Com. v. Goff, A. ( 2017 )

J-S79044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANDRE GOFF :
:
Appellant : No. 1553 EDA 2016
Appeal from the PCRA Order June 6, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0309511-2005
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 19, 2017
Appellant, Andre Goff, appeals nunc pro tunc from the order entered in
the Philadelphia County Court of Common Pleas, which denied his first
petition brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We
affirm.
The relevant facts and procedural history of this case are as follows.
On February [9], 2006, a jury convicted [Appellant] on
charges of robbery and possession of an instrument of
crime [(“PIC”)].[2] On March 9, 2006, [Appellant] was
sentenced to seven and a half to fifteen [years’]
imprisonment followed by five [years’] probation.
[Appellant] did not file a notice of appeal. [Appellant] filed
a [pro se] petition under the Post-Conviction Relief Act on
July 24, 2006. On June 8, 2007, [Appellant’s] request for
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1 42 Pa.C.S.A. §§ 9541-9546.
2 18 Pa.C.S.A. §§ 3701, 907, respectively.
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PCRA relief was granted. As a result, [Appellant’s] right to
file a direct appeal was reinstated nunc pro tunc.
[Appellant timely] filed a notice of appeal [nunc pro tunc]
on July 5, 2007. On July 24, 2008, the Superior Court
affirmed [Appellant’s] judgment of sentence. [Appellant’s]
petition for allowance of appeal to the Supreme Court was
denied on April 1, 2009.
On January 20, 2013, [Appellant] was arrested [while on
parole] and charged with several firearms violations, to
which he later pled guilty. [The] court held a Daisey
Kates[3] hearing on April 12, 2013[,] after which
[Appellant’s] probation was revoked. On June 7, 2013,
[Appellant] was sentenced to two and a half to five
[years’] imprisonment followed by five [years’] probation.
[Appellant] did not file an appeal. On April 8, 2014, new
counsel filed a PCRA petition alleging that Daisey Kates
counsel was ineffective for failing to file a notice of appeal.
Thereafter on June 6, 2014, [the] court held an evidentiary
hearing, and after finding [Appellant’s] claim to be
meritless, issued an order denying [Appellant’s] petition to
reinstate his appellate rights nunc pro tunc. [Appellant
timely] filed a notice of appeal on July 5, 2014[,] and on
November 10, 2014, [the] court issued an opinion.
[Appellant’s] appeal was dismissed on February 20,
2015[,] for failure to file a brief. [Appellant] then filed a
[pro se] petition under the [PCRA] on July 17, 2015. On
April 22, 2016, [the] court granted [Appellant’s] right to
appeal, nunc pro tunc, [from] the June 6, 2014 order
denying PCRA relief. [Appellant timely] filed a notice of
appeal [nunc pro tunc] to the Superior Court on May 19,
2016. On November 18, 2016, [the] court ordered
[Appellant] to file a statement of [errors] complained of on
appeal. [Appellant] filed this statement on November 29,
2016, while his counsel filed a similar statement on
December 3, 2016.
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3 See Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973)
(holding there is no constitutional prohibition preventing trial court from
conducting probation/parole revocation hearing before trial on new criminal
charges which led to revocation claim).
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(PCRA Court Opinion, filed June 29, 2017, at 1-2).
Appellant raises the following issue for our review:
WAS THE COURT’S IMPOSITION OF A NEW SENTENCE
ILLEGAL WHERE APPELLANT HAD BEEN RELEASED ON
PAROLE AND WHOSE PROBATION HAD NOT YET BEGUN?
(Appellant’s Brief at 9).4
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record supports the court’s determination and
whether the court’s decision is free of legal error. Commonwealth v. Ford,
947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d 319
(2008). This Court grants great deference to the findings of the PCRA court
if the record contains any support for those findings. Commonwealth v.
Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932
A.2d 74 (2007). Credibility determinations are within the province of the
PCRA court when a hearing is held on the matter. Commonwealth v.
Rathfon, 899 A.2d 365 (Pa.Super. 2006). If the record supports a PCRA
court’s credibility determination, it is binding on the appellate court.
Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297 (2011).
Appellant argues the court incorrectly determined he violated
probation, when in fact his probation term had not yet begun. Appellant
claims the only option available to the court after revocation of Appellant’s
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4 Appellant challenges the legality of his sentence, which is cognizable under
the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(vii).
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parole was to recommit him to serve out the remainder of his term of
incarceration. Appellant avers his issue is a challenge to the legality of his
sentence, which he cannot waive. Appellant concludes this Court should
vacate his sentence and remand for resentencing. We disagree.
Pennsylvania law states:
If, at any time before the defendant has completed the
maximum period of probation, or before he has begun
service of his probation, he should commit offenses of
such nature as to demonstrate to the court that he is
unworthy of probation and that the granting of the same
would not be in subservience to the ends of justice and the
best interests of the public, or the defendant, the court
could revoke or change the order of probation. A
defendant on probation has no contract with the court. He
is still a person convicted of crime, and the expressed
intent of the Court to have him under probation beginning
at a future time does not change his position from the
possession of a privilege to the enjoyment of a right.
Commonwealth v. Hoover, 909 A.2d 321, 323 (Pa.Super. 2006) (quoting
Commonwealth v. Wendowski, 420 A.2d 628, 630 (Pa.Super. 1980))
(emphasis in original, internal quotation marks omitted). If a court revokes
a term of probation before the defendant has started to serve it, the court
has the same sentencing options available that existed at the time of the
original sentencing. Commonwealth v. Ware, 737 A.2d 251 (Pa.Super.
1999), appeal denied, 561 Pa. 657, 747 A.2d 900 (1999).
“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
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discretion.” Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa.Super.
2007), appeal denied, 596 Pa. 729, 945 A.2d 169 (2008). The Sentencing
Code permits a court to revoke an order of probation under the following
circumstances:
§ 9771. Modification or revocation of order of
probation
(a) General rule.—The court may at any time terminate
continued supervision or lessen or increase the conditions
upon which an order of probation has been imposed.
(b) Revocation.—The court may revoke an order of
probation upon proof of the violation of specified conditions
of the probation. Upon revocation the sentencing
alternatives available to the court shall be the same as
were available at the time of initial sentencing, due
consideration being given to the time spent serving the
order of probation.
(c) Limitation on sentence of total confinement.—
The court shall not impose a sentence of total confinement
upon revocation unless it finds that:
(1) the defendant has been convicted of another
crime; or
(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.
42 Pa.C.S.A. § 9771(a)-(c).
Instantly, after a jury convicted Appellant of robbery and PIC on
February 9, 2006, the court sentenced him to seven and half to fifteen years’
imprisonment plus five years’ probation. While on parole in January 2013,
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Appellant was arrested and charged with several firearms violations, to
which he later pled guilty. After a hearing, the court anticipatorily revoked
Appellant’s probation, and on June 7, 2013, resentenced him to two and half
to five years’ imprisonment plus five years’ probation.
The court had authority to revoke Appellant’s probation before he
started serving his probation term. See Hoover, supra. Appellant
committed several firearm offenses, which demonstrated to the court that he
was unworthy of probation. See id.; 42 Pa.C.S.A. § 9771(c). The court
resentenced Appellant to a term of incarceration and probation consistent
with the options available at Appellant’s original sentencing. See Ware,
supra. Therefore, the court imposed a legal sentence following revocation
of Appellant’s parole/probation. Accordingly, we affirm the order denying
PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2017
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