Com. v. Jamison, D. ( 2021 )

J-S01026-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DASHAWN L. JAMISON :
:
Appellant : No. 259 MDA 2020
Appeal from the Judgment of Sentence Entered January 11, 2017
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0004396-2006
BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED: JULY 12, 2021
Dashawn L. Jamison (Appellant) appeals nunc pro tunc from the
judgment of sentence entered in the York County Court of Common Pleas
following the revocation of his probation imposed following his guilty plea to
intimidation of a witness.1 Appellant argues the trial court erred by: (1)
revoking his probation for offenses he committed while still imprisoned, in
contradiction to statements the court made at his original sentencing; (2)
revoking his probation without first conducting a Gagnon I2 hearing; and (3)
imposing a manifestly excessive sentence for a technical violation. We affirm.
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 4952(a).
2 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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The relevant facts underlying this appeal are as follows. In November
of 2005, Appellant, who was only 15 years old at the time,3 was involved in a
high-speed car chase with police, which ended after he struck another vehicle,
killing the driver, and fled the scene. See N.T., 7/3/06, at 4; N.T., 9/28/06,
at 5-6. As a result of this incident, he was charged as an adult at trial court
docket number CP-67-CR-0002177-2006 (2177-2006) with, inter alia, third-
degree murder, aggravated assault, and homicide by vehicle.4 N.T., 7/3/06,
at 2. On March 28, 2006, Appellant was being escorted from the district
justice’s office when he made threatening comments to the Commonwealth’s
witness. See id. at 4. Thereafter, Appellant was charged as a juvenile with
terroristic threats, harassment, and intimidation of a witness.5 Following a
hearing, those charges were transferred to adult court, at the instant trial
court docket number CP-67-CR-004396-2006 (4396-2006). See Order,
7/3/06, at 12.
On September 28, 2006, pursuant to an agreement with the
Commonwealth, Appellant entered a guilty plea in both cases before the
Honorable John S. Kennedy. He pled guilty to one count each of aggravated
assault and failure to yield at a stop sign6 at Docket No. 2177-2006, and one
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3 Appellant was born in May of 1990.
4 See 18 Pa.C.S. §§ 2502(c), 2702(a)(1); 75 Pa.C.S. § 3732(a).
5 See 18 Pa.C.S. §§ 2706(a)(1), 2709(a)(1), (4), 4952(a)(5), (6).
6 75 Pa.C.S. § 3323.
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count of intimidation of a witness at Docket No. 4396-2006. The negotiated
plea agreement included a sentence of 5 1/2 to 11 years’ imprisonment for
aggravated assault, and a consecutive term of eight years’ probation for
intimidation of a witness.7 See N.T., 9/28/06, at 1-2. Relevant to this appeal,
during the plea hearing, the trial court made the following statement:
“[Defense counsel], I assume you explained to your client that the eight-year
probationary sentence, although it’s a probationary sentence, if he violates
during that time period, he could be sentenced to a term greater than eight
years?” Id. at 2. Appellant’s counsel replied, “Yes, Your Honor.” Id.
On November 1, 2006, the trial court sentenced Appellant, in
accordance with the plea agreement, to an aggregate term of 5 1/2 to 11
years’ imprisonment followed by a consecutive term of eight years’ probation.
A panel of this Court, in a prior memorandum, summarized the ensuing
procedural history as follows:
After serving most of his 11 year sentence for assault,
[Appellant] refused to sign the paperwork required to begin
probation or to provide certain contact information in his home
plan. Because [Appellant] would have maxed-out his prison
sentence the following week, the trial court issued a bench
warrant to detain him and to address compliance with his special
probation.[8]
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7 No penalty was imposed for the summary traffic offense.
