Com. v. Mikelonis, R.

J-S01035-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RAYMOND A. MIKELONIS
Appellant No. 1049 WDA 2014
Appeal from the Judgment of Sentence May 28, 2014
In the Court of Common Pleas of Clearfield County
Criminal Division at No(s): CP-17-CR-0000325-2006
BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 20, 2015
Appellant, Raymond A. Mikelonis, appeals from the judgment of
sentence entered in the Clearfield County Court of Common Pleas, following
revocation of his probation.1 We affirm.
In its opinion, the trial court set forth the relevant facts and procedural
history of this appeal as follows:
On March 21, 2006, Trooper Carol Ponce of the
Pennsylvania State Police filed a Criminal Complaint,
charging [Appellant] with three counts of Indecent Assault
(Person Less Than 13 Years of Age), three counts of
Indecent Exposure, and three counts of Indecent Assault
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1
Although Appellant purports to appeal from the order revoking his
probation, the appeal properly lies from the judgment of sentence imposed
following revocation of his probation. See Commonwealth v. W.H.M., Jr.,
932 A.2d 155 (Pa.Super. 2007). (stating direct appeal in criminal
proceeding properly lies from judgment of sentence).
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(Without the Consent of Other). The charges stemmed
from [Appellant] touching the genitalia of three young girls
under the age of six, as well as having the victims touch
his penis. [Appellant] subsequently pled guilty to three
counts of Indecent Assault and three counts of Indecent
Exposure on June 5, 2006. On November 1, 2006, the
[c]ourt sentenced [Appellant] to a minimum of seven
months and a maximum of four years of incarceration,
with an additional consecutive period of five years’
probation. At sentencing, the [c]ourt further imposed
conditions of his probation: Megan’s Law registration and
absolutely no contact with the victims, [or] any child under
the age of eighteen. Also on that day, [Appellant] was
classified as a sexually violent predator following a hearing
on [Appellant’s] Megan’s Law Assessment.
[] Upon regaining his freedom from incarceration,
[Appellant], on March 25, 2010, met with his probation
officers. At that meeting, [Appellant] was given a form
created by the Pennsylvania Board of Probation and Parole
[(“Board”)] entitled “Standard Special Conditions for Sex
Offenders—Minor Victims.” The form…set forth twenty-five
conditions of his probation supervision. [Appellant]
initialed after each condition, and then signed his name at
the end. According to these conditions of
probation…[Appellant] had to provide “Probation/Parole
Supervision Staff unlimited access to any computer or
other wireless/electronic device in [his] possession,
including, but not limited to, cellular phones, blackberries,
etc., and allow Probation/Parole Supervision Staff to
search all programs and records maintained on any
computer or such other device in [his] possession.”
Standard Special Conditions for Sex Offenders, ¶12.
Additionally, [Appellant] was not permitted to “possess
photographs or other pictures of anyone under the age of
18 years old without prior written permission of
Probation/Parole Supervision Staff.” Id. at ¶24.
While [Appellant was] on probation, on September 1,
2011, [Board] Agent Shuttlesworth…observed [Appellant’s]
cellphone with a picture of two young boys on the screen
during a routine visit at [Appellant’s] home. A search of
the home was then conducted, and Agent Shuttlesworth
found three DVDs under [Appellant’s] mattress. The items
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were seized and turned over to local police. The police
were able to view the contents of the DVDs and found
forty-seven videos of pre-pubescent children, all under the
age of eighteen, performing sexual acts. Thereafter,
[Appellant] was charged with sexual abuse of children
relative to his possession of child pornography.1
1
[Appellant] ultimately pled guilty to these charges
on January 5, 2012, and was sentenced in
accordance with the plea agreement to an aggregate
term of nine months to seven years’ incarceration.
[Appellant] appealed [his] judgment of sentence to
the Superior Court of Pennsylvania, which recently
upheld the validity of [Appellant’s] guilty plea. [See]
Commonwealth v. Mikelonis, 1505 WDA 2012[,
unpublished memorandum (Pa.Super. filed May 9,
2014)].
