Com. v. Fletcher, J. ( 2017 )

J-S17019-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES FLETCHER
Appellant No. 3065 EDA 2015
Appeal from the Judgment of Sentence entered September 9, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0002618-2011
BEFORE: OLSON, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 08, 2017
Appellant, James Fletcher, appeals from the September 9, 2015
judgment of sentence imposed after the revocation of Appellant’s parole.
We vacate and remand.
The record reveals that, on December 17, 2010, Appellant was
arrested and charged with possession with intent to deliver (“PWID”) a
controlled substance (35 P.S. § 780-113(a)(30)). On February 29, 2012,
the trial court sentenced Appellant to one to two years of incarceration
followed by five years of probation in accord with the parties’ negotiated plea
agreement. On June 27, 2015, while Appellant was serving his term of
probation, he was arrested for theft and related offenses. Those charges
were eventually dismissed, but the trial court conducted a hearing on
September 19, 2015, to address two technical violations—a positive drug
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test and failure to perform community service. At the conclusion of that
hearing, the trial court revoked Appellant’s probation and imposed a
sentence of six to twenty-three months of incarceration followed by four
years of probation. Appellant raises three issues on appeal, which we have
reordered for purposes of analysis:
1 Did not the lower court err by revoking Appellant’s
probation where the evidence was legally insufficient
to find him in technical violation by a preponderance
of the evidence, where it relied on inadmissible
hearsay, and where it denied Appellant the
opportunity to present a defense?
2 Did not the lower court violate Appellant’s right to
allocution, requiring a new sentencing hearing?
3 Did not the sentencing court violate the
requirements of [42 Pa.C.S.A. § 9771(c)] when,
after revoking his probation, it sentenced Appellant
to a period of total confinement where: i) he had
not been convicted of a new crime, ii)the record did
not demonstrate any likelihood that he would commit
a new crime if not incarcerated, and iii) incarceration
was not essential to vindicate the authority of the
court?
Appellant’s Brief at 3.
Appellant first argues the evidence was insufficient to find him in
violation of his probation. At a probation revocation hearing, the
Commonwealth must demonstrate a violation based on evidence containing
“probative value.” Commonwealth v. Sims, 770 A.2d 346, 349 (Pa.
Super. 2001). Unlike a criminal trial, the Commonwealth need not prove its
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case beyond a reasonable doubt. Id. at 350. The Commonwealth need only
prove by a preponderance of the evidence that a violation occurred. Id.
The instant record reveals that Appellant failed a drug test. N.T.
Hearing, 9/9/15, at 6. In addition, Appellant was unable to provide his
probation officer with proof that he performed any community service. Id.
at 5. Appellant was required to perform 100 hours per year of community
services as a condition of his probation. Id. These facts are more than
sufficient to establish, by a preponderance of the evidence, that Appellant
violated technical conditions of his probation.
Next, Appellant argues that he is entitled to a new sentencing hearing
because the trial court did not afford him his right of allocution at the
sentencing hearing. The Rules of Criminal Procedure guarantee a defendant
the right to make a statement at his revocation hearing: “At the time of
sentencing, the judge shall afford the defendant the opportunity to make a
statement in his or her behalf and shall afford counsel for both parties the
opportunity to present information and argument relative to sentencing.”
Pa.R.Crim.P. 708(D)(1). Our Supreme Court has ruled that a trial court
must inform a defendant of his right to speak prior to sentencing.
Commonwealth v. Thomas, 553 A.2d 913, 919 (Pa. 1989). Failure to do
so requires a new sentencing hearing. Id.
The trial court concedes that it failed to inform Appellant of his right to
speak on his own behalf. Trial Court Opinion, 7/7/16, at 5-6. The court also
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concedes that Appellant preserved the issue in a timely post-sentence
motion. Id. at 6.1 We will therefore vacate the judgment of sentence and
remand for a new hearing. Given our decision, we will not address
Appellant’s challenge to the discretionary aspects of the trial court’s
sentence.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/2017
____________________________________________
1
The Commonwealth argues that Appellant waived this issue for failing to
raise it in a post-sentence motion. It appears that the local prothonotary
initially misfiled Appellant’s timely post-sentence motion. The trial court
eventually received Appellant’s motion, and the court concedes the validity
of Appellant’s argument. We therefore decline to find the issue waived.
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