Com. v. Checchia, L.

J-S41033-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LANCE EVERETT CHECCHIA :
:
Appellant : No. 110 MDA 2017
Appeal from the Judgment of Sentence December 19, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003356-2009
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LANCE EVERETT CHECCHIA :
:
Appellant : No. 111 MDA 2017
Appeal from the Judgment of Sentence December 19, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000409-2016
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 02, 2017
Appellant, Lance Everett Checchia, appeals from the judgments of
sentence entered in the Berks County Court of Common Pleas, following the
revocation of his probation. We affirm.
The relevant facts and procedural history of this case are as follows.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S41033-17
Appellant entered a negotiated guilty plea on September 24, 2009, to
robbery at docket no. 3356-2009. The court immediately sentenced
Appellant to a term of one (1) to three (3) years’ imprisonment, followed by
a consecutive term of four (4) years’ probation. On January 9, 2016, police
arrested Appellant and charged him with, inter alia, tampering with physical
evidence and possession of drug paraphernalia at docket no. 0409-2016.
Appellant entered a negotiated guilty plea on April 4, 2016, to tampering
with physical evidence and possession of drug paraphernalia. That same
date, the court sentenced Appellant to concurrent one (1) year terms of
probation on both offenses, to be served consecutive to Appellant’s
probation at docket no. 3356-2009.
Appellant signed written instructions on October 18, 2016, which
detailed the terms and conditions of his probation. From October 19, 2016,
to October 26, 2016, Appellant committed several technical violations of his
probation. Specifically, Appellant was not home on October 19, 2016, at
8:35 a.m. for the initial home visit. Later that evening, Appellant’s
probation officer conducted a curfew check at 10:30 p.m., and Appellant was
not home. On October 25, 2016, Appellant failed to report to his probation
officer as instructed. The next day, Appellant’s probation officer conducted a
curfew check at 9:10 p.m., and Appellant was not home. Appellant’s mother
informed the probation officer that Appellant had moved out of the home on
October 23, 2016, which was in direct violation of his probation. The
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probation officer searched the home and did not find any of Appellant’s
belongings. As a result, the Pennsylvania Board of Probation and Parole
(“Board”) charged Appellant with changing his residence without the written
permission of parole supervision staff and failing to maintain regular contact
with parole supervision staff. The court held a Gagnon II1 hearing on
December 19, 2016. At the hearing, Appellant entered an open guilty plea
to violating the terms of his probation. The court revoked Appellant’s
probation at docket nos. 3356-2009 and 0409-2016, and immediately
sentenced Appellant to an aggregate term of two (2) to four (4) years’
imprisonment. Appellant filed post-sentence motions on December 23,
2016, which the court denied. On January 12, 2017, Appellant timely filed
notices of appeal. The court ordered Appellant on January 19, 2017, to file a
concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b)
at docket no. 0409-2016, and ordered Appellant on January 24, 2017, to file
a concise statement at docket no. 3356-2009. Appellant timely complied on
January 26, 2017.
Appellant raises three issues for our review:
WHETHER APPELLANT’S SENTENCE OF TWO TO FOUR
YEARS TO BE SERVED CONCURRENTLY WITH TERMS OF
ONE TO TWO YEARS AND SIX TO TWELVE MONTHS IN A
STATE CORRECTIONAL INSTITUTION WAS MANIFESTLY
EXCESSIVE, CLEARLY UNREASONABLE, AND CONTRARY
____________________________________________
1
Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656
(1973).
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TO THE FUNDAMENTAL NORMS UNDERLYING THE
SENTENCING CODE, GIVEN THE TECHNICAL NATURE OF
THE VIOLATIONS AS WELL AS…APPELLANT’S MENTAL
HEALTH AND REHABILITATIVE NEEDS?
WHETHER APPELLANT’S SENTENCE OF TWO TO FOUR
YEARS TO BE SERVED CONCURRENTLY WITH TERMS OF
ONE TO TWO YEARS AND SIX TO TWELVE MONTHS IN A
STATE CORRECTIONAL INSTITUTION WAS MANIFESTLY
EXCESSIVE, CLEARLY UNREASONABLE, AND CONTRARY
TO THE FUNDAMENTAL NORMS UNDERLYING THE
SENTENCING CODE, WHERE THE COURT IMPOSED A
SENTENCE BASED ON THE SENTENCING
RECOMMENDATION FOR STABILIZING THE MENTAL
HEALTH NEEDS OF APPELLANT MADE BY OFFICERS FROM
THE PENNSYLVANIA BOARD OF PROBATION AND PAROLE
AND THE BERKS COUNTY ADULT PROBATION AND PAROLE
OFFICE WITHOUT ADDRESSING A PROSPECTIVE TIMELINE
FOR THIS TREATMENT?