8 See Order Issuing Bench Warrant, 11/23/16 (noting that Appellant “is
expected to max out his sentence on November 29, 2016[,]” and is “refusing
to sign paperwork necessary to begin his Special Probation [or] provide the
(Footnote Continued Next Page)
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On December 6, 2016, the [trial] court . . . held a hearing
on its bench warrant. There, [Appellant] admitted to refusing to
sign the paperwork; he believed that the max dates were
incorrect. He denied not supplying the contact information. Two
weeks later, the Board of Probation and Parole filed a notice of
charges and hearing report;[9] the trial court scheduled a
probation violation hearing for January 11, 2017.
[Appellant] retained private counsel for that hearing. The
Commonwealth provided the court with nine write-ups on
[Appellant] from the prison, which were the basis of his probation
violation, along with his refusal to complete and sign the home
plan. [Appellant’s] counsel stipulated to the write-ups. Thus, the
court found [Appellant] in violation of his probation, revoked his
probation, and re-sentenced him to 7[ ]1/2 to 15 years on January
11th. The court apprised him of his right to file a post-sentence
motion and his right to an attorney. [Appellant’s] attorney also
advised him — it turns out incorrectly — of his appellate rights.
A week later, [counsel] filed a post-sentence motion on
[Appellant’s] behalf asking the trial court to reconsider the
sentence. [On January 23, 2017, Appellant filed a pro se post-
sentence motion, asserting, inter alia, that he never received a
Gagnon I hearing. See Appellant’s Post Sentence Motion,
1/23/17, at 1.] The trial court ordered a hearing on the post-
sentence motion, scheduled for March 15, 2017.
At the March 15th hearing, [Appellant] insisted upon
representing himself. The court ultimately ruled “we are going to
deny [Appellant’s] request for a reconsideration of sentence; and
the sentence we previously imposed will stay intact.” The judge
next misinformed [Appellant] that his appellate rights were
reinstated and would last 30 days.
[Appellant] filed a pro se notice of appeal on April 18, 2017.
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[Probation] Board . . . with a phone number and address of residence to
complete his home plan”).
9 That report, which is not included in the certified record but is attached to
Appellant’s brief, charged Appellant with committing 10 violations of his
special probation between May 2009 and July 2015, while he was incarcerated
on the aggravated assault charge. See Notice of Charges & Hearing,
12/19/16, at 1-2 (unpaginated).
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Commonwealth v. Jamison, 686 MDA 2017 (unpub. memo. at 1-3) (Pa.
Super. May 21, 2018). This Court quashed Appellant’s appeal as untimely
filed. Id. at 4 (explaining the filing of a motion to modify sentence filed after
a probation revocation does not toll 30-day appeal period).
On January 8, 2018, Appellant’s case was reassigned to the Honorable
Michael E. Bortner, after Judge Kennedy retired. On September 4, 2018,
Appellant filed a pro se petition for relief pursuant to the Post Conviction Relief
Act (PCRA). See 42 Pa.C.S. §§ 9541-9546. Present counsel, Aaron Holt,
Esquire, was appointed on October 29, 2019, and filed an amended petition
two months later.10 On January 29, 2020, the PCRA court granted Appellant
relief by restoring his direct appeal rights nunc pro tunc. See Order, 1/29/20.
This timely appeal followed.11
Appellant presents the following three issues on appeal:
I. Did the [trial court] err when it revoked [Appellant’s]
probation for offenses committed while in prison, when
[Appellant] was not informed that as part of his plea deal,
that in addition to his 5 and 1/2 to 11 year sentence that his
probation could be revoked based on actions that occurred
during his prison term extending the probationary portion of
his sentence, and contradicting the statement of the judge
during his plea sentencing that he would face an eight-year
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10 Prior to Attorney Holt’s appointment, Appellant was represented by two
different attorneys, each of whom also filed an amended PCRA petition.
11 On March 2, 2020, Appellant filed a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). He filed an amended Rule
1925(b) statement on June 20, 2020, after seeking permission from the trial
court.
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term of probation after the end of his prison term, thereby
violating what [Appellant] believed were the terms of his
plea deal?
