Com. v. Reed, A.

J-S48034-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANTHONY REED, :
:
Appellant : No. 2404 EDA 2018
Appeal from the Judgment of Sentence Entered July 24, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000287-2016
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANTHONY REED, :
:
Appellant : No. 2442 EDA 2018
Appeal from the Judgment of Sentence Entered July 24, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002951-2017
BEFORE: BOWES, J., SHOGAN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 16, 2019
In these consolidated appeals, Anthony Reed (Appellant) appeals from
the judgment of sentence entered July 24, 2018, after the trial court found
that Appellant committed a technical violation of his probation. We affirm.
The trial court summarized the factual and procedural history of this
case as follows.
* Retired Senior Judge assigned to the Superior Court
J-S48034-19
On March 30, 2016, [Appellant] appeared before th[e trial
c]ourt and pled guilty [at docket number CP-51-CR-0000287-
2016 (287-2016)] to [r]obbery, graded as a felony of the third
degree. Per his negotiated plea agreement, th[e trial c]ourt
sentenced [Appellant] to [six] to 23 months[’] county
incarceration plus [two] years[’] reporting probation, with parole
at minimum to be determined by the prison. [Appellant] was
released on parole less than a week later on April 5, 2016.
On November 11, 2016, [Appellant] was transported by
the [s]heriffs to Eagleville Hospital. After completing 30 days of
drug treatment, [Appellant] was transferred to NHS Fresh Start
Recovery. On January 15, 2017, [Appellant] left Fresh Start and
never turned [sic]. Wanted cards were issued on January 30,
2017.
On March 17, 2017, [Appellant was arrested and charged
at docket number CP-51-CR-0002951-2017 (2951-2017)] with
possession with intent to deliver a controlled substance (PWID),
an ungraded felony, after the Philadelphia Narcotics Enforcement
Team saw [Appellant] sell marijuana to several buyers on Oxford
Avenue. [Appellant] appeared before th[e trial c]ourt on
September 20, 2017[,] and pled guilty to this charge. Per his
negotiated plea agreement, th[e trial c]ourt sentenced him to
[six] to 23 months[’] county incarceration plus [three] years[’]
reporting probation. That same day, th[e trial c]ourt conducted a
violation hearing related to [docket number 287-2016]. Th[e
trial c]ourt found him in both technical and direct violation for
absconding from Fresh Start and pleading guilty to PWID. Th[e
trial c]ourt revoked his probation and sentenced him to 11½ to
23 months[’] county incarceration plus [three] years[’] reporting
probation, with credit for time served, to run concurrently with
his [] sentence [at docket number 2951-2017. Appellant] was
ordered to enroll in drug treatment, and upon release, continue
to attend outpatient drug treatment through TREE,[1] seek and
maintain employment, stop using and selling drugs, and stay out
of trouble with the law. [Appellant] was further ordered to pay
all applicable costs and fines at a rate of $25 per month. Th[e
trial court] warned [Appellant] that he would receive a state
sentence if he violated his probation again.
1
“TREE” is an acronym for Teach Recovery Education Empowerment, an
intensive outpatient program in Philadelphia.
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On April 24, 2018, [Appellant] was granted early parole
after he completed drug treatment at Hoffman Hall,[2] with the
condition that he must comply with all terms and conditions of
his sentence. [Appellant] immediately absconded from
supervision and wanted cards were issued on May 22, 2018. On
July 3, 2018, [Appellant] was apprehended by authorities.
On July 24, 2018, [Appellant] appeared before th[e trial
c]ourt for his second violation hearing. First, th[e trial c]ourt
reviewed [Appellant’s] criminal history since his original guilty
plea in 2016 and incorporated the probation summary into the
record by reference. [Appellant’s] probation officer
recommended revocation and incarceration.
Defense counsel stated that [Appellant] had a serious drug
problem and lacked the ability to address it from the street due
to lack of structure. She argued that 47-y[ea]r-old [Appellant]
lacked the “emotional maturity” necessary to make good
decisions. She recommended that th[e trial c]ourt order
[Appellant] to undergo a [f]orensic [i]ntensive [r]ecovery (FIR)
evaluation and sentence him to county jail with subsequent
parole to a FIR program.
The Commonwealth stated that consistent with the new
policies of the District Attorney’s Office regarding technical
violations, he recommended a sentence of 6 to 12 months [of]
county incarceration.
