Com. v. Willig, D., Sr.

J-S81031-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
DAVID NORMAN WILLIG, SR.,
Appellant No. 1098 MDA 2017
Appeal from the Judgment of Sentence June 12, 2017
in the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0001138-2014
BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED APRIL 24, 2018
Appellant, David Norman Willig, Sr., appeals from the judgment of
sentence entered on June 12, 2017, following the revocation of his probation.
On appeal, Appellant contends that the evidence was insufficient to sustain
the revocation of probation and challenges the discretionary aspects of his
sentence. For the reasons discussed below, we affirm.
We take the underlying facts and procedural history in this matter from
the trial court’s September 5, 2017 opinion and our independent review of the
certified record.
On July 11, 2014, Appellant was sentenced to three years
of probation after pleading guilty to a first degree misdemeanor
charge of [b]ad [c]hecks, 18 Pa.C.S.A. [§] 4105(a)(1). Although
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* Retired Senior Judge assigned to the Superior Court.
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Appellant made a $2,000.00 or $3,000.00 restitution payment to
the victim prior to sentencing, he still owed $11,065.25. The
sentence order directed Appellant to pay this restitution balance
in monthly installments of $200.00 until satisfying the total
amount.
On March 20, 2017, a Gagnon I hearing was held due to
Appellant’s failure to pay on fines and costs. At the hearing, it
was learned that Appellant had made payments of only $105.00
toward the restitution due and no payments toward costs. A
Gagnon II hearing was scheduled on the charge of failure to pay
on fines, costs, and restitution as directed. After two
continuances, the hearing was held on June 12, 2017.
Appellant did not contest the fact that he did not make his
restitution payments as ordered. He argued that he did not
willfully violate the sentence order; rather, he was unable to pay.
He offered a letter from his doctor setting forth a number of
medical conditions that he claimed made him unable to work, but
yet, he also testified to working odd jobs. He offered a set of bills
for utilities and rent that appeared to be current and not in
arrears. He acknowledged that he smokes cigarettes, perhaps a
pack or pack and a half per week; however, the [trial c]ourt did
not find the amount of smoking to be credible. Appellant averred
that his only income is public assistance—medical and food
stamps, no cash—and sporadic child support from his ex-wife. He
has full custody of his 13- and 14-year-old children, and he has
temporary custody of and supports four unrelated children aged
11, 15, 16, and 18.
The [trial c]ourt found that while Appellant might not have
been purposely avoiding his obligation to pay restitution and
costs, he was certainly making conscious choices to spend his
money in a way that left nothing for his victim. [It] revoked
Appellant’s probation and resentenced him to another three years
of probation. The [trial c]ourt also ordered Appellant to pay
$100.00 per month, instead of the previously ordered $200.00 per
month, toward restitution and waived the $40.00 per month
supervisory fee. Rather than allowing the matter to continue to
languish, a status hearing was scheduled for November 7, 2017[,]
to review Appellant’s compliance or lack thereof.
Appellant filed a [p]ost-[s]entence [m]otion for
reconsideration on June 22, 2017, which the [trial c]ourt denied.
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On July 11, 2017, Appellant filed a [n]otice of [a]ppeal. By [o]rder
dated July 25, 2017, the [trial c]ourt ordered Appellant to file a
concise statement of errors complained of on appeal. [See
Pa.R.A.P. 1925(b)]. Appellant filed a [c]oncise [s]tatement on
August 11, 2017, complaining that the [trial c]ourt abused its
discretion in revoking Appellant’s probation without finding that
Appellant’s failure to pay restitution was willful and in imposing an
additional three years of probation because the sentence violates
the standard norms of the sentencing guidelines. [On September
5, 2017, the trial court filed an opinion. See Pa.R.A.P. 1925(a).]
(Trial Court Opinion, 9/05/17, at 1-3).
On appeal, Appellant raises the following questions for our review.
A. Whether the [trial] court abused its discretion in revoking
[Appellant’s] probation based solely on his inability to pay
costs, fees, and restitution, without finding that his failure to
pay was willful[?]
B. Whether the [trial] court abused its discretion in imposing an
additional three years of probation revocation for a technical
violation, because the sentence violates the standard norms of
the sentencing guidelines[?]
(Appellant’s Brief, at 4).
Appellant first contends that the trial court abused its discretion in
revoking Appellant’s probation for failure to pay without first making a finding
that his failure to pay was willful. (See id. at 14-17). We disagree.
