Com. v. Williams, S. ( 2020 )


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  • J. S66033/19
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
    :           PENNSYLVANIA
    v.                   :
    :
    SHAKEEM WILLIAMS,                        :          No. 368 EDA 2019
    :
    Appellant       :
    Appeal from the Judgment of Sentence Entered January 7, 2019,
    in the Court of Common Pleas of Lehigh County
    Criminal Division at No. CP-39-CR-0002442-2018
    BEFORE: STABILE, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.
    MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED FEBRUARY 14, 2020
    Shakeem Williams appeals from the January 7, 2019 judgment of
    sentence entered in the Court of Common Pleas of Lehigh County following
    revocation of appellant’s probation and resentencing appellant to one to
    two years’ incarceration in a state correctional institution. We affirm.
    The record reflects that on July 23, 2018, appellant pleaded guilty to
    one count of manufacture, delivery, or possession with intent to manufacture
    or deliver a controlled substance at trial court docket CP-39-CR-0002442-
    2018 (“CR-2442-2018”).1         The sentencing court imposed a sentence of
    12 months’ probation. On September 5, 2018, appellant’s probation officer
    found appellant to be in possession of a small amount of marijuana and a
    1   35 P.S. § 780-113(a)(30).
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    firearm.    (Notes of testimony, 1/7/19 at 3-5.)    On September 10, 2019,
    appellant was charged with violating his probation at CR-2442-2018 due to
    appellant’s new arrest, for among other charges, possession of marijuana –
    small amount for personal use2 and for having contact with a deadly weapon.
    (“Probation/Parole Intermediate Punishment Violation Warrant,” 9/10/18.)
    On January 7, 2019, the sentencing court conducted a Gagnon II
    hearing3 where appellant admitted to violating his probation at CR-2442-2018.
    The sentencing court revoked appellant’s probation at CR-2442-2018 and
    resentenced appellant to one to two year’s incarceration in a state correctional
    institution.
    On January 15, 2019, appellant filed a petition for reconsideration,
    which the sentencing court subsequently denied.       Appellant filed a timely
    notice of appeal.    The sentencing court ordered appellant to file a concise
    statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
    Appellant timely complied. On March 18, 2019, the sentencing court filed an
    Order stating that it was relying on the Gagnon II notes of testimony to
    satisfy the requirements of Rule 1925(a).
    2   35 P.S. § 780-113(a)(31)(i).
    3 Gagnon v. Scarpelli, 
    411 U.S. 778
    (1973); see also Commonwealth v.
    Ferguson, 
    761 A.2d 613
    (Pa.Super. 2000) (explaining when parolee or
    probationer is detained pending revocation hearing, due process requires
    determination at pre-revocation hearing (Gagnon I hearing) of probable
    cause to believe violation was committed, and upon finding of probable cause,
    second, more comprehensive hearing (Gagnon II hearing) follows before trial
    court makes final revocation decision).
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    Appellant sets forth the following issue for our review:         “Was the
    sentence imposed by the [sentencing] court manifestly excessive or otherwise
    unjustified based upon the lack of any proportional punishment based upon
    the nature of [appellant’s] probation violation and need for rehabilitation?”
    (Appellant’s brief at 8.)    Appellant’s claim presents a challenge to the
    discretionary aspect of appellant’s sentence.
    A challenge to the discretionary aspects of sentencing
    does not entitle an appellant to review as of right. An
    appellant challenging the discretionary aspects of his
    sentence must invoke this [c]ourt’s jurisdiction by
    satisfying a four-part test: (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. Bynum-Hamilton, 
    135 A.3d 179
    , 184 (Pa.Super. 2016)
    (footnote, quotation marks, and some citations omitted).
    Here, the record reflects that appellant filed a timely notice of appeal,
    preserved his issue by filing a petition for reconsideration of sentence, and
    included a Rule 2119(f) statement in his brief. Therefore, we will examine
    whether appellant’s claim raises a substantial question.
    [A] determination of what constitutes a substantial
    question must be evaluated on a case-by-case basis
    and such question exists only when an appellant
    advances a colorable argument that the sentencing
    judge’s actions were either inconsistent with a specific
    provision of the Sentencing Code or contrary to the
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    J. S66033/19
    fundamental    norms    underlying    the   sentencing
    process.
    
    Bynum-Hamilton, 135 A.3d at 184
    (citation omitted).
    Here, appellant’s claim that the length of his sentence was excessively
    harsh and the sentence was unreasonably disproportionate to his probation
    violation raises a substantial question. (See appellant’s brief at 12; see also
    Commonwealth v. Malovich, 
    903 A.2d 1247
    , 1253 (Pa.Super. 2006)
    (stating, “claims that a penalty is excessive and/or disproportionate to the
    offense can raise substantial questions”).) Therefore, we proceed to consider
    the merits of appellant’s discretionary sentencing claim.
    “Sentencing is a matter vested in the sound discretion of the sentencing
    judge, and a sentence will not be disturbed on appeal absent a manifest abuse
    of discretion.” Commonwealth v. Caldwell, 
    117 A.3d 763
    , 770 (Pa.Super.
    2015), appeal denied, 
    126 A.3d 1282
    (Pa. 2015).
    Upon revoking one’s probation, a sentencing court
    may choose from any of the sentencing options that
    existed at the time of the original sentencing,
    including incarceration.    42 Pa.C.S.A. § 9771(b).
    However, the imposition of total confinement upon
    revocation requires a finding that [appellant] has been
    convicted of another crime, his conduct indicates it is
    likely he will commit another crime if he is not
    imprisoned, or such a sentence is essential to
    vindicate the court’s authority of the court.
    42 Pa.C.S.A. § 9771(c).
    
    Bynum-Hamilton, 135 A.3d at 184
    -185 (Pa.Super. 2016) (quotation marks,
    ellipsis, and some citations omitted).     A sentencing court may commit a
    defendant to a state correctional institution or a county prison when the
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    J. S66033/19
    maximum term of incarceration is two years or more.                     42 Pa.C.S.A.
    § 9762(a)(2).
    Here,    appellant   characterized   his    parole   violations   as   “minor,”
    “technical” violations and contends that while             incarceration may be
    appropriate, a lesser sentence should have been imposed and he should have
    been incarcerated in the county prison, not the state correctional institution.
    (Appellant’s brief at 17.) The record demonstrates, however, that appellant’s
    probation violation was the result of, among other things, appellant’s arrest
    for possession of marijuana – small amount for personal use. This new arrest
    is more than a minor, technical violation of his probation. The record also
    reveals that appellant was an admitted gang member. (Notes of testimony,
    1/7/19 at 4.) When appellant’s probation officer asked appellant if he was in
    possession of a gun, appellant stated “no” but a loaded gun was subsequently
    found in his bed. (Id. at 4-8.) Although appellant was aware he was not to
    possess a firearm while on probation at CR-2442-2018, appellant continued
    to possess a firearm.      (Id.)   Gun registration records did not reveal that
    appellant lawfully purchased the gun.        (Id. at 4.)     The sentencing court
    determined appellant was dangerous.              (Id. at 8.)     Furthermore, the
    sentencing court accepted the probation officer’s recommendation that the
    local county prison was unable to supervise appellant at this point. (Id. at 5.)
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    Based upon our review of the record, we find no abuse of discretion on
    the part of the sentencing court in resentencing appellant to one to two years’
    incarceration in a state correctional institution.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/14/20
    -6-
    

Document Info

Docket Number: 368 EDA 2019

Filed Date: 2/14/2020

Precedential Status: Non-Precedential

Modified Date: 12/13/2024