Com. v. Bolling, Q.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
QAADIR BOLLING, :
:
Appellant : No. 1188 EDA 2015
Appeal from the Judgment of Sentence March 27, 2015
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0012454-2013
BEFORE: FORD ELLIOTT, P.J.E., OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 29, 2016
Qaadir Bolling (“Bolling”) appeals from the judgment of sentence
imposed following the revocation of his probation. We affirm.
In July 2014, Bolling pled guilty to firearms not to be carried without a
license, 18 Pa.C.S.A. § 6106. The trial court sentenced Bolling to serve five
to ten months in jail, with 10 months’ credit for time served, followed by 66
months of probation.1
Less than a week after Bolling was released on probation, he was
arrested for misdemeanor theft from a motor vehicle,2 and released on his
own recognizance. As a result of this arrest, the probation revocation court
(hereinafter “VOP court”) in the instant case scheduled a probation
revocation hearing for December 8, 2014 (hereinafter “the VOP hearing”).
1
Bolling’s sentence was below the mitigated range of the applicable
sentencing guidelines.
2
The misdemeanor charge was later withdrawn. See N.T, 3/27/15, at 6.
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At the VOP hearing, Bolling failed to appear, and the court proceeded in
absentia, with Bolling’s defense counsel present. The VOP court revoked
Bolling’s probation, and ordered the preparation of a pre-sentence
investigation report (“PSI”). Defense counsel then informed the VOP court
that he was unsure of whether Bolling was served with notice of the VOP
hearing. The VOP court responded by stating that any issue of notice could
be addressed with the preparation of a PSI. Shortly after the VOP hearing,
Bolling was taken into custody on a bench warrant.
On March 27, 2015, the VOP court held a sentencing hearing (“the
sentencing hearing”), wherein Bolling was present. At this hearing, Bolling’s
defense counsel conceded that, concerning Bolling’s underlying sentence,
Bolling had reported to his probation officer only once, which was
insufficient. N.T., 3/27/15, at 5. The prosecutor responded that after
Bolling was released on bail concerning the misdemeanor theft case,
Bolling’s probation officer had attempted to take Bolling into custody on a
detainer concerning the probation violation, but Bolling had absconded. Id.
at 6-7. At the close of the sentencing hearing, the VOP court sentenced
Bolling to 24 to 66 months in prison. This sentence was below the statutory
maximum.
Bolling subsequently filed a Motion for reconsideration of sentence,
nunc pro tunc, which the VOP court denied by an Order dated April 13, 2015
(hereinafter “Order Denying Reconsideration”). Bolling thereafter timely
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filed a Notice of Appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of Errors Complained of on Appeal.
Bolling now presents the following issues for our review:
1. Did not the [VOP] court err by holding the [VOP] hearing and
finding [Bolling] in violation[,] in absentia[,] without good
cause, without even a summary from the probation
department, and without ascertaining whether he had notice
to appear in court?
2. Did not the [VOP] court violate the tenets of the Sentencing
Code, which mandate individualized sentencing, and impose
an excessive sentence of twenty-four to sixty-six months [of]
total confinement for the technical violation of probation,
[for] failing to report?
3. Did not the [VOP] court err by denying [Bolling] credit for the
time he originally spent in custody?
Brief for Appellant at 3.
Bolling first argues that the VOP court erred and deprived him of due
process by holding the VOP hearing in absentia, and without (1) any
employee of the probation department being present; or (2) determining
whether Bolling had notice of the VOP hearing. See id. at 9-10.
The VOP court addressed Bolling’s claim in its Rule 1925(a) Opinion,
and found the claim to be waived, stating as follows:
This claim is waived. It was not raised in [Bolling’s] nunc pro
tunc post-sentence [M]otion and was never properly raised
before th[e VOP] court. In regard to [Bolling’s] failure to appear
for the VOP hearing, defense counsel simply stated that he didn’t
know whether [Bolling] was properly served for the hearing.
(N.T. 12/8/14, p. 3). Th[e VOP] court stated that it would
address that issue at the next hearing when it had a presentence
report and when probation could appear[.] ([I]d. at 3-4).
