Com. v. Jones, R.

J-S06042-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAYMOND A. JONES :
:
Appellant : No. 1994 EDA 2016
Appeal from the Judgment of Sentence November 13, 2015
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013045-2013
BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 18, 2018
Raymond Jones appeals from the judgment of sentence of three to
seven years incarceration, plus a flat sentence of eighty-nine days
incarceration, imposed by the violation of probation (“VOP”) court following
Appellant’s arrest on new charges. We find that the sentence of three to seven
years was lawfully imposed and did not constitute an abuse of discretion;
however, we find that the flat sentence is illegal. Accordingly, we vacate
judgment of sentence and remand for further proceedings consistent with this
memorandum.
The instant appeal traces to Appellant’s guilty plea on March 20, 2014,
to, inter alia, fleeing and eluding a police officer and DUI. The parties
negotiated a sentence of four to twenty-three months incarceration followed
by three years probation, which the trial court conditionally agreed to impose
pending a pre-sentence investigation.
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On June 14, 2014, the trial court imposed the agreed-upon negotiated
sentence. Critically, the order stated that the sentence was to commence on
September 11, 2014, which was a report date generously granted to Appellant
so that he could take care of some personal affairs. Appellant failed to report
as required, resulting in a bench warrant. He remained at liberty until July
23, 2015, when he was arrested for an unrelated offense.1
The Commonwealth thereafter filed a motion to revoke Appellant’s
parole/probation, which the court granted on September 9, 2015. Order,
9/9/15, at 1 (“Motion to Revoke Parole/Probation is GRANTED. [Appellant]
found in violation of sentence for failing to appear on Surrender Date.”).
Sentencing was deferred until November 13, 2015. On that date, Appellant
was sentenced to three to seven years incarceration for fleeing and eluding,
plus a flat sentence of eighty-nine days incarceration for DUI.
Appellant filed a motion for reconsideration, which the trial court did not
act upon. Appellant mistakenly failed to file a notice of appeal within thirty
days as required for VOP sentences, and successfully sought restoration nunc
pro tunc through a PCRA petition. Appellant complied with the order to file a
Pa.R.A.P. 1925(b) statement, and raises the following points of error.
1. Is the sentence of 3 to 7 years incarceration on a felony of the
third degree an illegal sentence where there remains a sentence
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1A review of the publicly-available docketing sheets indicates that a Raymond
Jones, with the same date of birth as that listed on the instant docket, was
arrested on July 23, 2015, for, inter alia, possession of an instrument of crime
and terroristic threats. Those charges were withdrawn on November 9, 2015.
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of 4 to 23 months on the same charge which is not vacated and
must still be served?
2. Was the sentence of 3 to 7 years of incarceration unreasonable,
manifestly excessive and an abuse of discretion where the court
failed to conduct an individualized sentencing, did not properly
consider the sentencing factors under 42 Pa.C.S. § 9721, ignored
whether the sentence was the least stringent to protect the
community, did not consider appellant's rehabilitative needs, did
not sufficiently place its reasons for its sentence on the record,
and violated the Sentencing Code as the actions were not
necessary to vindicate the authority of the lower court?
Appellant’s brief at 3.
Appellant’s first claim concerns the legality of his sentence, which we
review de novo. Commonwealth v. Aikens, 139 A.3d 244, 245 (Pa.Super.
2016). The dispute between the parties concerns the proper characterization
of the November 13, 2015 proceeding. The Commonwealth and the trial court
both view this sentence as a revocation sentence, while Appellant asserts that
the trial court illegally modified his sentence after the applicable thirty-day
period.
Appellant acknowledges that a revocation is not a modification of the
original sentence. He maintains that the instant sentence cannot be
characterized as such, because “upon [Appellant]’s arrest in July of 2015, he
started serving his county sentence. That sentence could not be vacated.”
Appellant’s brief at 19. Therefore, Appellant maintains that he is currently
serving the originally-imposed sentence, to be followed by a three and one-
half to seven year term, which exceeds the statutory maximum. 18 Pa.C.S.
§ 106(b)(4) (setting maximum of seven years for felony of the third degree).
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Additionally, Appellant states that the VOP court illegally modified his
original sentence in violation of 42 Pa.C.S. § 5505, which states that a court
may modify any order within thirty days after its entry. Appellant maintains
that § 5505 applies herein, because he was sentenced on June 12, 2014, and
the trial court could not revisit that sentence after it became final. “There is
no law which permits a court to rescind a sentence of county incarceration
after it becomes final other than via the Post Conviction Relief Act[.]”
