Com. v. Bailey, J.

J-S70018-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEREMY BAILEY, :
:
Appellant : No. 1885 EDA 2014
Appeal from the Judgment of Sentence May 21, 2014,
Court of Common Pleas, Philadelphia County,
Criminal Division at No(s): CP-51-CR-0004233-2007
and CP-51-CR-0020375-2011
BEFORE: DONOHUE, LAZARUS and PLATT*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 04, 2015
Appellant, Jeremy Bailey (“Bailey”), appeals from the judgment of
sentence entered on May 21, 2014 by the Court of Common Pleas of
Philadelphia County, Criminal Division. We affirm.
As this appeal stems from the numerous revocations of Bailey’s parole
and probation, an overview of the facts underlying his various convictions is
unnecessary. We summarize the relevant procedural history of this case as
follows. On June 3, 2008, Bailey pled guilty to aggravated assault, criminal
conspiracy, and possessing an instrument of crime at docket number CP-51-
CR-0004233-2007 (“2008 convictions”). On August 12, 2008, the trial court
sentenced Bailey to time served to twenty-three months of incarceration
followed by five years of probation on the aggravated assault charge and to
a concurrent term of time served to twenty-three months of incarceration
*Retired Senior Judge assigned to the Superior Court.
J-S70018-15
followed by five years of probation on the possessing an instrument of crime
charge. Bailey did not file an appeal.
On June 27, 2011, Bailey pled guilty to possession of a controlled
substance at docket number MC-51-CR-0020375-2011 (“2011 conviction”).
The trial court sentenced Bailey to six to twenty-three months of
incarceration. The same day, the trial court found Bailey in violation of his
parole and anticipatory violation of his probation for his 2008 convictions.
The trial court sentenced Bailey to the remaining balance of his sentence for
his 2008 convictions, concurrent with the sentence for his 2011 conviction,
followed by five years of probation. On February 27, 2012, the trial court
granted Bailey’s request for early parole.
On September 20, 2012, after determining that Bailey was in technical
violation of his probation and parole, the trial court revoked his probation for
his 2008 convictions and his parole for his 2011 conviction. On November
14, 2012, the trial court sentenced Bailey to three to twenty-three months of
incarceration with immediate parole, followed by two years of probation for
violating the probation for his 2008 convictions. For violating the parole of
his 2011 conviction, the trial court sentenced Bailey to a concurrent term of
three to twelve months of incarceration with immediate parole.
On May 14, 2013, Bailey was again arrested, this time charged with
theft by unlawful taking, possession of firearm prohibited firearms not to be
carried without a license; carrying firearms in public in Philadelphia, and
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receiving stolen property. On May 22, 2013, the Commonwealth filed a
motion for a violation of probation hearing. On March 10, 2014, the trial
court held a violation of probation hearing, at the conclusion of which it
found Bailey in violation of his probation for his 2008 convictions. On May
21, 2014, the trial court revoked his probation and parole for his 2008
convictions and sentenced him to eleven and a half to twenty-three months
of incarceration, followed by ten years of probation. The same day, the trial
court terminated Bailey’s parole for his 2011 conviction, but did not impose
a sentence with respect to the 2011 conviction.
On June 17, 2014, Bailey filed a timely notice of appeal. On July 30,
2014, the trial court ordered Bailey to file a concise statement of the errors
complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules
of Appellate Procedure. On August 20, 2014, Bailey’s appointed counsel
filed a statement of intent to file an Anders/McClendon brief pursuant Rule
1925(c)(4). On November 25, 2014, Bailey’s appointed counsel filed in this
Court a “Petition to Vacate Briefing Schedule and to Remand for Filing of
Statement of Errors and Lower Court Opinion Pursuant to Rule 1925.” On
December 18, 2014, this Court granted Bailey’s petition and remanded the
case to the trial court for Bailey to file a Rule 1925(b) statement. On
December 24, 2014, Bailey filed his Rule 1925(b) statement.
