellant violated the terms of his supervision by failing to remain drug free
and complete treatment programs as required by his supervision.
Therefore, confinement was an appropriate sentence because Appellant
conceded his use of illegal substances, the trial court expressed concern this
activity would continue if Appellant was not confined, and it was necessary
to vindicate the authority of the court. See Crump, supra at 1283.
Based on the foregoing, we conclude the trial court did not abuse its
discretion by imposing a sentence of total confinement upon revocation of
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Appellant’s probation. See Mazzetti, supra at 230. Accordingly, the trial
court’s November 19, 2013 judgment of sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2014
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