Com. v. Reeder, S.

J. S64039/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
SETH ALAN REEDER, :
:
Appellant : No. 204 MDA 2015
Appeal from the Judgment of Sentence December 31, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division No(s).: CP-41-CR-0001376-2012
CP-41-CR-0001377-2012
BEFORE: FORD ELLIOTT, P.J.E., WECHT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 09, 2015
Appellant, Seth Alan Reeder, appeals from the judgment of sentence
entered in the Lycoming County Court of Common Pleas following the trial
court’s revocation of his intermediate punishment program (“IPP”) sentence.
He challenges the discretionary aspects of his sentence. We affirm.
We adopt the facts and procedural history of this case as set forth by
the trial court’s opinion. See Trial Ct. Op., 5/18/15, at 1-4. Appellant filed
a timely notice of appeal.1 Appellant filed a court-ordered Pa.R.A.P. 1925(b)
*
Former Justice specially assigned to the Superior Court.
1
“An appellant whose revocation of probation sentence has been imposed
after a revocation proceeding has 30 days to appeal [the] sentence from the
day [the] sentence is entered, regardless of whether or not [he or] she files
a post-sentence motion.” Commonwealth v. Parlante, 823 A.2d 927, 929
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statement of errors complained of on appeal2 and the trial court filed a
responsive opinion.3 Appellant raises the following issue on appeal:
“Whether the trial court abused its discretion in imposing a sentence of one
and one-half (11/2) years to five (5) years as a result of an [sic] County
[IPP] Violation?”4 Appellant’s Brief at 6.
(Pa. Super. 2003) (citing, inter alia, Pa.R.Crim.P. 708D)). In the case sub
judice, Appellant was re-sentenced on December 21, 2014. He filed his
notice of appeal on January 29, 2015.
2
We note that the trial court entered an order on February 5, 2015,
directing Appellant to file and serve his Pa.R.A.P. 1925(b) statement “within
twenty-one (21) days of the date hereof.” Order, 2/5/15. Appellant filed his
Rule 1925(b) statement on March 13, 2015. We need not find the late filing
results in waiver. In Commonwealth v. Veon, 109 A.3d 754 (Pa. Super.),
appeal granted on other grounds, 121 A.3d 954, 955 (Pa. Aug. 20, 2015),
this Court addressed the issue of an untimely Rule 1925(b) statement.
First, the trial court maintains that [the defendant] has
waived all of his issues on appeal by failing to file a timely
statement of matters complained of on appeal pursuant to
Rule 1925(b) of our Rules of Appellate Procedure. Waiver
is no longer the remedy under such situations.
Where the trial court does not address the issues raised in
an untimely 1925(b) statement, we remand to allow the
trial court an opportunity to do so. On the other hand,
where, as here, the trial court has addressed the issues
raised in an untimely Rule 1925(b) statement, we need not
remand and may address the issues on their merits.
Id. at 762 (citations omitted and emphasis added).
3
The Commonwealth did not file a brief in the instant case.
4
We note that the principles which apply to revocation of probation apply to
revocation of an IPP sentence. In Commonwealth v. Philipp, 709 A.2d
920 (Pa. Super. 1998), this Court opined:
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Appellant argues “that the trial court abused its discretion in imposing
sentence because of the nature of Appellant’s violations, the lack of a new
criminal conviction, the availability of less restrictive sanctions, and because
the sentence is excessive to vindicate the authority of the court.”
Appellant’s Brief at 12. Appellant avers that his supervision violations of the
IPP, viz., “his absconding status and his use of marijuana” and “the nature
of his original crime” should not have resulted in a sentence of total
confinement under 42 Pa.C.S. § 9771(c). Id. at 12-13.
Appellant challenges the discretionary aspect of his sentence. This
Court has stated,
discretionary aspects of . . . sentence . . . are not
appealable as of right. Rather, an appellant challenging
the sentencing court’s discretion 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,
[A] Sentence of Intermediate Punishment[ ] may be
revoked where the specific conditions of the sentence have
been violated. “Upon revocation, the sentencing
alternatives available to the court shall be the same as the
alternatives available at the time of initial sentencing.” 42
Pa.C.S. § 9773, Modification or revocation of intermediate
punishment sentence, (b) Revocation. This rule of re-
sentencing is analogous to that set forth for re-sentencing
following revocation of probation.