Next, [Appellant] spoke on his own behalf. He stated that
he started freebasing when he was in the 7th grade and that he
was unable to adapt to living outside of prison. He stated when
he was high, he had “no spiritual will” and acknowledged that he
had “kind of set myself up at this point” for a state prison
sentence.
Th[e trial c]ourt found [Appellant] in technical violation for
absconding from supervision and not complying with any of the
terms and conditions of his sentence. Th[e trial c]ourt
terminated [Appellant’s] parole and revoked his probation.
[Appellant] was sentenced to [three and one-half to seven
2
Hoffman Hall is a Philadelphia residential reentry center.
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years’] state incarceration [at docket number 2951-2017], and
[two to four years’] state incarceration [at docket number 287-
2016], to run concurrently with one another, for an aggregate
sentence of [three and one-half to seven years’] state
incarceration. Th[e trial c]ourt recommended that [Appellant]
serve his sentence at SCI-Chester or SCI-Phoenix so that he
could successfully complete drug treatment. Th[e trial c]ourt
ordered [Appellant] to complete drug treatment and job training
while in jail, and upon release, seek and maintain employment,
undergo random urinalysis, and pay costs and fines at a rate of
$25 per month. Th[e trial c]ourt stated that this sentence was
absolutely necessary to vindicate the authority of the court.
Trial Court Opinion, 12/12/2018, at 2-4 (citations omitted).
On July 26, 2018, [Appellant] filed a “petition to vacate and reconsider
[s]entence” (post-sentence motion). On August 13, 2018, Appellant filed
two separate notices of appeal3 to this Court pursuant to our Supreme
Court’s holding in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018)
(holding that failure to file separate notices of appeal from a single order
resolving issues on more than one lower court docket will result in quashal of
3
We recognize that Appellant filed his notice of appeal before the trial court
ruled on his post-sentence motion. In fact, the docket reveals that, as of
the date of this memorandum, the trial court has yet to rule on his post-
sentence motion and no order has been entered denying the motion by
operation of law. Because of this, the Commonwealth argues that Appellant
failed to preserve his sentencing issue because he deprived the trial court of
jurisdiction when he filed his appeal while his post-sentence motion was
pending. See Commonwealth’s Brief at 9-10. However, pursuant to our
Rules of Criminal Procedure, a motion to modify a sentence imposed
following revocation of probation does not toll the appeal period.
Pa.R.Crim.P. 708(E). Thus, Appellant was required to file his notice of appeal
before the 30-day appeal period lapsed, despite the fact that the trial court
had yet to address his motion. Therefore, because Appellant timely filed his
notice of appeal within thirty days of the imposition of sentence as required
by Rule 708, the appeal herein is ripe for our review.
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the appeal). Both Appellant and the trial court have complied with Pa.R.A.P.
1925.
On appeal, Appellant argues that the trial court “abused its discretion,
and violate[d] general sentencing principles when,” it imposed a sentence
that
was manifestly excessive and unreasonable, [and] surpassed
what was required to protect the public, where the court failed to
adequately examine and investigate [Appellant’s] background,
character and rehabilitative needs, failed to state sufficient
reasons of record for the sentence which was well beyond what
was necessary to foster [Appellant’s] rehabilitation and failed to
comply with the requirements of [42 Pa.C.S.] § 9771(c)[.]
Appellant’s Brief at 4.
Appellant challenges the discretionary aspects of his sentence. We
consider his issue mindful of the following. It is within this Court’s scope of
review to consider challenges to the discretionary aspects of an appellant’s
sentence in an appeal following a revocation of probation. Commonwealth
v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006).
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
***
When imposing sentence, a court is required to consider
the particular circumstances of the offense and the character of
the defendant. In considering these factors, the court should
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refer to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.
Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the
following four factors:
(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.[] § 9781(b).
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
Here, Appellant timely filed a notice of appeal after preserving the
issue by filing a post-sentence motion to modify his sentence. Further,
Appellant’s brief contains a statement pursuant to Pa.R.A.P. 2119(f). Thus,
we now consider whether Appellant has raised a substantial question. Here,
Appellant claims the trial court did not address “the criteria for total
confinement, the character of [Appellant] and the circumstances of the crime
which sentence was being imposed.” Appellant’s Brief at 10 (footnote
omitted).