Appellant’s brief at 18.
This characterization results, in part, from his own concise statement
and the trial court’s responsive Pa.R.A.P. 1925(a) opinion. Appellant alleged
in his statement that the three to seven year sentence is illegal because “there
remains a sentence of 4 to 23 months on the same charge which [was] not
vacated and must still be served[.]” Concise Statement, 8/15/16, at
unnumbered 3. The trial court’s opinion responded as follows. “[T]he Order
of Sentence appears to be silent concerning this [c]ourt’s original intention to
remove the previously lodged detainer and to formally vacate the original
sentence that had never been served by [Appellant].” Trial Court Opinion,
8/8/17, at 6. Since the trial court accepted that it could lawfully vacate the
original sentence, Appellant maintains that § 5505 applies.
We reject Appellant’s core contention that § 5505 applies. The court
accepted Appellant’s plea and the sentence negotiated by the parties, and
therefore could not sua sponte modify the sentence even within the thirty-day
timeframe. More importantly, the VOP court, despite its conclusions in the
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Rule 1925(a) opinion, did not modify his original sentence. Instead,
Appellant’s sentence was revoked. It is well-settled that a trial court may
revoke parole and probation on an anticipatory basis.
Under Pennsylvania law, an order of probation can be changed or
revoked “if, at any time before the defendant has completed the
maximum period of probation, or before he has begun service of
his probation” the defendant commits offenses or otherwise
demonstrates he is unworthy of probation. Commonwealth v.
Miller, 358 Pa.Super. 219, 516 A.2d 1263, 1265 (1986), appeal
denied, 515 Pa. 599, 528 A.2d 956 (1987). See
also Commonwealth v. Hoover, 909 A.2d 321 (Pa.Super.2006)
(affirming judgment of sentence following revocation of
defendant's probation, which he violated before his probation
service had even begun; although defendant had not committed
new criminal offenses, defendant demonstrated he was unworthy
of probation and probation would not serve ends of justice or
public interest).
Commonwealth v. Mitchell, 955 A.2d 433, 435 n.2 (Pa.Super. 2008).
It is self-evident that Appellant demonstrated that he was “unworthy of
probation” by failing to report for commencement of his sentence. Thus, the
VOP court lawfully revoked probation despite the fact the sentence had yet to
technically commence. There was thus no need to vacate the sentence. It
ceased to exist upon revocation.
Next, we address the fact that Appellant was originally ordered to serve
a split sentence of incarceration followed by probation. That point is significant
because a trial court cannot revoke a parole sentence and impose a new
sentence; rather, the court is obligated to order recommitment for the balance
of the term. See Commonwealth v. Fair, 497 A.2d 643 (Pa.Super. 1985).
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Therefore, there is merit to the position that while the trial court was
authorized to revoke parole on an anticipatory basis, it was limited to imposing
the balance of the original sentence, followed by a separate sentence for the
probation revocation. Thus, the instant sentence of three to seven years
would be illegal.
Our Court addressed highly analogous circumstances in
Commonwealth v. Ware, 737 A.2d 251, 252 (Pa.Super. 1999), and
concluded that common sense prevails in a situation such as this. Therein,
the offender was incarcerated in a county facility on unrelated charges when
she pleaded guilty to a felony of the third degree. She accepted a sentence
of eight to twenty-three months of incarceration, followed by two years of
probation. With time credit, Ware had already served the minimum and was
immediately paroled. Approximately six weeks later, Ware committed a new
crime, pled guilty, and was sentenced. The Commonwealth sought
revocation, asserting that Ware violated a condition of her probation and
parole. At the time of the revocation hearing, Ware had approximately five
months left on her parole term. The trial court imposed a new sentence of
thirty-two and one-half months to seventy-four months incarceration. Thus,
Ware was not technically ordered to serve the remainder of her parole
sentence, which, according to Ware, rendered the sentence illegal. We
disagreed.
It is obvious, based on our careful review of the entire record in
this matter, that the court's sentencing scheme, upon revocation
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of probation, was to impose the statutory maximum penalty of
incarceration. The court was, of course, empowered to do so.
Nonetheless, appellant suggests that the “proper procedure in this
case would have been to [recommit] Ware to a determinate
balance of her parole on the 8 to 23 month sentence, then
sentence Ware to a certain term of imprisonment on the probation
revocation[,]” and urges us to find illegality in the court's failure
to explicitly do so. We will not.
