Com. v. Smith, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DONALD SMITH
Appellant : No. 1712 EDA 2018
Appeal from the Judgment of Sentence May 24, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011271-2011
BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.
MEMORANDUM BY NICHOLS, J.: FILED AUGUST 02, 2019
Appellant Donald Smith appeals from the judgment of sentence imposed
following the revocation of his probation. Appellant challenges the
discretionary aspects of his sentence. We affirm.
The trial court opinion set forth the relevant facts and procedural history
of this case as follows:
On February 21, 2017, [Appellant] tendered a negotiated guilty
plea to the single count of a violation of the Uniform Firearms
Act-Possession of Firearm by a Prohibited Person, 18 Pa.C.S. §
6105 [(VUFA),] in exchange for a withdrawal of more serious
charges and a reduced sentence of [time served] to twenty-three
(23) months of county confinement followed by [three] years of
reporting probation with imposition of specified rehabilitative
conditions. Consistent with negotiations, Appellant was granted
immediate parole and awarded credit for time served.
At the time of the original imposition of sentence, Appellant had
possessed a prior criminal record score of five (5) and the offense
gravity score for [VUFA] was a ten (10). Thus, the negotiated
sentence was well below the recommended guideline sentence
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range of sixty (60) months to seventy-two (72) months with a
plus or minus deviation of twelve (12) months . . . .
[The trial c]ourt accepted the negotiated guilty plea following a
full and fair colloquy.
Appellant was directed to follow the conditions of parole and
probation to the letter, which included compliance with
recommended drug and alcohol treatment and passing the
random drug and alcohol screening, obtaining verifiable
employment, random home visits and completion of reporting. No
appeal was taken.
On or about February 16, 2018, Appellant was arrested and
charged with [new drug offenses]. On or about March 12, 2018,
[the trial c]ourt was notified by the assigned probation and parole
officer that Appellant had also repeatedly violated the terms of
probation supervision prior to the triggering arrest. Thus, per [the
trial c]ourt's instructions, a detainer was lodged by the Adult
Probation and Parole Department and Gagnon['] notifications. . .
and reports were duly prepared and sent.
As the Gagnon II
summary reflected, . prior to [the] triggering
. .
arrest, Appellant had repeatedly violated the terms of [probation]
and parole . .by refusing to report to his probation officer [and]
.
testing positive for illegal use of benzodiazepines, opiates, and
marijuana derivatives on at least six occasions .Following a
. . .
full and fair violation hearing held on [March 27, 2018], during
which all violations were conceded, Appellant was duly found to
be in violation of the [terms of] parole and probation Thus, . . . .
both the probation and parole periods were deemed revoked.
Following revocation, mental health evaluations and pre -sentence
investigation [(PSI)] reports were ordered and thoroughly
reviewed. [The trial court conducted Appellant's resentencing
hearing on May 24, 2018.] After hearing argument and testimony
and after citing cogent reasons for the sentence imposed, [the
trial c]ourt entered an order of sentence of three (3) years to . . .
six (6) years of state supervised confinement followed by two (2)
1 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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years of state supervised probation with rehabilitative conditions,
including fines and costs.
Trial Ct. Op., 12/17/18, at 2-3 (some capitalization omitted).
Appellant timely filed a post -sentence motion, claiming that the trial
court imposed "a manifestly excessive sentence for mere technical violations
all of which stemmed from [Appellant's] drug addiction." Post -Sentence Mot.,
5/24/18. The trial court denied Appellant's post -sentence motion without a
hearing on May 30, 2018.
Appellant timely filed a notice of appeal and court ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. On December
17, 2018, the trial court issued a responsive opinion, concluding that the
sentence imposed following the revocation of probation constituted a
reasonable exercise of judicial discretion.
Appellant now raises one question for this Court's review:
Was [Appellant's] aggregate sentence of 3-6 years plus 2 years of
reporting probation an abuse of discretion since it imposed a
manifestly excessive sentence for mere technical violations all of
which stemmed from [Appellant's] drug addiction?
Appellant's Brief at 3.
On appeal, Appellant contends that the trial court mischaracterized him
as a "danger to the community" at the resentencing hearing. Id. at 9.
