Com. v. Hannibal, T. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
TIMOTHY HANNIBAL
Appellant No. 3832 EDA 2017
Appeal from the Judgment of Sentence imposed September 16, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0006810-2014
BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 22, 2018
Appellant Timothy Hannibal appeals from his judgment of sentence of
1½—7 years’ imprisonment for possession with intent to deliver a controlled
substance (“PWID”).1 Appellant argues, inter alia, that the trial court erred in
determining that he was not eligible for the Recidivism Risk Reduction
Incentive (“RRRI”)2 program without requesting the Commonwealth’s
position. We affirm.
The trial court summarized the history of this case as follows:
On December 21, 2014, [Appellant] pleaded guilty to one count
of [PWID] (crack cocaine) . . . On that date, the Court imposed
the negotiated sentence of time in to twenty-three months’
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1 35 P.S. § 780-113(a)(30).
2 61 P.S. §§ 4501-4512.
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incarceration, to be followed by a two-year period of reporting
probation. [Appellant] was immediately paroled.
Once released, [Appellant] never reported for supervision. On
March 26, 2015, [Appellant] appeared before the Court for a
hearing regarding the alleged violation of the terms of his parole
(“VOP”). At that time, the Court revoked [his] parole and
sentenced him to back-time. [He] was re-paroled on September
17, 2015. Shortly thereafter, [he] once again absconded from
supervision, and an absconder warrant was subsequently issued
on October 28, 2015. His whereabouts were unknown to the
Probation and Parole Department until November 28, 2015, when
he was arrested for aggravated assault (18 Pa.C.S. § 2702(a))
and related offenses. [He] was ultimately acquitted of these
charges. However, at [his] second VOP hearing on March 11,
2016, the Court revoked [his] parole as a result of [his] second
episode of absconding, and again sentenced him to back-time.
The Court warned [him] that if he absconded again, the Court
would likely impose a state sentence.
On July 11, 2016, [Appellant] was re-paroled. Once more, [he]
absconded from supervision. On September 16, 2016, at [his]
third VOP hearing, the Court terminated [his] parole, revoked his
probation, and resentenced him to 1½ to 7 years’ incarceration.
[Appellant] filed a Petition to Vacate and Reconsider VOP Sentence
on September 22, 2016, which the Court denied on September
30, 2016.
On March 31, 2017, [Appellant] filed a pro se petition under the
Post Conviction Relief Act (“PCRA”) seeking reinstatement of his
appellate rights. Raymond D. Roberts, Esquire was appointed to
represent [Appellant] on April 6, 2017, and filed an Amended
Petition on April 12, 2017. On November 27, 2017, the Court
entered an order granting [Appellant]’s PCRA petition and
reinstated [his] right to file a direct appeal.3
Trial Court Opinion, 2/26/18, at 1-2.
Appellant raises the following issues in this appeal:
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3 Appellant filed a notice of appeal on November 28, 2017, one day after the
trial court reinstated his direct appeal rights.
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[1]. Whether the trial court erred in summarily concluding
Appellant, without input from the prosecution, was ineligible for
RRRI. The applicable statute allows the prosecution to waive any
objection to RRI eligibility.
[2]. Whether the trial court erred in sentencing Appellant to a
sentence of total confinement where his only violation was a
failure to report and he was presented with documents by the
Philadelphia Prison Systems which indicated that he need not
report. At the time of the technical violation, Appellant was
employed and had rehabilitated himself. He did himself what
probation was designed to do. Therefore, according to
Commonwealth v. Cottle, he should not have been sentenced
to a sentence of total confinement.
[3]. Whether the trial court erred in sentencing Appellant to a
sentence of total confinement based wholly or partially on having
advised him at a previous proceeding that he would receive a state
sentence if he violated again.
[4]. Whether Pennsylvania law bars the imposition of a prison
sentence for technical violations absent a finding that the conduct
of the defendant indicates he is likely to commit another crime if
not incarcerated, or that the sentence imposed is essential to
vindicate the authority of the court. 42 Pa.C.S.[A.] § 9771.
Section 9771 requires that the trial court follow the 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.”
