Com. v. Myrick, V.

J-S22023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VINCENT BERNARD MYRICK
Appellant No. 1453 WDA 2014
Appeal from the Judgment of Sentence August 12, 2014
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000252-2011
CP-33-CR-0000256-2011
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED MAY 28, 2015
Vincent Bernard Myrick appeals from the judgment of sentence
imposed in the Court of Common Pleas of Jefferson County after his
probation was revoked. Upon careful review, we affirm.
On September 7, 2011, at docket No. CP-33-CR-252-2011, Myrick
pled guilty to one count of delivery of a controlled substance and was
sentenced to 9 to 18 months’ incarceration, followed by a period of 18
months of probation. On that same date, at docket No. CP-33-CR-256-
2011, Myrick pled guilty to one count of delivery of a controlled substance
and was sentenced to 9 to 18 months’ incarceration, followed by a period of
18 months of probation. The sentences were imposed consecutively.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S22023-15
While serving his first probationary sentence,1 Myrick admitted to
technical violations of his probation, including: (1) use of a controlled
substance; (2) associating with known drug dealers; and (3) failing to use
prescription medication as prescribed. At a Gagnon II2 hearing held on
August 12, 2014, the Honorable John H. Foradora revoked Myrick’s
probation and resentenced him to 2½ to 5 years on each case,3 to run
consecutively. Myrick filed a motion for reconsideration, which was denied.
This timely appeal followed, in which Myrick raises one issue for our review:
Whether the trial court abused its discretion when it revoked Myrick’s
probation and resentenced him to serve an aggregate term of 5 to 10 years’
incarceration.
____________________________________________
1
Myrick’s parole ended on April 9, 2014. N.T. Gagnon II Hearing, 8/13/14,
at 8. Accordingly, although the record does not explicitly state the docket
number of the probationary sentence Myrick was serving at the time he
violated, it is clear that he would have been serving the first of his two
probationary terms.
2
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
3
A trial court possesses the authority to anticipatorily revoke probation.
Commonwealth v. Ware, 737 A.2d 251 (Pa. Super. 1999). Thus, even
though Myrick was only serving the first of two consecutive probationary
terms, the court was within its rights to revoke both probations. See also
Commonwealth v. Mitchell, 955 A.2d 433, 435 n.2 (Pa. Super. 2008)
(order of probation can be changed or revoked if, at any time before
defendant completes maximum period of probation, or before he has begun
service of probation, defendant commits offenses or otherwise demonstrates
he is unworthy of probation).
-2-
J-S22023-15
Myrick challenges the discretionary aspects of his sentence. Such a
challenge must be considered a petition for permission to appeal, as the
right to pursue such a claim is not absolute. Commonwealth v. Raven, 97
A.3d 1244, 1252 (Pa. Super. 2014) (citation omitted).
Before we reach the merits of this issue, we must engage in a
four part analysis to determine: (1) whether the appeal is
timely; (2) whether Appellant preserved his issue; (3) whether
Appellant’s brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence is
appropriate under the sentencing code. . . . [I]f the appeal
satisfies each of these four requirements, we will then proceed to
decide the substantive merits of the case.
Commonwealth v. Colon, 102 A.3d 1033, 1043-44 (Pa. Super. 2014)
(some punctuation omitted).
Here, Myrick preserved his claim by filing a motion for reconsideration,
followed by a timely appeal. In addition, Myrick’s appellate brief contains a
statement of reasons relied upon for allowance of appeal pursuant to
Pa.R.A.P. 2119(f), in which he claims that his sentence was manifestly
unreasonable under the circumstances of the case and that the court failed
to state adequate reasons for the sentences imposed.4
____________________________________________
4
Myrick’s second claim, that the trial court failed to state adequate reasons
for the sentences imposed, is waived, as his brief is devoid of argument on
this issue. Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002)
(“[I]t is a well settled principle of appellate jurisprudence that undeveloped
claims are waived and unreviewable on appeal.”).
