Com. v. White, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MONTAEYA WHITE
Appellant No. 807 WDA 2016
Appeal from the Judgment of Sentence May 11, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0010006-2014
BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED JUNE 9, 2017
Appellant, Montaeya White, appeals from the judgment of sentence
entered on May 11, 2016, following the revocation of her probation in the
Court of Common Pleas of Allegheny County. White contends that we should
vacate her sentence due to the revocation court’s abuse of discretion in
fashioning it. After careful review, we vacate White’s sentence and remand
for resentencing.
The relevant facts and procedural history of this case are as follows.
On December 16, 2014, White pleaded guilty to misdemeanor counts of
retail theft and tamper with/fabricate physical evidence.1 The court
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1
18 Pa.C.S.A. §§ 3929(a)(1) and 4910(1), respectively.
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sentenced White to three years of probation.2 While White was still serving
her probationary term, she garnered an attributable conviction for theft of
services.
White’s conviction triggered a probation violation hearing for her
underlying charges. On May 11, 2016, the revocation court determined that
White had violated her probation by receiving new charges. That same day,
the court resentenced White to a period of 2 to 4 years’ incarceration. White
filed a timely post-sentence motion to reconsider, which the revocation court
denied. This timely appeal follows.
On appeal, White raises a single question for our review:
DID THE TRIAL COURT FAIL TO ADEQUATELY CONSIDER AND
APPLY ALL OF THE RELEVANT SENTENCING CRITERIA,
INCLUDING [] WHITE’S CHARACTER AND REHABILITATIVE
NEEDS, THE GRAVITY OF THE OFFENSE/VIOLATION AND THE
PROTECTION OF THE PUBLIC AS REQUIRED UNDER 42
P[a].C.S.A. § 9721(b)…[?]
Appellant’s Brief, at 4.
This claim challenges the discretionary aspects of White’s sentence.
Initially, we note that our “scope of review in an appeal from a revocation
sentencing includes discretionary sentencing challenges.” Commonwealth
v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc).
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2
As a condition of her probation, the revocation court ordered restitution of
$1,250 and required White to enroll in a GED program and obtain
employment.
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“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted).
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
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, 42. Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(quotation marks and some citations omitted).
Here, White fulfilled the first two requirements by filing a timely post-
sentence motion for reconsideration and a timely appeal. However, due to
the disparity between the claims in her post-sentence motion to reconsider
and her appellant brief, we must determine which of the challenges to the
discretionary aspects of her sentence have been preserved for our review.
A defendant can only preserve a claim to the discretionary aspects of a
court’s sentence if she notes a specific objection at the sentencing hearing or
in a post-sentence motion to modify. See id. White did not object to any
aspects of her sentence at the probation revocation hearing. Thus, to
preserve her challenges to the discretionary aspect of her sentence, she was
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required to note her specific challenges to the revocation court’s discretion in
a post-trial motion to reconsider.
White filed a motion to reconsider through which she alleged that her
sentence was excessive due to the revocation court’s failure to “consider
[her] rehabilitative needs prior to imposing sentence.” Motion to Reconsider
Sentence, 5/17/16, at ¶ 4. However, in her appellate brief, White conflates
this claim by asserting that the revocation court failed to apply the relevant
sentencing criteria under 42 Pa.C.S.A. § 9721(b), “including [] White’s
character and rehabilitative needs, the gravity of the offense/violation and
the protection of the public.” Appellant’s Brief, at 4. Because White failed to
raise challenges to the revocation court’s consideration of the gravity of the
offense/violation, White’s character, and the protection of the public in her
post-sentence motion, she has waived these specific challenges to the
discretionary aspects of her sentence. See Moury, 992 A.2d at 170.
Addressing the next factor in the four-factor test, we find that White’s
appellate brief contains the requisite Rule 2119(f) concise statement. We
must now determine whether White’s remaining challenge to the
discretionary aspects of her sentence raises a substantial question.
“A substantial question will be found where an appellate advances a
colorable argument that the sentence imposed is either inconsistent with a
specific provision of the Sentencing Code or is contrary to the fundamental
norms which underlie the sentencing process.” Commonwealth v. Zirkle,
107 A.3d 127, 132 (Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa.
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2015) (citation omitted). We examine an appellant’s Rule 2119(f) statement
to determine whether a substantial question exists. See Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Our inquiry must focus on
the reasons for which the appeal is sought, in contrast to the facts
underlying the appeal, which are necessary only to decide the appeal on the
merits.” Id. (citation omitted). See also Pa.R.A.P. 2119(f).
As discussed further below, at sentencing following the probation
revocation, the court must consider not only the pertinent factors at 42
Pa.C.S.A. § 9721(b), but also at § 9771(c). See, e.g., Commonwealth v.
Derry, 150 A.3d 987, 994 (Pa. Super. 2016). Thus, White’s allegation that
her sentence is excessive due to the revocation court’s failure to consider
relevant sentencing criteria raises a substantial question for our review. See
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)
(en banc) (“[A]rguments that the sentencing court failed to consider the
factors proffered in 42 Pa.C.S. § 9721 does present a substantial question
whereas a statement that the court failed to consider facts of record, though
necessarily encompassing the factors of § 9721 has been rejected.”) As
such, we will address White’s claim on its merits.