WHETHER THE SENTENCING COURT ERRED AND ABUSED
ITS DISCRETION IN DENYING APPELLANT’S POST
SENTENCE MOTION FOR MODIFICATION OF SENTENCE,
WHERE SUCH DENIAL WAS CONTRARY TO THE GENERAL
PRINCIPLES UNDERLYING THE SENTENCING CODE, IN
THAT THE PROTECTION OF THE PUBLIC, THE GRAVITY OF
THE OFFENSE AS IT RELATES TO THE IMPACT ON THE
LIFE OF THE VICTIM AND THE COMMUNITY, AND
APPELLANT’S INDIVIDUAL REHABILITATIVE NEEDS WERE
NOT CONSIDERED?
(Appellant’s Brief at 6).
For purposes of disposition, we combine Appellant’s issues. Appellant
argues the court did not appropriately consider the statutory factors under
42 Pa.C.S.A. § 9721(b) when it sentenced Appellant. Appellant avers the
court’s consideration of Appellant’s technical violations of probation and the
Board’s recommendation of incarceration, without offering a true timeline or
plan for mental health treatment, failed to recognize Appellant’s individual
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rehabilitative needs. As a result, the court imposed an unreasonable and
excessive sentence that violated the fundamental norms underlying the
Sentencing Code. Appellant claims he admitted he needed treatment and
had been taking steps to address his mental health issues. Appellant asserts
the Board’s push for incarceration placed more emphasis on containment
than on treatment. Appellant further alleges the court did not properly
consider the protection of the public and the gravity of the offense as it
relates to the community. Appellant points out his technical violations did
not involve any threats, harm, or violence to the community, or any illegal,
destructive, or unstable behavior that gave rise for concern.
Next, Appellant argues his sentence of total confinement was improper
under 42 Pa.C.S.A. § 9771(c). In support of his argument, Appellant avers
he did not commit a new crime, his behavior at the time his probation was
revoked did not indicate that he was likely to commit another crime if he
were not imprisoned, and the sentence was not essential to vindicate the
court’s authority. Appellant claims his purely technical violations occurred
over the course of only a few days, and were not so excessive that a period
of imprisonment was essential to vindicate the court’s authority, even when
considering these violations collectively. Appellant maintains he has not
repeatedly violated the terms of his probation over an extended period and
did not have the benefit of mental health treatment court or an appropriate
treatment facility. For these reasons, Appellant asserts his sentence was
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excessive, unreasonable, and did not merit total confinement under Section
9771(c).
In a related argument, Appellant argues the court had the option of
committing Appellant to a treatment facility for rehabilitation instead of
prison. Appellant claims the Board’s contention that incarceration was
necessary to address Appellant’s rehabilitative needs was nonsensical in light
of 50 P.S. § 4410 of the Mental Health Act. Appellant asserts the court had
multiple opportunities to compel Appellant to seek treatment, which would
have satisfied both the court’s authority and addressed Appellant’s mental
health problems. Appellant maintains the court ignored the various
sentencing alternatives available. Appellant contends prison is incapable of
addressing his treatment needs at the same level as a mental health facility.
Appellant also suggests his commitment to prison for the explicit purpose of
receiving mental health treatment was tantamount to an involuntary
commitment. For these reasons, Appellant concludes his sentence was an
abuse of discretion and we should vacate and remand for resentencing. As
presented, Appellant challenges the discretionary aspects of his sentence.
See Commonwealth v. Cartrette, 83 A.3d 1031 (Pa.Super. 2013) (en
banc) (explaining claim sentencing court failed to consider Section 9721(b)
factors pertains to discretionary sentencing matters); Commonwealth v.
Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is
manifestly excessive challenges discretionary aspects of sentencing);
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Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal
denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating claim that sentencing
court failed to consider or did not adequately consider certain factors
implicates discretionary aspects of sentencing).
When reviewing the outcome of a revocation proceeding, this Court is
limited to determining the validity of the proceeding, the legality of the
judgment of sentence imposed, and the discretionary aspects of sentencing.
Cartrette, supra at 1033-34 (explaining appellate review of revocation
sentence includes discretionary sentencing challenges). Challenges to the
discretionary aspects of sentencing do not entitle an appellant to an appeal
as of right. Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.Super.
2000). Prior to reaching the merits of a discretionary aspects of sentencing
issue:
[W]e 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, 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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to the discretionary
aspects of sentence are generally waived if they are not raised at the
sentencing hearing or raised in a motion to modify the sentence imposed at
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that hearing. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003). “This failure
cannot be cured by submitting the challenge in a Rule 1925(b) statement.”
Commonwealth v. McAfee, 849 A.2d 270, 275, (Pa.Super. 2004), appeal
denied, 580 Pa. 695, 860 A.2d 122 (2004).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);
Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth
the reasons relied upon for allowance of appeal furthers the purpose evident
in the Sentencing Code as a whole of limiting any challenges to the trial
court’s evaluation of the multitude of factors impinging on the sentencing
decision to exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103,
112 (Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895 (2009),
cert. denied, 556 U.S. 1264, 129 S. Ct. 2450, 174 L. Ed. 2d 240 (2009).