Id. at 921 (emphases omitted).
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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. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some
citations omitted).
Instantly, Appellant timely appealed, preserved his issue in his post
sentence motion, and included a Pa.R.A.P. 2119(f) statement in his brief.
Accordingly, we ascertain whether Appellant has raised a substantial
question. See id.“A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013)
(quotation marks and citation omitted), appeal denied, 91 A.3d 161 (Pa.
2014). “[I]f a defendant believes the record is devoid of evidence
supporting total confinement under § 9771(c), he must preserve that
argument as a challenge to the discretionary aspects of the sentence.”
Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa. Super. 2012). “An
argument that the trial court imposed an excessive sentence to technical
probation violations raises a substantial question.” Id. (citing
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010).
Appellant sufficiently alleges his sentence is disproportionate to the
technical nature of his IPP violations and conflicts with Section 9771(c). We
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therefore find Appellant has raised a substantial question. See Dodge, 77
A.3d at 1268; Schutzues, 54 A.3d at 98.
Our standard of review is as follows:
Sentencing is a matter vested in the sound
discretion of the sentencing judge, and a sentence
will not be disturbed on appeal absent a manifest
abuse of discretion. An abuse of discretion is more
than just an error in judgment and, on appeal, the
trial court will not be found to 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.
More specifically, 42 Pa.C.S.A. § 9721(b) offers the
following guidance to the trial court’s sentencing
determination:
[T]he sentence imposed should call for
confinement that is consistent with the protection
of the public, the gravity of the offense as it
relates to the impact on the life of the victim and
on the community, and the rehabilitative needs of
the defendant.
Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa. Super. 2012) (some
citations omitted). “[W]hen a defendant is found in violation of his
probation, upon revocation the sentencing alternatives available to the court
shall be the same as were available at the time of initial sentencing . . . .”
Schutzues, 54 A.3d at 98-99.
Under 42 Pa.C.S. § 9771(c), a court may sentence a
defendant to total confinement subsequent to revocation of
probation if any of the following conditions exist:
1. the defendant has been convicted of another
crime; or
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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 this court.
Crump, 995 A.2d at 1282-83. This court has declined to find an abuse of
discretion when “continued drug use, combined with [the defendant’s]
resistance to treatment and supervision, [was] enough to make a
determination that, unless incarcerated, appellant would in all likelihood
commit another crime.” Commonwealth v. Cappellini, 690 A.2d 1220,
1225 (Pa. Super. 1997).
After careful consideration of the record, Appellant’s brief, and the
well-reasoned decision of the Honorable Marc F. Lovecchio, we affirm on the
basis of the trial court’s opinion. See Trial Ct. Op. at 5-7 (holding (1)
Appellant is likely to commit another crime if not confined; and (2) due to
substance abuse, personality disorders, and refusal to report to supervising
officer “alternatives to incarceration cannot work.”) Accordingly, having
discerned no abuse of discretion, we affirm the judgment of sentence. See
Bricker, 41 A.3d at 875.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2015
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IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA
COMMONWEALTH No. CP-41-CR-1376-2012;
I
CP-41-CR-1377-2012
vs.
SETH REEDER,
Appellant 1925(a) Opinion
OPINION IN SUPPORT OF ORDER IN
COMPLIANCE WITH RULE 1925(a) OF ·;__i
THE RULES OF APPELLATE PROCEDURE
{',)
This opinion is written in support of this court's order dated DecemberTl ,
2014, in which the court revoked Seth Reeder's intermediate punishment and re-sentenced
him to undergo 1 Yi to S years' incarceration in a state correctional institution, and its order
dated January 12, 2015, in which the court summarily denied Appellant's motion for
reconsideration. The relevant facts follow.
