Com. v. Nodd, D. ( 2019 )

J-S76007-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
DENNIS NODD,
Appellant No. 196 WDA 2018
Appeal from the Judgment of Sentence Entered January 3, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008422-2013
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 19, 2019
Appellant, Dennis Nodd, appeals from the judgment of sentence of 18
to 36 months’ incarceration, followed by 2 years’ probation, imposed after his
original term of probation was revoked based on technical violations.
Appellant solely contends that his sentence is manifestly excessive,
unreasonable, and an abuse of the court’s discretion. We affirm.
The trial court summarized the pertinent facts and procedural history of
Appellant’s case, as follows:
On December 10, 2013, [Appellant] was sentenced to a
term of two years’ probation after pleading guilty to Access Device
Fraud. As a result of a violation of that probation for failing to pay
restitution, on February 18, 2015, [Appellant’s] probation was
revoked and a new two-year term of probation was imposed. On
June 21, 2017, that probation was revoked due to [Appellant’s]
drug use and continued failure to pay restitution. This [c]ourt
again imposed a new two-year period of probation. [Appellant]
tested positive for cocaine and methadone on September 11,
J-S76007-18
2017[,] and was not paying restitution as directed. An arrest
warrant was issued due to these violations. When officers from
the Allegheny County Sheriff’s Department attempted to arrest
[Appellant], he advised the deputies that he had the skin condition
“scabies.” The deputy sheriffs were concerned about taking
[Appellant] into custody due to the contagious nature of that
condition so, with this [c]ourt’s approval, the warrant was cleared.
[Appellant] was directed to report to his probation officer on
September 27, 2017. He failed to report for that meeting. This
[c]ourt issued another arrest warrant for this violation. At the
revocation hearing, [Appellant] was unable to provide any proof
that he had scabies. Defense counsel attempted to argue that
[Appellant] suffered from mental health disorders but he could
offer no proof of such issues.
Trial Court Opinion (TCO), 5/15/18, at 1-2.
At the close of the January 3, 2018 revocation hearing, the court
revoked Appellant’s term of probation and sentenced him to 18 to 36 months’
incarceration, followed by 2 years’ probation. Appellant filed a timely post-
sentence motion, which the court denied. He then filed a timely notice of
appeal, and he also timely complied with the trial court’s order to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On
May 15, 2018, the trial court issued its Rule 1925(a) opinion. Herein,
Appellant states one issue for our review:
I. Whether the revocation sentence imposed was manifestly
excessive, unreasonable, and an abuse of discretion where there
were only technical violations of probation, and the trial court
failed to consider the character, nature, and rehabilitation needs
of [Appellant]?
Appellant’s Brief at 7 (unnecessary capitalization and emphasis omitted).
Appellant’s issue challenge discretionary aspects of his sentence. This
Court has explained:
-2-
J-S76007-18
An appellant wishing to appeal the discretionary aspects of
a probation-revocation sentence has no absolute right to do so
but, rather, must petition this Court for permission to do so.
Specifically, the appellant must present, as part of the appellate
brief, a concise statement of the reasons relied upon for allowance
of appeal. Pa.R.A.P. 2119(f). In that statement, the appellant
must persuade us there exists a substantial question that the
sentence is inappropriate under the sentencing code.
In general, an appellant may demonstrate the existence of
a substantial question by advancing a colorable argument that the
sentencing court’s actions were inconsistent with a specific
provision of the sentencing code or violated a fundamental norm
of the sentencing process. While this general guideline holds true,
we conduct a case-specific analysis of each appeal to decide
whether the particular issues presented actually form a substantial
question. Thus, we do not include or exclude any entire class of
issues as being or not being substantial. Instead, we evaluate
each claim based on the particulars of its own case.
It is important to note that this Court is not persuaded by
bald assertions or the invocation of special words in a concise
statement of reasons. To the contrary, a concise statement must
articulate the way in which the court’s conduct violated the
sentencing code or process.
