Com. v. Graves, H.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
HASSAN GRAVES, : No. 3134 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, July 17, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0003082-2011
BEFORE: BOWES, J., DUBOW, J. AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 07, 2017
Hassan Graves appeals from the judgment of sentence of July 17,
2015, following revocation of his probation. We affirm.
The Honorable Daniel J. Anders has aptly summarized the history of
this case as follows:
On May 23, 2011, [appellant] entered into a
negotiated plea agreement and was sentenced to a
term of time served to 23 months of incarceration
with immediate parole and a consecutive period of
3 years of probation for a conviction for receiving
stolen property [(“RSP”)]. While [appellant] was on
parole, the trial court found him in violation of his
supervision for absconding as well as for violating
terms of his probation and for hostile conduct toward
the probation officer. For this violation, on
October 12, 2012, the trial court sentenced
[appellant] to the balance of the back time of his
incarceration sentence; the 3 years of probation
remained in place.
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On October 15, 2012, the trial court paroled
[appellant] to NET/Frankford, an outpatient
treatment facility. On December 15, 2012,
[appellant] was arrested and charged with
possession with intent to deliver a controlled
substance (“PWID”). This arrest occurred while
[appellant] was on court supervision for the prior
RSP conviction. On May 15, 2014, [appellant] was
found guilty of the PWID Charge by Judge Charles
Ehrlich on docket CP-51-CR-0004794-2013. On
October 10, 2014, Judge Ehrlich sentenced
[appellant] to 3 to 6 years of incarceration.
On July 17, 2015, the trial court conducted a
second VOP [(violation of probation)] hearing for
[appellant]. The trial court revoked [appellant]’s
probation in light of several technical violations as
well as for the direct violation for the PWID
conviction. The trial court sentenced [appellant] to
1.5 to 3 years of incarceration to run consecutive to
the sentence for the 2014 PWID conviction. In
imposing this sentence, the trial court considered the
presentence report prepared for Judge Ehrlich as []
well as [appellant]’s mental health evaluation. Both
reports contain an extensive summary of
[appellant]’s education, employment, family,
physical and mental health, as well as his substance
abuse and prior criminal history.
Trial court opinion, 6/30/16 at 1-2.
Appellant filed a pro se motion for reconsideration of sentence which
was denied on July 28, 2015. On October 6, 2015, appellant filed a
counseled PCRA1 petition seeking reinstatement of his direct appeal rights,
which was granted on October 14, 2015. A nunc pro tunc appeal was filed
on October 16, 2015. On October 19, 2015, appellant was ordered to file a
1
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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concise statement of errors complained of on appeal within 21 days pursuant
to Pa.R.A.P. 1925(b). Appellant failed to comply with the trial court’s
Rule 1925 order; however, on February 1, 2016, Judge Anders filed a
Rule 1925(a) opinion, addressing the likely claims of error on appeal.
On February 10, 2016, appellant filed an application for remand for the
filing of a Rule 1925(b) statement nunc pro tunc, which was granted on
March 3, 2016. Appellant filed a Rule 1925(b) statement nunc pro tunc on
March 21, 2016; and on June 30, 2016, Judge Anders filed a supplemental
Rule 1925(a) opinion.
Appellant has raised the following issue for this court’s review:
Did not the lower court err and abuse its
discretion by sentencing appellant to a manifestly
excessive [VOP] sentence, [1½] to [3] years of
incarceration, where the lower court failed to account
for appellant’s rehabilitative needs or consider the
nature and gravity of the violating offense, and
where such sentence was further excessive because
the court ordered it to run consecutive to appellant’s
sentence of [3] to [6] years[’] incarceration followed
by [5] years of probation in the violating case?
Appellant’s brief at 3.
Challenges to the discretionary aspects of sentencing
do not entitle a petitioner to review as of right.
Commonwealth v. Allen, 24 A.3d 1058, 1064
(Pa.Super. 2011). Before this Court can address
such a discretionary challenge, 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
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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.
Id.
Commonwealth v. Swope, 123 A.3d 333, 337 (Pa.Super. 2015).
Following reinstatement of his appellate rights, appellant filed a timely
nunc pro tunc appeal and preserved his issues in his pro se post-sentence
motion.2 Further, appellant’s brief includes a concise statement of reasons
2
Appellant was sentenced on July 17, 2015, and filed his pro se motion for
reconsideration of sentence on July 28, 2015, one day late. (Docket #8.)
Pa.R.Crim.P. 720(A)(1); Commonwealth v. Magnum, 654 A.2d 1146,
1148 (Pa.Super. 1995) (“A written post-sentence motion to reconsider
sentence must be filed no later than ten days after imposition of sentence.
The failure to do so waives any complaint concerning [the] sentence that
does not involve the lawfulness of the sentence itself.” (citations and internal
quotation marks omitted; footnote omitted)). However, appellant is
incarcerated and so the “prisoner mailbox” rule applies. Commonwealth v.
