Com. v. Manning-Ruffin, D.

J-A24019-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DEONTA MANNING-RUFFIN
Appellant No. 2835 EDA 2014
Appeal from the Judgment of Sentence of September 4, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0012734-2013
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED DECEMBER 02, 2015
On September 4, 2014, the trial court in this case sentenced Deonta
Manning-Ruffin to one and one-half to three years of total confinement after
the court determined that he had violated the terms and conditions of his
house arrest and probation. Manning-Ruffin appeals that judgment of
sentence. We hold that the trial court considered an impermissible factor in
imposing Manning-Ruffin’s sentence. We vacate the judgment of sentence,
and we remand this case for resentencing.
On March 27, 2014, following a bench trial, Manning-Ruffin was
convicted of burglary, criminal trespass, and criminal mischief.1 The trial
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 3502, 3503, and 3304, respectively.
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court briefly summarized the facts underlying Manning-Ruffin’s convictions
as follows:
The evidence adduced at trial proved that [Manning-Ruffin] pried
open the outer door of a CVS and was in an inner vestibule,
preparing to break the second barrier to enter the store. The
outer set of doors had been pried open. He told the first officer
on the scene that he was breaking into the store to destroy
things inside because [] he was angry at being “disrespected”
there earlier.
Trial Court Opinion (“T.C.O.”), 2/4/2015, at 2 (references to notes of
testimony omitted).
On May 30, 2014, Manning-Ruffin appeared before the trial court for
sentencing. During the sentencing hearing, the trial court learned that,
between the conviction and sentencing, Manning-Ruffin had been convicted
of an unrelated firearm offense. The trial court noted that “[t]he
circumstances of the offense were disturbing, involving [Manning-Ruffin]
brandishing a firearm with an obliterated serial number during a
confrontation at the home of his brother’s ex-girlfriend.” Id. On the
burglary conviction, the trial court sentenced Manning-Ruffin to six to
twenty-three months of house arrest with electronic monitoring. The trial
court ordered Manning-Ruffin to be released from house arrest and
transferred to an inpatient treatment facility when a space for him became
available at a facility. For criminal trespass, the trial court sentenced
Manning-Ruffin to six to twenty-three months of house arrest, concurrent
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with the burglary sentence, to be followed by two years of probation. The
court imposed no further penalty for criminal mischief.
On September 4, 2014, Manning-Ruffin appeared before the trial court
to face allegations that he had violated the terms of his probation. The trial
court summarized the evidence presented at the hearing as follows:
Evidence at the violation hearing on September 4, 2014,
demonstrated that [] Manning-Ruffin violated the conditions of
his sentence of house arrest by leaving his residence on two
occasions without authorization. On August 6, 2014, he left his
residence at 12:08 a.m. and did not return until 12:27 a.m. He
was given a warning at this time. Later that day he called and
explained the circumstances to his probation officer, who
decided to give him another chance, but warned him that
another house arrest violation would result in his being detained.
On August 19, 2014, Manning-Ruffin again went out of his
residence without permission. He left at 11:27 p.m. and did not
return until ten minutes later at 11:37 p.m. As a result, he was
detained by the warrant unit and his probation officer lodged a
detainer against him.
Manning-Ruffin presented testimony from his girlfriend that the
alarm went off on August 19th without explanation, while
Manning-Ruffin was in the shower, and when the monitor called,
[that] is what they were told. Manning-Ruffin also testified that
he did not leave on August 19th, but was in the shower when the
alarm went off.
There were no reports of any malfunction with the house arrest
device.
T.C.O. at 2-3.
At the conclusion of the hearing, the trial court determined that
Manning-Ruffin had violated the conditions of probation, and re-sentenced
him to one and one-half to three years’ incarceration. The trial court also
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imposed a consecutive three-year term of probation. The court ordered the
aggregate sentence to run consecutively to any other sentences that he was
serving at the time.
On September 12, 2014, Manning-Ruffin filed a motion for
reconsideration of his sentence. The trial court denied the motion three
days later. On October 3, 2014, Manning-Ruffin filed a notice of appeal,
which prompted the trial court to order Manning-Ruffin to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On November 19, 2014, Manning-Ruffin timely complied. Finally, on
February 4, 2015, the trial court issued an opinion pursuant to Pa.R.A.P.
1925(a).
Manning-Ruffin raises the following three issues for our consideration:
1. Did not the trial court violate 42 Pa.C.S. § 9771(d) by
revoking [Manning-Ruffin’s] probation based on a crime [that
Manning-Ruffin] was convicted of before he was originally
sentenced and placed on probation?
2. Did not the trial court violate 42 Pa.C.S. § 9771(c) when it
imposed a sentence of total confinement for minor technical
violations of probation?
3. Did not the trial court abuse its discretion and fail to give
individualized consideration to [Manning-Ruffin] when it
sentenced him to the manifestly disproportionate and
excessive term of [one and one-half to three] years of
incarceration followed by a new period of [three] probation
years, to be served consecutively to another sentence, for
minor technical violations?
