Com. v. Bigio, L.

J-S06010-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LUIS ALPHONSO BIGIO,
Appellant No. 3548 EDA 2013
Appeal from the Judgment of Sentence November 14, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012927-2007
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 05, 2015
Luis Alphonso Bigio (Appellant) appeals from the judgment of
sentence, imposed on November 14, 2013, following a revocation of his
probation. We affirm.
In January 2009, Appellant was convicted of possession with intent to
deliver, 35 Pa.C.S. § 780-113(a)(30), following a bench trial. He was
sentenced to 18 to 36 months’ incarceration, followed by 5 years’ probation.
Probation was revoked in January 2012, after the trial court found Appellant
committed technical violations of his probation. The trial court deferred
sentencing pending the outcome of a mental health evaluation. Thereafter,
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*
Former Justice specially assigned to the Superior Court.
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Appellant was deemed incompetent, and his case was transferred to
Philadelphia’s Mental Health Court.1
Following treatment, Appellant was deemed competent, and in May
2012, he was sentenced on his probation violation. He remained
incarcerated, subject to immediate parole into an appropriate treatment
facility. In October 2012, Appellant was admitted to Eagleville Hospital.
However, in December 2012, Appellant was taken into custody for non-
compliance with his treatment program. He remained incarcerated until
June 2013, when he was placed at the Gaudenzia treatment facility in
Philadelphia. While at Gaudenzia, Appellant received several sanctions for
noncompliant behavior. For example, in July 2013, Appellant received a
custody sanction for absconding from the treatment facility and two “jury
box sanctions” for testing positive for marijuana. In September 2013,
Appellant consumed alcohol in violation of the terms of his treatment. This
resulted in a new behavior contract and warning that future violations would
result in his discharge. In October 2013, Appellant was discharged from
Gaudenzia for inappropriate behavior involving another resident. A bench
warrant issued, and Appellant was again taken into custody.
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1
Mental Health Court employs a system of “graduated sanctions” imposed
for violating the terms of probation, including frequent court appearances,
“jury box sanctions,” which obligate a probationer to sit in the jury box and
observe court proceedings, and short-term incarceration. See Revocation
Court Opinion, 4/11/2014, at 2; Appellant’s Brief, at 5; Commonwealth’s
Brief, at 4.
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In November 2013, a probation violation hearing was held, after which
Appellant’s probation was revoked. The revocation court sentenced
Appellant to two and one-half to five years’ incarceration, followed by two
years’ probation. Appellant timely filed post-sentence motions, which were
denied by the revocation court. Appellant timely appealed and filed a court-
ordered Pa.R.A.P. 1925(b) statement. The revocation court issued a
responsive opinion.
On appeal, Appellant acknowledges that he committed technical
violations of his probation. See Appellant’s Brief, at 6; Notes of Testimony
(N.T.), 11/14/2013, at 9. Such violations are sufficient to justify revocation.
See, e.g., Commonwealth v. Carver, 923 A.2d 495, 498 (Pa. Super.
2007) (“Technical violations can support revocation and a sentence of
incarceration when such violations are flagrant and indicate an inability to
reform.”). Nevertheless, Appellant asserts the revocation court abused its
discretion when it imposed a sentence of total confinement, in violation of 42
Pa.C.S. § 9771(c). See Appellant’s Brief, at 3.
Appellant challenges discretionary aspects of the revocation court’s
sentence. See Commonwealth v. Cartrette, 83 A.3d 1030, 1041 (Pa.
Super. 2013) (“[Challenges under § 9771(c) are not among the narrow class
of issues that implicate the legality of a sentence.”) (quoting
Commonwealth v. Schultzues, 54 A.3d 86, 98 (Pa. Super. 2012)).
Accordingly, Appellant’s challenge is not an appeal as of right. See
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Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa. Super. 2006).
Before we may reach the merits of this case, we must determine whether:
(1) the appeal is timely; (2) Appellant preserved his issue; (3) Appellant’s
brief includes a statement of the reasons relied upon for allowance of
appeal; and (4) Appellant’s claim raises a substantial question. Id.; see
also Pa.R.A.P. 2119(f).
