Com. v. Walters, S. ( 2021 )

J-A16030-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEPHEN ROBERT WALTERS :
:
Appellant : No. 109 MDA 2021
Appeal from the Judgment of Sentence Entered January 7, 2021
In the Court of Common Pleas of Huntingdon County Criminal Division at
No(s): CP-31-CR-0000481-2016
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED: AUGUST 12, 2021
Stephen Robert Walters (Appellant) appeals from the judgment of
sentence entered in the Huntington County Court of Common Pleas, following
the revocation of his probation for a conviction of retail theft.1 Appellant
challenges the discretionary aspects of his sentencing, arguing the sentence
is outside the sentencing guidelines and disproportionate to the offense. We
affirm.
The underlying facts leading to this appeal are summarized as follows.
In the case sub judice, Appellant was arrested in July 2016 in Huntingdon
County for selling two kinds of bare copper wire, which he allegedly stole from
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 3929(a)(1).
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Ace Hardware and other local retailers. See Police Criminal Complaint,
8/2/16, at 2 (unpaginated) & Affidavit of Probable Cause. On May 1, 2017,
Appellant pleaded nolo contendere to one count of retail theft. On July 20th,
the trial court, which had a pre-sentence investigation report (PSI) sentenced
Appellant to four years’ probation, and ordered him to pay $168.28 restitution.
On February 29, 2020, while Appellant was on probation, he was
arrested in Mifflin County for driving under the influence of a controlled
substance2 and related offenses. Appellant pleaded guilty to driving under the
influence of a controlled substance, possession of a controlled substance, and
driving while operating privilege is suspended.3
Based upon these pleas, on July 28, 2020, Appellant admitted to
violating the terms of his probation in the instant retail theft case. On the
same day, the trial court revoked Appellant’s probation and, as Appellant
waived a renewed PSI, the case proceeded immediately to sentencing. N.T.,
Sentencing, 7/28/20, at 2. Under the sentencing guidelines, the standard
range was nine to 16 months. Id. Appellant argued he had drug addiction
issues but had “never been to rehab,” he had family issues, including the loss
of a child, and requested drug treatment. Id. at 4, 7-8. The court sentenced
him to 3½ to 7 years’ incarceration, which was above the sentencing
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2 75 Pa.C.S. § 3802(d)(1)(ii).
3 35 P.S. § 780-113(a)(16); 75 Pa.C.S. § 1543(a).
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guidelines. Id. at 12. The court noted its reasons for going above the
sentencing guidelines:
You have a prior record score of five but prior record scores
don’t go high enough for you. You have 12 retail conviction
between various Magistrates and Courts of Common Pleas. You
have been convicted of crimes in Huntingdon County, Franklin
County, Centre County, Cumberland County, and Mifflin County.
The tools have been given to you. You are a danger not only to
yourself but a danger to the public and the thing that’s so bad,
[Appellant], is that a lot of people come to me and make the
argument I’ve seen the error of my ways and I need treatment
and a lot of times that’s very legitimate. In your case it’s not
legitimate because you’ve said it before and you’ve been given
every opportunity over and over by all these Probation
Departments and you say the same thing every time over and
over and over.
Id. at 11. Finally, the court held that Appellant was not eligible for the
Recidivism Risk Reduction Incentive4 program (RRRI) program. Id. at 13.
On July 31, 2020, Appellant filed a post-sentence motion, requesting
RRRI eligibility and reconsideration of his sentence. The trial court granted
reconsideration and conducted a resentencing hearing on January 7, 2021.
The court reduced Appellant’s minimum sentence by 14 months, to 28 months’
incarceration, which was still above the sentencing guidelines, and imposed
the same maximum sentence of 7 years. The court also found Appellant was
RRRI eligible, and “will make him eligible, if the Department of Corrections
agrees, that he would be eligible for the Drug Treatment Program.” N.T.
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4 See 61 Pa.C.S. §§ 4501-4512.
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Resentencing, 1/7/21, 11. In imposing the sentence, the court denied
Appellant’s claim of bias, stating it did not know anything about Appellant
aside from what the court had researched for sentencing. Id. at 9. In
addition, the trial court stated:
So it’s certainly the sentencing judge’s prerogative to
sentence outside the Sentencing Guidelines based on factors that
are important. And as I said to [Appellant] the first time I
sentenced him, it is my job to consider the protection of the public,
the gravity of the offenses as they relate to the impact on the lives
of the victims and the community. I have to consider your
rehabilitative needs[,] the pre-sentence investigation[, and] the
Sentencing Guidelines.
The Sentencing Guidelines are instructive. And the reason
I well exceeded the Sentencing Guidelines I placed on page 11 of
the [July 28, 2020,] sentencing transcript. And I said prior record
scores don’t go high enough. Not that a retail theft conviction
from various magistrates goes into the sentencing guidelines, but
that’s something that I can consider.