The procedures for revoking probation and the rights
afforded to a probationer during revocation proceedings are well
settled:
[w]hen a parolee or probationer is detained
pending a revocation hearing, due process requires a
determination at a pre-revocation hearing, a Gagnon
I hearing, that probable cause exists to believe that a
violation has been committed. Where a finding of
probable cause is made, a second, more
comprehensive hearing, a Gagnon II hearing, is
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required before a final revocation decision can be
made.
The Gagnon II hearing entails two decisions:
first, a “consideration of whether the facts determined
warrant revocation.” Morrissey v. Brewer, 408 U.S.
471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). “The first
step in a Gagnon II revocation decision . . . involves
a wholly retrospective factual question: whether the
parolee [or probationer] has in fact acted in violation
of one or more conditions of his parole [or probation].”
Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756,
1761, 36 L. Ed. 2d 656 (1973) (citing Morrissey,
supra, 408 U.S. at 484, 92 S. Ct. 2593). It is this fact
that must be demonstrated by evidence containing
probative value. “Only if it is determined that the
parolee [or probationer] did violate the conditions
does the second question arise: should the parolee
[or probationer] be recommitted to prison or should
other steps be taken to protect society and improve
chances of rehabilitation?” Gagnon v. Scarpelli,
supra, 411 U.S. at 784, 93 S. Ct. 1756, (citing
Morrissey v. Brewer, supra, 408 U.S. at 484, 92
S. Ct. 2593, 33 L. Ed. 2d 484). Thus, the Gagnon II
hearing is more complete than the Gagnon I hearing
in affording the probationer additional due process
safeguards, specifically: (a) written notice of the
claimed violations of [probation or] parole; (b)
disclosure to the [probationer or] parolee of evidence
against him; (c) opportunity to be heard in person and
to present witnesses and documentary evidence; (d)
the right to confront and cross-examine adverse
witnesses (unless the hearing officer specifically finds
good cause for not allowing confrontation); (e) a
neutral and detached hearing body such as a
traditional parole board, members of which need not
be judicial officers or lawyers; and (f) a written
statement by the factfinders as to the evidence relied
on and reasons for revoking [probation or] parole.
Further, we note that there is a lesser burden of proof in a
Gagnon II hearing than in a criminal trial because the focus of a
violation hearing is whether the conduct of the probationer
indicates that the probation has proven to be an effective vehicle
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to accomplish rehabilitation and a sufficient deterrent against
future antisocial conduct. Thus, the Commonwealth need only
prove a violation of probation by a preponderance of the evidence.
Commonwealth v. Allshouse, 969 A.2d 1236, 1240-41 (Pa. Super. 2009)
(some citations and quotation marks omitted). Lastly, a claim that the
evidence was insufficient to sustain revocation is
a question of law subject to plenary review. We must determine
whether the evidence admitted at trial and all reasonable
inferences drawn therefrom, when viewed in the light most
favorable to the Commonwealth as the verdict winner, is sufficient
to support all elements of the offenses. A reviewing court may
not weigh the evidence or substitute its judgment for that of the
trial court.
Commonwealth v. Perrault, 930 A.2d 553, 558 (Pa. Super. 2007), appeal
denied, 945 A.2d 169 (Pa. 2008) (citation omitted).
In Bearden v. Georgia, 461 U.S. 660 (1983), the Supreme Court of
the United States held that a revocation court may not revoke a term of
probation for the probationer’s failure to pay fines absent certain
considerations. Specifically, the High Court provided the following:
We hold, therefore, that in revocation proceedings for failure
to pay a fine or restitution, a sentencing court must inquire into
the reasons for the failure to pay. If the probationer willfully
refused to pay or failed to make sufficient bona fide efforts legally
to acquire the resources to pay, the court may revoke probation
and sentence the defendant to imprisonment within the
authorized range of its sentencing authority. If the probationer
could not pay despite sufficient bona fide efforts to acquire the
resources to do so, the court must consider alternate measures of
punishment other than imprisonment. Only if alternate measures
are not adequate to meet the [s]tate’s interests in punishment
and deterrence may the court imprison a probationer who has
made sufficient bona fide efforts to pay. To do otherwise would
deprive the probationer of his conditional freedom simply because,
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through no fault of his own, he cannot pay the fine. Such a
deprivation would be contrary to the fundamental fairness
required by the Fourteenth Amendment.
Id. at 672 (footnote omitted). We have stated that this means that a
revocation court must inquire into the reasons for a probationer’s failure to
pay and to make findings pertaining to the willfulness of his omission. See
Commonwealth v. Dorsey, 476 A.2d 1308, 1312 (Pa. Super. 1984).