On appeal, Bailey raises the following issues for our review:
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1. With regard[] to [the 2011 conviction], where
[Bailey] was originally sentenced to a term of
incarceration and no term of probation, then found in
violation of his parole and sentenced to an entirely
new term of incarceration, and then again found in
violation of supervision, was not the most recent
sentence illegal and the revocation of that sentence
based upon insufficient evidence since the
Commonwealth failed to prove that the defendant
was lawfully under supervision at the time of the
most recent alleged violations of supervision?
2. With regard[] to [the 2008 convictions], did not
the lower court consider an impermissible factor
(i.e., that [Bailey] violated supervision in [the 2011
conviction] where the sentence in that case was
illegal and insufficient evidence was presented to
prove a violation of that sentence) in fashioning the
most recent revocation sentence for [the 2008
convictions], and does not the recognition that the
lower court erred in finding [Bailey] in violation of his
supervision in [the 2011 conviction] upset the
sentencing scheme such that resentencing is
required for [the 2008 convictions]?
Bailey’s Brief at 4.
We begin by acknowledging the following standard of review of a trial
court’s decision to revoke a defendant’s parole:
[T]he purposes of a court’s parole-revocation
hearing – the revocation court’s tasks – are to
determine whether the parolee violated parole and, if
so, whether parole remains a viable means of
rehabilitating the defendant and deterring future
antisocial conduct, or whether revocation, and thus
recommitment, are in order. The Commonwealth
must prove the violation by a preponderance of the
evidence and, once it does so, the decision to revoke
parole is a matter for the court’s discretion. In the
exercise of that discretion, a conviction for a new
crime is a legally sufficient basis to revoke parole.
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Following parole revocation and recommitment,
the proper issue on appeal is whether the revocation
court erred, as a matter of law, in deciding to revoke
parole and, therefore, to recommit the defendant to
confinement.
Commonwealth v. Kalichak, 943 A.2d 285, 290-91 (Pa. Super. 2008)
(citations omitted).
For his first issue on appeal, Bailey argues that the trial court erred
when it most recently revoked his parole for his 2011 conviction on May 21,
2014. See Bailey’s Brief at 10-14. Bailey contends that the sentence he
received on November 14, 2012, which was the first time the trial court
revoked his parole for his 2011 conviction, was illegal. See id.
Consequently, Bailey asserts that because the November 14, 2012 sentence
was illegal, the Commonwealth could not sustain its burden of proving that
he was under supervision for his 2011 conviction when he committed the
crimes that led to the May 21, 2014 revocation. See id.
We conclude that this argument does not entitle Bailey to relief.
Bailey is correct that when the trial court revoked his parole for his 2011
conviction on November 14, 2012, the trial court could only recommit him to
serve the remaining unserved portion of his original sentence in that case.
See Commonwealth v. Melius, 100 A.3d 682, 686 (Pa. Super. 2014).1
1
In Melius, our Court explained the following regarding the revocation of
parole:
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However, the sentence that the trial court imposed on May 21, 2014 of
eleven and a half to twenty-three months of incarceration followed by ten
years of probation stemmed from the revocation of his probation for his
2008 convictions. The trial court did not impose that sentence for the
revocation of his parole for his 2011 conviction.
The certified record reflects that on September 20, 2012, the trial
court revoked Bailey’s probation for his 2008 convictions and his parole for
his 2011 conviction. On November 14, 2012, the trial court sentenced
Bailey to three to twenty-three months of incarceration with immediate
parole, followed by two years of probation on his 2008 convictions. See
Trial Court Order (2008 convictions), 11/14/12. The trial court also
sentenced Bailey on his 2011 conviction to a concurrent term of three to
“[A] parole revocation does not involve the
imposition of a new sentence.” [Kalichak, 943 A.2d
at 290] (citing Commonwealth v. Mitchell, [] 632
A.2d 934, 936 ([Pa. Super.] 1993)). “Rather, the
only option for a court that decides to revoke parole
is to recommit the defendant to serve the already-
imposed, original sentence. At some point
thereafter, the defendant may again be paroled.”
Id. (internal citations and footnote omitted); see
also Commonwealth v. Galletta, 864 A.2d 532,
538 (Pa. Super. 2004) (finding that in a violation of
parole, the court is not free to impose a new
sentence); Commonwealth v. Ware, 737 A.2d
251, 253 (Pa. Super. 1999) (holding that “upon
revocation of parole, the only sentencing option
available is recommitment to serve the balance of
the term initially imposed”).
