Com. v. Barlow, A. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALFRED JOSEPH BARLOW :
:
Appellant : No. 3057 EDA 2022
Appeal from the Judgment of Sentence Entered November 4, 2022
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0003866-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALFRED J. BARLOW :
:
Appellant : No. 3062 EDA 2022
Appeal from the Judgment of Sentence Entered November 4, 2022
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0005451-2019
BEFORE: BENDER, P.J.E., LAZARUS, J., and SULLIVAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 31, 2023
In these cases, which we sua sponte consolidate herein, Appellant,
Alfred Joseph Barlow, appeals from the judgment of sentence of an aggregate
term of one to two years’ incarceration, imposed after terms of probation and
parole he was serving were revoked and he was resentenced. On appeal,
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Appellant solely challenges the discretionary aspects of his sentence. After
careful review, we affirm.
In August of 2021, Appellant pled guilty to one count of retail theft in
case No. CP-09-CR-0005451-2019 (“case 5451-2019”), and was sentenced to
time served to 23 months’ incarceration. That same day, Appellant also pled
guilty, in case No. CP-09-CR-0003866-2020 (“case 3866-2020”), to a single
count of retail theft and was sentenced to one year probation. Thereafter,
Appellant was released on parole in case 5451-2019, and was also serving
probation in case 3866-2020, when he violated the terms/conditions of his
parole and probation. Specifically, at the revocation and resentencing
hearing, the Commonwealth stated the following facts regarding Appellant’s
violations:
[The Commonwealth:] … Your Honor, [Appellant] failed to report
on June 1st of 2022, and he failed to be available for his
prescheduled home visit.
[Appellant] submitted an oral fluid test with an overall positive
test result for THC on December 2nd of 2021.
On May 19th of 2022, while at Jefferson Hospital, [Appellant] was
advised by — he advised female staff that he had thigh pain. This
is a new arrest, Your Honor. He proceeded to pull out his erect
penis, grab the woman’s breast, and there is still currently an
active warrant from Philadelphia Police Department for the
indecent exposure and fondling of an adult. And I believe that
there is a detainer lodged against [Appellant] from Philadelphia
for those outstanding charges.
On June 9th of 2022[, Appellant] was arrested in Bensalem
Township and was charged with robbery. It looks like several
counts of robbery. And that was assigned Bill No. 3200 of 2022.
On July 6th of 2022[, Appellant] was given a reduced bail on those
charges.
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On October 6th of 2022[, Appellant] pled guilty to two counts of
retail theft and two counts of receiving stolen property. All other
charges were nol-prossed, and sentencing was deferred to today
to be heard before Your Honor.
Again, this is [Appellant’s] first violation. He has made no efforts
to make any payments on his court fines and costs, no restitution
has been ordered in any of those cases.
On October 7th[, Appellant] was referred to Family Services. He
was also referred to Family Services again on December 2nd. And
on April 7th of 2022[, Appellant] was again referred and directed
to obtain a drug and alcohol evaluation and a mental health
evaluation. On May 5th[, Appellant] was again directed to obtain
a mental health and drug and alcohol evaluation.
On June 10th[,] he was given new charges. [Appellant] — the
department lodged a detainer against [Appellant] and [he] was
provided information on July 14th of 2022 in reference to mental
health court.
On August 23rd of 2022[, Appellant’s probation/parole violation]
notice was sent to his case manager at Bucks County Correctional
Facility. [Appellant] was provided an application for mental health
court, but he indicated he’s not interested in being a part of the
treatment court.
He’s had several misconducts while in custody. On June 14th of
2022[, Appellant] incurred two Class 1 misconducts for sexual
misconduct and disobeying a direct order. [Appellant] was
witnessed by a nurse in the dispensary to be masturbating over
his jumper. He was asked to stop, and he continued his hand
motions. He was then asked to leave, and he refused to do so.
Correctional officers had to remove him from the dispensary, and
[Appellant] was sentenced to 30 days in the Restrictive Housing
Unit.