Jones, 700 A.2d 423, 426 (Pa. 1997) (an appeal by a pro se prisoner is
deemed filed on the date the prisoner deposits the appeal with prison
authorities and/or places it in the prison mailbox). Although appellant did
not provide evidence of an earlier mailing date such as a prisoner cash slip,
one can assume from the date on the post-sentence motion that he placed
the document in the hands of prison officials by the tenth day, July 27,
2015. See Pa.R.A.P. 121(a) (“A pro se filing submitted by a prisoner
incarcerated in a correctional facility is deemed filed as of the date it is
delivered to the prison authorities for purposes of mailing or placed in the
institutional mailbox, as evidenced by a properly executed prisoner cash slip
or other reasonably verifiable evidence of the date that the prisoner
deposited the pro se filing with the prison authorities.”); Commonwealth
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relied upon for allowance of appeal with respect to the discretionary aspects
of his sentence pursuant to Pa.R.A.P. 2119(f). (See appellant’s brief at 12-
14.) We now must determine whether appellant presents a “substantial
question” that the sentence appealed from is not appropriate under the
Sentencing Code. See also Commonwealth v. Cartrette, 83 A.3d 1030
(Pa.Super. 2013) (en banc) (this court’s scope of review in an appeal from
a revocation sentencing includes discretionary sentencing challenges).
An 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.
Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)];
42 Pa.C.S.A. § 9781(b). Specifically, the appellant
must present, as part of the appellate brief, a
concise statement of the reasons relied upon for
allowance of appeal. Malovich, 903 A.2d at 1250;
Pa.R.A.P. 2119(f). In that statement, the appellant
must persuade us there exists a substantial question
that the sentence is inappropriate under the
sentencing code. Malovich, 903 A.2d at 1250;
Pa.R.A.P. 2119(f).
Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.Super. 2008).
In general, an appellant may demonstrate the
existence of a substantial question by advancing a
colorable argument that the sentencing court’s
actions were inconsistent with a specific provision of
v. Patterson, 931 A.2d 710, 714 (Pa.Super. 2007) (noting that even
without a postmark definitively noting the date of mailing, quashal may be
avoided where the date of receipt indicates that appellant likely placed the
notice of appeal in the hands of prison officials before the expiration of
30 days). We conclude that to be received by the clerk on Tuesday,
July 28th, appellant’s post-sentence motion must have been mailed by
Monday, July 27th, and thus preserved his sentencing issues for appeal.
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the sentencing code or violated a fundamental norm
of the sentencing process. Malovich, 903 A.2d at
1252. While this general guideline holds true, we
conduct a case-specific analysis of each appeal to
decide whether the particular issues presented
actually form a substantial question. Id. Thus, we
do not include or exclude any entire class of issues
as being or not being substantial. Id. Instead, we
evaluate each claim based on the particulars of its
own case. Id.
Id. at 289-290.
In his Rule 2119(f) statement, appellant claims that the trial court
failed to adequately weigh the gravity of the offense and appellant’s
rehabilitative needs. (Appellant’s brief at 13.) According to appellant, the
trial court failed to address his rehabilitative needs, including substance
abuse treatment, anger management counseling, literacy classes, and job
training. (Id.) Appellant also complains that the trial court did not discuss
the nature or gravity of appellant’s direct violation, the PWID offense. (Id.)
Appellant argues that by running his VOP sentence consecutively with the
sentence on the new charges, the trial court imposed an unreasonably harsh
aggregate sentence. (Id. at 13-14.)
This court has held that an appellant’s “challenge to the imposition of
his consecutive sentences as unduly excessive, together with his claim that
the court failed to consider his rehabilitative needs and mitigating factors
upon fashioning its sentence, presents a substantial question” for review.
Swope, 123 A.3d at 340. See also Commonwealth v. Baker, 72 A.3d
652, 662 (Pa.Super. 2013), appeal denied, 86 A.3d 231 (Pa. 2014)
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(finding, inter alia, an assertion that the trial court failed to account for the
appellant’s rehabilitative needs was a substantial question suitable for
review); Commonwealth v. Macias, 968 A.2d 773, 776 (Pa.Super. 2009)
(“an averment that the court sentenced based solely on the seriousness of
the offense and failed to consider all relevant factors raises a substantial
question” (citations omitted)). “Additionally, a substantial question that the
sentence was not appropriate under the Sentencing Code may occur even
where a sentence is within the statutory limits.” Commonwealth v.
Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010), appeal denied, 13 A.3d
475 (Pa. 2010), citing Commonwealth v. Titus, 816 A.2d 251 (Pa.Super.
2003). Hence, we will consider the merits of appellant’s sentencing
challenge.
Our standard of review is well-settled:
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.
