Com. v. Neppach, M.

J-S32033-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL R. NEPPACH, :
:
Appellant : No. 1965 WDA 2014
Appeal from the Judgment of Sentence entered on October 28, 2013
in the Court of Common Pleas of Beaver County,
Criminal Division, No(s): CP-04-CR-0002257-2010;
CP-04-CR-0002434-2012
BEFORE: SHOGAN, OLSON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 03, 2015
Michael R. Neppach (“Neppach”) appeals from the judgment of
sentence imposed following the revocation of his probation/parole. We
affirm.
This appeal involves three separate cases that were consolidated at
the probation revocation court level: 2257-2010 (“No. 2257”); 1667-2012
(“No. 1667”); and 2434-2012 (“No. 2434”). At No. 2257, the
Commonwealth charged Neppach, in November 2010, with retail theft, to
which he subsequently pled guilty and received a sentence of three years of
probation. While Neppach was on probation, the Commonwealth charged
him with retail theft at No. 1667, to which he pled guilty in October 2012,
and was sentenced to two years of probation. In December 2012, the
Commonwealth charged Neppach at No. 2434 with criminal trespass and
J-S32033-15
possession of drug paraphernalia. Neppach pled guilty to criminal trespass
and was sentenced to serve 6½ to 23 months in the Beaver County Jail,
followed by three years of probation.
In January 2013, concerning Nos. 2257 and 1667, the Commonwealth
filed a Petition to revoke Neppach’s probation, alleging technical violations
based upon the new charges against Neppach at No. 2434. Following
Neppach’s subsequent stipulation to the probation violations, the court
revoked his probation and sentenced him to 6 to 23½ months in the Beaver
County Jail, followed by one year of probation.
In August 2013, after Neppach had completed his minimum 6½-month
sentence imposed at No. 2434, he was released on parole, and ordered by
the trial court to enter inpatient drug and alcohol treatment at the
Gaudenzia Treatment Center (“Gaudenzia”).1 However, Neppach left
Gaudenzia within 24 hours, without informing the Adult Probation and Parole
Office. Accordingly, a warrant was issued for his arrest.
On August 30, 2013, the Commonwealth again filed a Petition to
revoke Neppach’s probation/parole, on all three case numbers, based upon
Neppach’s technical violation by leaving Gaudenzia. After ordering a
presentence investigation report and considering the Commonwealth’s
1
This Court has noted that “a sentencing court can, as a condition of parole,
require a defendant to ‘satisfy 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.’” Commonwealth v.
Cappellini, 690 A.2d 1220, 1226 (Pa. Super. 1997) (quoting 42 Pa.C.S.A.
§ 9754(c)(13)).
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Petition, the probation revocation court revoked Neppach’s probation/parole,
and imposed the following sentences: (1) at No. 1667, time served of 237
days; (2) at No. 2257, sixteen to sixty months in a State Correctional
Institution; and (3) at No. 2434, sixteen to sixty months in a State
Correctional Institution, to run concurrently with the sentence at No. 2257.
Notably to the instant appeal, the probation revocation court gave Neppach
242 days’ credit for time served concerning No. 2257, and 308 days at No.
2434. The probation revocation court applied these periods as back-time
toward the parole portion of the underlying sentences, and terminated
parole in both cases. Neppach timely filed a post-sentence Motion, arguing
that his sentences were excessive, and challenging the court’s application of
credit for time served to the parole portion of his underlying sentences at
Nos. 2257 and 2434. The probation revocation court denied Neppach’s
Motion.
Following a procedural history that is not relevant to this appeal,
Neppach timely filed a Notice of Appeal, nunc pro tunc, in November 2014.2
Neppach timely filed a Pa.R.A.P. 1925(b) Concise Statement of Errors
Complained of on Appeal, after which the probation revocation court issued
an Opinion.
On appeal, Neppach presents the following issues for our review:
2
Neppach’s appeal concerns only his sentences at Nos. 2257 and 2434.
Neppach’s sentence at No. 1667 is not implicated because it was terminated
and closed after the probation revocation court imposed a sentence of time
served.