In this case, the procedure the court employed was to sentence
appellant directly on the revocation of probation to the legal
statutory maximum term of incarceration. The wiser procedural
course may have included a specific articulation that the sentence
imposed required appellant to serve the remainder of her back
time on the parole violation, followed by a consecutive sentence
for revocation of probation which, when added to the back time
remainder of the original sentence, would equal the statutory
maximum. Nonetheless, it is clear that the outcome, in any event
and under either procedure, given the court's clear sentencing
scheme, would have been the imposition of the statutory
maximum sentence of imprisonment, a legal sentence which the
court was clearly authorized to impose. Thus, we see no reason
to remand for the pointless and formalistic repetition of sentencing
procedures, the outcome of which would be a foregone conclusion.
Id. at 254.
Ware demonstrates that there is no impediment to anticipatorily
revoking the parole sentence and probation. Moreover, as in Ware, it is clear
that the procedure selected by the trial court herein was designed to sentence
Appellant to the statutory maximum. We thus apply the same logic, and hold
that the trial court was authorized to anticipatorily revoke Appellant’s parole
and probation.
Simultaneously, we agree with Appellant that there is a possibility that
he will serve a sentence in excess of the statutory maximum. We find that
the appropriate solution is to vacate and remand for further proceedings as
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requested by the trial court. As indicated by the Rule 1925 opinion, the trial
judge did not vacate the original sentence. Normally, this would not pose a
problem for the reasons set forth supra, insofar as revocation serves to nullify
the previous sentence and the offender will receive time credit for any portion
of the sentence that had already been served.
Here, however, Appellant may or may not have commenced his
sentence immediately upon arrest for the unrelated matters. The county
facility may have treated his arrest on the new charges as “reporting” for
commencement of the originally-imposed sentence. Alternatively, it may be
that Appellant was incarcerated on the basis of a detainer or for failing to post
bond on the new charges. The trial court stated that its intention was to
“remove the previously lodged detainer and to formally vacate the original
sentence that had never been served by [Appellant].” Trial Court Opinion,
8/8/17, at 6. Under this set of circumstances, we find that the proper course
is to remand for application of time credit as needed.2
Appellant’s second claim is that the aggregate sentence was
unreasonable and manifestly excessive. This claim implicates the
discretionary aspects of sentence, which are not appealable as of right.
____________________________________________
2 At the sentencing hearing, the court indicated that Appellant was in
contempt. N.T., 11/13/15, at 6 (“[T]he notes and memory say I found him in
contempt. I did. So I found him formally in contempt.”). However, the
sentencing order dated November 13, 2015, properly indicated a revocation
sentence and did not impose any separate sentence for contempt.
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[W]e conduct 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, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Bebout, 186 A.3d 462, 470 (Pa.Super. 2018) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010)).
All four requirements have been met, as Appellant filed a timely appeal,
preserved his claim in a post-sentence motion, and his brief includes the
required statement. Finally, a claim that the sentence is manifestly excessive,
when paired with an allegation that the court failed to consider mitigating
factors and rehabilitative needs, presents a substantial question.
Commonwealth v. Swope, 123 A.3d 333, 340 (Pa.Super. 2015). We
therefore address the merits of his claim, to which we apply the following
standard of review.
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. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014)
(citing Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa.Super. 2007)).
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Two sentencing statutes are at issue herein. First, 42 Pa.C.S. § 9721
sets forth the general sentencing considerations; in particular, subsection (b)
instructs the court to “follow the general principle that the sentence imposed
should call for confinement that is consistent with the protection of the public,
the gravity of the offense as it relates to the impact on the life of the victim
and on the community, and the rehabilitative needs of the defendant.” 42
Pa.C.S. § 9721(b). Separately, 42 Pa.C.S. § 9771 governs the trial court’s
ability to impose total confinement following revocation of probation. The
court may do so only if it finds one of three conditions has been met:
(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. § 9771(c).
Thus, § 9771(c) governs only the court’s ability to impose total
confinement at all, while § 9721(b) dictates the length of confinement.
However, § 9721(b) instructs the court to “consider any guidelines for
sentencing and resentencing[.]” The guidelines do not apply to revocation of
probation sentences, 204 Pa.Code 303.1(b), thus suggesting that the
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directives appear to operate independently, with the VOP court having
unfettered discretion to impose any length of confinement in revocation
proceedings.
However, we have held that these statutes must be applied in tandem.
In Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc),
we held that in a revocation proceeding the court must follow § 9771 in
conjunction with § 9721(b). Thus, this Court's scope of review in appeals from
revocation sentences encompasses the discretionary aspects of the sentence.
