Com. v. McKee, M.

J. S71014/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MATTHEW McKEE, : No. 842 MDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, April 15, 2014,
in the Court of Common Pleas of Lackawanna County
Criminal Division at No. CP-35-CR-0002012-2013
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 02, 2015
Matthew McKee appeals from the judgment of sentence of April 15,
2014, following his revocation of probation. We affirm.
On October 25, 2013, appellant pled guilty to one count of delivery of
marijuana to an individual who was an undercover detective. At his guilty
plea hearing, counsel informed the judge that appellant had an outstanding
warrant in Michigan for a marijuana possession charge and records for other
marijuana possessions from a number of states.
On December 4, 2013, appellant was sentenced to three to
six months’ imprisonment to be followed by one year of probation. On
March 7, 2014, a capias for appellant’s arrest was issued due to a violation
of his parole. On April 15, 2014, a Gagnon II hearing was held, and
appellant admitted to failing to report to his probation officer and failing to
* Former Justice specially assigned to the Superior Court.
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undergo a drug and alcohol evaluation. The trial court noted that appellant
also had outstanding warrants from other states. The trial court revoked
appellant’s probationary sentence and remanded him to the county jail for
3 to 12 months. The court noted that appellant would “have considerable
credit toward that.” (Gagnon II hearing, 4/15/14 at 7.)
Appellant filed a notice of appeal on May 13, 2014. The trial court
ordered appellant to file a concise statement of errors complained of on
appeal within 21 days; appellant timely complied and the trial court has filed
an opinion. On appeal, appellant challenges the discretionary aspects of
sentencing and raises the following issue for our consideration: “Whether
the sentence imposed was inappropriately harsh and excessive and an abuse
of discretion for technical violations of probation?” (Appellant’s brief at 4.)
The sentence imposed 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.
Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001), quoting Commonwealth
v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000) (other citations omitted).
See also Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013)
(en banc) (holding that this court’s scope of review on appeal from a
probation revocation sentence includes discretionary sentencing challenges).
As the Coolbaugh court observed:
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We recently summarized our standard of review and
the law applicable to revocation proceedings as
follows:
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.A. § 9771(b) . . . . 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. Finally, it is
the law of this Commonwealth that once
probation has been revoked, a sentence
of total confinement may be imposed if
any of the following conditions exist:
(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
court.
42 Pa.C.S.A. § 9771(c).
Id., quoting Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.Super. 2000)
(other citations omitted). We also note that the sentencing guidelines do
not apply to sentences imposed as the result of probation revocations. Id.(citations omitted).
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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
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 sentence
imposed for his probation violations was harsh, excessive, and an abuse of
discretion for technical violations of probation. The Commonwealth
concedes this issue raises a substantial question. See Sierra, 752 A.2d at
913 (“[o]n appeal from a revocation proceeding, we find a substantial
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question is presented when a sentence of total confinement, in excess of the
original sentence, is imposed as a result of a technical violation of parole or
probation.”).
Our review of the record indicates appellant’s technical violations
included failing to report to his probation officer immediately upon his
release from prison, failing to complete a full drug and alcohol evaluation,
and new charges stemming from appellant’s status as a fugitive from justice.
(Gagnon II hearing, 4/15/14 at 4.) At the Gagnon II hearing, appellant’s
counsel stated that when appellant was released from the Lackawanna
County prison, he was under the impression that there were no outstanding
warrants. (Id. at 5.) However, that was not the case. We note the
Commonwealth does not argue that appellant committed any new crimes.
Appellant acknowledges that technical violations of probation can
support revocation and a sentence of incarceration under certain conditions;
such as, when the violations are flagrant and indicate an inability to reform.
See Commonwealth v. Carver, 923 A.2d 495, 498 (Pa.Super. 2007).
However, appellant argues “there was no anti-social behavior involved
herein” and “his behavior did not threaten anyone.” (Appellant’s brief at
13.) Appellant contends that his lengthy jail sentence of 3 to 12 months was
unwarranted. (Id.)