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The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d
825, 828 (Pa. Super. 2007). “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.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.
Super. 2013) (citation and quotation marks omitted).
Upon review, we find Appellant has raised a substantial question by
presenting a plausible argument that his sentence is contrary to the
fundamental norms which underlie the sentencing process. See
Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa. Super. 2003) (finding
that Parlante raised a substantial question by arguing that “the trial court
imposed a sentence that is grossly disproportionate to her crimes and failed
to consider her background or nature of offenses and provide adequate
reasons on the record for the sentence”). See also Commonwealth v.
Schutzues, 54 A.3d 86, 98 (Pa. Super. 2012) (“An argument that the trial
court imposed an excessive sentence to technical probation violations raises
a substantial question.”). Accordingly, we proceed to address the merits of
Appellant’s claim.
Regarding sentences imposed following the revocation of probation, we
observe the following.
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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. An abuse
of discretion is more than an error in judgment—a
sentencing court has not abused its discretion unless
the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will.
In determining whether a sentence is manifestly
excessive, the appellate court must give great
weight to the sentencing court’s discretion, as he or
she is in the best position to measure factors such as
the nature of the crime, the defendant’s character,
and the defendant’s display of remorse, defiance, or
indifference.
Upon revoking probation, a sentencing court may choose
from any of the sentencing options that existed at the time of
the original sentencing, including incarceration. [U]pon
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. However, 42 Pa.C.S.[]
§ 9771(c) provides that once probation has been revoked, a
sentence of total confinement may only be imposed if any of the
following conditions exist[s]:
(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.
In addition, in all cases where the court resentences an
offender following revocation of probation ... the court shall
make as a 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 [and f]ailure to comply with these provisions
shall be grounds for vacating the sentence or resentence and
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resentencing the defendant. A trial court need not undertake a
lengthy discourse[4] for its reasons for imposing a sentence or
specifically reference the statute in question, but the record as a
whole must reflect the sentencing court’s consideration of the
facts of the crime and character of the offender.
Commonwealth v. Colon, 102 A.3d at 1033, 1044 (Pa. Super. 2014)
(citations and quotation marks omitted).
Moreover, in addition to these considerations, a trial court must also
consider the factors set forth in subsection 9721(b)5 when imposing a
sentence following the revocation of probation. Commonwealth v. Derry,
150 A.3d 987, 995 (Pa. Super. 2016).
4 As our Supreme Court has explained:
Simply put, since the defendant has previously appeared before
the [trial] court, the stated reasons for a revocation sentence
need not be as elaborate as that which is required at initial
sentencing. The rationale for this is obvious. When sentencing is
a consequence of the revocation of probation, the trial judge is
already fully informed as to the facts and circumstances of both
the crime and the nature of the defendant[.]
Commonwealth v. Pasture, 107 A.3d 21, 28 (Pa. 2014).
5 That subsection provides, in relevant part, that when imposing a judgment
of sentence,
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. § 9721(b).
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Instantly, Appellant contends that the trial court abused its discretion
by: (1) imposing an excessive sentence without careful consideration of “the
factors as set forth in the [s]entencing [c]ode[;]” (2) failing to consider the
technical nature of Appellant’s violation, his long-standing drug abuse, and
rehabilitative needs; and (3) failing to provide sufficient rationale for a
sentence of total confinement for the technical violation committed.
Appellant’s Brief at 10, 17-18.
Upon review of the certified record and applicable filings, we find
Appellant’s claim without merit. In its opinion to this Court, the trial court
thoroughly addressed Appellant’s arguments as follows.
In the case at bar, th[e trial c]ourt properly sentenced
[Appellant] to an aggregate term of [three and one-half to seven
years’] state incarceration after finding him in technical violation
of his probation. This sentence was within the statutory limits
and was reasonable after considering all relevant factors. …
[T]he length of incarceration was solely within th[e trial c]ourt’s
discretion and was limited only by the maximum sentence that
could have been imposed at the original sentencing. Under
Pennsylvania law, the maximum sentence for [PWID], an
ungraded felony, is 10 years[’] incarceration, a $100,000 fine, or
both. 35 Pa.C.S. 780-113(f)(1.1). The maximum sentence for
[r]obbery, graded as a felony of the third degree, is [seven]
years, $15,000 fine, or both. Thus, th[e trial c]ourt could have
sentenced [Appellant] up to a maximum aggregate sentence of
17 years, minus credit for time [Appellant] already served in
prison. Th[e trial c]ourt sentenced [Appellant] to an aggregate
term of [three and one-half to seven years’] state incarceration.