Brief for Manning-Ruffin at 4.
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In his first issue, Manning-Ruffin maintains that the trial court
erroneously revoked his probation by relying primarily upon his prior firearm
conviction, of which the court was aware at the time of Manning-Ruffin’s
original sentencing, and not upon his two minor technical violations.
Manning-Ruffin contends that reliance upon the prior conviction constituted
an invalid reason for probation revocation, because the prior conviction
occurred before he was sentenced and placed on probation in the case sub
judice.
In an appeal from a sentence imposed following the revocation of
probation, our standard of review 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. § 9771(b); see also
Commonwealth v. Gheen, 688 A.2d 1206, 1207 (Pa. Super.
1997) (the scope of review in an appeal following a sentence
imposed after probation revocation is limited to the validity of
the revocation proceedings and the legality of the judgment of
sentence). 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. Id. 1207-1208; accord
Commonwealth v. Ware, 737 A.2d 251, 254 (Pa. Super.
1999).
Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000) (citations
modified).
“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
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discretion.” Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super.
2007). “When assessing whether to revoke probation, the trial court must
balance the interests of society in preventing future criminal conduct by the
defendant against the possibility of rehabilitating the defendant outside of
prison. In order to uphold a revocation of probation, the Commonwealth
must show by a preponderance of the evidence that a defendant violated his
probation.” Commonwealth v. Allshouse, 33 A.3d 31, 37 (Pa. Super.
2011) (quotations and citations omitted). “[T]he reason for revocation of
probation need not necessarily be the commission or conviction for
subsequent criminal conduct. Rather, this Court has repeatedly
acknowledged the very broad standard that sentencing courts must use in
determining whether probation has been violated[.]” Commonwealth v.
Ortega, 995 A.2d 879, 886 (Pa. Super. 2010) (citations and internal
quotations omitted). “A probation violation is established whenever it is
shown that the conduct of the probationer indicates the probation has
proven to have been an ineffective vehicle to accomplish rehabilitation and
not sufficient to deter against future antisocial conduct.” Id.
As indicated above, Manning-Ruffin maintains that his behavior “before
he was placed on probation was not just a factor in the trial court’s decision
to revoke probation, it was the primary factor in the trial court’s decision to
revoke.” Brief for Manning-Ruffin at 13 (emphasis in original). Pursuant to
42 Pa.C.S. § 9771(d), which states that “the court shall consider the record
of the sentencing proceeding together with evidence of the conduct of the
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defendant while on probation,” a trial court is restrained from considering
facts that occurred before the original imposition of probation when
determining whether to revoke a person’s probation. Commonwealth v.
Carver, 923 A.2d 495, 497 (Pa. Super. 2007). Thus, if Manning-Ruffin is
correct that the trial court relied upon his firearm conviction, which
undoubtedly occurred before he was placed on probation, he would be
entitled to relief. However, despite Manning-Ruffin’s insistence to the
contrary, the record does not support his argument. It is true that, at the
violation hearing, the trial court stated the following:
You know what I was concerned about when I imposed
sentence? That you would be a danger to the community. And
at that point, you had an open gun case, right?
Before sentencing—shortly before sentencing, you got convicted
of that case, and your lawyer at that time, not this lady, stood
here and told me, I don’t know why, but he told me all about
how you got that conviction, all about it. And it was very, very,
disturbing. All right. But, I wasn’t going to try and go back in
time and [undo] that. But here you are doing it to yourself. All
right.
Notes of Testimony, 9/4/2014, at 13. Nevertheless, this was the only
reference that the trial court made regarding the prior firearm conviction,
and the statement occurred immediately before imposition of sentence. The
court’s statement was not made in contemplation of whether Manning-Ruffin
actually had violated his probation.
The trial court confirmed that it considered the prior conviction only as
a factor in determining a suitable sentence for Manning-Ruffin in its Rule
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1925(a) opinion. The court, relying upon 42 Pa.C.S. § 9771(d), explained
the basis for its sentence as follows:
Here, the gun conviction and the circumstances of that crime,
which were discussed at sentencing, along with the
circumstances for the instant conviction, the absconding
incidents, and [Manning-Ruffin’s] denial of the second violation
of his in-home detention, were all factors considered in
determining an appropriate sentence.
T.C.O. at 4.2
Even if the court considered the prior conviction for purposes of
determining whether Manning-Ruffin had violated his probation, the record is
clear that the court did not utilize the conviction as the “primary” factor, as
Manning-Ruffin insists. Manning-Ruffin twice left his residence when he was
not permitted to do so. Manning-Ruffin’s probation officer elected to warn
him after the first violation. Manning-Ruffin did not heed the warning, and
left the residence a second time. The trial court relied upon these two
violations as the bases for finding Manning-Ruffin in violation of his
probation, as is evidenced by the court’s remarks that “you are doing it to
yourself.” Id.
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2
We address the trial court’s consideration of the conviction for
sentencing purposes in our discussion of Manning-Ruffin’s second issue. We
cite this portion of the trial court’s opinion here only to demonstrate that the
court considered the prior conviction as part of the sentencing decision, and
not as a factor in determining whether Manning-Ruffin had violated his
probation.
