Com. v. Brice, D. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DANIEL BRICE :
:
Appellant : No. 588 WDA 2019
Appeal from the Judgment of Sentence Entered March 20, 2019
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002860-2014
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED JUNE 22, 2020
Appellant, Daniel Brice, appeals from the judgment of sentence entered
in the Allegheny County Court of Common Pleas, following revocation of his
probation. We affirm.
The relevant facts and procedural history of this case are as follows. On
January 7, 2015, Appellant entered a guilty plea to one count of robbery. The
court sentenced Appellant to one year less one day to two years less two days
of imprisonment, followed by four years’ probation, and granted immediate
parole. Following technical violations of probation, the court revoked
Appellant’s probation on May 1, 2017, and resentenced Appellant to two years
of state intermediate punishment (“SIP”), followed by one year of probation.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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On March 20, 2019, the court again revoked Appellant’s probation,
based upon Appellant’s new criminal conviction for escape. The court
resentenced Appellant for robbery to 7-14 years’ incarceration, with credit for
time served. On March 29, 2019, Appellant timely filed a post-sentence
motion challenging the discretionary aspects of his sentence, which the court
denied on April 5, 2019. Appellant timely filed a notice of appeal on April 18,
2019. On April 26, 2019, the court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b);
Appellant complied on May 20, 2019.
Appellant raises the following issue for our review:
DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN
IMPOSING A MANIFESTLY EXCESSIVE AND
DISPROPORTIONATE SENTENCE OF 7 TO 14 YEARS IN
PRISON WHEN IT FAILED TO CONSIDER [APPELLANT’S]
MITIGATING CIRCUMSTANCES, INCLUDING HIS ADVANCED
AGE, HEALTH CONCERNS, REMORSEFULNESS, AND HIS
WILLINGNESS TO UNDERGO CONTINUING TREATMENT FOR
SERIOUS MENTAL HEALTH ISSUES?
(Appellant’s Brief at 5).
Appellant argues his revocation sentence of 7-14 years’ incarceration is
excessive. Specifically, Appellant alleges the court did not consider mitigating
factors, such as Appellant’s age, mental and physical health conditions,
remorsefulness, and willingness to continue treatment, when imposing
Appellant’s sentence. Appellant asserts the court instead focused on
Appellant’s lifelong drug addiction and most recent relapse. Appellant
concludes this Court should remand for resentencing.
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As presented, Appellant’s claim challenges the discretionary aspects of
sentencing. See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002)
(stating claim that sentence is manifestly excessive challenges discretionary
aspects of sentencing); Commonwealth v. Cruz-Centeno, 668 A.2d 536
(Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996)
(explaining claim that court did not consider mitigating factors challenges
discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910,
912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
[W]e conduct a four part analysis to determine: (1) whether
appellant has filed a timely notice of appeal; (2) whether
the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant’s brief has a fatal defect; and (4) whether there is
a substantial question that the sentence appealed from is
not appropriate under the Sentencing Code.
Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005), appeal
denied, 586 Pa. 723, 890 A.2d 1057 (2005) (internal citations omitted).
Under Pa.R.A.P. 2119(f), an appellant must invoke the appellate court’s
jurisdiction by including in his brief a separate concise statement
demonstrating a substantial question as to the appropriateness of the
sentence under the Sentencing Code. Commonwealth v. Mouzon, 571 Pa.
419, 812 A.2d 617 (2002); Commonwealth v. Tuladziecki, 513 Pa. 508,
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522 A.2d 17 (1987); Pa.R.A.P. 2119(f). “The requirement that an appellant
separately set forth the reasons relied upon for allowance of appeal ‘furthers
the purpose evident in the Sentencing Code as a whole of limiting any
challenges to the trial court’s evaluation of the multitude of factors impinging
on the sentencing decision to exceptional cases.’” Commonwealth v.
Williams, 562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in
original).
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Anderson, 830 A.2d
1013 (Pa.Super. 2003). A substantial question exists “only when the appellant
advances a colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing
process.” Sierra, supra at 912-13. This Court does not accept bald
assertions of sentencing errors as substantial questions. Commonwealth v.
Malovich, 903 A.2d 1247 (Pa.Super. 2006). Rather, an appellant must
articulate the bases for his allegations that the sentencing court’s actions
violated the sentencing code. Id.
Additionally, “[i]n general, the imposition of sentence following the
revocation of probation is vested within the sound discretion of the trial court,
which, absent an abuse of that discretion, will not be disturbed on appeal.”
Commonwealth v. Hoover, 909 A.2d 321, 322 (Pa.Super. 2006). A
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sentence should not be disturbed where it is evident the court was aware of
the appropriate sentencing considerations and weighed them in a meaningful
fashion. Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.Super. 2000).
“[U]pon sentencing following a revocation of probation, the trial court is
limited only by the maximum sentence that it could have imposed originally
at the time of the probationary sentence.” Commonwealth v. Coolbaugh,
770 A.2d 788, 792 (Pa.Super. 2001). A court can sentence a defendant to
total confinement after revoking probation if the defendant was convicted of
another crime, the defendant’s conduct indicates it is likely that he will commit
another crime if he is not imprisoned, or such a sentence is essential to
vindicate the court’s authority. Commonwealth v. Crump, 995 A.2d 1280
(Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010). As well,
if the sentencing court has the benefit of a pre-sentence investigation (“PSI”)
report, the law presumes the court was aware of the relevant information
regarding the defendant’s character and weighed those considerations along
with any mitigating factors. Commonwealth v. Tirado, 870 A.2d 362
(Pa.Super. 2005).