This was well within the statutory limits and was a reasonable
exercise of th[e trial c]ourt’s discretion in light of [Appellant’s]
continued substance abuse, absconding from supervision, and
failure to show any meaningful growth and progress towards
rehabilitation.
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Indeed, th[e trial c]ourt had tried to allow [Appellant] to
get drug treatment through county inpatient and outpatient
programs and [Appellant] was not successful. After his initial
appearance before th[e trial c]ourt where he pled guilty to
robbery, [Appellant] only served six days and then was released
on parole. He later entered drug treatment at Eagleville Hospital,
and upon completion of a 30 day program, was released to a
recovery house, after which he absconded. His whereabouts
remained unknown for the next two months until he was
arrested and charged with PWID. … Instead of using this
opportunity to turn his life around and get the substance abuse
treatment he needed, [Appellant] absconded from supervision as
soon as he was released on parole. Each time [Appellant] was
released from custody, he immediately thumbed his nose at th[e
trial c]ourt and continued doing whatever he wanted to do,
namely abscond from supervision and continue using drugs.
Furthermore, th[e trial c]ourt properly considered the
factors set forth in [section] 9721: the protection of the public,
the gravity of [Appellant’s] offense in relation to the impact on
the victim and the community, and his rehabilitative needs. As
discussed above, since his original guilty plea in 2016, th[e trial
c]ourt had given [Appellant] multiple chances to rehabilitate
himself through county parole, county probation, county
incarceration, and inpatient/outpatient drug treatment programs,
including Eagleville Hospital and Hoffman Hall for treatment.
Unfortunately, [Appellant] once again failed to take his sentence
seriously and absconded from supervision and continued to use
drugs. Revocation and a state sentence was an appropriate
sentence under the circumstances in order to vindicate the
authority of the [c]ourt. In order to make this determination,
th[e trial c]ourt considered [Appellant] conduct since his original
guilty plea in 2016, the probation officer’s summary and
recommendation for revocation and incarceration, argument
from defense counsel and the Commonwealth, and [Appellant’s]
own allocution. As he was explaining why he believed he failed at
probation, parole, and outpatient treatment programs,
[Appellant] admitted that he did not know how to “function
socially outside of incarceration.” Defense counsel argued that
[Appellant] was unable to make good decisions without the
structure of incarceration and that his addiction was “running his
life.” After taking all of this into consideration, th[e trial c]ourt
found it appropriate to impose a [three and one-half to seven]
year state sentence, with orders that [Appellant] receive drug
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treatment while incarcerated. Th[e trial c]ourt stated, “So [I a]m
sentencing you to a state sentence so you can take the sentence
[seriously] this time and your drug treatment seriously this time.
I am recommending SCI Chester because they have a good drug
treatment program, but I think they have a good program at SCI
Phoenix, too. So if you take your own treatment seriously this
time, you will be better when you get out.” … [T]here is no
requirement that th[e trial c]ourt impose the “minimum possible
sentence.” Rather, based upon [Appellant’s] ongoing failure to
comply with the terms and conditions of probation as well as his
serious drug problem that had yet to be adequately addressed,
th[e trial c]ourt found it appropriate to sentence [Appellant] to a
term of state incarceration.
[Appellant also] argues that a sentence of total
confinement violated 42 Pa.C.S. § 9771(c)(3) and the
fundamental norms underlying the sentencing process. This
claim is without merit. As discussed above, once probation or
parole has been revoked, a sentence of total confinement may
be imposed if any of the following conditions exist: the
defendant has been convicted of another crime; the conduct of
the defendant indicates that it is likely that he will commit
another crime if he is not imprisoned; or, such a sentence is
essential to vindicate the authority of court. Here, this sentence
was absolutely necessary to vindicate the authority of the
[c]ourt.