Melius, 100 A.3d at 686.
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twelve months of incarceration with immediate parole, see Trial Court Order
(2011 conviction), 11/14/12, which Bailey argues was an illegal sentence.
See Bailey’s Brief at 10-14.
The certified record further reflects that on May 13, 2013, Bailey was
again arrested and charged with multiple firearms offenses, unauthorized
use of a motor vehicle, and other crimes in yet another case, which gave
rise to the instant revocation and re-sentencing proceedings that are the
subject of this appeal. As a result of this arrest, on May 21, 2014, the trial
court revoked Bailey’s probation and parole for his 2008 convictions and
sentenced him to eleven and a half to twenty-three months of incarceration,
followed by ten years of probation. See Trial Court Order (2008
convictions), 5/21/14. On the same date, the trial court entered an order
terminating his parole for his 2011 conviction, but did not impose any
sentence on his 2011 conviction. See Trial Court Order (2011 conviction),
5/21/14.
Therefore, assuming, arguendo, that the November 14, 2012 sentence
of three to twelve months of incarceration following the first revocation of
Bailey’s parole on his 2011 conviction was illegal, the alleged illegality of
that sentence had no bearing on the sentence that is the subject of this
appeal – the sentence of eleven and a half to twenty-three months of
incarceration, followed by ten years of probation for violating the probation
of his 2008 convictions. Moreover, because Bailey has finished serving the
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three to twelve month sentence from November 14, 2012 for violating the
parole of his 2011 conviction, Bailey’s challenge to the legality of that
sentence is moot. See Commonwealth v. King, 786 A.2d 993, 996 (Pa.
Super. 2001) (finding “appellant’s challenge to the legality of the sentence,
which has expired and which bears no collateral civil or criminal
consequences, is moot and will not be addressed by this Court.”).
Therefore, Bailey’s first issue fails.
For his second issue on appeal, Bailey argues that the trial court
abused its discretion when it sentenced him to eleven and a half to twenty-
three months of incarceration, followed by ten years of probation for
violating the probation of his 2008 convictions. See Bailey’s Brief at 15-17.
Bailey contends that the trial court relied on an impermissible factor when it
re-sentenced him for his 2008 convictions because it took into consideration
the improper revocation of his parole for his 2011 conviction. See id.
A claim that a trial court considered impermissible factors when
sentencing a defendant is a challenge to the discretionary aspects of
sentencing. Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super.
2013), appeal denied, 91 A.3d 161 (Pa. 2014). “The right to appellate
review of the discretionary aspects of a sentence is not absolute, and must
be considered a petition for permission to appeal.” Commonwealth v.
Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014), appeal denied, 104
A.3d 1 (Pa. 2014). This rule applies to our review of sentences imposed
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following the revocation of probation. Commonwealth v. Kalichak, 943
A.2d 285, 289 (Pa. Super. 2008). “An appellant must satisfy a four-part test
to invoke this Court’s jurisdiction when challenging the discretionary aspects
of a sentence.” Id. We conduct this four-part test to determine whether,
(1) the appellant preserved the issue either by
raising it at the time of sentencing or in a post[-
]sentence motion; (2) the appellant filed a timely
notice of appeal; (3) the appellant set forth a concise
statement of reasons relied upon for the allowance of
his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the
appellant raises a substantial question for our
review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted), appeal denied, 86 A.3d 231 (Pa. 2014).
Here, Bailey failed to preserve his discretionary aspects of sentencing
claim by raising it at sentencing or in a post-sentence motion. Accordingly,
Bailey has failed to preserve his discretionary aspects of sentencing claim for
review. See id.; Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.
Super. 2013) (“[I]ssues challenging the discretionary aspects of a sentence
must be raised in a post-sentence motion or by presenting the claim to the
trial court during the sentencing proceedings. Absent such efforts, an
objection to a discretionary aspect of a sentence is waived.”). Therefore,
Bailey’s second issue does not entitle him to relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/2015
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