Com. v. Dehart, Jr., R.

J-A08015-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICKEY EARL DEHART, JR.,
Appellant No. 1419 MDA 2014
Appeal from the Judgment of Sentence Entered July 23, 2014
In the Court of Common Pleas of Union County
Criminal Division at No(s): CP-60-CR-0000078-2009
BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MAY 20, 2015
Appellant, Ricky1 Earl Dehart, Jr., appeals from the judgment of
sentence entered in the Union County Court of Common Pleas, following the
revocation of his probation. We affirm.
As the “Statement of the Case” section of Appellant’s brief consists of
two sentences,2 we glean the relevant facts from the certified record on
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Appellant advises that the proper spelling of his name is “Ricky.”
2
Pa.R.A.P. 2117(a)(1) requires that the statement of the case shall
contain “[a] statement of the form of action, followed by a brief procedural
history of the case.” Pa.R.A.P. 2117(a)(4) further instructs that the
statement of the case shall include “a closely condensed chronological
statement of all necessary facts . . . . ” Although counsel’s non-compliance
with Rule 2117 does not preclude review in this instance, we remind counsel
(Footnote Continued Next Page)
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appeal and the transcript of the probation revocation proceeding. On
February 21, 2014, the Commonwealth filed a motion to revoke Appellant’s
probation, alleging that he had violated the conditions of his probation
related to the use of narcotics and compliance with drug and alcohol
treatment programs. On July 22, 2014, the trial court held a probation
revocation hearing. Appellant presented testimony from Aimee Benfer, a
caseworker from the Union County Children and Youth Services, concerning
Appellant’s attempts to maintain contact with his son while Appellant was in
custody. She also confirmed that Appellant was not the subject of an
investigation surrounding suspected abuse of his son. N.T., 7/22/14, at 8–
11. Appellant testified on his own behalf and admitted the allegations of the
Commonwealth’s motion. Id. at 5. Appellant also detailed his struggle with
drug addiction and his participation in drug treatment and parenting
programs offered at the county jail where he was then incarcerated. Id. at
12–18. Susan Stout, Appellant’s probation supervisor, appeared for the
Commonwealth and stated that Appellant should be sentenced to a state
facility because he brought illegal narcotics into a drug treatment facility and
was resistant to the treatment offered there. Id. at 24. At the completion
of testimony and argument, the trial court sentenced Appellant to a nine-
_______________________
(Footnote Continued)
that meaningful appellate review is best served when the parties comply
with the Pennsylvania Rules of Appellate Procedure. Commonwealth v.
Henry, 706 A.2d 313, 318 (Pa. 1997).
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month-to-thirty-six-month term of incarceration in a state correctional
institution. Id. at 33–34.
Appellant raises a single issue for review: “Did the Trial Court commit
error in sentencing Appellant to a state prison when less restrictive and more
appropriate alternatives were available?” Appellant’s Brief at 4. Appellant
argues that the trial court’s decision to sentence him to a state term was
inappropriate because he is a drug addict in need of treatment, not
incarceration. Id. at 6.
As presented, Appellant’s claim challenges a discretionary aspect of his
sentence. Commonwealth v. Cartrette, 83 A.3d 1030, 1033 (Pa. Super.
2013) (en banc) (appellants may challenge discretionary aspects of sentence
imposed following revocation). Challenges to the discretionary aspects of
sentencing do not entitle an appellant to an appeal as of right.
Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012).
Rather, prior to reaching the merits of a discretionary sentencing issue, we
conduct a four-pronged inquiry to determine: (1) whether Appellant filed a
timely notice of appeal; (2) whether the issue was properly preserved; (3)
whether Appellant’s brief includes a Pa.R.A.P. 2119(f) concise statement of
the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of sentence; and (4) whether there is a substantial
question that the sentence appealed from is not appropriate under the
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Sentencing Code. Commonwealth v. Lewis, 45 A.3d 405, 410 (Pa. Super.
2012).
Herein, Appellant filed a timely notice of appeal and preserved the
issue of state versus county incarceration during the probation revocation
hearing. In addition, Appellant’s brief contains the required Rule 2119(f)
statement. Thus, we must next determine whether Appellant has stated a
substantial question justifying this Court’s review of his sentencing claim.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. 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. Glass, 50 A.3d 720, 726–
727 (Pa. Super. 2012) (quoting Commonwealth v. Phillips, 946 A.2d 103,
112 (Pa. Super. 2008)).