Under Information 1376-2012, Reeder was charged with theft of property lost,
mislaid or delivered and receiving stolen property, both misdemeanors of the second degree.
Under Information 1377-2012, Reeder was charged with criminal trespass, a felony of the
third degree; theft by unlawful taking, a felony of the third degree; receiving stolen property,
a felony of the third degree; theft from a motor vehicle, a misdemeanor of the first degree;
and corruption of minors, a misdemeanor of the first degree.
On October 24, 2012, Reeder pleaded guilty to Count 1, theft of property lost,
mislaid or delivered under lnfonnation 1376-2012 and Count 4, theft from a motor vehicle
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under Information 1377-2012, as well as three additional charges under two other cases. The
Honorable Nancy L. Butts imposed an aggregate sentence of 36 months supervision under the
intermediate punishment program, which included 6 months on each of the theft offenses. A
condition of supervision was that Reeder complete Drug Court.
Reeder did not do very well in Drug Court or on supervision in general. On
January 9, 2013, he received a sanction of25 additional hours of conununity service for
missing a follow-up appointment with West Branch Drug and Alcohol Conunission. On
March 20, 2013, the Honorable Nancy Butts imposed a sanction of 48 hours of incarceration
at the Lycoming County Prison because he missed his counseling appointment at Crossroads
on March 13, 2013.
On June 26, 2013, Judge Butts found that Reeder was terminated from the job
search program, which would directly interfere with his funding for treatment. She imposed
a sanction of 25 hours of community service and directed Reeder to get back in the job search
program by whatever means possible so he wouldn't lose his funding.
In January 2014, Appellant lost his address at the American Rescue Workers.
It was also alleged that he may have stolen some items from the American Rescue Workers.
A preliminary violation hearing was held and he was sent for a 60-day diagnostic evaluation.
On April 29, 2104, at the final violation hearing, Reeder admitted violating his intermediate
punishment sentence.
The Honorable Dudley Anderson revoked Reeder's original intermediate
punishment sentences. Under 1376-2012, Judge Anderson re-sentenced Reeder to 24 months
of supervision under the intermediate punishment program with the first 9 months and 21
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days to be served at the Lycoming County Prison/Pre-Release Center for theft of property lost
or mislaid. On theft from a motor vehicle, under 1377-2012, Judge Anderson imposed a
sentence of 18 to 36 months of incarceration in a state correctional institution but suspended
it upon the condition that Reeder successfully complete the supervision under 1376-2012.
With credit for time served, Reeder was released from incarceration in May 2014.
Unfortunately, Reeder stopped reporting to his probation officer in September.
He failed to report on September 22, 2014; October 6, 2014; October 20, 2014; November 3,
2014; and November 6, 2014. As a result, a bench warrant was issued for his arrest.
Reeder was apprehended on December 19, 2014. At that time, he admitted
smoking marijuana on a series of occasions. It was also alleged that he was verbally abusive
and failed to comply with the directives of adult probation officers and other law enforcement
personnel when he was apprehended.
At his violation hearing on December 31, 2014, Reeder admitted that he
absconded from September forward and that he used marijuana after he had been released in
May. The court revoked his intermediate punishment and sentenced him to 1 Yz to 5 years'
incarceration for theft from a motor vehicle under 1377-2012 and a concurrent 1 to 2 years'
incarceration for the theft under 1376-2012.
On January 8, 2015, Reeder filed a motion for reconsideration, in which he
asserted that Lycoming County had alternative resources available to treat his alleged mental
health issues that would not require him to serve a period of state incarceration and full
incarceration, as opposed to a new intermediate punishment program at the county level, was
excessive when he had not committed any new offense. The court summarily denied the
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motion for reconsideration on January 12, 2015.
Reeder filed a timely notice of appeal. The sole issue asserted on appeal is
that the court abused its discretion when imposing a re-sentence of total confinement in a
state correctional institution for technical probation violations in light of Reeder' s mental
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health condition and needs, his acceptance of responsibility, and the fact that he had not
committed a new criminal offense as argued by defense counsel at the time of the violation
hearing.