Swope, 123 A.3d at 340, quoting Commonwealth v. Colon, 102 A.3d
1033, 1043 (Pa.Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015).
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Upon revoking probation, “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.
§ 9771(b). Thus, upon revoking probation, the trial
court is limited only by the maximum sentence that
it could have imposed originally at the time of the
probationary sentence, although once probation has
been revoked, the court shall not impose a sentence
of total confinement unless it finds that:
(1) the defendant has been convicted of
another crime; or
(2) the conduct of the defendant indicates
that it is likely that 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).
Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014). We also note
that the sentencing guidelines do not apply to sentences imposed as the
result of probation revocations. Id. at 27 (citations omitted).
Appellant argues that Judge Anders failed to consider his rehabilitative
needs for drug treatment, psychological counseling, basic education, and job
training, instead deciding to “warehouse” him in state prison. (Appellant’s
brief at 17.) Appellant has two young children and testified that he wants to
further his education and job training to provide for his children. (Id. at 17-
18.) Appellant argues that while in prison, he obtained his GED and
completed parenting classes, as well as other programs, demonstrating his
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amenability to rehabilitation. (Id.) Appellant also expressed remorse for his
actions and apologized for being rude to his probation officer. (Id. at 17.)
According to appellant, there was no indication that Judge Anders considered
any of these factors. (Id. at 18.)
Appellant also complains that Judge Anders failed to consider the
nature or gravity of the direct violation, the PWID offense. (Id.) Appellant
contends that the VOP court did not consider the type of drug involved, the
quantity, whether it was an isolated incident, etc. (Id.) Ultimately,
appellant argues that the 1½ to 3-year sentence, consecutive to his
sentence on the new charges, “shocks the conscience.” (Id. at 19, 22.)
Judge Anders explained that he considered the circumstances of the
PWID offense, as well as appellant’s individual characteristics and
rehabilitative needs:
At the VOP hearing held on July[] 17, 2015,
the trial court considered the presentence report, as
well as a mental health evaluation for [appellant],
both of which contain summaries of the offense and
relevant personal history and characteristics of
[appellant]. The trial court incorporated these
reports as part of the basis for [appellant]’s
sentence. The trial court also considered that this
was [appellant]’s second VOP hearing. Finally, the
trial court personally observed [appellant] during the
VOP hearing as well as at prior hearings.
Trial court opinion, 6/30/16 at 3 (citations to the transcript omitted). The
record reflects that Judge Anders carefully considered appellant’s arguments
in favor of a lesser sentence, as well as those of his attorney, and, in fact,
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rejected the Commonwealth’s recommendation of a consecutive 3 to 6 year
sentence. (Notes of testimony, 7/17/15 at 12.) We also disagree with
appellant’s representation that he “expressed remorse for his behavior by
apologizing for disrespecting his probation officer.” (Appellant’s brief at 17.)
To the contrary, appellant largely defended his actions. (Notes of testimony,
7/17/15 at 13.)3
The trial court also had the benefit of a PSI report. “Our Supreme
Court has ruled that where pre-sentence reports exist, the presumption will
stand that the sentencing judge was both aware of and appropriately
weighed all relevant information contained therein.” Commonwealth v.
Griffin, 804 A.2d 1, 8 (Pa.Super. 2002), appeal denied, 868 A.2d 1198
(Pa. 2005), cert. denied, 545 U.S. 1148 (2005), citing Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa. 1988). Appellant’s sentence of 1½ to 3 years’
incarceration was not manifestly excessive, and Judge Anders was free to
impose the sentence consecutively to Judge Ehrlich’s sentence on the PWID
3
I had my family right here with me. That’s when my
PO sat there and said that I was allegedly
disrespectful on the phone and I wasn't. If I'm
arguing or talking to somebody on my phone and
you call my phone I could have been arguing with
that person about the football game. He called my
phone, I didn't know who he was at that time. I
can't lie and say I didn't hang up on her. I did. I
told her, all right, and I hung up on her. I ain’t
going to lie and say I didn't, I did. Maybe I was
rude, I was rude and I apologize for that.
Notes of testimony, 7/17/15 at 13.
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charge. Commonwealth v. Perry, 883 A.2d 599, 603 (Pa.Super. 2005)
(“In imposing a sentence, the trial judge may determine whether, given the
facts of a particular case, a sentence should run consecutive to or concurrent
with another sentence being imposed.” (citations omitted)). Appellant was
not entitled to a “volume discount” for his crimes. Swope, 123 A.3d at 341,
citing Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, 598
(Pa.Super. 2010). Certainly, appellant’s sentence does not shock the judicial
conscience.4 We can discern no abuse of discretion in the trial court’s
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2017
4
In fact, appellant’s revocation sentence of 1½ to 3 years was within the
standard range of the sentencing guidelines, had they applied. (Trial court
opinion, 6/30/16 at 3 n.2; notes of testimony, 7/17/15 at 14.)
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