The sentence imposed was excessive in that it far exceeded what
was required to protect the public and was well beyond what was
necessary to foster the defendant's rehabilitation for such a
technical violation.
Appellant’s Brief at 6.
Appellant first argues that the trial court erred by failing to obtain the
Commonwealth’s position concerning whether he was RRRI-eligible. This
argument lacks merit.
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The RRRI Act offers eligible offenders the ability to reduce their
minimum sentence by participating “in evidence–based programs that reduce
the risks of future crime.” 61 Pa.C.S.A. §§ 4502, 4505-06. When sentencing
an offender, the court must “make a determination whether the defendant is
an eligible offender.” 61 Pa.C.S.A. § 4505(a). If the court determines that
the offender is RRRI eligible, the court imposes sentence and then reduces the
minimum sentence to the RRRI minimum sentence. 61 Pa.C.S.A. § 4505(c)
(outlining RRRI sentencing process).
If the court concludes that the offender is not RRRI-eligible, “[t]he
prosecuting attorney, in the prosecuting attorney’s sole discretion, may
advise the court that the Commonwealth has elected to waive the eligibility
requirements.” 61 Pa.C.S.A. § 4505(b) (emphasis added). To waive the
eligibility requirements, the Commonwealth must notify the victim of the
intent to waive the eligibility requirements, and the court must give the victim
“an opportunity to be heard on the issue.” Id. “The court, after considering
victim input, may refuse to accept the prosecuting attorney’s waiver of the
eligibility requirements.” Id.
In this case, the trial court concluded that Appellant was not RRRI-
eligible due to a prior robbery conviction. Before making this determination,
the trial court asked to the prosecutor and probation officer the following:
THE COURT: Would you like to be heard, Ms. Watson-Stokes?
[THE COMMONWEALTH]: No, Your Honor, I think—
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THE COURT: Okay, Officer, you have any input . . .?
PROBATION OFFICER: No, Sir. . .
N.T., 9/16/16, at 10.
The trial court correctly determined that Appellant’s robbery conviction
rendered him ineligible for the RRRI program. See 61 Pa.C.S.A. § 4503
(defining “eligible offender” for RRRI program as defendant who has not been
convicted of a personal injury crime as defined under the Crime Victims Act,
18 P.S. § 11.103); see also 18 Pa.C.S.A. § 11.103 (defining robbery as a
personal injury crime).
Appellant complains that the trial court asked the prosecutor whether
she wished to waive RRRI eligibility requirements but cut her off before she
could complete her answer. The trial court had no duty to ask the prosecutor
about this subject and give the prosecutor adequate opportunity to respond.
The RRRI Act gives the prosecutor “sole discretion” to advise the court that
she desires to waive the eligibility requirements. 61 Pa.C.S.A. § 4505(b). The
RRRI Act does not require the court to ask the prosecutor whether she wants
to waive these requirements.
Further, the record demonstrates that the prosecutor elected not to
waive the eligibility requirements. The court asked the prosecutor for her
position concerning waiver, more than the trial court was required to do under
the law. The prosecutor answered: “No, your Honor. I think—“ Her
statement, “no, your Honor,” indicates that she did not waive the eligibility
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requirements. The fact that the trial court moved on after she said “I think”
does not demonstrate that the court prevented her from waiving the
requirements. She already had stated that she was not waiving them—and
had she wanted to change her decision, she could easily have done so before
the hearing concluded. In her sole discretion, she did not change her decision.
No relief is due.
In his second through fourth arguments, which Appellant raises in a
single section of his brief, Appellant contends that (1) his sentence to 1½—7
years’ imprisonment for a technical violation of probation (absconding from
parole supervision) is manifestly excessive and too severe, (2) the
Philadelphia Prison System gave him documents which indicated that he need
not report, and (3) the trial court abused its discretion by imposing a prison
sentence based on having advised Appellant at a previous proceeding that he
would receive a state sentence if he violated again. We review these
arguments together.
These arguments challenge the discretionary aspects of Appellant’s
sentence. “A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right.” Commonwealth v. Grays,
167 A.3d 793, 815 (Pa. Super. 2017). Before we can reach the merits of such
challenges,
[w]e conduct a four part analysis to determine: (1) whether
[A]ppellant 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
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[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).
