Com. v. Barfield, D. ( 2015 )

J-S28023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DASHARRH BARFIELD
Appellant No. 1481 MDA 2014
Appeal from the Judgment of Sentence June 24, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-001489-2013
BEFORE: BOWES, J., ALLEN, J., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 25, 2015
Dasharrh Barfield appeals from the judgment of sentence entered in
the Court of Common Pleas of Luzerne County following the revocation of his
intermediate punishment. After our review, we vacate and remand for
resentencing.
The trial court summarized the relevant facts and procedural history as
follows:
On April 14, 2014, [Barfield] was originally sentenced on one
count of Delivery of Cocaine [35 P.S. § 780-113(a)(3)] to thirty
(30) months in the [Luzerne County] Intermediate Punishment
Program (IPP) with the first twelve (12) months to be served on
house arrest with electronic monitoring.
On May 12, 2014, less than one month after [Barfield] was
sentenced, the Luzerne County Department of Probation
Services, Adult Probation and Parole Division, violated [Barfield]
for admitting to his probation officer that he “smoked crack
cocaine” and for leaving his residence without proper approval
while on electronic monitoring. [Barfield] waived his Gagnon I
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hearing and proceeded before [the trial court] for a Gagnon II
hearing on June 5, 2014. At that time, [Barfield] admitted to the
violations.
As a result of the violations, a review of the PSI and the
presentations of counsel, and finding that [Appellant] could not
even complete one month of house arrest by following the terms
and conditions of the Luzerne County Department of Probation
Services, [the trial court] determined that resentencing
[Barfield] to a period of incarceration was appropriate. [The trial
court] then resentenced [Appellant] to a minimum of twenty four
(24) months to a maximum of forty eight (48) months
incarceration to be served at a state correctional institution while
giving [Appellant] credit of thirty six (36) days for time already
served.
On June 12, 2014, [Appellant] mailed a pro se Motion to Modify
and Reduce Sentence to the [trial court] which was denied by
Order of June 24, 2014. On July 22, 2014, [Barfield], through his
Court appointed counsel, filed a Notice of Appeal. [Both Barfield
and the trial court have complied with Pa.R.A.P.] 1925.
Trial Court Opinion, 11/4/14, at 2-3 (footnote omitted).
Barfield presents the following issues for our review:
1. Whether the sentencing court erred by imposing a sentence
of total confinement where [Barfield] was a first-time, technical
violator of the intermediate punishment program?
2. Whether the sentencing court erred by relying on the
sentencing guidelines in determining [Barfield’s] new sentence
following his revocation from the county intermediate
punishment program?
Appellant’s Brief at 1.
Barfield first argues that the trial court erred when it revoked his
intermediate punishment and imposed a sentence of total confinement
based on his technical violations. Appellant’s Brief, at 5-7. We find no error.
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“Revocation . . . 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.
Perreault, 930 A.2d 553, 558 (Pa. Super. 2007) (citations and internal
quotations omitted). “It is essential that the court maintain the ability to
incarcerate persons for whom intermediate punishment is no longer a viable
means of rehabilitation.” Commonwealth v. Serrano, 727 A.2d 1168,
1170 (Pa. Super. 1999).
Section 9773(b) of the Judicial Code, 42 Pa.C.S.A. § 9773(b), which
governs modification or revocation of county intermediate punishment
sentences, provides:
Revocation.-- The court may revoke a sentence of county
intermediate punishment upon proof of a violation of specific
conditions of the sentence. Upon revocation and subject to
section 9763(d), the sentencing alternatives available to the
court shall be the same as the alternatives available at the time
of initial sentencing. Upon a revocation of county intermediate
punishment for any reason specified by law, the attorney for the
Commonwealth may file notice, at any time prior to
resentencing, of the Commonwealth's intention to proceed under
an applicable provision of law requiring a mandatory minimum
sentence. Consideration shall be given to the time served in the
county intermediate punishment program.
42 Pa.C.S.A § 9773(6). Thus, “[a]n intermediate punishment sentence
imposed pursuant to 42 Pa.C.S. § 9773 . . . may be revoked where the
specific conditions of the sentence have been violated.” Commonwealth v.