II. Did the [trial court] err when it held a revocation hearing
when a Gagnon I hearing had not be held[?]
III. Did the [trial court] err when it sentenced [Appellant] to 7-
1/2 to 15 years on a technical violation which was manifestly
excessive given his age at the time of his original plea and
sentencing, and the fact that he had not received a lenient
sentence on his original charges?
Appellant’s Brief at 6.
In his first issue, Appellant argues the trial court erred in revoking his
probation based upon his misconduct in prison before he began serving his
term of probation. Appellant’s Brief at 15. He contends that, in doing so, the
trial court violated the terms of his plea deal. Id.
Our review of probation revocation proceedings is guided by the
following:
When considering an appeal from a sentence imposed
following the revocation of probation, “[o]ur review is limited to
determining the validity of the probation revocation proceedings
and the authority of the sentencing court to consider the same
sentencing alternatives that it had at the time of the initial
sentencing.” “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.”
* * *
A defendant’s probation may be revoked upon proof that the
defendant either: 1) violated a specific condition of his or her
probation or 2) committed a new crime. 42 Pa.C.S.A. § 9771;
Commonwealth v. Foster, 214 A.3d 1240, 1243 (Pa. 2019).
These are the only grounds on which a court can find that a
defendant violated his or her probation. “[T]he VOP court must
find, based on the preponderance of the evidence, that the
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probationer violated a specific condition of probation or committed
a new crime to be found in violation.”
Notably, “a violation of probation does not occur solely
because a judge believes the probationer’s conduct indicates that
probation has been ineffective to rehabilitate or to deter against
antisocial conduct.” “Rather, the effectiveness of probation as a
rehabilitative tool and as a deterrent to antisocial conduct is the
lens through which a violation is to be viewed.” “Revocation and
resentencing are warranted if, in the face of a new criminal act or
the violation of a condition of probation, the court finds that
probation is no longer achieving its desired aims of rehabilitation
and deterring criminal activity.”
Once the court concludes a violation occurred and probation
was not effective, the court may resentence the defendant to a
total term of incarceration if: (1) the defendant was convicted of
a new crime; (2) the defendant’s conduct makes it likely that he
or she will commit a new crime if not incarcerated; or (3)
incarceration “is essential to vindicate the authority of the court.”
42 Pa.C.S.A. § 9771(c); Foster, 214 A.3d at 1251.
Commonwealth v. Giliam, 233 A.3d 863, 866–67 (Pa. Super. 2020) (some
citations omitted).
Here, Appellant insists the court revoked his probation based, at least
in part, upon misconducts he received while imprisoned for the aggravated
assault conviction. Appellant’s Brief at 15. While he recognizes case law
permits revocation of a term of probation based upon acts committed before
the probationary period begins,12 Appellant maintains that, in his case, the
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12 See Commonwealth v. Ware, 737 A.2d 251 (Pa. Super. 1999). In Ware,
a panel of this Court held the trial court properly revoked the appellant’s
probation based upon a new offense she committed while she was still on
parole, before she began serving her probationary term. Id. at 253. The
Court opined: “The fact that appellant had not commenced serving probation
when the new offense occurred did not prevent the court from revoking its
prior order placing appellant on probation.” Id. We note, however, the
(Footnote Continued Next Page)
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terms of his plea prohibited the court from doing so. Id. at 16. He points to
the court’s comment at his guilty plea hearing that if Appellant “violates during
that time period” — meaning his eight-year probationary sentence — he could
be resentenced to a term of imprisonment. See id. at 17-18; N.T., 9/28/06,
at 2. Appellant insists that based on the court’s statement, he had a
reasonable belief that he could “not face resentencing for actions that occurred
before the commencement of his term of probation[.]” Appellant’s Brief at
18 (emphasis added). Furthermore, to the extent the Commonwealth argues
it never agreed to this term, Appellant emphasizes that “the Commonwealth
did not object or otherwise attempt to correct [the trial court’s] legally
erroneous statement.” Id. at 19. Thus, he contends, he had “a reasonable
basis for believing that [it was] part of his plea deal[.]” Id. at 20.