If an appellant convinces us that a claim presents a
substantial question, then we will permit the appeal and will
proceed to evaluate the merits of the sentencing claim. When we
do so, our standard of review is clear: Sentencing is vested in the
sound discretion of the court and will not be disturbed absent an
abuse of that discretion. Moreover, an abuse of discretion is not
merely an error in judgment. Instead, it involves bias, partiality,
prejudice, ill-will, or manifest unreasonableness.
Likewise, we 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. 42 Pa.C.S.[] § 9721(b).
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 of the reasons for the sentence
imposed. At the same time, the court is not required to parrot the
words of the sentencing code, stating every factor relevant under
-3-
J-S76007-18
42 Pa.C.S.[] § 9721(b). 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, 289–90 (Pa. Super. 2008)
(most internal citations omitted).
Here, we initially observe that Appellant preserved his sentencing claim
in a post-sentence motion, and he has included a Rule 2119(f) statement in
his appellate brief. Therein, Appellant claims that the court’s sentence of
incarceration is manifestly excessive, and that the court failed to consider his
rehabilitative needs or explain “why it believed that [Appellant] could not be
further rehabilitated.” Appellant’s Brief at 13. A claim that the court imposed
an excessive sentence, together with an assertion that the court failed to
consider the defendant’s rehabilitative needs, has been deemed a substantial
question for our review. See Commonwealth v. Swope, 123 A.3d 333, 339-
40 (Pa. Super. 2015).
However, we note that in the Argument section of Appellant’s brief, he
offers no meaningful discussion of his rehabilitative needs, or how the court
overlooked that sentencing consideration. Instead, he simply claims, without
elaboration, that the sentencing court “focused solely on his mistakes, to the
complete exclusion of other required sentencing factors.” Appellant’s Brief at
16. Appellant also avers that his sentence is “simply unreasonable” because
“he committed no new crimes[,]” a claim which was not set forth in his Rule
2119(f) statement. Id. at 17.
-4-
J-S76007-18
Appellant’s boilerplate arguments fail to demonstrate an abuse of
discretion by the sentencing court. In justifying the term of incarceration it
imposed, the court explained:
[Appellant] had violated the original probationary term in
this case. This [c]ourt provided [Appellant] with opportunities to
remain on probation not once, but twice, after subsequent
violations of probation. [Appellant] steadfastly and persistently
refused to pay restitution to his own father. Furthermore, and
more importantly, [Appellant] repeatedly used illegal drugs in
direct violation of this [c]ourt’s “zero tolerance” policy. Relative
to his final violation, [Appellant] test[ed] positive for cocaine and
methadone. He lied to deputy sheriffs about having scabies in
order to avoid going to jail. The [c]ourt was of the view that
[Appellant] was provided with ample opportunities to conform his
conduct to the dictates of the law but repeatedly chose not to do
so. [Appellant] has been making conscious decisions to engage
in criminal drug use rather than seek treatment or rehabilitation.
This [c]ourt believe[s] that [Appellant] continually demonstrates,
though his drug use, that he is a danger to the community. This
[c]ourt believes that any rehabilitation and treatment should occur
while [Appellant] is incarcerated. In sum, this [c]ourt imposed
the sentence it did because of [Appellant’s] persistent drug use
despite having had his probation revoked on two prior occasions.
The probationary terms imposed for those prior violations were
simply taken for granted in this case. [Appellant’s] conduct,
including criminal conduct, makes clear that three separate county
sentences failed to put him on the path to rehabilitation. The need
to protect society from [Appellant’s] behavior and his need for
regimented treatment in a state prison facility warranted the
sentence imposed in this case.
TCO at 4-5.
The trial court’s rationale is supported by the record, and demonstrates
that the court considered Appellant’s rehabilitative needs in fashioning his
term of incarceration. Additionally, we do not agree with Appellant that the
-5-
J-S76007-18
court’s sentence is unduly harsh or an abuse of discretion, given the
circumstances of this case.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2019
-6-