In his Rule 1925(a) opinion, the trial court explained its reasons for
the sentence imposed:
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This court determined that probation was no longer
appropriate for [appellant] since he admitted to
failing to report to his probation officer and failing to
undergo a drug and alcohol evaluation. There were
also a number of out of state detainers against him
that were pending even at the time of his guilty plea,
so his attorney’s assertion that he was under the
impression that there were no outstanding warrants
is without merit. This court decided that probation
was not effective for [appellant] since he failed to
comply with the most basic conditions of his
probation. The court thus imposed an appropriate
and lawful sentence of incarceration.
Trial court opinion, 7/8/14 at 3.
Based on the above, the trial court decided appellant’s failure to
comply with the basic conditions of his probation was a flagrant violation and
indicated an inability to reform.
Appellant cites Commonwealth v. Cappellini, 690 A.2d 1220(Pa.Super. 1997), and Commonwealth v. Riley, 384 A.2d 1333 (Pa.Super.
1978). In Cappellini, we found the record supported revocation of
probation where the appellant had ceased drug treatment, refused to submit
to drug testing, and failed to meet with his probation officer after specifically
being instructed to do so. Id., 690 A.2d at 1225. Herein, appellant points
out this court observed that even when a probation violation is present,
revocation is not automatic and the focus must remain on whether probation
can still be an effective tool for rehabilitation.
In Riley, this court reversed, finding the sentencing court relied on
inadmissible hearsay when it determined that the appellant’s probation
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should be revoked. Id., 384 A.2d at 1337. Herein, appellant directs our
attention to this court’s statement that appellant’s technical violation, in the
form of a brief period of unemployment, “would not be sufficient to convince
a court that probation has not been an effective vehicle to accomplish
rehabilitation and a sufficient deterrent against future anti-social contact.”
Id.We do not find these two cases particularly helpful. Cappellini
presented a totally different set of facts compared to the instant case. The
defendant, an attorney, was a first time offender, was drug dependent, had
medical problems, had dropped out of drug treatment but continued to
attend Alcoholics Anonymous meetings, and had lied about his use of drugs
to his probation officer. Id., 690 A.2d at 1228. Here, appellant was a
repeat offender who failed to take the first steps required of him upon his
release from prison, i.e., meeting with his probation officer and completing a
drug and alcohol evaluation. It would be reaching to say probation was an
effective tool for appellant’s rehabilitation when he failed to take the first
steps on the road to rehabilitation.
In Riley, the defendant was charged with one technical violation of
probation, failure to maintain employment. The defendant’s probation
officer testified that the defendant worked for one hour and then quit. Id.,384 A.2d at 1336. The defendant testified he did quit his job after working
nearly two hours at telephone solicitation making only one dollar, but found
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another job immediately. Id. As previously indicated, we reversed, finding
the sentencing court relied on the inadmissible hearsay testimony of the
probation officer in determining that probation should be revoked.1
Instantly, appellant admitted he failed to meet with his probation officer and
he failed to obtain a drug and alcohol evaluation. (Gagnon II hearing,
4/15/14 at 4-5.) Unlike the defendant in Riley, appellant had not yet done
what was required of him when he was arrested.
In light of appellant’s failure to make his first appointment with his
probation officer and schedule a drug and alcohol evaluation, we find the
trial court had a sufficient basis to determine that a sentence of total
confinement was required to vindicate the authority of the court. See
42 Pa.C.S.A. § 9771(c)(3). We find no evidence in the record that the
judgment exercised was manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill-will. Commonwealth v. Perry, 32 A.3d 232, 236 (Pa.
2011) (sentence can be overturned only if it results from manifest
unreasonableness, partiality, ill-will, or such lack of support so as to be
clearly erroneous). Accordingly, we conclude no abuse of discretion
occurred and appellant was properly sentenced.
Judgment of sentence affirmed.
1
The Riley decision explained the hearsay as follows: “Firsthand [the
probation officer] only knew that appellant had secured the position with the
company, and that he was not working there when she dropped by to
investigate. The rest of her information was based upon a conversation she
had with appellant’s erstwhile employer.” Id. at 1336 n.4.
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Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 2/2/2015
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