The Commonwealth addresses Appellant’s claim through the lens of the
plea agreement. It insists “there was no specific representation within the
plea agreement itself that called for modifying [Appellant’s] probationary
terms in the way alleged by [him].” Commonwealth’s Brief at 15. Rather, the
Commonwealth maintains the trial court’s “passing remark” did not constitute
“a modification of [Appellant’s] probationary sentence [that] was ‘integral to
his decision to plea[d guilty].’” Id. at 19.
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continued vitality of Ware is an issue before this Court en banc in
Commonwealth v. Simmons, 2461 EDA 2018, and Commonwealth v.
Reavis, 1360 EDA 2018.
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Appellant’s argument focuses on the numerous misconducts he received
in prison, while incarcerated for the aggravated assault conviction. He
acknowledges, however, that that the court also found him in violation of the
terms of his probation for refusing to sign paperwork or provide a residence
prior to leaving prison. See Appellant’s Brief at 23-24. Thus, the preliminary
question before us is whether the trial court determined Appellant violated the
terms of his probation based solely on his refusal to sign paperwork or provide
a residential address, or whether the court also found a violation based on
Appellant’s prison misconducts. Upon our review of the record, we conclude
the trial court revoked Appellant’s probation based solely on Appellant’s
refusal to sign the necessary paperwork or provide a residence — and
considered his prison misconducts for sentencing purposes only.
We reiterated that on November 23, 2016, just three days before
Appellant would have completed serving his entire 11-year sentence, the trial
court issued a bench warrant, based on information from Probation and Parole
that Appellant was “refusing to sign paperwork necessary to begin his Special
Probation and failing to provide the Board . . . with a phone number and
address of residence to complete his home plan[.]” Order Issuing Bench
Warrant, 11/23/16. The court conducted a hearing on December 6, 2016. At
that time, the court noted the Commonwealth “was taking the position that
[Appellant] was in violation for all the misconducts he had while he was in
state prison, as well as his refusal to sign the conditions that were applying to
his probation.” N.T., 12/6/16, at 4-5. Accordingly, the trial court vacated the
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bench warrant, but directed Appellant remain detained “until the [probation]
violation report can be filed[.]” Id. at 7. A violation report was later submitted
to the trial court, although it is not part of the certified record. This report, as
reproduced in Appellant’s brief, alleged Appellant violated the terms of his
probation based on 10 specific incidents that occurred during his period of
incarceration. See Notice of Charges and Hearing, at 1-2.
At the probation revocation hearing conducted on January 11, 2017, the
Commonwealth noted, at the outset, that Appellant “refuse[d] to sign his
special probation paperwork, and he was violated[.]” See N.T., 1/11/17, at
2 (Appellant’s counsel noting “[t]he basis of the initial violation was that
[Appellant] had failed to sign his special probation paperwork”). Nevertheless,
the parties continued to discuss the numerous misconducts Appellant received
while in prison. At the conclusion of the hearing, the court found Appellant
violated the terms of his probation, and sentenced him to a term of 7 1/2 to
15 years’ incarceration. Id. at 11.
Appellant filed both a counseled and pro se post-sentence motion, and
was permitted to represent himself at the subsequent hearing. See N.T.,
3/15/17, at 11-16. In one argument, he asserted he was prejudiced by the
delay in revoking his probation based on prison misconducts that occurred
years earlier. See id. at 16-17. At that time, the trial court interjected:
I don’t mean to interrupt you, sir. But the actual reason
that you were brought back here and the actual reason for your
violation was the fact that you had refused to sign the release
conditions at the prison.