-3-
J-S22023-15
A claim that a sentence is manifestly excessive such that it constitutes
too severe a punishment raises a substantial question. See
Commonwealth v. Mouzon, 812 A.2d 617, 624 (Pa. 2002). Accordingly,
we will review this claim on its merits.
We begin by noting that 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. Id. 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. Id.
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. 42 Pa.C.S.A. § 9771(b). The trial court is limited
only by the maximum sentence that it could have imposed originally at the
time of the probationary sentence. Colon, 102 A.3d at 1044.
However, the court’s ability to impose a sentence of total confinement
is limited by section 9771(c) of the Sentencing Code, which provides that a
court may only impose such a sentence if it finds that:
(1) the defendant has been convicted of another crime;
(2) the conduct of the defendant indicates that it is likely that
he will commit another crime if he is not imprisoned; or
-4-
J-S22023-15
(3) such a sentence is essential to vindicate the authority of
the court.
42 Pa.C.S.A. § 9771(c).
Here, the gist of Myrick’s extremely brief argument is that the
sentence imposed by Judge Foradora was excessive because Myrick’s
violations were his first and were technical in nature. He claims that the
aggregate 5 to 10 year sentence is “out of proportion to the gravity of the
offense, and what would be necessary to address its impact on the
community and [his] rehabilitative needs[.]” Brief of Appellant, at 9. Myrick
is entitled to no relief.
Myrick’s underlying probationary sentence was imposed for two
convictions for delivery of a controlled substance under 35 P.S. § 780-
113(a)(30), each of which carries a maximum penalty of 5 years’
incarceration. See 35 P.S. § 780-113(f)(2). Judge Foradora imposed
consecutive sentences of 2½ to 5 years, well within the statutory limit.
Based on Myrick’s conduct while on probation, Judge Foradora
concluded that he was likely to violate again and that a sentence of total
confinement was necessary to vindicate the authority of the court. See 42
Pa.C.S.A. § 9771(c)(2) & (3). At the Gagnon II hearing, the court cited the
following conduct engaged in by Myrick within three months of the beginning
of his probationary period:
-5-
J-S22023-15
Now, I look at your situation. May, June, July, on our probation
for about three months, you have a hot urine, you have a dead
woman in your bed[5], you have a [methadone] pill count that’s
20 tablets short, and then you[’re] on video purchasing syringes
in the Hometown Pharmacy when you don’t take medication that
[requires] a syringe. And you said that you did it for a girl’s
grandmother. Those are the things that if you have a drug
problem or are in trouble, you should stay away from. You
shouldn’t be dropping your [methadone] tablets down the
vent[6], shouldn’t have drug users in your apartment – especially
ones dying in there – shouldn’t be using marijuana, and
shouldn’t be purchasing syringes for other people, when I’m sure
you knew it wasn’t for her grandmother. It was probably for her
to use to ingest drugs in an intravenous manner.
N.T. Gagnon II Hearing, 8/13/14, at 9. Moreover, Myrick failed to take any
responsibility whatsoever for his conduct, stating to the court that he didn’t
really understand why he was being “punished.” See id. at 4.
Based on the foregoing, we can discern no abuse of discretion on the
part of the trial court in imposing an aggregate sentence of total
confinement of 5 to 10 years, particularly in light of Myrick’s multiple
violations of the conditions of his probation within only three months of
commencing supervision.
Judgment of sentence affirmed.
____________________________________________
5
On July 17, 2014, a known drug user named Brittney Burnette was found
deceased in Myrick’s apartment. Myrick claimed that he was unaware of her
drug use, had only known her for three days, and that “[s]he was the
babysitter.” N.T. Gagnon II Hearing, 8/13/14, at 6.
6
Myrick’s probation officer counted his methadone tablets on July 1, 2014
and found his supply to be 20 tablets short. Myrick claimed that he had
“dropped them down a vent in [his] apartment.” Notice of Charges and
Hearing Rights & Written Request for Revocation, 7/21/14.
-6-
J-S22023-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/28/2015
-7-