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In its Rule 1925(a) opinion, the trial court explained that it concluded
that the Commonwealth had proven a probation violation because “the
evidence clearly demonstrated that [Manning-Ruffin] had not once, but
twice, violated the terms of his home detention by leaving the premises.”
T.C.O. at 3. The court continued, “[i]ndeed, despite a warning and a
decision by his probation officer not to proceed on a violation at the time of
the first absconding incident, less than two weeks later, [Manning-Ruffin]
again absconded from his in-home detention.” Id. at 3-4. Thus, the trial
court concluded that Manning-Ruffin’s inability to comply with the terms of
his house arrest rendered probation to be “an ineffective vehicle to
accomplish rehabilitation and not sufficient to deter against future antisocial
conduct.” Ortega, supra. The record simply does not support Manning-
Ruffin’s claim that the decision was based upon his prior conviction.
In his second issue, Manning-Ruffin contends that the trial court erred
by imposing a sentence of total confinement based only upon Manning-
Ruffin’s technical violations. Despite the manner in which Manning-Ruffin
frames his issue, the crux of his argument that the trial court based the
sentence of total confinement upon Manning-Ruffin’s firearm conviction,
which occurred prior to Manning-Ruffin being placed on probation. We agree
with Manning-Ruffin.
Initially, we note that Manning-Ruffin’s claim is a challenge to the
discretionary aspects of his sentence. See Commonwealth v. McAfee,
849 A.2d 270, 274 (Pa. Super. 2004) (stating that a claim that the trial
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court erred in imposing a sentence of total confinement upon revocation of
probation is a challenge to the discretionary aspects of one’s sentence).
Two requirements must be met before we will review this
challenge on its merits. First, an appellant must set forth in his
brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence [pursuant to Pa.R.A.P. 2119(f)]. Second, the appellant
must show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code. The
determination of whether a particular issue raises a substantial
question is to be evaluated on a case-by-case basis. In order to
establish a substantial question, the appellant must show actions
by the trial court inconsistent with the Sentencing Code or
contrary to the fundamental norms underlying the sentencing
process.
Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006)
(citations omitted).3 In his brief, Manning-Ruffin has presented a Rule
2119(f) statement of reasons for allowance of appeal in which he argues
that the court erred in its application of section 9771 in that his sentence of
total confinement was manifestly excessive and based upon an
impermissible factor. Brief for Manning-Ruffin at 9. Manning-Ruffin has
raised a substantial question. Commonwealth v. Dodge, 77 A.3d 1263,
1273 (Pa. Super. 2013) (recognizing that a sentencing court’s reliance upon
an impermissible factor raises a substantial question).
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3
Manning-Ruffin has preserved this issue by filing timely post-sentence
motions and a notice of appeal.
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Having determined that Manning-Ruffin has raised a substantial
question, we proceed to the merits of his claim. 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 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.
Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014)
(quoting Commonwealth v. Simmons, 56 A.3d 1280, 1283-84 (Pa. Super.
2012)).
Pursuant to section 9711, a sentencing court “shall not impose a
sentence of total confinement upon revocation [of probation] 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. § 9711(c). However, before any sentence of probation may be
revoked or increased, subsection 9771(d) mandates that “the court shall
consider the record of the sentencing proceeding together with evidence of
the conduct of the defendant while on probation.” 42 Pa.C.S. § 9771(d). As
noted above, in Carver, we explicitly held that subsection 9771(d) “clearly
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restrains the court from considering facts occurring prior to the imposition of
probation when revoking probation.” 932 A.2d at 497. By the terms of the
subsection, the same must hold true when the court increases a violator’s
sentence.
In this case, the trial court admitted that it had considered the prior
firearm conviction when imposing the post-revocation sentence. See T.C.O.
at 4. This conduct occurred before Manning-Ruffin was placed on probation,
and, pursuant to Carver, constituted an impermissible factor for
consideration. We noted the following in Carver:
It is important to remember that probation is designed to
rehabilitate a defendant so that he can become a productive
member of society; thus, probation promotes the interests of the
public as well as the defendant. See Commonwealth v. Del
Conte, 419 A.2d 780 (Pa. Super. 1980). It therefore is
inappropriate to consider the defendant’s conduct prior to
imposition of the probationary term because the efficacy of
probation has not yet been tested when that behavior occurred.
Carver, 923 A.2d at 497. The trial court’s decision to consider an
impermissible factor in sentencing Manning-Ruffin violated the plain terms of
subsection 9771(d), and was manifestly unreasonable. The court abused its
discretion by sentencing Manning-Ruffin to total confinement based at least
in significant part on behavior that occurred prior to his being placed on
probation. For this reason, we vacate the judgment of sentence, and we
remand for a new sentencing proceeding. In light of our disposition, we
need not consider Manning-Ruffin’s final issue.
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Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judge Panella joins the memorandum.
Judge Strassburger files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2015
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