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* * *
And when I sentenced you, I did look at what your prison
adjustment was. So those matters were relevant to your
sentencing, but they weren’t necessarily relevant to your
violation. . . .
Id. at 17-18. The trial court reiterated this sentiment at the conclusion of the
hearing:
Our concern is that given what [Appellant’s] prison
adjustment was, the number of violent offenses that occurred
during prison which we didn’t necessarily take that into
consideration as to whether or not he violated his probationary
sentence.
But we did believe that his prison adjustment was a relevant
consideration as to what his new sentence should be.
Id. at 39.
Subsequently, in its August 29, 2017, opinion filed in response to
Appellant’s (later quashed) direct appeal, the trial court stated, in clear terms,
that the underlying basis for its decision to revoke Appellant’s probation was
Appellant’s refusal to complete the necessary paperwork, and that it
considered Appellant’s prison misconducts only for sentencing purposes. The
court opined:
In the instant case, Appellant refused to complete his home
plan that was necessary to be completed prior to his beginning to
serve his probationary sentence. Without an address for
Appellant’s whereabouts, Appellant cannot be properly
supervised. Appellant was made aware on at least two occasions,
that he must complete the home plan and sign the paperwork to
begin his probation. While Appellant claims that he did provide
an address and only failed to sign the paperwork because of
incorrect maximum dates, this Court had a hard time finding
Appellant credible. Appellant has a history of failure to comply
with the rules while incarcerated and [the probation officer]
testified that Appellant refused to sign the paperwork. This Court
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found Appellant’s refusal to be a direct violation of his probation.
Furthermore, Appellant’s poor prison adjustment, pattern for
violence, repeated threats to staff, and a blatant refusal to comply
with the rules clearly demonstrate that Appellant is not ready to
be released into the community on probation.
Trial Ct. Op., 8/29/17, at 17-18.
Thus, because the record demonstrates the trial court did not revoke
Appellant’s probation based upon prison misconducts committed before he
began serving his probationary term, Appellant’s claim fails. Furthermore, we
note that Appellant conceded he did not sign the requisite paperwork,
although he offered several excuses for his failure to do so. See N.T.,
1/11/17, at 2-3. Accordingly, Appellant is entitled to no relief on his first
claim.
Next, Appellant argues the trial court erred when it revoked his
probation without first conducting a Gagnon I hearing. Appellant’s Brief at
24. He insists he is entitled to two separate hearings under the law, and the
court’s failure to conduct both hearings resulted in a violation of his due
process rights. Id. at 25, 28.
“When a parolee or probationer is detained pending a revocation
hearing, due process requires a determination at a pre-revocation hearing,
a Gagnon I hearing, that probable cause exists to believe that a violation has
been committed.” Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa.
Super. 2000) (citation and emphasis omitted). If, following that hearing, the
trial court finds probable cause, “a second, more comprehensive hearing, a
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Gagnon II hearing, is required before a final revocation decision can be
made.” Id. (citation omitted). This Court has explained:
“At the preliminary [Gagnon I ] hearing, a probationer or parolee
is entitled to notice of the alleged violations of probation or parole,
an opportunity to appear and to present evidence in his own
behalf, a conditional right to confront adverse witnesses, an
independent decisionmaker, and a written report of the
hearing.” Thus, the Gagnon I hearing is similar to the
preliminary hearing afforded all offenders before a Common Pleas
Court trial: the Commonwealth must show probable cause that
the violation was committed.
Commonwealth v. Davis, 336 A.2d 616, 621 (Pa. Super. 1975) (citations
omitted).
Accordingly, analogous to claims regarding defects in a preliminary
hearing preceding a criminal trial, an objection to the trial court’s failure to
conduct a Gagnon I hearing must be raised by a defendant before his
probation is revoked, or risk waiver. In Commonwealth v. Perry, 385 A.2d
518 (Pa. Super. 1978), this Court explained:
If before his parole or probation is revoked a parolee or
probationer has not complained of the lack of a Gagnon I hearing,
he has already suffered the harm that the omission allegedly
caused; since the substance of the revocation proceeding is not
affected by the omission, the parolee or probationer will not be
heard to complain later.