[Appellant] never took his sentence seriously and thumbed
his nose at th[e trial c]ourt by absconding from supervision at
every opportunity. He continued to use and sell drugs, and never
made any progress towards completing any of the terms and
conditions of his sentence. As th[e trial c]ourt stated at the
violation hearing, “This sentence is absolutely necessary to
vindicate the authority of the [c]ourt. You had two opportunities
to get yourself clean and with this [c]ourt sending you to
Hoffman Hall. Hoffman Hall has a great drug treatment program,
but you decided not to follow up with it yourself.” Instead of
attending drug treatment and working towards achieving and
maintaining sobriety, [Appellant] decided to disregard th[e trial
c]ourt’s orders and do whatever he wanted to do. Thus, th[e trial
c]ourt properly sentenced [Appellant] to a term of total
confinement in order to vindicate the authority of the court.
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Trial Court Opinion, 12/12/2018, at 6-9 (some citations and quotation marks
omitted).
Furthermore, the trial court set forth the following rationale at the time of
sentencing.
Sir, I find you to be in technical violation for
absconding from supervision and not doing anything
else that I ordered you to do because you’re
supposed to be looking for a job and maintaining
your sobriety.
***
[Y]ou’ve been using drugs for a long time and every
time you get out you got some drug treatment and
you don't follow up on it. That’s your choice. [...] It
is your personal choice that you and only you can
make that you do not want to be a drug addict
anymore. You can’t blame anybody but yourself for
the condition you’re in.
***
Hopefully[,] this sentence will allow you to address
all of your issues. [...] So I’m sentencing you to a
state sentence so you can take the sentence
[seriously] this time and take your drug treatment
seriously this time.
N.T., 7/24/2018, at 13-15.
The record supports the foregoing. See Id. at 4-6 (reviewing on the
record Appellant’s history with the court beginning with his 2016 guilty
plea); Id. at 12 (Appellant answering in the affirmative when the trial court
asked if he recalled the court’s warning at Appellant’s previous revocation
hearing that the trial court “was going to give [Appellant] a state sentence”
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if Appellant appeared before the court again); Id. at 15 (recommending
Appellant’s sentence be served at a state correctional institution that has a
“good drug treatment program[,]” in hopes Appellant would take his “drug
treatment seriously this time”); Id. (finding the sentence “absolutely
necessary to vindicate the authority of the court” after the trial court had
provided previously opportunities for Appellant to reform and address his
drug abuse to no avail).
In light of the foregoing, because the trial court’s findings are
supported by the record and evidence thoughtful considerations by the trial
court about the specific needs of Appellant, we conclude that the trial court
did not abuse its discretion in sentencing Appellant.6 Probation has proven
6 Lastly, we briefly address Appellant’s reliance on Parlante, supra to
support his argument that his sentence is excessive. In Parlante, Parlante
was
convicted of forgery for purchasing $1000.00 in merchandise on
a stolen credit card [and] initially received probation. [Parlante]
committed a series of technical violations, and also was arrested
for drug possession and underage drinking. The trial court
sentenced [Parlante] to four to eight years of incarceration on
the forgery offenses. This Court concluded that the length of the
prison sentence was excessive, given that [Parlante] never
committed a violent crime and that most of her probation
violations were technical.
Schutzues, 54 A.3d at 100. Additionally, the Parlante Court found that the
trial court failed to consider mitigating factors, and focused “solely on the
fact that [Parlante’s] prior record indicated that it was likely that she would
violate her probation in the future[.]” Parlante, 823 A.2d at 930. We find
Parlante distinguishable from the instant matter for several reasons. First,
unlike in Parlante, the record here clearly indicates that the trial court took
(Footnote Continued Next Page)
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to be ineffective in rehabilitating Appellant, and a prison sentence is
necessary to help Appellant with treatment as well as vindicate the authority
of the court. See Commonwealth v. Mouzon, 812 A.2d 617, 620 (Pa.
2002) (“Traditionally, the trial court is afforded broad discretion in
sentencing criminal defendants ‘because of the perception that the trial court
is in the best position to determine the proper penalty for a particular
offense based upon an evaluation of the individual circumstances before it.’”)
(citation omitted).
Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/19
(Footnote Continued) _______________________
into account Appellant’s rehabilitative needs and did not base Appellant’s
sentence solely on his prior record. Secondly, Appellant’s underlying
convictions are for robbery and PWID, as opposed to Parlante’s forgery
conviction. Lastly, the trial court warned Appellant of an impending state
sentence at a prior revocation, should Appellant violate his probation yet
again. Thus, we do not believe that this Court’s holding in Parlante
warrants the conclusion that Appellant’s sentence is excessive.
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