“Such issues should not escape review merely because a defendant's
revocation sentence falls within the statutory limits.” Id. at 1038.
In Commonwealth v. Derry, 150 A.3d 987 (Pa.Super. 2016), we
examined Cartrette in light of Commonwealth v. Pasture, 107 A.3d 21 (Pa.
2014), which reversed our decision vacating a revocation sentence on the
grounds that we gave “insufficient deference to the revocation court's
imposition of the sentence following the revocation of [appellant]'s
probation[.]” Id. at 22. Derry explained that
Section 9771(c) mandates a VOP court's consideration of
additional factors at sentencing not addressed by Section 9721(b).
Consequently, a VOP court is not confined to only consider the
factors set forth in Section 9721(b), that is, it is not cabined by
Section 9721(b). Instead, a VOP court must also consider the
dictates of Section 9771(c), given the unique aspects of VOP
sentences not applicable when a court issues the initial sentence.
In addition to issuing a sentence that is “consistent with the
protection of the public, the gravity of the offense as it relates to
the impact on the life of the victim and on the community, and
the rehabilitative needs of the defendant [,]” a VOP court must
also consider, for example, whether the sentence imposed is
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“essential to vindicate the authority of the court[,]” and must give
“due consideration ... to the time spent serving the order of
probation.” 42 Pa.C.S. § 9771(c). Both of these concerns are
unique to VOP sentencing hearings and may, in the end, weigh
heavily on a court's consideration of an appropriate VOP sentence.
But such additional considerations do not, as a necessary
consequence, render the Section 9721(b) factors inapplicable for
purposes of VOP sentences.
Id. at 994 (emphases in original).
As illustrated by this passage, the VOP court “must also consider, for
example, whether the sentence imposed is essential to vindicate the authority
of the court[.]” Id. (quotation marks omitted). Thus, the need to vindicate
the court’s authority is not limited only to the whether confinement was
warranted, but extends to the length of the sentence as well. Derry cautioned
that these additional considerations do not render the other factors
inapplicable.
With that admonishment in mind, we examine Appellant’s argument.
He asserts that (1) incarceration was not warranted, and (2) that the length
of incarceration imposed was excessive as the court failed to consider anything
other than his failure to appear. As discussed, the two inquiries are related,
and Appellant does not claim that confinement was unwarranted for his failure
to appear. At the initial revocation hearing, he asserted that the proper action
was to simply order him to serve the original sentence, with a short period of
incarceration for contempt.
I think it’s a contempt case. I think that – I would think – a
sentence of ten to twelve days for contempt would be sufficient
punishment for this matter. And, of course, he would still have to
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serve the entire sentence he has with you and be on Your Honor’s
probation. And, you know, if he doesn’t walk a straight line, I
don’t have any doubt that you would hesitate to violate him.
N.T., 9/9/15, at 5-6.
According to Appellant, a defendant can refuse to report, remain at
liberty for years, and is entitled to the original sentence upon apprehension
with little consequence. We disagree. The common-sense approach is to
permit trial judges to grant report dates at their discretion, with the
understanding that severe consequences can and will befall those foolish
enough to make a mockery of the judge’s mercy. We therefore do not doubt
that confinement was necessary to vindicate the court’s authority.
That leaves the question of whether the length of confinement
constituted an abuse of discretion. At sentencing, the Commonwealth asked
the VOP court to impose the statutory maximum sentence. The
Commonwealth noted that Appellant had nine prior convictions, including
possession with intent to deliver, forgery, simple assault. Additionally,
Appellant was on probation for unauthorized use of a vehicle at the time of
the instant crimes.
Then and now, Appellant argued that the instant sentence was
manifestly excessive in consideration of the original plea offer. “Your Honor,
I noticed the Commonwealth thought it was appropriate to offer him a
sentence of 23 months with immediate parole. At the time, [his history] was
all known. None of that was new information. All we have today is a failure
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to surrender.” N.T., 11/13/15, at 13. Appellant continues this argument on
appeal, and complains that the lengthy sentence was an abuse of discretion.
Obviously, the court had no authority to originally impose anything other
than the negotiated sentence. Appellant’s emphasis of that point, however,
gives little if any weight to the unique considerations involved in a revocation
proceeding. Mindful of the applicable standard of review, we find that
Appellant’s failure to appear for his report date cannot per se justify a
statutory maximum sentence. However, not all failures to report are alike,
and Appellant’s attempt to diminish the severity of his failure to report is
unavailing. This is not a situation where Appellant missed his reporting date
by days, as he remained at liberty for over ten months. Nor did Appellant
voluntarily turn himself in to serve his sentence. By all objective indicia, but
for his arrest on new charges, Appellant would have continued to ignore his
obligation to appear.