Appellant has satisfied these requirements. This appeal is timely.2
Appellant preserved his issue, having timely filed a post-sentence motion
challenging the revocation court’s sentence.3 Appellant’s brief includes a
statement of the reasons relied upon for allowance of appeal. Finally,
Appellant’s claim, i.e., the revocation court imposed a sentence of total
confinement following mere technical violations of his probation and absent
the prerequisites listed in 42 Pa.C.S. § 9771(c), raises a substantial
question. See Malovich, 903 A.2d at 1253; Commonwealth v. Sierra,
752 A.2d 910, 912 (Pa. Super. 2000).
Turning to the merits, we review the sentence imposed for an abuse of
discretion. Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super.
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2
The revocation court sentence Appellant on November 14, 2013; and
Appellant filed his notice of appeal on December 16, 2013.The thirtieth day
following sentencing fell on Saturday, December 14, 2013. See 1 Pa.C.S. §
1908.
3
Appellant’s motion was filed eleven days after sentencing, as the tenth day
fell on a Sunday. See 1 Pa.C.S. § 1908.
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2010). “An abuse of discretion requires the trial court to have acted with
manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such
lack of support so as to be clearly erroneous.” Id.
Appellant asserts that the revocation court imposed a sentence of total
confinement in violation of 42 Pa.C.S. § 9771(c), which provides the
following:
The court shall not impose a sentence of total confinement upon
revocation 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). According to Appellant, none of these circumstances
was present. Rather, Appellant suggests, the court sentenced him merely
because he had not abided by all the conditions of his probation. Appellant
notes that he has not been convicted of another crime. Moreover, according
to Appellant, his behavior does not indicate that it is likely that he will
commit another crime if he is not incarcerated. Finally, Appellant concludes,
his poor performance at treatment facilities does not undermine the
authority of the court, citing in support Commonwealth v. Cottle, 426
A.2d 598 (Pa. 1981).
Certainly, as stated by Appellant, “[v]iolating the internal rules of a
treatment facility is not the same as violating the law.” Appellant’s Brief, at
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13. In our view, the evidence presented at Appellant’s revocation hearing
does not support a finding that it is likely Appellant will commit another
crime. See 42 Pa.C.S. § 9771(c)(2). Nevertheless, Appellant’s poor
behavior resulted in numerous sanctions, and several of the incidents raised
at his revocation hearing may have constituted additional technical violations
of his probation. In the aggregate, these sanctions affront the authority of
the court. See 42 Pa.C.S. § 9771(c)(3).
Further, Appellant’s reliance upon Cottle is misplaced. In Cottle, the
appellant, “on his own initiative, had pursued an effective program of
alcoholic rehabilitation and secured permanent employment.” Cottle, 426
A.2d at 599. Nevertheless, the appellant’s probation was revoked and the
maximum sentence was imposed solely for failure to report to the probation
department. Id. at 599-600. In a split decision, this Court affirmed, see id.
at 599, but the Pennsylvania Supreme Court reversed our decision and
vacated the sentence imposed. Id. at 602. The Supreme Court concluded
as follows:
To ignore Mr. Cottle's efforts in his own behalf and act solely on
the basis of his failure to comply with the court's directive, would
place form over substance. It would ignore the ultimate
objective that has been achieved and the fact that, that
accomplishment resulted from the efforts of the offender himself.
We are here faced with a man who has demonstrated that he is
now able to live successfully in the community.
Id.
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Unlike the appellant in Cottle, here, Appellant has failed to take
proper advantage of his probationary sentence. He has incurred numerous
sanctions that culminated in his discharge from two treatment programs. At
the revocation hearing, the court referenced these sanctions and implicitly
concluded that a sentence of total confinement was essential to vindicate the
authority of the court. See N.T., at 16-17 (stressing Appellant’s multiple
opportunities, but concluding that Appellant could not benefit from the
support services offered by Mental Health Court); see also Revocation Court
Opinion, 4/11/2014, at 7 (expressly stating that incarceration was necessary
to vindicate the court’s authority); 42 Pa.C.S. § 9771(c)(3). We discern no
abuse of the court’s discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2015
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