Instantly, Appellant raised his sentencing issue in a timely post-
sentence motion, timely notice of appeal, and in his Rule 2119(f) statement.
Nevertheless, Appellant’s bald allegation of excessiveness and claim that the
sentencing court failed to consider mitigating factors, such as Appellant’s
advanced age, health concerns, remorsefulness, and willingness to undergo
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treatment, do not pose substantial questions. See Mouzon, supra; Cruz-
Centeno, supra (explaining allegation that sentencing court failed to consider
or did not adequately consider certain factors does not raise substantial
question). Thus, Appellant has not satisfied the required 4-part test for review
of his sentencing claim. See Hyland, supra.
Moreover, the court had the benefit of a PSI report. Therefore, we can
presume the court was aware of the relevant information regarding mitigating
circumstances. See Tirado, supra. The court also explained its rationale as
follows:
[I]t should be noted that [Appellant] was no stranger to this
court. [Appellant] was already serving a probation sentence
for this court…for Criminal Trespass and Retail Theft when
he committed a Felony 1-Robbery…. At the plea and
sentencing hearing held on January 7, 2015, [Appellant]
faced a recommended guideline range of 72-84 months in
the standard range for his robbery conviction.
Notwithstanding [Appellant’s] high guideline range, this
court showed [Appellant] a great deal of leniency when it
substantially departed below the guidelines and imposed a
county sentence of one (1) year less a day to two (2) years
less two (2) days in the Allegheny County Jail (“ACJ”).
[Appellant] received a consecutive four (4) year period of
probation, and he was awarded 350 days of credit for time
served. He was paroled to a JRS Service Plan that mandated
participation in the CORE Program. …
At that time, the court agreed that several mitigating factors
warranted a county sentence that was focused on
rehabilitation so that [Appellant] could have an opportunity
to meaningfully address his substance abuse and mental
health issues. The court believed [Appellant’s] high
guidelines were based on stale, decades-old convictions,
and the court expressly told [Appellant] that “help is what
you need more [of] at this time.” Additionally, the court
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considered the fact that no one was harmed during the
commission of the robbery, and the court was genuinely
moved by [Appellant’s] show of remorse and his eagerness
to obtain treatment. The court further understood that
[Appellant] was in his sixties, had serious health problems,
and that he had a history of employment which included
serving as a deacon in his church. These combined factors
all weighed in favor of a less serious sentence that gave
[Appellant] a chance to undergo treatment and see progress
in his recovery.
* * *
[Following technical violations of probation, the court
revoked Appellant’s probation and resentenced Appellant to
two years of SIP, followed by one year of probation.] At the
May 1, 2017 SIP sentencing, the court gave [Appellant]
another chance at rehabilitation and was optimistic that he
would successfully complete the program. [Appellant]
expressed his gratitude towards the court and the leniency
that it had shown him….
Approximately 1½ years later, [Appellant] was revoked out
of the SIP program due to a new Escape charge….
[Appellant] had completed the prison portion of the SIP
sentence and had been released to Renewal. Instead of
complying with the facility’s treatment program, he failed to
return for several days and went on a cocaine binge.
[Appellant] pled guilty to the Escape charge on December
19, 2018.
On March 20, 2019, a hearing was held to address the
sentencing for the Escape charge as well as the probation
violation…. At that hearing, Counsel for [Appellant]
attempted to cite [Appellant’s] age, health issues, and need
for treatment as mitigating factors. However, given the
court’s long history with [Appellant], the court no longer saw
these factors as mitigating[, stating] “That’s why I would
have thought he wouldn’t be back in front of me on
anything, right?” The court heard [Appellant’s] allocution,
but then went on to express its disappointment and concern
with [Appellant’s] behavior….
Against this backdrop, it is clear that [Appellant] was
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provided with an extraordinary opportunity to be
rehabilitated. The fact that he failed himself, as well as this
court, does not mean that his sentence was imposed without
consideration of the relevant statutory factors. To the
contrary, all this court has done since it met [Appellant] was
consider the mitigating factors…and attempt to assist him
with his mental health issues and drug addiction. However,
[Appellant’s] failure to comply with the terms of his
sentence, despite repeated warnings and multiple
opportunities to do so, warranted a serious period of total
confinement.
For all of the reasons just stated, [Appellant] cannot meet
his burden of showing that his revocation sentence was an
abuse of discretion. Given this court’s familiarity with
[Appellant], his history, background, and characteristics,
this court was in the best position to view [Appellant] and
gauge his ability (or lack thereof) to become a productive,
law-abiding member of society.
Moreover, the sentences did not exceed the statutory
maximum sentence, they were not manifestly unreasonable
under the circumstances, and they were essential to
vindicate the authority of the court. Accordingly, this court
respectfully requests that its sentence be upheld.
(Trial Court Opinion, filed August 8, 2019, at 5-13) (internal citations
omitted). The record makes clear the court adequately considered Appellant’s
mitigating circumstances, as well as his repeated failures to take advantage
of the court’s leniency, when crafting Appellant’s sentence. Thus, even if
Appellant had raised a substantial question warranting review, Appellant
would not be entitled to relief on his challenge to the discretionary aspects of
sentencing. Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2020
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