The record demonstrates that the VOP court did not reflexively punish
Appellant with the harshest allowable sentence solely because of that failure
to appear. Rather, the court properly considered the length of his
noncompliance as a contributing factor. “[Appellant] . . . defied the [court’s]
authority for a lengthy period of time. This [c]ourt quite clearly identified this
lengthy period of defiance as a factor substantiating the revocation and
imposition of confinement. These were stated contributing factors underlying
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the revocation determinations and for the subsequent sentence of
confinement imposed.” Trial Court Opinion, 8/8/17, at 10-11.
Moreover, Appellant’s criminal history was a permissible consideration,
and the record demonstrates that the court reviewed a pre-sentence report.
N.T., 11/13/15, at 9 (“For the record, I have the PSI now so I’m going over
that.”). Finally, the trial court’s opinion notes an “apparent lack of remorse”
as a factor. Trial Court Opinion, 8/8/17, at 12. We agree that the court could
properly consider that facet in fashioning its sentence. At the sentencing
proceeding, Appellant did not address his failure to appear when asked to
speak directly to the VOP court, and instead averred that he did not deserve
additional jail time for the underlying crime. N.T., 11/13/15, at 14 (“I made
a bad decision by getting behind the wheel and driving home. To be honest
with you, I really don’t believe I need to be in jail because I do things right on
the street. Like I said, I made a bad decision that day.”). The VOP court was
entrusted with the discretion to consider Appellant’s downplaying not only his
failure to appear, but the severity of the underlying criminal conduct.
In sum, the VOP court was required to balance its interest in vindicating
its authority when considering what sentence to impose on a recalcitrant
recidivist like Appellant. The judge was not required to sit idly by and tolerate
Appellant’s flagrant disrespect for its order and its mercy in letting Appellant
commence his incarceration months after the sentence was formally imposed
with a slap on the wrist for contempt. While this sentence is doubtlessly harsh,
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we cannot find an abuse of discretion. See Commonwealth v. Sierra, 752
A.2d 910 (Pa.Super. 2000) (statutory maximum sentence following revocation
based on technical violations was not an abuse of discretion).
Finally, we may address illegality of sentence issues sua sponte, and we
find that the trial court imposed an illegal sentence by ordering Appellant to
serve a flat eighty-nine day sentence at the DUI count. With rare statutory
exceptions that do not appear to apply herein, a sentence that fails to specify
a minimum and maximum is illegal. See 42 Pa.C.S. § 9756(b)(1); see also
Commonwealth v. Cain, 637 A.2d 656, 658 (Pa.Super. 1994) (“Cain's
sentence is technically illegal because the court imposed a flat one year of
imprisonment without specifying any minimum sentence.”); cf.
Commonwealth v. Klingensmith, 650 A.2d 444 (Pa.Super. 1994) (holding
flat sentence of ninety days confinement not illegal where the statute
specifically called for that sentence, thus overriding general rule of § 9756).
Here, the original sentence as negotiated correctly included a minimum
and maximum. “THE COURT: The sentence I originally gave him was three to
90 days on his DUI. Right? [COMMONWEALTH]: That’s correct.” 3 N.T.,
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3 Appellant was convicted of one count of 75 Pa.C.S. § 3802(a)(1), as an
ungraded misdemeanor. As set forth at the guilty plea hearing, Appellant
refused breath testing, thereby triggering 75 Pa.C.S. § 3804(c)(1), which sets
the penalties for DUI. That subsection states that an individual who violates
§ 3802(a)(1) as a first offense and refused testing of breath must be
imprisoned for a minimum of seventy-two hours.
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11/13/15, at 16. However, the judge then stated, “DUI is flat sentence of 89
days to run consecutive[.]” Id. Therefore, this sentence is illegal as it fails
to specify a minimum and maximum, and we vacate and remand for
resentencing at that count. 4
Judgment of sentence at count one remanded for application of time
credit as needed. Judgment of sentence at count two vacated. Judgment of
sentence affirmed in all other respects. Jurisdiction relinquished.
Judge Musmanno joins the memorandum.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/18
____________________________________________
4 We do not vacate the sentence at fleeing and eluding, as Appellant was
sentenced to the statutory maximum and we have found no abuse of
discretion nor illegality in its imposition.
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