On October 25, 2011, [Appellant] appeared before the
[c]ourt for a probation revocation hearing due to [these]
infractions. The [c]ourt revoked [Appellant’s] probation at
that time and sentenced [him] to a minimum of three
months and a maximum of five years[’ incarceration] for
each count [of indecent exposure], with the sentence for
each count to be served concurrently. On November 29,
2012, [Appellant] filed [a petition] pursuant to the Post
Conviction Relief Act [(“PCRA”)].[2] The [c]ourt denied said
[petition] on December 28, 2012 as untimely. …
On January 28, 2014, the Superior Court of Pennsylvania
vacated [the PCRA c]ourt’s Order dismissing [Appellant’s]
Petition and remanded [the] case…for [the PCRA c]ourt to
consider any PCRA petition filed by [Appellant].2 The
[c]ourt thereafter scheduled a PCRA hearing to be held on
March 5, 2014. After the PCRA hearing, the [c]ourt
granted [Appellant’s] PCRA Petition.[3] As such, the
[c]ourt, with the agreement of [Appellant] and his counsel,
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2
42 Pa.C.S.A. §§ 9541-9546.
3
Preliminarily, the court determined that Appellant’s PCRA petition was
timely under the prisoner mailbox rule.
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ordered that a new probation revocation hearing be held.
Said revocation hearing was held on May [28], 2014, and
after the conclusion of the evidence and testimony
presented, the [c]ourt, for a second time, revoked
[Appellant’s] probation. Once again, the [c]ourt sentenced
[Appellant] to a minimum of three months and a maximum
of five years for each of the three counts [of indecent
exposure], with the sentence for each count to be served
concurrently.
2
[See] Commonwealth v. Mikelonis, 247 WDA
2013[, unpublished memorandum (Pa.Super. filed
January 28, 2014)].
(Trial Court Opinion, filed August 12, 2014, at 1-4). Appellant was ordered
to serve this revocation sentence consecutively to the sentence imposed
following his guilty plea on the new offenses. Appellant filed a timely notice
of appeal on June 24, 2014. The court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b);
Appellant timely complied.
Appellant raises the following issues for our review:
WHETHER THE COURT ERRED IN REVOKING
[APPELLANT’S] PROBATION AND RESENTENCING HIM,
WHEN THE ALLEGED PROBATION VIOLATION PROVIDING
REASONABLE SUSPICION FOR A SEARCH OF
[APPELLANT’S] PREMISES RESULTING IN THE DISCOVERY
OF EVIDENCE OF A SUBSEQUENT CRIME WAS NOT A
CONDITION OF PROBATION IMPOSED UPON [APPELLANT]
BY THE COURT.
WHETHER THE COURT ERRED IN REVOKING
[APPELLANT’S] PROBATION AND RESENTENCING HIM,
WHEN THE COURT FAILED TO CONSIDER [APPELLANT’S]
ARGUMENT CHALLENGING THE LEGALITY OF THE SEARCH
OF HIS PREMISES BY HIS PROBATION OFFICER WHICH
UNCOVERED EVIDENCE WHICH LED TO THE FILING OF
SUBSEQUENT CRIMINAL CHARGES AGAINST [APPELLANT].
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(Appellant’s Brief at 5).
In his first issue, Appellant argues he did not violate the conditions of
his probation by having photos of his grandchildren on his cell phone.
Appellant asserts the conditions of his probation, which the court imposed at
sentencing, required Appellant simply to have no contact with any child
under the age of eighteen. Appellant contends that, in the absence of any
evidence of a probation violation, the probation officer lacked reasonable
suspicion to perform a search of Appellant’s home. Appellant avers the
revocation of his probation resulted from his conviction for possession of
child pornography, which was based on evidence the probation officer
recovered during the allegedly unlawful search of Appellant’s residence.
Although Appellant pled guilty to the child pornography charges, he suggests
the plea was uninformed and claims plea counsel was ineffective for failing
to challenge the search of the residence. Appellant argues that if counsel
had successfully brought a motion to suppress the evidence, the outcome of
that case, and by extension the current probation revocation proceedings,
would have been different. Appellant concludes the court erred when it
revoked Appellant’s probation. We disagree.
The Sentencing Code provides as follows with respect to a court’s
authority to attach conditions to an order of probation:
§ 9754. Order of probation
(a) General rule.—In imposing an order of probation
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the court shall specify at the time of sentencing the length
of any term during which the defendant is to be
supervised, which term may not exceed the maximum
term for which the defendant could be confined, and the
authority that shall conduct the supervision.
(b) Conditions generally.—The court shall attach such
of the reasonable conditions authorized by subsection (c)
of this section as it deems necessary to insure or assist the
defendant in leading a law-abiding life.
42 Pa.C.S.A. § 9754(a)-(b). Subsection (c) enumerates fourteen conditions
a sentencing court may impose upon a defendant when it imposes probation,
including a catchall of “any other conditions reasonably related to the
rehabilitation of the defendant and not unduly restrictive of his liberty or
incompatible with his freedom of conscience.” Id. § 9754(c)(13). The
“[Pennsylvania] Board [of Probation and Parole] or its agents may impose
more specific conditions of supervision pertaining to that probation, so long
as those supervision conditions are in furtherance of the trial court’s
conditions of probation.” Commonwealth v. Elliott, 616 Pa. 524, 536-37,
50 A.3d 1284, 1292 (2012).
“Revocation of a probation sentence is a matter committed to the
sound discretion of the trial court and that court’s decision will not be
disturbed on appeal in the absence of an error of law or an abuse of
discretion.” Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa.Super.