This is analogous to the rule that objections to defects in a
preliminary hearing (e. g., lack of counsel) or to the denial of a
preliminary hearing must be raised by a motion to quash the
indictment; otherwise, all such procedural and “non-jurisdictional”
defects are waived.
The United States Court of Appeals for the Second Circuit drew
this same analogy in United States v. Companion, 545 F.2d 308(2d Cir. 1976):
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(A) defendant’s status after conviction is the result of that
conviction, not the result of his pretrial detention; the court
lacks power “to remedy, retrospectively, . . . denial of a
‘fundamental right’ which has no bearing on appellant’s
present incarceration”; the remedy of release from custody
“is one to be sought prior to conviction.”
This rationale is directly applicable (in a probation
revocation case). Appellant’s present incarceration stems
from a decision by (the revoking court) made after a hearing
that was adequate in all respects; the denial of appellant’s
preliminary hearing right no longer has any relation to his
incarceration. . . . To order appellant’s release from custody
at this time would be to grant an extreme remedy for a
deprivation from which appellant is no longer suffering. This
remedy should have been sought at the time that the
deprivation of rights was actually occurring.
Id. at 520 (some citations omitted).
Here, Appellant did not object to the trial court’s alleged failure to hold
a Gagnon I hearing until he filed a pro se post-sentence motion in January of
2017 — after the trial court revoked his probation and resentenced him.
Thus, his present objection is waived. See Perry, 385 A.2d at 520.
In his final claim, Appellant challenges the discretionary aspects of his
probation revocation sentence. Specifically, he asserts the sentence imposed
by the trial court was excessive considering “his age at the time he was
sentenced and the fact that his original sentence could not be considered
lenient.” Appellant’s Brief at 30.
Like any challenge to the discretionary aspects of sentencing, “[a]n
appellant wishing to appeal the discretionary aspects of a probation-
revocation sentence has no absolute right to do so but, rather, must petition
this Court for permission to do so.” Commonwealth v. Kalichak, 943 A.2d
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285, 289 (Pa. Super. 2008). In order to invoke this Court’s jurisdiction, the
appellant must establish that:
(1) the appeal was timely filed; (2) the challenge was properly
preserved by objecting during the revocation sentencing or in a
post-sentence motion; (3) his or her brief includes a concise
statement of the reasons relied upon for allowance of appeal of
the discretionary aspects of the sentence pursuant to Pa.R.A.P.
2119(f); and (4) the concise statement raises a substantial
question that the sentence is inappropriate under the Sentencing
Code.
Commonwealth v. Starr, 234 A.3d 755, 759 (Pa. Super. 2020) (citations
omitted), appeal denied, 243 A.3d 724 (Pa. 2020).
Here, Appellant properly preserved his challenge to the discretionary
aspects of his probation revocation sentence in a timely filed post-sentence
motion, preceding his nunc pro tunc appeal. See Appellant’s Post Sentence
Motion for Reconsideration of Sentence, 1/19/17, at 2 (unpaginated).
Furthermore, he has included the requisite Rule 2119(f) statement in his brief.
Thus, we proceed to determine whether Appellant has raised a substantial
question that the sentence imposed is inappropriate under the Sentencing
Code. See Starr, 234 A.3d at 759.
Appellant maintains the trial court’s imposition of a sentence of 7 1/2 to
15 years’ imprisonment for a technical violation of his probation is excessive,
particularly, since he avers, the court did not consider his age at the time he
committed the offense (15 years old), or the fact that his original sentence
was not lenient. Appellant’s Brief at 13. This Court has held: “An argument
that the trial court imposed an excessive sentence to technical probation
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violations raises a substantial question.” Commonwealth v. Schutzues, 54
A.3d 86, 98 (Pa. Super. 2012). Accordingly, Appellant has properly invoked
our jurisdiction to consider his claim on appeal.