On September 7th of 2022[, Appellant] incurred two Class 1
misconducts for creating a disturbance and attempting to commit
an assault. [Appellant] lunged at the K9 whose name is Burger in
an aggressive manner. [Appellant] was found guilty of creating a
disturbance and not guilty of an attempt to commit an assault….
He was sanctioned to 20 days in the Restrictive Housing Unit.
On September 8th of 2022[, Appellant] incurred a Class 1
misconduct for disobeying an order. [Appellant] refused to allow
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correctional officers to house another inmate in the Restrictive
Housing Unit Cell and he refused to allow anyone in the cell.
[Appellant] was found guilty and sanctioned to ten days
suspended sanctions.
N.T. Hearing, 11/4/22, at 8-12.
After Appellant had the opportunity to speak, see id. at 15-23, the court
found him in violation of his probation in case No. 3866-2020. Id. at 28. The
court revoked Appellant’s probation and resentenced him to a term of one to
two years’ incarceration. Id. In case No. 5451-2019, the court found
Appellant in violation, revoked his term of parole, and resentenced him to
serve the remainder of his back time concurrently with his sentence in case
No. 3866-2020. Id. Thus, Appellant’s aggregate sentence is one to two years’
incarceration.
Appellant filed a timely motion for reconsideration of his sentence on
November 10, 2022. However, the trial court did not address Appellant’s
motion before he filed timely notices of appeal, which we consolidate herein.1
On December 15, 2022, the court issued an order directing Appellant to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and
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1 Appellant’s motion to reconsider did not toll the thirty-day period to file an
appeal from the sentence imposed following the revocation of his probation
and parole. See Pa.R.Crim.P. 708(E) (“A motion to modify a sentence
imposed after a revocation shall be filed within 10 days of the date of
imposition. The filing of a motion to modify sentence will not toll the 30-day
appeal period.”); Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa.
Super. 2003) (“An appellant whose revocation of probation sentence has been
imposed after a revocation proceeding has 30 days to appeal her sentence
from the day her sentence is entered, regardless of whether or not she files a
post-sentence motion.”).
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Appellant timely complied on January 4, 2023. The court issued a Rule
1925(a) opinion on February 3, 2023.
In Appellant’s identical appellate briefs filed in each of his present two
cases, he states one issue for our review: “Did the trial court abuse its
discretion in sentencing Appellant where the trial court failed to consider all
relevant factors resulting in a manifestly unreasonable sentence?” Appellant’s
Brief at 7 (unnecessary capitalization omitted).
Our standard of review is well settled:
In an appeal from a sentence imposed after the court has revoked
probation, we can review the validity of the revocation
proceedings, the legality of the sentence imposed following
revocation, and any challenge to the discretionary aspects of the
sentence imposed. Further, revocation of a probation sentence is
a matter committed to the sound discretion of the trial court and
that court’s decision will not be disturbed on appeal in the absence
of an error of law or an abuse of discretion.
Commonwealth v. Shires, 240 A.3d 974, 977 (Pa. Super. 2020) (cleaned
up).
Here, Appellant challenges the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
[the] 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 [the]
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
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appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
appeal denied, … 909 A.2d 303 ([Pa.] 2006). Objections to the
discretionary aspects of a sentence are generally waived if they
are not raised at the sentencing hearing or in a motion to modify
the sentence imposed. Commonwealth v. Mann, 820 A.2d 788,
794 (Pa. Super. 2003), appeal denied, … 831 A.2d 599 ([Pa.]
2003).
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. Commonwealth v. Paul,
925 A.2d 825, 828 (Pa. Super. 2007). 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.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
In this case, Appellant has met the first three requirements for review
of a claim implicating the discretionary aspects of his sentence. In his Rule
2119(f) statement, he contends that in imposing his sentence, the court
“failed to consider all relevant factors such as Appellant’s age, family history,
or rehabilitative needs.” Appellant’s Brief at 11. He contends that his
sentence is therefore “manifestly excessive and unreasonable.” Id. at 12. We
consider Appellant’s claims as constituting a substantial question for our
review. See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super.
2015) (en banc) (citation and quotation marks omitted) (“[A]n excessive
sentence claim—in conjunction with an assertion that the court failed to
consider mitigating factors—raises a substantial question.”).