2007), appeal denied, 596 Pa. 729, 945 A.2d 169 (2008). The Sentencing
Code permits a court to revoke an order of probation under the following
circumstances:
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§ 9771. Modification or revocation of order of
probation
(a) General rule.—The court may at any time terminate
continued supervision or lessen or increase the conditions
upon which an order of probation has been imposed.
(b) Revocation.—The court may revoke an order of
probation upon proof of the violation of specified conditions
of the probation. Upon revocation the sentencing
alternatives available to the court shall be the same as
were available at the time of initial sentencing, due
consideration being given to the time spent serving the
order of probation.
(c) Limitation on sentence of total confinement.—
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.A. § 9771(a)-(c). Whether the probationer, in fact, violated the
conditions of his probation must be demonstrated by evidence of probative
value. Commonwealth v. Sims, 770 A.2d 346 (Pa.Super. 2001). The
Commonwealth bears a lesser burden of proof at a probation revocation
hearing than it does in a criminal trial. Commonwealth v. Allshouse, 969
A.2d 1236 (Pa.Super. 2009). “The Commonwealth establishes a probation
violation meriting revocation when it shows, by a preponderance of the
evidence, that the probationer’s conduct violated the terms and conditions of
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his probation, and that probation has proven an ineffective rehabilitation tool
incapable of deterring probationer from future antisocial conduct.”
Perreault, supra at 558. “[A]n implied condition of any sentence of
probation is that the defendant will not commit a further offense.”
Commonwealth v. Infante, 585 Pa. 408, 420, 888 A.2d 783, 790 (2005)
(quoting Commonwealth v. Mallon, 406 A.2d 569, 571 (Pa.Super. 1979)).
A revocation hearing need not “be conducted with the same procedural
and evidentiary rules as would apply to a trial on the criminal charges
growing out of the same facts.” Commonwealth v. Kates, 452 Pa. 102,
118, 305 A.2d 701, 710 (1973). “In this area of rights of probationers and
parolees the controlling factor is not whether the traditional rules of evidence
or procedure including Fourth and Fifth Amendment exclusionary rules, have
been strictly observed, but rather whether the probative value of the
evidence has been affected.” Id. See also Commonwealth v. Holder,
569 Pa. 474, 482 n.7, 805 A.2d 499, 504 n.7 (2002) (stating that in
revocation hearing, “probationer…is not entitled to strict application of the
rules of evidence or procedure, including the Fourth and Fifth Amendment
exclusionary rules”); Commonwealth v. Lehman, 851 A.2d 941 (Pa.Super.
2004) (holding that in context of probation violation hearings and application
of exclusionary rule, Pennsylvania Constitution affords no greater protection
than does federal constitution).
Instantly, the trial court reasoned as follows with respect to the
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validity of the conditions the Board imposed on Appellant’s probation:
The provisions outlined in the Standard Special Conditions
for Sex Offenders, which were imposed upon [Appellant]
by the probation office, are permissible conditions of
supervision and are derivative of the [c]ourt’s condition of
probation that [Appellant] not have contact with minors.
This general condition was imposed by the [c]ourt at
[Appellant’s] sentencing on November 1, 2006. Thus, the
[c]ourt believes that the provisions in the Standard Special
Conditions were lawfully imposed upon [Appellant] by the
probation office.
(Trial Court Opinion at 5). We agree. Appellant’s focus on the trial court’s
condition that Appellant avoid contact with minor children ignores the
Board’s more specific requirement that Appellant not possess photographs of
any minors without prior written permission. This requirement was in
furtherance of the court’s general condition of probation that Appellant not
have contact with minors. Therefore, the Board’s condition of probation
prohibiting Appellant from possessing photographs of minors was valid. See
42 Pa.C.S.A. § 9754; Elliott, supra. Moreover, the photograph on
Appellant’s cell phone was not the only evidence of a probation violation.
During a subsequent search of the residence, Agent Shuttlesworth found
under Appellant’s mattress three DVDs containing child pornography. At the
time of the revocation hearing on May 28, 2014, Appellant had pled guilty, in
a new criminal case, to forty-seven counts of sexual abuse of children in
connection with the child pornography recovered from his home. This Court
had determined the guilty plea was valid and affirmed Appellant’s judgment
of sentence on May 9, 2014. Appellant’s commission of a new crime
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provided a sufficient basis for the court to revoke his sentence of probation.
