Com. v. Anderson, B.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
BRUCE ANDERSON, : No. 3587 EDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, November 15, 2013,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0003582-2008
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND STABILE, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 12, 2014
Bruce Anderson appeals from the judgment of sentence of
November 15, 2013, following revocation of his probation. We affirm.
On July 24, 2008, appellant pled guilty to one count of false
imprisonment. The charge related to an incident on June 19, 2007, when
appellant grabbed a 10-year-old girl, restrained her, and rubbed her
buttocks before she was able to run away. Additional charges including
indecent assault were nolle prossed. On October 21, 2008, appellant was
sentenced to 11½ to 23 months’ imprisonment, with immediate parole,
followed by 8 years of supervised probation by the Mental Health Unit. On
April 22, 2009, appellant was found to be in violation of his parole;
appellant’s parole was revoked and he was sentenced to serve out the
balance of his sentence.
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On August 13, 2012, appellant violated the terms of his probation, and
he was sentenced to 6 to 23 months’ imprisonment, with immediate parole,
followed by 5 years of supervisory probation under the Mental Health Unit.
On November 15, 2013, appellant was again found to be in violation of
probation, for failure to comply with the terms and conditions of the mental
health program. Appellant was re-sentenced to 2½ years to 5 years’
incarceration followed by 5 years of probation. Appellant’s sentence was to
be served concurrently with the 2½ to 5-year sentence imposed August 22,
2013, by the Honorable Sheila Woods-Skipper in an unrelated violation of
probation (“VOP”) case.1
Appellant filed a motion for reconsideration of sentence on
November 25, 2013. On Monday, December 16, 2013, appellant filed a
timely notice of appeal.2 Appellant complied with Pa.R.A.P. 1925(b), and the
trial court has filed an opinion.
1
Appellant filed an appeal in that case at No. 2932 EDA 2013, which is pending
before a different panel of this court.
2
The filing of a motion to modify sentence does not toll the 30-day appeal
period in revocation cases. Pa.R.Crim.P. 708(E).
Under this rule, the mere filing of a motion to modify
sentence does not affect the running of the 30-day
period for filing a timely notice of appeal. Any appeal
must be filed within the 30-day appeal period unless
the sentencing judge within 30 days of the imposition
of sentence expressly grants reconsideration or vacates
the sentence.
Id., Comment, citing Commonwealth v. Coleman, 721 A.2d 798, 799 n.2
(Pa.Super. 1998).
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Appellant has raised the following issue for this court’s review:
Was not [appellant]’s sentence of 2½ to 5 years[’]
incarceration for a technical violation of probation
excessive and unreasonable, where the lower court
simply adopted the prior sentence of another
sentencing judge in an unrelated violation matter
and the lower court’s sentence failed to take any
individualized account of appellant’[s] rehabilitative
needs by disregarding his mental health issues and
his mental health treatment programs’ agreement to
continue working with him under more stringent
parameters, and such a sentence was not necessary
to vindicate the authority of the court?
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) (this court's scope of review in an appeal from a revocation
sentencing includes discretionary sentencing challenges). As the
Coolbaugh court observed:
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
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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).
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;
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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 contends that the trial court
merely adopted Judge Woods-Skipper’s findings in an unrelated case and did
not exercise its own independent judgment. (Appellant’s brief at 8.)
Appellant also argues that the sentence imposed failed to address his
rehabilitative needs and disregarded the fact that the mental health program
in which appellant was enrolled (“JJPI”) had agreed to continue working with
him under more stringent parameters. (Id.) Appellant states that he has
long-standing mental health issues and JJPI was willing to provide additional
services. (Id. at 9.) Appellant alleges that none of the criteria for total
confinement set forth at 42 Pa.C.S.A. § 9771(c) was satisfied here. (Id.)
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Essentially, appellant is arguing that his technical violations of
probation by failing to comply with JJPI’s requirements did not support a
state sentence. “The imposition of a sentence of total confinement after the
revocation of probation for a technical violation, and not a new criminal
offense, implicates the ‘fundamental norms which underlie the sentencing
process.’” Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super.