A sentence will not be reversed on appeal unless the sentencing court abused
its 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."' Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 961 (2007), quoting
Commonwealth v, Smith, 543 Pa 566, 673 A.2d 893, 895 (1996).
An intermediate punislunent sentence may be revoked when a defendant
violates the specific conditions of the sentence. Commonwealth v. Philipp, 709 A.2d 920,
921 (Pa. Super. 1998). Revocation and re-sentencing following a violation of an intermediate
punishment sentence is analogous to revocation and re-sentencing for a probation violation;
the sentencing court possesses all the sentencing alternatives it had at the time of the initial
sentencing, but the sentencing guidelines do not apply. Id. Thus, the court is limited only by
the maximum sentence that it could have imposed originally at the time of the intermediate
punishment sentence. See Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014).
A sentence of total confinement was one of the alternatives available to the
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court at the time of the initial sentencing. 42 Pa.C.S.A. §9721(a)(4). The maximum sentence
the court could have imposed was a sentence of2 Y2 to 5 years for the theft under 1377-2012
and a sentence of 1 to 2 years for the theft under 1376-2012. The court had the discretion to
impose them consecutively or concurrently. 42 Pa.C.S.A. §972l(a). The court imposed a
sentence of 1 Y2 to 5 years of incarceration under 1377-2012 and a concurrent sentence of 1 to
2 years under 1376-2012.
Reeder contends that the court should not have imposed a sentence of total
confinement because he has mental health issues, he accepted responsibility and he was not
charged with any new criminal offenses. Generally, intermediate punishment and probation
have been treated similarly. Upon revocation of a sentence of probation, the court can only
impose a sentence of total confinement if "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.A. §9771(c).
The evidence presented at the violation hearing showed that it is likely Reeder
will commit another crime if he is not confined. According to the report from his 60-day
evaluation in March 2014, his primary mental health diagnosis is poly-substance abuse that is
in forced remission. He also has Axis II personality disorders that affect his ability to control
his behaviors and impulses. N.T., at 10. Unfortunately, with his substance abuse and
personality disorders, Reeder seems to be in a cycle that is only broken when he is
incarcerated. While incarcerated, Reeder was taking his medications as prescribed. After he
was released, he thought he was going to be alright without taking his prescribed
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medications. He stopped taking his medications, absconded from supervision, and "self-
medicated" with illegal drugs. N.T., at 5, 9. To self-medicate with illegal drugs, Reeder had
to possess them. Possession of a controlled substance is a crime. 35 P .S. §780-113.
Defense counsel advocated for an involuntary mental health commitment. The
court did not view this as a viable long-term solution. To be involuntarily committed an
individual must pose a clear and present danger of harm to himself or others. There also are
strict time limits for the duration of any involuntary commitment. Once an individual no
longer poses a clear and present danger of harm to himself or others, he must be released.
There would be no mechanism to ensure that Reeder would continue to take his medications
after his release, and he could not be recommitted until he deteriorated to the point where he
again became a danger to himself or others. The court did not want to expose Reeder or the
public to that type of risk of harm.
In a state correctional facility, Reeder will be able to receive mental health
medications and treatment. Once he is paroled, however, he will be subject to supervision
and could be randomly drug tested to ensure that he is not self-medicating.
The court does not take pleasure in sending people to state prison, especially
individuals who have mental health issues. However, Lycoming County judges and members
of the probation office have tried to help Reeder through Drug Court and intermediate
punishment programs. They also have tried escalating sanctions for his violations. Those
efforts have not been successful. Sadly, the court is convinced that continuing with those
efforts in this case would have been an exercise in futility. Moreover, the alternatives to
incarceration cannot work when Reeder fails or refuses to report to his supervising officer as
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directed.
DA TE: _~_,..._I_S--_.....1-D_~_ By The Court,
Marc F. Lovecchio, Judge
cc: District Attorney
Robert Cronin, Esquire (APD)
Work file
Gary Weber, Esquire (Lycoming Reporter)
Superior Court (original & 1)
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