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I. [Whether the probation revocation] court abused its
discretion in imposing a sentence of total confinement
following a parole/probation revocation hearing, by stating
on the record that the parole was terminated, and that []
Neppach would receive credit for time served on a 16 to 60
month sentence imposed at [Nos. 2257 and 2434], but then
later drafting the written sentencing [O]rder[,] which
directed that all credit for time served went toward the
terminated parole, with zero credit toward the concurrent 16
to 60 month sentence at each case[?] This sentence,
handled in this fashion, was excessive and unreasonable in
light of the amount of time already served on the underlying
cases; the nature of the underlying cases involving criminal
trespass and retail theft; and the fact that the revocation
was caused by a technical violation – namely, that []
Neppach did not return to an inpatient treatment facility and
contacted his probation officer two days later.
II. [Whether the probation revocation] court abused its
discretion in imposing a sentence of total confinement –
which was tantamount to an aggravated[-]range sentence,
just shy of the statutory maximum – [and] which was
unduly harsh, excessive and unreasonable in light of the
objectives of the Sentencing Code[,] as established in [42
Pa.C.S.A.] § 9721(b), where the sentence imposed did not
address [] Neppach’s time already served, his specific
circumstances which caused the technical violation, the
underlying charges of retail theft and criminal trespass; and
[] Neppach’s rehabilitative needs[,] when compared to the
need to protect the public, and where the [probation
revocation] court failed to state on the record adequate
reasons that would support the need to impose an
aggravated[-]range sentence[?]
Brief for Appellant at 6 (capitalization omitted).
First, Neppach argues that the probation revocation court erred in its
application of credit for time he had served in jail toward Nos. 2257 and
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2434, i.e., 242 days, and 308 days, respectively. See id. at 18-19.3
The probation revocation court explained and addressed Neppach’s
claim in its Pa.R.A.P. 1925(a) Opinion as follows:
[Neppach] alleges that the [probation revocation c]ourt,
during [Neppach’s] sentencing hearing, stated that [] Neppach
would receive credit for time served on the sixteen to sixty
month sentence[s] [imposed concurrently at Nos. 2257 and
2434], but then drafted the written [sentencing] Order to say
that this credit would be directed towards parole, which was then
revoked. [See Brief for Appellant at 19.] The [c]ourt did indeed
credit that time towards parole in its written [O]rder, and that
sentence, delivered on the record during the hearing, was
consistent with the written Order, as the record reveals. The
transcript shows that the [c]ourt stated the following with regard
to [No.] 2257 …:
[Neppach’s] parole is terminated. He is to receive credit
for the dates in [jail] that he has on that case, which is
242 days. [Neppach] is sentenced to serve not less than
16 months, nor more than 60 months in a State penial
[sic] or correctional institution or facility as the Bureau of
Corrections shall determine.
N.T., 10/28/13, at 19. Similarly, with regard to [No.] 2437 …,
the [c]ourt stated:
[Neppach’s] parole is terminated. [Neppach] is [] given
credit for the time period that he had in [jail], which in
this case[,] my determination from the pre-sentence
report[,] is 308 days. [Neppach] is sentenced to serve
not less than 16 months to 60 months in a State penial
[sic] or correctional institution or facility[,] as the Bureau
of Corrections shall determine, as I indicated, not less
than 16 months, nor more than 60 months.
3
Though Neppach patterns his instant claim as a challenge to the
discretionary aspects of his sentence, in reality, it is a challenge to the
legality of the sentence. See Commonwealth v. Johnson, 967 A.2d 1001,
1003 (Pa. Super. 2009) (stating that a challenge to a sentencing court’s
failure to award proper credit for time served prior to sentencing implicates
the legality of sentence).
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Id. at 21. At no time did the [c]ourt state that the time would
be credited to [Neppach’s] new confinement portion rather than
the parole portion. Indeed, the [c]ourt’s statement that
[Neppach] would receive credit immediately after the [c]ourt
had stated that parole was terminated, and before imposing its
sixteen to sixty month sentence on the probation violation, is a
clear indication that the credit would be applied to the parole
portion. Thus, the [c]ourt’s statements in imposing sentence
during the hearing were in no way inconsistent with its later
written Orders.