2010), appeal denied, 13 A.3d 475 (Pa. 2010), quoting Sierra, 752 A.2d
at 913. “Additionally, a substantial question that the sentence was not
appropriate under the Sentencing Code may occur even where a sentence is
within the statutory limits.” Id., citing Commonwealth v. Titus, 816 A.2d
251 (Pa.Super. 2003). We determine appellant has raised a substantial
question regarding the appropriateness of his sentence, and will proceed to
review the merits of his claim.
First, with regard to appellant’s argument that the trial court simply
adopted the sentence of Judge Woods-Skipper and did not make its own
findings, this claim is waived. In his Rule 1925(b) statement, appellant
argued that his sentence was manifestly excessive and unreasonable where
his technical violations stemmed from mental health issues and a sentence
of total confinement was not necessary to vindicate the authority of the
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court.3 Appellant never alleged that the trial court erred by relying on
Judge Woods-Skipper’s findings in an unrelated matter. Therefore, this
particular issue is waived. Pa.R.A.P., Rule 1925(b)(4)(vii), 42 Pa.C.S.A.
See also Commonwealth v. Marion, 981 A.2d 230, 237 (Pa.Super. 2009),
appeal denied, 990 A.2d 729 (Pa. 2010) (“to preserve their claims for
appellate review, [a]ppellants must comply whenever the trial court orders
them to file a Statement of Matters Complained of on Appeal pursuant to
[Rule] 1925. Any issues not raised in a [Rule] 1925(b) statement will be
deemed waived.”) (citations omitted).
The trial court states that its sentence was not unreasonable and was
necessary to vindicate the authority of the court. (Trial court opinion,
6/13/14 at 3.) The trial court observes that this was appellant’s second
probation violation (and third violation overall, including his April 2009
parole revocation). (Id.) In addition, the trial court received information to
3
The issue appellant plans to raise on appeal is: The
trial court erred as a matter of law, abused its
discretion and imposed a manifestly excessive and
unreasonable sentence of 2.5 to five years of
incarceration plus five years of probation, where
appellant had only technical violations of his probation,
where his technical violations stemmed from mental
health issues, where a sentence of total confinement
was not necessary to vindicate the authority of the
court, where the trial court failed to state sufficiently
adequate reasons for imposing the new sentence, and
where the trial court failed to properly weigh and
consider the totality of the mitigating circumstances
present in this case.
Appellant’s Rule 1925(b) statement, 1/30/14 at 2 ¶6; docket #10.
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the effect that appellant had also violated his probation in an unrelated case
before Judge Woods-Skipper, and had been re-sentenced to 2½ to 5 years.
(Id.) It is true that appellant’s violations were technical in nature; however,
he had clearly demonstrated by his repeated violations of the terms and
conditions of his probation that he was not amenable to treatment.
Appellant refused to abide by JJPI’s requirements. At the November 15,
2013 hearing, the trial court heard from appellant as he exercised his right
of allocution, and also heard evidence that appellant had been doing well at
JJPI until the last three months, and that JJPI was willing to continue
working with appellant, including increasing his treatment from four to five
days per week and providing additional services. (Notes of testimony,
11/15/13 at 7-8, 10.) The trial court was also aware of appellant’s problems
sleeping and that his psychiatrist had recently changed his medications.
(Id. at 8.)
Overall, given appellant’s repeated violations, we cannot say the trial
court abused its discretion in imposing a state sentence. The trial court
directed that appellant continue to receive mental health treatment while in
prison. (Id. at 12.) We also note that the trial court made appellant’s
sentence concurrent, as requested by counsel. (Id. at 6-7, 11.) In fact,
counsel characterized a concurrent sentence of 2½ to 5 years as “sufficient”:
“Your Honor, my understanding is that probation does not oppose a
concurrent sentence and I’m asking for whatever sentence you impose to be
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concurrent. I think that the two and a half to five is sufficient too.” (Id. at
11.) There is no merit to appellant’s discretionary sentencing claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2014
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