Com. v. Lang, B. ( 2017 )


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  • J-S88042-16
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
    :   IN THE SUPERIOR COURT OF
    COMMONWEALTH OF PENNSYLVANIA,             :         PENNSYLVANIA
    :
    Appellee                    :
    :
    v.                                   :
    :
    BRANDON LANG,                             :
    :
    Appellant                   :       No. 2548 EDA 2014
    Appeal from the Judgment of Sentence August 7, 2014
    in the Court of Common Pleas of Philadelphia County
    Criminal Division, at No(s): CP-51-CR-0013616-2012
    BEFORE:      OLSON, RANSOM, and STRASSBURGER,* JJ.
    MEMORANDUM BY STRASSBURGER, J.:                   FILED FEBRUARY 07, 2017
    Brandon Lang (Appellant) appeals from the judgment of sentence of
    two to five years of incarceration entered following the revocation of his
    probation.   We vacate Appellant’s judgment of sentence and remand this
    case for resentencing.
    In February 2014, Appellant entered a negotiated guilty plea to counts
    of receiving stolen property and unauthorized use of automobiles and other
    vehicles, and received respective concurrent sentences of five and two years
    of county probation. The trial court explained:
    [A]t the time of imposition of the negotiated period of probation,
    all parties acknowledged that the computed [] sentencing
    guidelines calculated the lead offense with an offense gravity
    score of “5” and that [Appellant’s] prior record score [was] 1.
    Thus, the recommended range of sentence was incarceration of
    a length between one and twelve months with a possible
    *Retired Senior Judge assigned to the Superior Court.
    J-S88042-16
    deviation of three months. [Appellant’s] criminal record included
    multiple misdemeanor convictions for theft from motor vehicles
    as well as an illegal narcotics possession and a summary
    conviction for contempt of court. [Appellant] had violated the
    terms of his previously imposed periods of probation or parole
    for those offenses.    Th[e trial c]ourt was also aware that
    [Appellant] had previously failed to appear as scheduled for
    court on multiple occasions. Given all of the circumstances and
    facts of the underlying charges, the negotiated sentence of
    another period of probations was generously below the
    recommended guidelines.
    As a minimal condition of [Appellant’s] supervision
    probation, [Appellant] had been directed by th[e trial c]ourt to
    report to his assigned probation officer, obtain a G.E.D., and pay
    restitution to the owner of the stolen automobile in the amount
    of $700.00 for the damages he had caused and pay mandatory
    court fines and costs throughout the period of probation. Upon
    entry of the guilty plea, [Appellant] waived his right to have any
    presentence investigative report completed. At the time of
    sentencing, [Appellant] was given credit for the county time he
    previously served while awaiting trial.
    Sentencing Court Opinion, 2/5/2016, at 2 (unnecessary capitalization
    omitted).
    Appellant reported to his probation officer upon his release from
    custody, but thereafter failed to report or attend the ordered G.E.D. classes.
    Consequently, a bench warrant was issued on May 20, 2014.
    On August 7, 2014, after sufficient basis for revocation of
    [Appellant’s] parole and probation was presented, all parties
    agreed to proceed immediately to sentencing without any
    request for any presentence investigation evaluations. Although
    presentence reports were not formally waived, th[e trial c]ourt
    deemed it waived from the prior waiver and the insistence of the
    parties to proceed immediately to sentencing following the
    revocation.
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    J-S88042-16
    After hearing argument, th[e trial c]ourt sentenced
    [Appellant] to a [] state term of minimum confinement of two to
    five years, and directed [Appellant] to pay the remaining court
    costs and fees, and pay owed amount of restitution. [Appellant]
    was given credit for any time served.          Th[e trial c]ourt
    specifically recommended and directed that [Appellant] be
    eligible for the early release opportunity afforded in the state
    boot camp program. If accepted into the boot camp program,
    [Appellant] would have been released after a mere six months of
    confinement. …
    On August 11, 2014, [Appellant] filed a request for
    reconsideration of sentence. This was denied without hearing on
    August 15, 2014. On September 4, 2014, a notice of appeal was
    filed on behalf of [Appellant]. On September 16, 2014 this Court
    directed [Appellant] to file a 1925(b) statement. The statement
    was timely filed on October 3, 2014….
    Id. at 3-4 (citations and unnecessary capitalization omitted).            The
    sentencing court eventually filed its Rule 1925(a) opinion, offering therein
    reasons for the sentence imposed, on February 5, 2016, and this case is now
    ripe for our review.
    Appellant presents this Court with a multi-faceted challenge to the
    discretionary aspects of his sentence, including the claim that the sentencing
    court failed to place on the record the reasons for the sentence imposed.1
    Appellant’s Brief at 4.
    An appellant is not entitled to the review of challenges to the