In his Rule 2119(f) statement, Appellant asserts that the trial court’s
sentence was unreasonable because he received a term in a state facility for
a non-violent probation violation occasioned by his drug addiction and
concern for his child. Appellant urges that the trial court should have
considered his cooperation with the authorities investigating the suspected
abuse of his son and his efforts at rehabilitation as factors indicating that
incarceration in a county prison was appropriate.
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We first observe that Appellant has not identified any provision of the
Sentencing Code calling into question the trial court’s state facility decision. 3
Nor has he cited any authority for the concept that imposition of a state
sentence for non-violent crimes is contrary to fundamental norms underlying
the sentencing process. Facially, then, Appellant has failed to present a
substantial question concerning the propriety of his sentence. See
Commonwealth v. Brown, 982 A.2d 1017, 1020 (Pa. Super. 2009)
(appellant’s claim that state incarceration was unreasonable because he
committed a non-violent offense and was not confrontational during court
proceedings did not present a substantial question). Additionally,
Appellant’s assertion that the trial court did not adequately consider his
rehabilitative needs fails to raise a substantial question. See
Commonwealth v. Griffin, 65 A.3d 932, 936–937 (Pa. Super. 2013)
(allegation that court’s sentence failed to take into account rehabilitative
needs does not raise a substantial question). Similarly, Appellant’s claim
that the court did not factor in his drug addiction does not raise a substantial
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3
Appellant’s one and one-half page argument references one case and one
statutory section related to the substantial question requirement, but fails to
cite a single case supporting his distinct argument about the place of
incarceration. Appellant’s Brief at 8–9. Pursuant to the Pennsylvania Rules
of Appellate Procedure, failure to cite to relevant authority provides a basis
for us to find waiver. See Pa.R.A.P. 2119; Commonwealth v. Bowen, 55
A.3d 1254, 1263 n.3 (Pa. Super. 2012) (holding that appellant’s failure to
properly develop claims in brief could support a waiver determination).
Nevertheless, we consider the merits of Appellant’s claim.
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question. See Commonwealth v. Coolbaugh, 770 A.2d 788, 793 (Pa.
Super. 2001) (appellant’s claim that the court did not consider his personal
life situation of drug addiction does not raise a substantial question).
Even if we were to determine that Appellant raised a substantial
question, we find no merit in the underlying allegation.
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.
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (quoting
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)).
At the revocation hearing, the trial court explained its reasons for
imposing a state sentence, as follows:
[Appellant] was on the street for 19 ½ months. In 19 ½
months he had four relapses, he had two failed treatment
programs. There was a question about his attitude on the street
which is in contrast to his attitude in prison. He is seeking help
and doing what he needs to do. There is an issue of honesty on
top of his attitude.
* **
The whole incident involving his son is not a factor in here
at all. If anything, it mitigates in favor of the Commonwealth’s
proposal because, quite frankly, my inclination was 1 to 3 years
with RRRI sentence of nine months; but I’m willing to go along
with the Commonwealth’s recommendation and mainly for these
reasons.
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He’s currently on state supervision. It makes absolutely
no sense to split the sentence where you have one sentence
that’s county supervised and another sentence state supervised.
He’s been on state supervision and failed on state supervision,
which it makes no sense to go back to a county level where he’s
not done well on a higher level of supervision. And, as pointed
out, the services that we have to offer at the county level at this
time are not the same as in the state facility with the
programming on the grounds.
N.T., 7/22/14, at 32–33. The trial court also had access to and referred to a
pre-sentence report that had been prepared in connection with Appellant’s
2010 burglary conviction. Id. at 5–6. See Commonwealth v. Macias,
968 A.2d 773, 778 (Pa. Super. 2009) (when pre-sentence reports exist, it is
presumed that the sentencing judge was aware of relevant information
regarding defendant’s character).
Nothing in the trial court’s sentencing decision demonstrates that the
court misapplied the law, or exercised its judgment for reasons of partiality,
prejudice, bias, or ill will. To the contrary, the trial court observed that
Appellant’s rehabilitative needs would be better served in the state system.
And, while the court stated that the situation concerning Appellant’s son was
not relevant to its sentencing determination, it later mentioned that this
factor weighed in favor of the sentence recommended by the
Commonwealth, rather than the longer sentence that it was contemplating.
Thus, Appellant would not be entitled to relief on his challenge to the
discretionary aspects of his sentencing. Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/2015
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