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. An abuse of discretion is more than an error in
judgment—a sentencing court has not abused its discretion
unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will.
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Commonwealth v. Simmons, 56 A.3d 1280, 1283-1284 (Pa. Super. 2012)
(citation omitted).
“Upon revocation the sentencing alternatives available to the court
shall be the same as were available at the time of initial sentencing, due
consideration being given to the time spent serving the order of probation.”
42 Pa.C.S.A. § 9771(b). And the revocation court may impose a sentence of
total confinement upon revocation if “the defendant has been convicted of
another crime[.]” Id., at (c)(1). “[T]he trial court is limited only by the
maximum sentence that it could have imposed originally at the time of the
probationary sentence.” Commonwealth v. Infante, 63 A.3d 358, 365 (Pa.
Super. 2013) (citation omitted).
In addition, in all cases where the court resentences an offender
following revocation of probation … the court shall make as a
part of the record, and disclose in open court at the time of
sentencing a statement of the reason or reasons for the
sentence imposed [and] [f]ailure to comply with these provisions
shall be grounds for vacating the sentence or resentence and
resentencing the defendant. 42 Pa.C.S. § 9721(b). A trial court
need not undertake a lengthy discourse for its reasons for
imposing a sentence or specifically reference the statute in
question, but the record as a whole must reflect the sentencing
court’s consideration of the facts of the crime and character of
the offender.
Commonwealth v. Colon, 102 A.3d 1033, 1044 (Pa. Super. 2014), appeal
denied, 109 A.3d 678 (Pa. 2015) (case citations and quotation marks
omitted) (emphasis added). See also 12 West’s Pa. Prac., Law of Probation
& Parole § 16:7 (3d ed.)
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We carefully reviewed the transcript from the revocation proceeding.
Our review reveals that although the revocation court was familiar with
White’s history (the court presided over White’s initial guilty plea) and that
her conviction correctly stood as a basis for total confinement, the court
failed to sufficiently explain the reasons for imposing the sentence of 2 to 4
years’ imprisonment. The only statement the court made following the
imposition of sentence was that “[White] just doesn’t get the idea. She’s
been here for stealing people’s stuff too many times.” N.T., Revocation
Hearing, 5/11/16, at 10.
While the revocation court is not required to undertake a lengthy
discourse prior to imposing sentence, this statement is far too vague to
evaluate whether the court adequately considered any of the criteria set
forth in the Sentencing Code. See Colon, 102 A.3d at 1044. Further, there
is no indication on the record that the revocation court consulted a prior
presentence investigation report. See Commonwealth v. Walls, 926 A.2d
957, 967 n.7 (Pa. 2007) (“[W]here pre-sentence reports exist, we shall
continue to presume that the sentencing judge was aware of the relevant
information regarding the defendant's character and weighed those
considerations along with mitigating statutory factors.”)
In its Rule 1925(a) statement, the revocation court noted that it was
not required to consider White’s rehabilitative needs pursuant to § 9721(b)
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in resentencing her following the probation violation. See Revocation Court
Opinion, 10/24/16, at 4. That is simply not true.
In the very case relied upon by the revocation court to justify its
position, our Supreme Court noted that “42 Pa.C.S. § 9721(b) specifies that
in every case following the revocation of probation, ‘the court shall make as
a part of the record, and disclose in open court at the time of sentencing, a
statement of the reason or reasons for the sentence imposed.’”
Commonwealth v. Pasture, 107 A.3d 21, 28 (Pa. 2014) (additionally
citing Pa.R.Crim.P. 708(C)(2) (indicating at the time of sentencing following
the revocation of probation the sitting judge must state on the record the
reasons for the sentence imposed)). While the revocation court is correct in
observing that Pasture states the revocation court is not “cabined by 42
Pa.C.S. § 9721(b),” 107 A.3d at 27, we have since interpreted this
statement to indicate that the revocation court must not only consider the
factors set forth at 42 Pa.C.S.A. § 9721(b), but also the factors found at 42
Pa.C.S.A. § 9771(c), which are unique to resentencing after probation
revocation.
A panel of this Court explained the meaning of the “cabined” language
as follows:
Thus, we read “the revocation court is not cabined by Section
9721(b)’s requirement,” Pasture, 107 A.3d at 27 (emphasis
added), to be synonymous with, ‘the revocation court is not
confined or restrained solely by Section 9721(b) factors.’
Instead, at a VOP sentencing hearing, additional factors and
concerns are in play. The statute governing the modification or
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revocation of an order of probation discusses these additional
concerns [i.e., 42 Pa.C.S.A. § 9771(c)].
Derry, 150 A.3d at 993-994. The panel concluded, “a VOP sentencing court
must consider those factors [i.e., 42 Pa.C.S.A. § 9721(b)], but must also
consider factors set forth in Section 9771(c), which are unique to VOP
sentences.” Id., at 995 (internal case citation omitted).
The revocation court’s sole justification regarding White’s rehabilitative
needs challenge relied upon the incorrect premise that it was not required to
evaluate the factors under § 9721(b). With no indication on the record that
the revocation court consulted a prior presentence report, considered factors
specified in the Sentencing Code, or considered either the character or
circumstances of the offense for which the court imposed sentence, we are
constrained to vacate the judgment of sentence and remand for
resentencing.
Judgment of sentence vacated. Case remanded for proceedings
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2017
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