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In reviewing the merits of Appellant’s sentencing challenge, we are
mindful that,
[s]entencing 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. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
Presently, Appellant focuses his argument on claiming that the trial
court failed to consider his rehabilitative needs. As he observes, he “testified
at length regarding those needs[,]” explaining that he “suffers from a number
of mental health problems[,]” including “bipolar disorder, anxiety, and
depression.” Appellant’s Brief at 14 (citing N.T. Hearing at 17). According to
Appellant, he “was in the community on probation and parole and was doing
very well[,] … working full time and supporting his four children.” Id. He
claims that he “attempted to get drug and alcohol and mental health
treatment[,] but had a difficult time doing so because he did not have the
required identification.” Id.; see also N.T. Hearing at 18-19. Appellant
further contends that the violations he committed were due to his not taking
his mental health medication and being intoxicated, yet “[i]nstead of
fashioning a sentencing which would allow Appellant to participate in
meaningful treatment,” the trial court sentenced him to serve a sentence that
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“is manifestly excessive and unreasonable.” Id. at 15. Thus, Appellant asks
that we vacate his sentence and remand for resentencing.
No relief is due. As the trial court aptly explained:
The Pennsylvania Sentencing Code requires that, when imposing
sentence, a court must consider the protection of the public, the
gravity of the offense as it relates to the impact on the victim and
the community, the defendant’s rehabilitative needs and the
sentencing guidelines. 42 Pa.C.S. § 9721(b). These were the
factors used when determining Appellant’s sentence and are
proper under Pennsylvania law. On the record[,] we stated our
reasons for the sentences imposed, despite the numerous
interruptions by Appellant:
THE COURT: Listen — I listened to you, now you can listen
to me, okay? … [Y]ou go out and you get drunk. And then
you commit a crime. You steal things from two different
stores, okay? So that’s when you’re on probation, that’s
when you’re on supervision, you do that. […] So you then
go to jail. And then when you’re in jail, you get at least four
misconducts, you know, Class 1 misconducts. So what do
you expect, that I keep you out on the street on probation,
or that I keep you in Bucks County Correctional Facility?
You’ve demonstrated to me that you’re not capable of
conforming your conduct to either of the requirements of
those places. On the street —
THE [APPELLANT]: But --
THE COURT: -- you don’t take your medicine, you get drunk,
you commit new crimes. You go to jail, you bother
everybody, you get four misconducts.
N.T. [Hearing at] 23-24.
Appellant … clearly has a lack of respect for authority. Here, our
decision to impose the sentences for the violations in case number
5451-2019, and case number 3866-2020[,] was clearly supported
by 42 Pa.C.S. § 9771[.] Appellant … was convicted of another
crime, and the sentence was essential to vindicate the authority
of the court. While the sentencing guidelines were not specifically
referenced during the sentencing hearing, they were carefully
explained to Appellant … at the entry of the guilty plea. Ordering
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the sentences to run consecutively is well within our discretion;[2]
a lesser sentence would depreciate the seriousness of the crime
and diminish the authority of this court.
Trial Court Opinion, 2/2/23, at 8-9.
We discern no abuse of discretion by the trial court. The court heard
and considered Appellant’s testimony about his mental health and
drug/alcohol addiction issues. However, it also heard that Appellant has
squandered multiple opportunities to rehabilitate himself, instead choosing to
not take his medication, consume drugs and alcohol, and commit new crimes.
He also has not conformed his behavior while incarcerated in the county jail.
This record supports the court’s determination that Appellant’s rehabilitative
needs are outweighed by the necessity of the court to protect the public and
vindicate its authority. Therefore, Appellant’s sentence is not an abuse of the
court’s discretion.
Judgment of sentence affirmed.
Date: 10/31/2023
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2 The court’s remark about consecutive sentences refers to the fact that it
imposed Appellant’s sentence for his probation revocation to run consecutively
to a sentence of one to two years’ imprisonment that the court imposed for
charges in another, unrelated case that is not presently before us on appeal.
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