We review a probation revocation sentence under the same standard as
any sentence imposed by the trial court, that is, for an abuse of discretion.
See Schutzues, 54 A.3d at 98.
Sentencing is a matter vested within the discretion of the
trial court and will not be disturbed absent a manifest abuse
of discretion. An abuse of discretion requires the trial court
to have acted with manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be
clearly erroneous. . . .
Id. (citation omitted).
Upon the revocation of probation, a trial court may impose any sentence
that was available at the time of the initial sentencing. See 42 Pa.C.S. §
9771(b). The only limitation on the court’s sentencing authority following
revocation is set forth at 42 Pa.C.S. § 9771(c). That provision precludes a
trial court from imposing a sentence of total confinement unless the court
finds: “(1) the defendant has been convicted of another crime; or (2) the
conduct of the defendant indicates that it is likely he will commit another crime
if he is not imprisoned; or (3) such a sentence is essential to vindicate the
authority of the court.” 42 Pa.C.S. § 9771(c)(1)-(3).
Here, Appellant insists the trial court failed to account for the fact that
he was only 15 when he committed the offense, and that his original sentence
was, as the court acknowledged, “very tough.” Appellant’s Brief at 31, citing
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N.T., 1/11/17, at 9. However, a review of the revocation proceedings
conducted on January 11, 2017, reveals the trial court did consider these facts
before imposing the revocation sentence.
Although the court commented that Appellant’s sentence for aggravated
assault was “very tough,” it noted the sentence was imposed pursuant to a
global plea agreement, which Appellant accepted. N.T., 1/11/17, at 9.
Furthermore, the court explained that, had there been no agreement, it
“would have been justified in sentencing [Appellant] in the aggravated range
because of the dangerous nature of the charges[.]” Id. Indeed, Appellant
fails to acknowledge that as part of the plea agreement, the Commonwealth
dismissed charges of third-degree murder and vehicular homicide.13
Moreover, the sentence imposed on the present offense — eight years’
probation for intimidation of a witness — was below the mitigated range of
the guidelines. See N.T., 9/28/06, at 2 (Commonwealth explaining the
sentence for intimidation charge was “below the mitigated range,” but was
agreed-upon as part of global plea in both cases).
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13 In fact, at the original sentencing hearing, the trial court commented:
We see it as a major break that [Appellant] gets from the plea
agreement in that the third-degree murder charge gets dismissed.
It is a plea agreement that will permit him to change his life, if he
chooses to do so. We hope he will do that.
N.T., 11/1/06, at 7.
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Moreover, the trial court stated that the revocation sentence of 7 1/2 to
15 years’ imprisonment was “necessary for the protection of society given
Appellant’s original offenses and [his] institutional adjustment.” Trial Ct. Op.,
8/29/17, at 20. The court opined:
Appellant had 11 years of incarceration to demonstrate that his
actions would make him a reasonable person in society and totally
blew that chance. The [c]ourt had grave concerns for the York
community and the risk Appellant would pose out on the streets.
Throughout Appellant’s 11 years of incarceration, Appellant
demonstrated a pattern of violence, threatening behavior, and a
complete disregard for the rules. Most strikingly, Appellant
showed defiance and a lack of remorse for his actions that
appeared to be even worse than when Appellant was initially
incarcerated.
Id. at 20-21. The trial court’s consideration of Appellant’s prison misconducts
was proper, and we conclude the court’s comments satisfy the requirements
of Section 9771(c)(2). See 42 Pa.C.S. § 9771(c)(2) (“The court shall not
impose a sentence of total confinement upon revocation unless it finds that .
. . the conduct of the defendant indicates that it is likely that he will commit
another crime if he is not imprisoned[.]”). Accordingly, Appellant is entitled
to no relief on his final claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/12/2021
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