Probation Revocation Court Opinion, 1/9/05, at 11-12 (emphasis in original,
citation to Neppach’s brief added). Our review discloses that the court’s
foregoing analysis is supported by the record. The probation revocation
court gave Neppach back-time credit toward the parole portion of his
underlying sentences at Nos. 2257 and 2434; granting him additional credit
would amount to an inappropriate double credit for Neppach. See Jackson
v. Vaughn, 777 A.2d 436, 438 (Pa. 2001) (holding that the appellant was
not entitled to double credit for time served where “that time ha[d] already
been credited towards his parole violation sentence.”). Accordingly, we
discern no error by the probation revocation court in its application of credit
for time served toward Nos. 2257 and 2434, and Neppach’s contention to
the contrary lacks merit.
Next, Neppach argues that the probation revocation court abused its
discretion by imposing a sentence of total confinement for his technical
probation violation in leaving Gaudenzia. See Brief for Appellant at 10, 22-
24. Neppach contends that the aggregate sentence at Nos. 2257 and 2434
of sixteen to sixty months in prison is unduly harsh, excessive and
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manifestly unreasonable, particularly in light of the fact that his underlying
convictions were for retail theft and criminal trespass. See id. Neppach
further asserts that this sentence is contrary to section 9771(c) of the
Sentencing Code,4 in that “Neppach did not commit a new crime; the
[probation revocation] court did not determine that he was likely to commit
another crime; nor did the court indicate that total confinement was
necessary to vindicate the authority of the court.” Id. at 23.
Neppach challenges the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right. Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). Rather, prior to reaching the merits of a
discretionary sentencing issue,
[this Court conducts] a four part analysis to determine: (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, [see] Pa.R.A.P. 2119(f); and (4) whether
4
Section 9771(c) provides as follows:
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(c).
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there is a substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, [see] 42
Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170 (citation omitted).
Here, Neppach filed a timely Notice of Appeal and preserved the
challenge to his sentence in a timely post-sentence Motion. He also has
included a concise statement of the reasons relied upon for allowance of
appeal in his brief, pursuant to Pa.R.A.P 2119(f). Additionally, we determine
that Neppach’s claim presents a substantial question. See Commonwealth
v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000) (stating that a substantial
question is presented when a probation revocation sentence of total
confinement, in excess of the original sentence, is imposed as a result of a
technical violation of parole or probation);5 see also Commonwealth v.
Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006) (stating that the appellant
presented a substantial question by asserting that the sentencing court did
not comply with section 9771(c) of the Sentencing Code when imposing its
revocation sentence).
The imposition of sentence following the revocation of probation is
vested within the sound discretion of the probation revocation court, which,
5
We observe that technical violations can be sufficient to trigger the
revocation of probation. See Commonwealth v. Infante, 888 A.2d 783,
791 (Pa. 2005) (stating that “the reason for revocation of probation need not
necessarily be the commission of or conviction for subsequent criminal
conduct. Rather, … [a] probation violation is established whenever it is
shown that the conduct of the probationer indicates the probation has
proven to have been an ineffective vehicle to accomplish rehabilitation and
not sufficient to deter against future antisocial conduct.” (citation omitted)).
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absent an abuse of that discretion, will not be disturbed on appeal. Sierra,
752 A.2d at 913. Upon review, we determine the validity of the probation
revocation proceedings and the authority of the sentencing court to consider
the same sentencing alternatives that it had at the time of the initial
sentencing. 42 Pa.C.S.A. § 9771(b); Commonwealth v. Gheen, 688 A.2d
1206, 1207-08 (Pa. Super. 1997). When imposing a sentence of total
confinement after a probation revocation, the sentencing court must
consider the factors set forth in sections 9771(c) and 9721(b) of the
Sentencing Code. Ferguson, 893 A.2d at 739; see also 42 Pa.C.S.A.
§ 9721(b) (providing that when determining an appropriate sentence, the
court must consider the protection of the public, the gravity of the offense in
relation to the impact on the victim and the community, and the
rehabilitative needs of the defendant). Following revocation of probation, a
sentencing court need not undertake a lengthy discourse for its reasons for
imposing a sentence of total confinement, 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. Crump, 995 A.2d 1280,
1283 (Pa. Super. 2010).