See Infante, supra. Accordingly, the revocation of Appellant’s probation
was supported by sufficient probative evidence.4 See Sims, supra;
Perreault, supra.
In his second issue, Appellant argues he presented testimony at the
revocation hearing that he had already served four years in prison for his
original offenses. Appellant asserts that during his first year of probation, he
successfully participated in a sex-offender rehabilitation program. In light of
these factors, Appellant contends his “technical” violation of probation, i.e.,
the photographs of Appellant’s grandsons on his cell phone, would have
been insufficient, on its own, to support revocation of probation. Appellant
further claims the subsequently discovered evidence of child pornography
DVDs had limited probative value in the revocation proceedings. Appellant
insists the court improperly focused on the fact that Appellant did not
challenge the admissibility of this evidence in the separate criminal case;
and the court failed to consider factors supporting a lesser sanction than
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4
With respect to Appellant’s assertion that the search of his residence was
unsupported by reasonable suspicion, Appellant was not entitled to
application of the exclusionary rule at the probation revocation hearing. See
Holder, supra; Lehman, supra. In any event, Appellant pled guilty to
sexual abuse of children in new criminal proceedings based on the evidence
recovered during the search, and this Court subsequently affirmed the
judgment of sentence. To the extent Appellant challenges the validity of his
guilty plea or plea counsel’s stewardship in that case, those issues relate to
Appellant’s separate criminal case, which is not presently before us.
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revocation and total confinement. Appellant likewise argues the revocation
proceeding was fundamentally unfair, because the court failed to give due
consideration to all possible alternatives to incarceration. Appellant insists
the revocation hearing was simply a procedural formality and its outcome
was a foregone conclusion. Appellant concludes this Court should vacate his
revocation sentence. As presented, Appellant’s challenge is to the
discretionary aspects of his sentence. See Commonwealth v. Lutes, 793
A.2d 949 (Pa.Super. 2002) (stating claim that sentence is manifestly
excessive challenges discretionary aspects of sentencing); Commonwealth
v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa.
653, 676 A.2d 1195 (1996) (stating claim that court did not consider certain
mitigating factors challenges discretionary aspects of sentencing).
When reviewing the outcome of a revocation hearing, this Court is
limited to determining the validity of the proceeding and the legality of the
judgment of sentence imposed. Commonwealth v. Heilman, 876 A.2d
1021 (Pa.Super. 2005). Notwithstanding the stated scope of review
suggesting only the legality of a sentence is reviewable, an appellant may
also challenge the discretionary aspects of a sentence imposed following
revocation. Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super. 2000).
See also Commonwealth v. Cartrette, 83 A.3d 1030 (en banc) (Pa.Super.
2013) (stating reviewing court’s scope of review in appeal from revocation
sentence includes discretionary sentencing challenges). Challenges to the
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discretionary aspects of sentencing do not entitle an appellant to an appeal
as of right. Sierra, supra. Importantly, objections to the discretionary
aspects of a sentence are generally waived if they are not raised at the
sentencing hearing or in a timely filed post-sentence motion.
Commonwealth v. Hartman, 908 A.2d 316 (Pa.Super. 2006).
Additionally, 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 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). If an appellant fails to include a Rule 2119(f) statement but the
Commonwealth does not object, the reviewing court can ignore the omission
and determine if the appellant raised a substantial question as to the
discretionary aspects of his sentence. Commonwealth v. Stewart, 867
A.2d 589 (Pa.Super. 2005).
Instantly, Appellant failed to object to his revocation sentence at
imposition or to file a post-sentence motion. Therefore, Appellant’s
challenge to the discretionary aspects of his sentence is waived. See
Hartman, supra. Moreover, Appellant’s bald claim that the court ignored
certain factors does not raise a substantial question. See Cruz-Centeno,
supra (stating allegation that sentencing court failed to consider or did not
adequately consider certain factors does not raise substantial question). To
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the extent Appellant argues his sentence was manifestly excessive, absent
more, this claim also fails to present a substantial question. See Mouzon,
supra (explaining bald allegations of excessiveness do not raise substantial
question). See also Commonwealth v. Carrillo-Diaz, 64 A.3d 722
(Pa.Super. 2013) (holding record showed court conducted proper pre-
sentence inquiry and considered relevant sentencing factors following
revocation of appellant’s probation, where same judge sat for appellant’s
plea hearing, original sentencing, and probation revocation hearing and
resentencing; at revocation sentencing, court heard from appellant, defense
counsel, and Commonwealth’s attorney regarding factors relevant to
sentencing decision). Based on the foregoing, we conclude Appellant’s
revocation sentence should remain undisturbed. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/20/2015
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