    discretionary aspects of a sentence as of right. Rather, an
    appellant challenging the discretionary aspects of his sentence
    must invoke this Court’s jurisdiction. We determine whether the
    appellant has invoked our jurisdiction by considering the
    following four factors:
    1
    Because we determine that resentencing is necessary based upon this
    aspect of Appellant’s claim, we need not address his remaining arguments.
    -3-
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    (1) whether appellant has filed a timely notice of
    appeal, see Pa.R.A.P. 902 and 903; (2) whether the
    issue was properly preserved at sentencing or in a
    motion to reconsider and modify sentence, see
    Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
    fatal defect, Pa.R.A.P. 2119(f); and (4) whether
    there is a substantial question that the sentence
    appealed from is not appropriate under the
    Sentencing Code, 42 Pa.C.S.A. § 9781(b).
    Commonwealth v. Samuel, 
    102 A.3d 1001
    , 1006-07 (Pa. Super. 2014)
    (some citations omitted).
    Here, Appellant timely filed a notice of appeal after filing a motion to
    modify sentence which included the claim at issue, and his brief contains a
    statement pursuant to Pa.R.A.P. 2119(f).        We thus consider whether
    Appellant has presented a substantial question for our review.
    This Court has held that an allegation that the sentencing court failed
    to offer a contemporaneous statement on the record of the reasons for the
    sentence imposed raises a substantial question.         Commonwealth v.
    Johnson, 
    541 A.2d 332
    , 341 n.4 (Pa. Super. 1988). Accordingly, we review
    the merits of Appellant’s claim.
    Regarding prison sentences imposed following the revocation of
    probation, the Sentencing Code provides as follows:
    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
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    (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. § 9771(c).    Further, “[i]n every case in which the court …
    resentences an offender following revocation of probation, … 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. § 9721(b) (emphasis added).
    “Such a statement is mandatory.”         Johnson, 541 A.2d at 340.
    Offering the reasons at a later time, such as in ruling upon a motion for
    reconsideration of sentence or in authoring a Rule 1925(a) opinion, does not
    cure noncompliance with subsection 9721(b). See, e.g., Commonwealth
    v. Holmes, 
    500 A.2d 890
    , 891 (Pa. Super. 1985); Commonwealth v.
    Giles, 
    449 A.2d 641
    , 642 (Pa. Super. 1982).
    Here, the transcript of the sentencing hearing reveals that the
    sentencing court detailed the history of the case, N.T., 8/7/2014, at 4-6;
    Appellant’s counsel explained Appellant’s reasons for failing to comply with
    the terms of probation and requested that the sentencing court “give him
    either a short jail sentence with parole or allow him to have another period
    of probation,” id. at 6-8; and the Commonwealth recommended “a short jail
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    sentence,” id. at 8. After Appellant briefly exercised his right to allocution,
    id. at 9, the sentencing transcript reads as follows:
    THE COURT:        Okay.
    All right.
    Sir, you may stand. This [c]ourt finds that you violated
    the period of probation presented to you on February 7th.
    I resentence you [on] the receiving stolen property, 2-to-5
    years’ state incarceration. You are Boot Camp [eli]gible.
    [APPELLANT’S COUNSEL]: Your            Honor,   would    you
    consider a county sentence?
    THE COURT:        No.
    [APPELLANT’S COUNSEL]: He’s never been in jail.
    THE COURT:        No.
    As to the unauthorized use, I’m suspending your sentence.
    A condition of your parole is the payment of $700.00 restitution
    and any mandatory fines and cost.
    You may advise him.
    Id. at 9-10.   Appellant’s counsel then explained Appellant’s post-sentence
    rights, and the hearing concluded. Id. at 10-11.
    The record thus confirms Appellant’s contention that the sentencing
    court failed to state on the record any reasons for its sentence, let alone
    findings required under 42 Pa.C.S. § 9771(c) for imposition of a period of
    total confinement following revocation of probation.    Accordingly, we must
    vacate Appellant’s sentence and remand for resentencing.            See, e.g.,
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    Commonwealth v. Riggins, 
    377 A.2d 140
    , 151 (Pa. 1977) (vacating
    sentence and remanding “to afford the trial court an opportunity to
    resentence appellant and to include a statement of reasons for the sentence
    imposed”); Commonwealth v. Harris, 
    457 A.2d 572
    , 574 (Pa. Super.
    1983) (vacating sentence and remanding for resentencing where “[a]lthough
    the judge did later write an opinion in which he discussed the sentence and
    his reasons for imposing it, … the sentencing transcript indicates that he did
    not disclose those reasons at the time of sentencing”).
    Judgment of sentence vacated.       Case remanded for resentencing.
    Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/7/2017
    -7-
    

Document Info

Docket Number: 2548 EDA 2014

Filed Date: 2/7/2017

Precedential Status: Non-Precedential

Modified Date: 12/13/2024