Id. at 815–16. Here, Appellant filed a timely notice of appeal one day after
the trial court reinstated his direct appeal rights, preserved his challenge to
the length of his sentence in post-sentence motions, and included a statement
in his brief in compliance with Pa.R.A.P. 2119(f). Therefore, we must
determine whether Appellant has presented a substantial question that his
sentence is not appropriate under the Sentencing Code.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Caldwell, 117 A.3d
763, 768 (Pa. Super. 2015) (en banc). On appeal from a revocation
proceeding, a substantial question arises when the trial court imposes a
sentence of total confinement in excess of the original sentence due to a
technical parole violation. Commonwealth v. Sierra, 752 A.2d 910, 913
(Pa. Super. 2000). Therefore, we will consider the merits of Appellant’s
argument.
“In reviewing a challenge to the discretionary aspects of sentencing, we
evaluate the court’s decision under an abuse of discretion standard.”
Commonwealth v. Stokes, 38 A.3d 846, 858 (Pa. Super. 2011). Further,
“this Court’s review of the discretionary aspects of a sentence is confined by
the statutory mandates of 42 Pa.C.S.[A.] § 9781(c) and (d).”
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Commonwealth v. Macias, 968 A.2d 773, 776–77 (Pa. Super. 2009).
Section 9781(c) directs:
The appellate court shall vacate the sentence and remand the case
to the sentencing court with instructions if it finds:
(1) the sentencing court purported to sentence within
the sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the
sentencing guidelines but the case involves
circumstances where the application of the guidelines
would be clearly unreasonable; or
(3) the sentencing court sentenced outside the
sentencing guidelines and the sentence is
unreasonable.
In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
42 Pa.C.S.A. § 9781(c).
Section 9781(d) directs that the appellate court, in reviewing the record,
shall have regard for:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(d).
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In its opinion, the trial court rejected Appellant’s argument that his
sentence was excessive and that prison officials led him to believe that he did
not need to report to his probation officer, reasoning as follows:
Total confinement is appropriate to vindicate the court’s authority
for technical violations that are “flagrant and indicate an inability
to reform.” Commonwealth v. Carver, 923 A.2d 495, 498 (Pa.
Super. 2007); see Commonwealth v. Ortega, 995 A.2d 879,
884 (Pa. Super. 2010). For instance, the Superior Court
determined it was proper for a trial court to impose total
confinement after the defendant absconded at the outset of his
probationary period and remained delinquent for three years.
Ortega, 995 A.2d at 884 (Pa. Super. 2010).
Here, it is true that [Appellant]’s only violation was absconding
from supervision. N.T. 9/16/16 at 5. However, [Appellant] had a
history of absconding, having done so twice before his most recent
violation. N.T. 9/16/16 at 4-5. The first instance was at the very
outset of his parole, following his release from custody in
December 2014. [Appellant]’s conduct demonstrated a complete
inability to comply with the terms of parole, and a flagrant
disregard of the authority of the Court. It was therefore proper
for the Court to find a sentence of total confinement necessary in
order to vindicate the authority of the Court. See Ortega, 995
A.2d at 884.
Furthermore, the record refutes [Appellant]’s claim that he did not
know he was still under supervision. At the VOP hearing,
[Appellant] told the Court that his social worker in prison gave him
prison release data that led him to believe that he had maxed out
on his sentence with no term of further supervision. N.T. 9/16/16
at 12. At that time, [Appellant] had not maxed out on his prison
sentence, nor even commenced to serve the probationary term of
his sentence. See N.T. 9/16/16 at 8. Moreover, [Appellant]’s
parole officer, Chadd Davis, explained to the Court that two
notices were sent to [Appellant], the first informing him that he
was to report and the second warning him that his failure to report
would result in a warrant for his arrest. N.T. 9/16/16 at 5. Officer
Davis confirmed that the letters were sent to [Appellant]’s correct
address. N.T. 9/16/16 at 12-13. Accordingly, [Appellant] had no
excuse for absconding a third time. No relief is due.