Philipp, 709 A.2d 920, 921 (Pa. Super. 1998).
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Here, the record establishes that Barfield admitted to violating Rule
Number 8 of the conditions of his intermediate punishment sentence,
prohibiting him from smoking crack cocaine, and Rule Number 1 of his
electronic monitoring program by leaving his residence without proper
approval. N.T. Gagnon II Hearing, 6/5/14, at 2; Intermediate Punishment
Violation Report, 5/12/14. Given that as conditions of his intermediate
punishment sentence, Barfield was required to refrain from illegal drug use
and not abscond from electronic monitoring without proper approval, and
that Barfield admitted to these violations, we find no error in the trial court’s
decision to revoke his intermediate punishment sentence.
Barfield also challenges the trial court’s decision to resentence him to
total confinement. He asserts that in imposing its sentence, the trial court
improperly relied on the sentencing guidelines. Appellant’s Brief at 7-8.
These claims constitute a challenge to the discretionary aspects of his
sentence.
Where an appellant challenges the discretionary aspects of a sentence,
there is no automatic right to appeal; rather, such an appeal is considered a
petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d
155, 163 (Pa. Super. 2007).
Before 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
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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. Finally, if the appeal satisfies each of these
four requirements, we will then proceed to decide the
substantive merits of the case.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations
omitted).
Although the record does not contain a written post-sentence motion,
Barfield preserved his discretionary claims in an oral post-sentence motion
at the June 5, 2015 hearing. N.T. Gagnon II Hearing, 6/5/14, at 7-8.1 In
addition, Barfield has filed a timely notice of appeal and included in his brief
a concise statement pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief at
4-5. Moreover, Barfield’s claims that the trial court erred in sentencing him
to total confinement based on technical violations, and improperly relied on
the sentencing guidelines when resentencing him, raise substantial questions
for our review. See Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa.
Super. 2014) (holding that claim that trial court’s sentence to total
confinement based solely on technical violation raises substantial question
for our review); Commonwealth v. Philipp, 709 A.2d 920, 921 (Pa. Super.
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Although the record does not contain a written post-sentence motion, the
trial court in its Pa.R.A.P. 1925(a) opinion indicates that a post-sentence
motion was filed on June 12, 2014, and the record contains an order dated
June 24, 2014 denying that motion.
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1998) (explaining that “the sentencing guidelines do not apply to sentences
imposed as a result of intermediate punishment revocation”).
The imposition of sentence following the revocation of [a
sentence of conditional release] is vested within the sound
discretion of the trial court, which, absent an abuse of that
discretion, will not be disturbed on appeal. An abuse of
discretion is more than an error in judgment—a sentencing court
has not abused its discretion unless the record discloses that the
judgment exercised was manifestly unreasonable, or the result
of partiality, prejudice, bias or ill-will.
Commonwealth v. Simmons, 56 A.3d 1280, 1283–84 (Pa. Super. 2012).
Section 9773 of the Judicial Code, 42 Pa.C.S.A. § 9773, governing
resentencing following revocation of intermediate punishment sentences, is
analogous to the procedure for resentencing following revocation of
probation, in that the sentencing court possesses the same sentencing
alternatives that it had at the time of the initial sentencing. Philipp, 709
A.2d at 921; 42 Pa.C.S.A. § 9773 (the sentencing alternatives available to
the court shall be the same as the alternatives available at the time of initial
sentencing). See also Pa.R.Crim.P. 708; Commonwealth v. Cartrette, 83
A.3d 1030, 1043 (Pa. Super. 2013) (analyzing revocation of intermediate
punishment proceedings under the same scope and standard of review
applicable to probation revocation proceedings); Philipp, supra;
Commonwealth v. Harriott, 919 A.2d 234 (Pa. Super. 2007).
In addition, section 9721(b), which sets forth the general standards
that a court is to apply in sentencing a defendant, provides:
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In every case in which the court . . . resentences an offender
following revocation of probation, county intermediate
punishment or State intermediate punishment or resentences
following remand, the court shall make as a part of the record,
and disclose in open court at the time of sentencing, a statement
of the reason or reasons for the sentence imposed.
