Com. v. Hockenberry, F. ( 2020 )

J-S10027-20 & J-S10028-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FREDERICK CHARLES HOCKENBERRY :
:
Appellant : No. 1426 MDA 2019
Appeal from the Judgment of Sentence Entered July 22,
2019, in the Court of Common Pleas of Clinton County,
Criminal Division, at No(s): CP-18-CR-0000215-2018.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FREDERICK C HOCKENBERRY, JR. :
:
Appellant : No. 1427 MDA 2019
Appeal from the Judgment of Sentence Entered July 22,
2019, in the Court of Common Pleas of Clinton County,
Criminal Division at No(s): CP-18-CR-0000420-2018.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 03, 2020
Fredrick C. Hockenberry, Jr. appeals from the judgment of sentence
imposed after the trial court revoked his probation. We affirm.
J-S10027-20 & J-S10028-20
The pertinent facts are as follows: On September 17, 2018,
Hockenberry entered guilty pleas, and the trial court sentenced him at two
separate dockets. At Case No. 215-2018, Hockenberry entered a guilty plea
to simple drug possession and driving under the influence.1 The trial court
imposed a three-year term of county intermediate punishment for the drug
charge, and a $ 300.00 fine and a concurrent term of six months of probation
for the DUI conviction. At Case No. 420-2018, Hockenberry entered a guilty
plea to simple drug possession and the trial court sentenced him to a
consecutive, three-year term of county intermediate punishment.
The trial court summarized the subsequent procedural history as
follows:
[Hockenberry] was originally sentenced [on possession of a
controlled substance] to the Clinton County Intermediate
Punishment Program with a Clinton County Treatment
component. [He] was ultimately removed from [that
Program] and resentenced to 36 months of probation. The
resentence on the [DUI] offense was six months of
probation concurrent with the possession offense. To
Docket No. 420-2018, [Hockenberry] was likewise
sentenced to the Clinton County Intermediate Punishment
Program with a Clinton County Treatment component. [He]
was revoked from [that Program] and was resentenced to
36 months of probation consecutive to Docket No. 215-
2018.
On April 22, 2019, while on probation supervision,
[Hockenberry] advised of his use of methamphetamines.
[He] was provided an opportunity to pursue intensive
outpatient services in lieu of other penalties.
____________________________________________
1 35 P.S. § 780-113(a)(16), and 75 Pa.C.S.A. § 3802(a)(1), respectively.
-2-
J-S10027-20 & J-S10028-20
On May 14, 2019, the Clinton County Office of
Probation was notified by the Center County Office of
Probation that [Hockenberry] was positive on a urinalysis
test and was denying use. [His] specimen was sent out to
the lab and the lab results confirmed that [Hockenberry]
was positive for Benzodiazepines, opiates, Buprenorphine,
and Fentanyl. [Hockenberry] possessed a prescription for
Buprenorphine only. [He] subsequently admitted to
violating the terms of his probation supervision.
Trial Court Opinion, 9/13/19, at 4-5.
On June 10, 2019, Hockenberry entered a stipulated violation of his
probation at both dockets. The trial court accepted Hockenberry’s admissions,
ordered a pre-sentence report, and scheduled resentencing for July 22, 2019.
On that date, the trial court resentenced Hockenberry at Case No. 215-2018
to 11½ to 24 months of incarceration, less one day, for the drug conviction,
and a consecutive 3-6 months of incarceration for the DUI conviction. The
trial court also sentenced Hockenberry at Case No. 420-2018 to a consecutive
term of 6 to 24 months of incarceration, less one day, for the drug conviction.
Thus, the trial court sentenced Hockenberry to an aggregate term of 20 ½ to
54 months, less two days, of incarceration.
The trial court denied Hockenberry’s motion for reconsideration. This
timely appeal followed. Both Hockenberry and the trial court have complied
with Pa.R.A.P. 1925.
Hockenberry now raises the following issue:
1. Did the Trial Court commit an abuse of discretion in
sentencing [Hockenberry] to [the above aggregate
sentence] when [he] was facing the first violation of his
probation for an admitted relapse following the
-3-
J-S10027-20 & J-S10028-20
recommendation of adult probation to an aggregate
minimum sentence of ninety days?
Hockenberry’s Brief at 4.
Hockenberry’s appellate issue challenges the discretionary aspects of his
sentence. “Sentencing is a matter vested in the sound discretion of the
sentencing judge, whose judgment will not be disturbed absent an abuse of
discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa.Super.
2001). A convicted person has no automatic right of appeal regarding the
discretionary aspects of his sentence. See, e.g., Commonwealth v. Moury,
992 A.2d 162, 170 (Pa.Super. 2010).
This Court has articulated the following four-part test to determine
whether to allow such an appeal:
(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).
Id. (some punctuation omitted).
Here, the parties do not dispute that Hockenberry has met the first three
parts of the above test. Thus, we must determine whether he has raised a
substantial question. A request for allowance of appeal on the discretionary
aspects raises a substantial question “only where [a] Rule 2119(f) statement
sufficiently articulates the manner in which the sentence violates either a
-4-
J-S10027-20 & J-S10028-20
specific provision of the sentencing scheme set forth in the Sentencing Code
or a particular fundamental norm underlying the sentencing process . . .”
Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002) (plurality
opinion). See also Commonwealth v. Sierra, 752 A.2d 910, 912-13
(Pa.Super. 2000) (accord).
Hockenberry’s Rule 2119(f) statement reads, in pertinent part:
The trial court’s . . . aggregate sentence of 20½ months
to 54 months minus two days . . . is patently unreasonable,
given the adult probation department’s initial
recommendation of 90 days to 24 months incarceration.
Said recommendation led [Hockenberry] to believe that a
sentence in that vicinity was likely and the deviation was so
extreme that it became unreasonable and unfair.
Hockenberry’s Brief at 7.
The Commonwealth asserts Hockenberry has not raised a substantial
question, and, as a result, this Court may not reach the merits of his appeal.
See Commonwealth’s Brief at 3-4. We agree.
As readily seen in the above statement, Hockenberry cites no provision
of the Sentencing Code that the trial court allegedly violated. In addition, he
does not contend (much less sufficiently articulate) how the trial court’s
actions “violate[d] . . . a particular, fundamental norm underlying the
sentencing process.” Mouzon, supra. In fact, the only complaint in his
request for allowance of appeal was that the probation office initially
recommended a shorter period of incarceration than the trial court ultimately
imposed.
-5-
J-S10027-20 & J-S10028-20
At best, Hockenberry claims that the trial court abused its discretion in
failing to follow the probation department’s original recommendation of ninety
days of imprisonment. The probation department’s recommendations are just
that—recommendations. They are not binding on a court. Indeed, this Court
discourages the practice altogether:
A sentencing judge may not delegate the sentencing
decision to any person or group. See Commonwealth v.
Knighton, 490 Pa. 16, 415 A.2d 9 (1980). Therefore, we
see no reason for the probation office to make a sentencing
recommendation.
Commonwealth v. Bastone, 467 A.2d 1339, 1342 (Pa.Super. 1983). Thus,
a probation department’s recommendations carry no legal significance at a
resentencing following revocation.
Because Hockenberry has failed “to raise a substantial question so as to
permit a grant of allowance of appeal of the discretionary aspects of the
sentence,” Mouzon, 812 A.2d at 627, we deny his application for an allowance
of appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/03/2020
-6-