A substantial question exists “only when the appellant advances a
colorable argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.” Sierra,
supra at 913. A claim of excessiveness can raise a substantial question as
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to the appropriateness of a sentence under the Sentencing Code, even if the
sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at
624. See, e.g., Commonwealth v. Malovich, 903 A.2d 1247 (Pa.Super.
2006) (stating defendant raised substantial question with respect to claim
that revocation sentence was excessive in light of underlying technical
probation violations). An allegation that the sentencing court failed to
consider a specific mitigating factor, however, generally does not raise a
substantial question. Commonwealth v. Berry, 785 A.2d 994 (Pa.Super.
2001) (holding claim that sentencing court ignored appellant’s rehabilitative
needs failed to raise substantial question).
“In general, the 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. Hoover, 909 A.2d 321 (Pa.Super. 2006). Following the
revocation of probation, the court may impose a sentence of total
confinement if any of the following conditions exist: the defendant has been
convicted of another crime; the conduct of the defendant indicates it is likely
he will commit another crime if he is not imprisoned; or, such a sentence is
essential to vindicate the authority of the court. See 42 Pa.C.S.A. §
9771(c). The Sentencing Guidelines do not apply to sentences imposed
following a revocation of probation. Commonwealth v. Ferguson, 893
A.2d 735 (Pa.Super. 2006), appeal denied, 588 Pa. 788, 906 A.2d 1196
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(2006). “[U]pon 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.” Commonwealth v.
Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001).
Pursuant to Section 9721(b), “the court shall follow the general
principle that the 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.” 42 Pa.C.S.A. § 9721(b). “[T]he
court shall make as part of the record, and disclose in open court at the time
of sentencing, a statement of the reason or reasons for the sentence
imposed.” Id. Nevertheless, “[a] sentencing court need not undertake a
lengthy discourse for its reasons for imposing a sentence….”
Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal
denied, 608 Pa. 661, 13 A.3d 475 (2010). Rather, “the record as a whole
must reflect the sentencing court’s consideration of the facts of the crime
and character of the offender.” Id.
Instantly, Appellant raised the following issues in his post-sentence
motion:
9. With regard to the sentences imposed[, …Appellant]
avers that this Court sentenced [Appellant] to a greater
period of confinement than that which was 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 [Appellant].
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10. [Appellant] avers that a sentence of probation would
have been 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 [Appellant].
Wherefore, [Appellant] requests that this Honorable
Court hold a hearing to determine a sentence that would
be 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 [Appellant].
(Appellant’s Post-Sentence Motion, filed December 23, 2016, at 2-3).
Appellant’s claims on appeal are far more detailed, particularly as they
pertain to his mental health/rehabilitative needs and the court’s sentencing
alternatives.2 To the extent his remaining claims on appeal are reasonably
deducible from his post-sentence motions, we decline to waive them.
Moreover, in its opinion, the trial court set forth its reasons for the
sentence imposed. (See Trial Court Opinion, filed January 31, 2017, at 2-5)
(finding: court recognized Appellant’s serious need for mental health
treatment; Appellant previously failed to acquire treatment on his own
volition; incarceration was necessary to ensure Appellant actually received
treatment; court was not required to consider timeline for Appellant’s
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2
Appellant’s arguments for a “timeline” for mental health treatment, his
preference for a mental health facility over prison, the purely technical
nature of his probation violations in a short time, and against the need for a
sentence to vindicate the authority of the court are waived for purposes of
this appeal, even if the trial court addressed them in its Rule 1925(a)
opinion. See McAfee, supra; Mann, supra.
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treatment; additionally, period of incarceration was necessary to vindicate
court’s authority; Appellant’s violations, in aggregate, affronted court’s
authority; specifically, Appellant had not responded to progressive
sanctioning, failed to develop home plan, and appeared before probation
officer only once to address Appellant’s mental health issues; Appellant
failed to comply with evaluation to diagnose his mental health issues, as well
as numerous other technical violations; period of incarceration was
warranted as Appellant’s actions were affront to court’s authority; court
considered all relevant sentencing principles and found Appellant’s
rehabilitative needs were significant; incarceration was necessary in light of
Appellant’s serious mental health issues for safety of Appellant and
community; court also considered Appellant’s original offenses of robbery,
tampering with physical evidence, and possession of drug paraphernalia;
Appellant’s prior offenses and evidence of his serious mental health and
rehabilitative needs outweighed mitigating circumstances and justified period
of incarceration imposed). The record supports the court’s rationale.
Therefore, Appellant’s challenges to the discretionary aspects of his
sentences merit no relief. Accordingly, we affirm.
Judgments of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/2/2017
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Circulated 07/18/2017 02:42 PM