42 Pa.C.S.A. ° 9721(b). “[T]he sentencing court must follow the general
principle that the sentence imposed should call for confinement that is
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.” Cartrette, 83 A.3d at 1040-1041.
“Failure to comply with these provisions shall be grounds for vacating the
sentence or resentence and resentencing the defendant.” Id. (internal
quotations omitted). Moreover, in such revocation proceedings, “the court
shall consider the record of the initial sentencing proceeding as well as the
conduct of the defendant while serving a sentence of county intermediate
punishment.” 42 Pa.C.S.A. § 9773(c).
Here, at the Gagnon II hearing, prior to sentencing Barfield, the trial
court heard from the Commonwealth, as well as from Barfield and his
counsel. Counsel explained that Barfield took responsibility for his drug
addiction, and that he had suffered a relapse and desired drug and alcohol
treatment in order to rehabilitate himself. Id. at 4. The trial court then
explained its decision to resentence Barfield to a term of imprisonment of 2
to 4 years as follows:
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[B]ased on my review of the PSI, its clear that [Barfield] has a
substantial pior criminal history, much of which included drug-
related offenses similar to the offense at issue here.
It appears [Barfield] was given numerous opportunities through
these contacts with the justice system and hasn’t reformed his
ways. [The trial court] again gave him another opportunity by
allowing him to serve the sentence in the IPP Program, from
which he’s now being revoked; therefore, I feel that a period of
incarceration in a state correctional institution would be the next
logical step so as not to diminish the serious nature of the
offense. And also [Barfield] could benefit from the programs
offered in the state system.
N.T. Gagnon II Hearing, 6/5/14, at 4-5.
At the sentencing hearing, the prosecutor stated that prior to
imposition of intermediate punishment, Barfield was “looking at a standard
range of 21 to 27 months with a prior record score of five.” N.T. Revocation
Hearing, 10/31/14, at 3. The prosecutor went on to state that given
Barfield’s violation, “I’m asking to revoke and resentence within the
applicable standard range.” Id.
In imposing sentence, the court stated:
This Court again gave him another opportunity by allowing him
to serve the sentence in the IPP Program, from which he’s now
being revoked; therefore, I feel that a period of incarceration in
a state correctional institution would be the next logical step so
as not to diminish the serious nature of the offense. And also
[Barfield] could benefit from the programs offered in the state
system. The standard range of the guidelines for Count 1,
delivery, being 21 to 27 months, the Court will sentence the
Defendant to a minimum of 24 months to a maximum of 48
months to be served in a state correctional institution.
Id. at 5-6 (emphasis added).
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Thereafter, defense counsel asked the court to reconsider and
requested a county sentence of 12 months less one day. The court, in
response to defense counsel’s request, stated, “[t]hat would require the
[trial court] to deviate totally from the sentencing guidelines and go even
below the mitigated range of the guidelines, which I’m not inclined to do[.]”
Id. at 7. Defense counsel then pointed out that the guidelines do not apply
in this type of proceeding, at which point the court responded, “I think they
do. When you’re revoked from the IPP Program, the court can resentence
and in resentencing, I am utilizing the guidelines.” Id. at 7-8 (emphasis
added).
The case of Philipp, supra, is dispositive. In Philipp, this Court held
that the sentencing guidelines do not apply to sentences imposed as a result
of intermediate punishment revocation. Philipp, 907 A.2d at 921. See
204 Pa.Code § 303.1(b)2 (“The sentencing guidelines do not apply to
sentences imposed as a result of the following: accelerated rehabilitative
disposition; disposition in lieu of trial; direct or indirect contempt of court;
violations of protection from abuse orders; revocation of probation,
intermediate punishment or parole.”) (emphasis added).
From our reading of the record, we conclude that the sentencing court
believed that the sentencing guidelines applied, and that the court utilized
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2
Effective: September 26, 2014.
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the guidelines in imposing sentence. Accordingly, we vacate the judgment
of sentence and remand for resentencing in accordance with this decision.
Vacated and remanded. Jurisdiction relinquished.
BOWES, J., Joins the majority.
ALLEN, J., Files a concurring memorandum in which Judge Bowes
joins.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2015
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