[Defense c]ounsel did not re-raise this issue at the next
hearing[,] where [Bolling] was present. [Bolling] was present
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because he was arrested and detained on bench warrants for
this VOP case and his open misdemeanor case. It was clear
that, on the date of the VOP hearing, [Bolling] was intentionally
in absconder status; he was not reporting to Probation, his
whereabouts were unknown, and he had failed to appear for his
Municipal Court case. Also, at that time, it was unknown when
[Bolling] would be detained by authorities. Therefore, any claim
that the [VOP] court erred by holding the VOP hearing in
[Bolling’s] absence is waived, and he may not complain about
that hearing on appeal. See Commonwealth v. Bond, 693
A.2d 220, 223-224 ([Pa. Super.] 1997) ([stating that an]
appellant may, “by his actions … waive[] the right to challenge
the proceedings and his sentence on the basis that it was
imposed in his absence[,]” and it is his burden to show that his
absence was with cause).
VOP Court Opinion, 7/15/15, at 3-4. We agree with the VOP court’s
foregoing rationale, which is supported by the record and the law, and
conclude that Bolling has waived his first issue. See id.; see also Pa.R.A.P.
302(a).
Bolling next argues that the VOP court abused its discretion by
imposing an excessive sentence and failing to (1) state adequate reasons for
the sentence of total confinement; and (2) consider Bolling’s rehabilitative
needs and individualized circumstances. See Brief for Appellant at 7-8
(Pa.R.A.P. 2119(f) concise statement of the reasons relied upon for
allowance of appeal); see also id. at 12 (argument section).
Bolling challenges the discretionary aspects of his sentence, a claim
that does not entitle him to review as of right. Commonwealth v. Moury,
992 A.2d 162, 170 (Pa. Super. 2010). Rather, prior to reaching the merits
of a discretionary sentencing issue,
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[this Court conducts] 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, [see] 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, [see] 42
Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170 (citation omitted).
Here, Bolling filed a timely Notice of Appeal, preserved the challenge
to his sentence in his Motion for reconsideration of sentence, nunc pro tunc,
and included a Pa.R.A.P 2119(f) statement in his brief. Moreover, Bolling’s
above-mentioned challenge to his sentence presents a substantial question.
See Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super. 2009)
(observing that “[t]he failure to set forth adequate reasons for the sentence
imposed has been held to raise a substantial question. Likewise, an
averment that the court … failed to consider all relevant factors raises a
substantial question.”) (citations omitted); see also Commonwealth v.
Sierra, 752 A.2d 910, 913 (Pa. Super. 2000) (stating that a substantial
question is presented when a probation revocation sentence of total
confinement, in excess of the original sentence, is imposed as a result of a
technical violation of parole or probation).
The imposition of sentence following the revocation of probation is
vested within the sound discretion of the probation revocation court, which,
absent an abuse of that discretion, will not be disturbed on appeal. Sierra,
752 A.2d at 913. Upon review, we determine the validity of the probation
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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. See 42 Pa.C.S.A. § 9771(b); see also Commonwealth v.
Gheen, 688 A.2d 1206, 1207-08 (Pa. Super. 1997). When imposing a
sentence of total confinement after a probation revocation, the sentencing
court must consider the factors set forth in sections 9771(c) and 9721(b) of
the Sentencing Code. See 42 Pa.C.S.A. §§ 9771(c) and 9721(b) (providing
that when determining an appropriate sentence, the court must consider the
protection of the public, the gravity of the offense in relation to the impact
on the victim and the community, and the rehabilitative needs of the
defendant). Following revocation of probation, a sentencing court need not
undertake a lengthy discourse for its reasons for imposing a sentence of
total confinement, but the record as a whole must reflect the court’s
consideration of the facts of the crime and character of the offender.
Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010).
Where, as here, a sentencing court is informed by a PSI, “it is
presumed that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion
should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 1128,
1135 (Pa. Super. 2009) (citing Commonwealth v. Devers, 546 A.2d 12,
18 (Pa. 1988)). Moreover “[t]he sentencing judge can satisfy the
requirement that reasons for imposing sentence be placed on the record by
indicating that he or she has been informed by the [PSI]; thus properly
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considering and weighing all relevant factors.” Ventura, 975 A.2d at 1135
(citation omitted).