Twelve retail theft convictions that don’t even count in your
prior record score. Being convicted of crimes in Huntingdon
County, Franklin County, Centre County, Cumberland County,
Mifflin County. And I indicated you’re a danger not only to
yourself, but a danger to the public.
Certainly I need to consider the tragedy in your life . . . .
But . . . there comes a time when you need to accept the fact that
you’re no longer a victim here. . . . [W]hen you add the run-ins
you have had with the court system over all of these years, I think
it’s very clear that I need to sentence above the Sentencing
Guidelines.
Id. at 9-10.
Appellant filed a timely notice of appeal on January 19, 2021. On
appeal, Appellant presents the following issue for our review:
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1. Whether the sentence imposed of 28 months to 7 years[‘]
incarceration after the revocation of probation is manifestly
excessive when the standard range is 9-16 months?
Appellant’s Brief at 5.
Appellant avers “the sentence imposed by the trial court is unreasonably
excessive and disproportionate to the crime charged.” Appellant’s Brief at 15.
Appellant maintains the excessive sentence is a result of bias and ill will the
trial court has toward Appellant. Id. at 17. In support, Appellant states:
The only explanation can be that the trial judge, despite his
assertion to the contrary, does know who [Appellant] is and knows
that he has two “MOs, [Appellant] when you get arrested [sic].
You want to go to a rehab or you want to work for the
Commonwealth. It’s one of the two every time.” [See [N.T.
Sentencing, 7/28/20, at 12]. The trial judge on one hand says “I
have no idea of anything about [Appellant,” see id. at 24,] and
just a few moments later say “I know [Appellant] very well[.” See
id.]. . . .
Id. at 29. Appellant admits the trial court provided a “lengthy” explanation
for the departure from the sentencing guidelines, and that the court was within
its right to deny his request for out-patient treatment. Id at 25-26. However,
Appellant avers the trial court failed to discuss the nature and circumstances
of the underlying offense of retail theft, or “the nature of the violation of [his]
probation[,] a first offense DUI.” Id. at 25. Appellant argues the combination
of his minor offenses and his prior record score supported a standard
guideline-range sentence of 16 months’ incarceration. Id. at 25-26. Finally,
Appellant contends that by imposing a sentence of 28 months to 7 years, the
trial court’s “real error” was to “unilaterally decide[ ] that [he] cannot be
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eligible for parole for an additional year past the contemplated guideline
range.” Id. at 26, 29. We conclude no relief is due.
Before this Court can address a discretionary challenge in sentencing,
an appellant must comply with the following requirements:
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’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.
Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (citation
omitted). The comment to Pa.R.Crim.P. 702, which governs, inter alia,
violations of probation, provides:
Once a sentence has been modified or re-imposed pursuant to a
motion to modify sentence . . . a party wishing to challenge the
decision on the motion does not have to file an additional motion
to modify sentence in order to preserve an issue for appeal, as
long as the issue was properly preserved at the time sentence was
modified or re-imposed.
Pa.R.Crim.P. 702, cmt. See also Commonwealth v. Presley, 193 A.3d 436,
445 n.4 (Pa. Super. 2018) (pursuant to Pa.R.Crim.P. 702, cmt, defendant was
not required to re-raise excessive sentence claim following re-sentencing,
where he had raised the same claim previously in the post-sentence motion
that prompted the resentencing), appeal denied, 201 A.3d 154 (Pa. 2019).
With respect to substantial questions, this Court has stated:
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[C]laims that a penalty is excessive and/or disproportionate to the
offense can raise substantial questions. [A] claim that a particular
probation revocation sentence is excessive in light of its
underlying technical violations can present a question that we
should review.
Commonwealth v. Malovich, 903 A.2d 1247, 1254 (Pa. Super. 2006)
(citations omitted). Additionally, “[u]nder 42 Pa.C.S.[ ] § 9781(c)(3), a claim
that the sentencing court sentenced outside the sentencing guidelines, . . .
presents such a substantial question.” Commonwealth v. Kitchen, 162 A.3d
1140, 1149 (Pa. Super. 2017). See 42 Pa.C.S. § 9781(c)(3) (“The appellate
court shall vacate the sentence and remand the case to the sentencing court
with instructions if it finds . . . the sentencing court sentenced outside the
sentencing guidelines and the sentence is unreasonable.”).
In the present case, Appellant filed a timely notice of appeal. While
Appellant did not file a written motion to reconsider the instant amended
sentence, he did request a standard range sentence in the July 31, 2020, post-
sentence motion that resulted in resentencing. Thus, Appellant properly
preserved this issue. See Pa.R.Crim.P. 702, cmt; Caldwell, 117 A.3d at 768.