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Trial Court Opinion, 2/26/18, at 6-7. We agree with this analysis.
Appellant relies on Commonwealth v. Cottle, 426 A.2d 598 (Pa.
1981), for the proposition that his sentence of imprisonment for a technical
violation of probation is excessive. Cottle is distinguishable. There, the trial
court imposed the maximum possible sentence (2½—5 years’ imprisonment)
due to the defendant’s failure to report to his probation officer. The defendant,
however, had reported to his probation officer for three years before failing to
report, and the probation department recommended discharge because the
defendant “pursued an effective program of alcoholic rehabilitation and
secured permanent employment.” Id. at 599. Our Supreme Court held that
this sentence was excessive, because the defendant had readjusted to life in
society, and while his failure to report “offend[ed] the dignity of the court,” a
maximum sentence was not “essential to vindicate the authority of the court.”
Id. at 601-02.
Here, in contrast, Appellant absconded from parole not once but three
times, and on each occasion, he immediately absconded upon his release from
incarceration. A sentence of imprisonment was reasonable to ensure that,
after thrice absconding from parole, Appellant would comply with the terms of
his supervision. In addition, unlike Cottle, the trial court did not impose the
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maximum possible sentence (10-20 years’ imprisonment).4 Instead, it set
Appellant’s minimum confinement to 1½ years to provide him an opportunity
for parole in less than two years. We conclude that this was a proper exercise
of the court’s discretion.
Finally, Appellant complains that the trial court imposed total
confinement simply because it warned Appellant during a previous VOP
hearing that he would receive a state sentence if committed another violation.
We disagree. During Appellant’s second VOP hearing in March 2016, following
his second instance of absconding from supervision, the trial court told
Appellant that he would be sent to state prison if he absconded again. N.T.
9/16/16 at 8-9. But at the present sentencing hearing, the trial court did not
limit its focus to Appellant’s disregard for its warning. The court took multiple
other important factors into account in reaching its decision:
THE COURT: . . . I gave you a chance last time, and I gave you a
chance the first time. This is the third time, and you didn’t -- not
only didn’t you meet me halfway, you didn’t even meet me ten
percent of the way. So I’m going to take into account in
determining an appropriate sentence, everything that was
presented to me during a long and unfortunate history of this
case, everything in the . . . summaries I’ve received, the
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4 The statutory maximum for distributing crack cocaine is ordinarily ten years.
35 P.S. § 780-113(f)(1.1). The maximum penalty doubles to twenty years for
any person having a prior PWID conviction at the time the offense was
committed. 35 P.S. § 780-115 (“any person convicted of a second or
subsequent offense [of PWID] may be imprisoned for a term up to twice the
term otherwise authorized. . .”). Appellant had been convicted of PWID in
1986, 1997, and 2000, see N.T. 12/10/14 at 29, and he committed the PWID
here at issue on May 24, 2014. Thus, his statutory maximum was twenty
years.
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information that was presented during the sentencing hearing, the
mitigating information that was presented to me by defense
counsel. I’m going to go back and look at the original guidelines.
I know since this is a violation of probation, they are not
applicable, but they do give me some guidance. The original
guideline range was 12 to 18 months, plus or minus three. I do
understand this is not a violent crime. [Appellant] does, however,
have a long history. He came in front of me as a five prior record
score. And by continuing to abscond from probation three times,
there’s absolutely no reason that I have to think that you would
do anything other than abscond again if I were to place you on
county time. So what I’m going to do is, I’m going to give you a
state sentence. That will be a guideline sentence. I’m not going
to give you a probation tail, because I want the state to see if they
can do a better job supervising you. So for that reason, on the
charge of possession with the intent to deliver, I’m going to
sentence you to one and a half to seven years in state prison.
Id. at 13-15. Thus, the court carefully weighed “the history of the case, the
information contained in the Probation Department hearing summaries, the
information that was presented at [Appellant’s] sentencing hearing, all of the
mitigating information that was presented by defense counsel, and
[Appellant’s] criminal history.” Trial Ct. Op. at 7-8. The trial court properly
exercised its discretion in determining Appellant’s sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/18
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