Our review of the record shows that the VOP court (1) stated adequate
reasons for the sentence imposed (which we conclude is not excessive and
was well below the maximum sentence the court could have imposed); and
(2) considered Bolling’s individualized circumstances and rehabilitative
needs. See N.T., 3/27/15 at 5 (wherein the court considered defense
counsel’s argument concerning Bolling’s circumstances and efforts toward
rehabilitation); id. at 9-10 (Bolling’s allocution concerning his
circumstances); id. at 10 (containing the court’s reasons for the sentence
imposed); see also VOP Court Opinion, 7/15/15, at 5-9 (thoroughly
addressing the merits of Bolling’s challenge to his sentence, and
emphasizing that he had originally been given a very lenient sentence, and,
very shortly after his release on probation, was arrested and absconded);
Order Denying Reconsideration, 4/13/15, at 1-2 (unnumbered) (stating that
“the [VOP] court did consider [Bolling’s] potential for rehabilitation in
imposing the minimum sentence necessary to effectuate the goals of 42
Pa.C.S. [§] 9771.”). Moreover, because the VOP court had reviewed
Bolling’s PSI, it is presumed that the court adequately considered his
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rehabilitative needs and particular circumstances.3 See Ventura, supra.
Accordingly, we conclude that the VOP court acted within its discretion in
sentencing Bolling to a sentence of total confinement of 24 to 66 months in
prison.
Finally, Bolling contends that the VOP court erred by failing to give him
credit, toward his instant prison sentence for his probation violation, for the
approximately ten months in jail that he had served on his underlying
conviction (hereinafter “Bolling’s time served”) prior to being released on
probation. See Brief for Appellant at 12-14.
In McCray v. Dept. of Corr., 872 A.2d 1127 (Pa. 2005), the
Pennsylvania Supreme Court held that if a sentencing court fails to properly
apply credit for time served, then the remedy is to object before the
sentencing court and preserve the issue for appeal to this Court. Id. at
1132. Here, Bolling has waived this issue, since he never raised it before
the VOP court either at the sentencing hearing or in his Motion for
reconsideration of sentence, nunc pro tunc. See id.; see also Pa.R.A.P.
302(a).
Nevertheless, Bolling is not entitled to relief on the merits of his claim,
since he had already received credit for Bolling’s time served toward his
3
We observe, however, that the VOP court noted at the beginning of the
sentencing hearing that the PSI was “shorter than usual.” N.T., 3/27/15, at
4. Though the PSI is not contained in the certified record, the VOP court’s
Opinion summarized the relevant information contained in the PSI. See VOP
Court Opinion, 7/15/15, at 5 n.1. We additionally observe that the VOP
court judge knew Bolling from the trial and the prior sentencing hearing.
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original sentence, see N.T., 3/27/15, at 12,4 and he is not entitled to double
credit concerning his probation revocation sentence. See Commonwealth
v. Yakell, 876 A.2d 1040, 1042-43 (Pa. Super. 2005) (stating that “when
the total sentence for the probation violation, added to the initial sentence,
is less than the statutory maximum, there is no requirement to give any
credit for any of the time served on the original sentence.”) (citing
Commonwealth v. Bowser, 783 A.2d 348, 350 (Pa. Super. 2001) (holding
that a defendant is not entitled to “duplicate credit” for time served on an
underlying sentence following revocation of probation, if the new sentence of
incarceration does not reach the statutory maximum)). Moreover, our
review discloses that the cases Bolling relies upon, see Brief for Appellant at
13, are distinguishable and unavailing.
In light of the foregoing, we conclude that the VOP court did not
commit an error of law or abuse its discretion in any regard, and therefore
affirm Bolling’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2016
4
The VOP court, in imposing the instant sentence, gave Bolling credit for the
time he spent in custody since December 15, 2014, when he was taken into
custody after his failure to report to probation. See N.T., 3/27/15, at 12.
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