In addition, Appellant’s brief includes the required Rule 2119(f) concise
statement of reasons relied upon for appeal. See Appellant’s Brief at 10-12.
Finally, Appellant’s claims — that the trial court sentenced him outside the
sentencing guidelines and that the sentence was disproportionate to his
crimes and unduly excessive — raise substantial questions invoking our
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review. See Kitchen, 162 A.3d at 1149; Malovich, 903 A.2d at 1254.
Accordingly, we may address the merits of Appellant’s issue.
We note the relevant standard of review for challenges of discretionary
aspects of sentencing:
[T]he proper standard of review when considering whether to
affirm the sentencing court’s determination is an abuse of
discretion . . . . [A]n abuse of discretion is more than a mere error
of judgment; thus, a sentencing court will not have abused its
discretion unless the record discloses that the judgment exercised
was manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court recently
offered: An abuse of discretion may not be found merely because
an appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.
The rationale behind such broad discretion and the concomitantly
deferential standard of appellate review is that the sentencing
court is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual
circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169–70 (Pa. Super. 2010)
(citation omitted).
In reviewing the record, an appellate court shall consider:
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) the opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) the findings upon which the sentence was based.
(4) the guidelines promulgated by the commission.
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42 Pa.C.S. § 9781(d)(1)-(4). “Where the sentencing court had the benefit of
a presentence investigation report (PSI), we can assume the sentencing court
was aware of relevant information regarding the defendant’s character and
weighed those consideration along with mitigating statutory factors.”
Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013) (citations
and quotations omitted).
Our review of an appeal from a sentence imposed following the
revocation of probation is well-settled:
Our 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. 42 Pa.C.S.A. § 9771(b). Also, upon
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. Simmons, 56 A.3d 1280, 1286-87 (Pa. Super. 2012)
(citations omitted).
Here, the trial court notes that it considered Appellant’s PSI during his
initial sentencing and resentencing following the revocation of his probation.
Trial Ct. Op., 3/15/21, at 3. In addition, the court notes Appellant’s “long
history of low-level theft and drug offenses arising from his continued abuse
of heroin and other opiates.” Id. Appellant’s prior history included 11
convictions for retail theft as well as convictions of possession with intent to
distribute a controlled substance, possession of drug paraphernalia, accident
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involving death or injury, and hindering apprehension, which arose in five
different Pennsylvania counties. Id. at 3-4.
In discussing Appellant’s Prior Record Score, the trial court maintains:
[Appellant’s] PRS is 5 because this as high as it may go,
absent more serious felony offenses. If calculated without this
limitation and including only convictions occurring prior to this
case (i.e., omitting [Appellant’s] 2018 retail theft conviction and
his recent conviction arising from the DUI offense), his PRS would
be 11. Looking to the Amendment 3 version of the Sentencing
Guidelines (September 25, 2015), which were in effect at the time
of the offense in this case, § 303.5(d) states as follows:
Adequacy of the Prior Record Score. The court may
consider at sentencing prior convictions, juvenile
adjudications or dispositions not counted in the
calculation of the Prior Record Score, in addition to
other factors deemed appropriate by the court.
It is therefore appropriate for a court to consider the full scope of
a [Appellant’s] conviction in determining the appropriate
sentence. That is exactly what occurred here.
Trial Ct. Op. at 5.
The trial court finds the Appellant’s “rehabilitative needs were
outweighed by the need to protect the public and address the severity of [his]
pattern of behavior . . ..” Trial Ct. Op. at 6. The trial court
concluded that a shorter minimum sentence of [28] months was
appropriate, but with a continued maximum sentence of seven
years so as to allow for appropriate monitoring after release, given
[Appellant’s] long history of drug abuse and drug-related criminal
offenses. In addition to making [Appellant] RRRI eligible, the
[trial court] also noted that, subject to the agreement of the
Department of Corrections, it would make him eligible for the state
drug treatment program. This strikes an appropriate balance
between the pertinent sentencing factors.
Id. at 7.
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Mindful that sentencing is a matter vested in the sound discretion of the
trial court, and finding no showing of manifest abuse, we conclude the trial
court did not abuse its discretion in rendering the current violation of probation
sentence. See Simmons, 56 A.3d at 1286-87; Moury, 992 A.2d at 169–70.
Here, the trial court considered Appellant’s PSI during resentencing and noted,
on the record, his long history of convictions. See Griffin, 65 A.3d at 937;
Trial Ct. Op. at 6-7. The court considered the relevant factors in rendering
Appellant’s sentence. See 42 Pa.C.S. § 9781(d)(1)-(4). In addition, the
record reflects that the court weighed Appellant’s rehabilitative needs with
that of the need to protect the public. See Trial Ct. Op. at 6. As such, we
conclude the trial court was within its discretion to impose the instant
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/12/2021
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