A proper analysis should include an inquiry into the reasons
surrounding the probationer’s failure to pay, followed by a
determination of whether the probationer made a willful choice
not to pay, as prescribed by Dorsey. After making those
determinations, if the court finds the probationer “could not pay
despite sufficient bona fide efforts to acquire the resources to do
so,” the court should then consider alternatives to incarceration in
accordance with Bearden, [supra at 672].
Commonwealth v. Eggers, 742 A.2d 174, 176 (Pa. Super. 1999).
Our review of the record in this case shows that the trial court conducted
a sufficient inquiry into Appellant’s ability to pay restitution. At the revocation
hearing, Appellant was thoroughly questioned on his finances. (See N.T.
Revocation Hearing, 6/12/17, at 3-7). Appellant did not contest that, in the
almost three years between sentencing and the revocation hearing, Appellant
had made a single payment of $105.00 towards restitution. (See id. at 2).
While Appellant claimed to be disabled and unable to work, he also admitted
to working “odd jobs.” (Id. at 4). Also, during this period, Appellant
continued to smoke cigarettes, and the trial court did not credit his statement
that he only smoked a pack and one-half a week. (See id. at 3-4, 6; Trial.
Ct. Op., at 2). Moreover, despite Appellant’s claims of poverty, he voluntarily
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took custody of four children of a friend and now supports them. (See N.T.
Revocation Hearing, at 4-5; Trial Ct. Op., at 2). Therefore, the trial court
concluded that Appellant made “conscious choices to spend his money in a
way that left nothing for his victim.” (Trial Ct. Op., at 2). Further, despite
this finding, the trial court, in accordance with Bearden, supra, did not
imprison Appellant, but instead lowered his monthly payment obligation and
extended the period of probation. Thus, we conclude that, because the record
fails to show that Appellant made any bona fide efforts to pay restitution and,
instead, made deliberate choices to spend his money in other ways, the trial
court did not err in revoking Appellant’s probation. See Bearden, supra at
672; Cf Eggers, supra at 176 (finding that trial court had not complied with
Bearden where it made no inquiry into ability to pay and imprisoned
probationer despite evidence that Department of Welfare was deducting
restitution payments from welfare check and during periods of employment
probationer made regular additional payments). Appellant’s first claim lacks
merit.
In his second issue, Appellant challenges the discretionary aspects of
his sentence.1 (See Appellant’s Brief, at 18-20). In Commonwealth v.
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1 We note that Appellant preserved his discretionary aspects of sentence claim
by filing a timely post-sentence motion for reconsideration of sentence. (See
Post-Sentence Motion, 6/22/17, at unnumbered page 5); see also McAfee,
infra at 275.
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Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc), this Court held that
“[our] scope of review in an appeal from a revocation sentencing includes
discretionary sentencing challenges.” Cartrette, supra at 1034. Thus,
Appellant’s claim is properly before us.
The right to appeal the discretionary aspects of a sentence is not
absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.
2004), appeal denied, 860 A.2d 122 (Pa. 2004). When an appellant
challenges the discretionary aspects of the sentence imposed, he must present
“a substantial question as to the appropriateness of the sentence[.]”
Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)
(citations omitted). An appellant must, pursuant to Pennsylvania Rule of
Appellate Procedure 2119(f), articulate “a colorable argument that the
sentence violates a particular provision of the Sentencing Code or is contrary
to the fundamental norms underlying the sentencing scheme.”
Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005) (en
banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If an
appellant’s Rule 2119(f) statement meets these prerequisites, we determine
whether a substantial question exists. See Commonwealth v. Goggins, 748
A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied, 759 A.2d 920 (Pa.
2000). “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. (emphases in original). [T]he
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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. . . . Commonwealth v. Edwards,
71 A.3d 323, 327 (Pa. Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013)
(citations omitted).
In the instant matter, Appellant has failed to make any argument that
the extension of his probationary sentence “violate[d] a particular provision
of the Sentencing Code or is contrary to the fundamental norms underlying
the sentencing scheme.” Kimbrough, supra at 1263. In his post-sentence
motion, Appellant merely stated that “it would be fundamentally unfair for
[him] to remain under county supervision indefinitely simply due to his status
as an indigent and disabled individual.” (Post-Sentence Motion, at
unnumbered page 5). In his Rule 2119(f) statement, Appellant simply quotes
general boilerplate law on the discretionary aspects of sentence but at no point
cites to any particular provision of the sentencing code violated by the
sentence. (See Appellant’s Brief, at 9-10). Thus, we find that Appellant has
failed to articulate a substantial question that his sentence violated the
sentencing scheme. See Kimbrough, supra at 1263. Appellant’s second
claim lacks merit.
Accordingly, for the reasons discussed above, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/24/18
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