Here, the probation revocation court addressed Neppach’s challenge to
his sentence in the court’s Rule 1925(a) Opinion as follows:
During [the] probation violation hearing, the [probation
revocation c]ourt considered the presentence investigation
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report[6] and heard testimony from Institutional Parole
Representative/Jail Population Control Officer for Beaver
County[,] Bradley A. Herr [“Herr”]. The presentence report
showed that [Neppach] has an extensive criminal history[,]
including fifteen convictions. [Neppach previously] had been
placed on ARD, probation, intermediate punishment, [County]
incarceration, State incarceration, and parole. [Neppach] had
been arrested and convicted six times from 2009 to 2013, and
failed to complete supervision on any of these convictions.
When placed on probation in Butler County in 2010, [Neppach]
received new charges only eleven days later in Beaver County.
Finally, when sent for inpatient care at [] Gaudenzia … in the
present cases, [Neppach] left the facility [with]in less than
twenty-four hours, without notice or authorization. When he
finally contacted [] Herr and left a voice message three days
after leaving [Gaudenzia], [Neppach] did not inform [Herr of] his
location or contact information. Thus, all attempts to divert
[Neppach] away from his past criminal behavior have been
unsuccessful. As [] Herr advised, “We’ve pretty much done what
we can do on this on a county level as far as I’m concerned.”
In considering these facts, the [probation revocation
c]ourt[,] although not required to do so, consulted the
sentencing guidelines.[7] Based on the evidence, [Neppach] has
simply not been responsive to any of the alternative forms of
treatment he has been offered. The public would not be
adequately protected by a lesser sentence. 42 Pa.C.S.A.
§ 9721(b). [Neppach] has shown, over a long criminal history
with numerous convictions, that he is unwilling to complete any
form of supervised release or inpatient treatment as directed.
Further, the gravity of [Neppach’s] offenses is substantial, and
includes two third-degree felonies. Id. Finally, as shown by his
willful refusal to accept his court-ordered inpatient treatment at
[] Gaudenzia …, [Neppach’s] rehabilitative needs were simply
6
“[W]here the trial court is informed by a pre-sentence report, it is
presumed that the court is aware of all appropriate sentencing factors and
considerations[.]” Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa.
Super. 2009).
7
See Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (observing
that the sentencing guidelines do not apply to sentences imposed as result
of revocation of probation). However, the sentences that the probation
revocation court imposed at Nos. 2257 and 2434 were within the standard
range of the sentencing guidelines. See N.T., 10/28/13, at 6.
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not being met by the previous sentence. Id. Therefore, in the
judgment of the [probation revocation c]ourt, a significant period
of confinement was indicated and the sentences imposed were
both reasonable and appropriate under the facts and
circumstances of this case.[FN]
[FN]
The [c]ourt also notes that, despite the many factors
weighing in favor of an extended period of confinement in
both cases, the [c]ourt did not run [Neppach’s separate]
sixteen to sixty month sentences in [Nos.] 2257 [] and
2434 [] consecutively, but rather ran them concurrently.
Probation Revocation Court Opinion, 1/9/05, at 12-13 (citation to record and
some capitalization omitted; footnote in original; additional footnotes
added).
After review, we agree with the probation revocation court’s foregoing
rationale, and conclude that the court did not abuse its discretion by
imposing Neppach’s sentence of total confinement, which we find is neither
excessive nor contrary to the Sentencing Code. See Sierra, 752 A.2d at
915 (holding that the sentencing court’s imposition of a prison sentence
following a probation violation was not an abuse of discretion, since the
sentence was based upon the judge’s in-depth knowledge of the individual, a
finding that parole and probation were not effective in rehabilitating the
defendant, and that a further prison term was appropriate); see also
Commonwealth v. Carver, 923 A.2d 495, 498 (Pa. Super. 2007) (stating
that technical probation violations, where flagrant and indicative of an
inability to reform, can support revocation and imprisonment); Cappellini,
690 A.2d at 1226-27, 1228 (holding that the probation revocation court
properly exercised its discretion in revoking the defendant’s probation and
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imposing a sentence of total confinement where he violated conditions of his
probation to participate in drug and alcohol treatment and testing, and
refrain from contact with drug offenders, which evidenced his inability to
reform).
In light of the foregoing, and based upon our review of the record, we
conclude that the probation revocation court did not commit an error of law
or abuse its discretion in imposing Neppach’s sentence, or in giving him
credit for time served.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2015
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