Appellant insists that his "technical violations of probation all stemmed from
a well -documented drug addiction." Id. As such, Appellant argues that the
trial court "essentially criminalized this addiction as opposed to fashioning a
sentencing designed to treat [Appellant's] substance abuse issues." Id.
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Appellant concludes that the trial court abused its discretion by imposing a
manifestly excessive sentence for technical probation violations. Id.
"[C]hallenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right." Commonwealth v. Derry, 150 A.3d 987,
991 (Pa. Super. 2016) (citation omitted). Rather, before reaching the merits
of such claims, we must determine:
(1) whether the appeal is timely; (2) whether [the a]ppellant
preserved his issues; (3) whether [the a]ppellant'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 inappropriate under the [S]entencing [C]ode.
Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citation
omitted).
Here, Appellant timely filed a notice of appeal, preserved his claim in
the post -sentence motion, and included a concise statement of reasons relied
upon for allowance of appeal in his brief. See id. Additionally, the claim that
the trial court imposed a manifestly excessive sentence based upon technical
probation violations raises a substantial question. See Commonwealth v.
Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006) (explaining that "a claim
that a particular probation revocation sentence is excessive in light of its
underlying technical violations" presents a substantial question). Therefore,
we will review Appellant's claim.
Our well -settled standard of review is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
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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
judgments 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) (citation
omitted).
Our scope of review following the revocation of probation is not limited
solely to determining the validity of the probation revocation proceedings and
the authority of the trial court to consider the same sentencing alternatives
that it had at the time of the initial sentencing. Commonwealth v.
Cartrette, 83 A.3d 1030, 1033-34 (Pa. Super. 2013) (en banc). Rather, "this
Court's scope of review in an appeal from a revocation sentencing includes
discretionary sentencing challenges." Id. at 1034.
The statute governing the modification or revocation of probation
provides:
§ 9771. Modification or revocation of 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.
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42 Pa.C.S. § 9771(c).
Further, this Court has held that the trial court must consider the
sentencing factors contained in 42 Pa.C.S. § 9721(b). See Cartrette, 83 A.3d
at 1040-41; Derry, 150 A.3d at 995. Specifically, the trial court must follow
the principles "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." See Derry, 150 A.3d at 993 (emphasis
omitted and quoting Cartrette, 83 A.3d at 1040-41); see also 42 Pa.C.S. §
9721(b).
"Technical violations can support revocation and a sentence of
incarceration when such violations are flagrant and indicate an inability to
reform." Commonwealth v. Carver, 923 A.2d 495, 498 (Pa. Super. 2007).
Where probation is ineffective as a rehabilitative tool, a sentence of
incarceration may be appropriate. See Malovich, 903 A.2d at 1254 (holding
that the trial court did not abuse its discretion in imposing total confinement
due to technical violations and concluding that the "[a]ppellant was not
responding to the court's authority; incarceration was necessary."); see also
Commonwealth v. McAfee, 849 A.2d 270, 277 (Pa. Super. 2004) (stating
that the trial court correctly determined that total confinement was necessary
to vindicate the court's authority because the appellant "had demonstrated a
complete lack of willingness to comply with the multiple court orders entered
in this case").
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Additionally, where a PSI report exists, we shall "presume that the
sentencing judge was aware of the relevant information regarding the
defendant's character and weighed those considerations along with mitigating
statutory factors." Commonwealth v. Walls, 926 A.2d 957, 967 n.7 (Pa.
2007) (citation omitted).
Instantly, at the resentencing hearing, the trial court detailed
Appellant's technical probation violations. See N.T. Resentencing Hr'g,
5/24/18, at 6-7. The trial court also evaluated the information in the PSI
report, including Appellant's mental health and employment histories. Id. at
10-11. The trial court scrutinized Appellant's prior convictions and arrests in
Pennsylvania and New Jersey, noting prior firearms offenses. Id. at 9-10, 22.
The trial court concluded that Appellant posed a "high risk" of reoffending, and
a term of imprisonment at a state prison was necessary. Id. 22-24.
In its Rule 1925(a) opinion, the trial court provided further context for
its decision:
When asked by the [PSI] investigator as to his longest period of
abstinence for the use of drugs[,] Appellant reportedly laughed
and replied that [he has] never been abstinent. Appellant
historically rebuffed all directed drug treatment efforts by his . . .
probation officer.
[The trial court also] considered the facts and circumstances
surrounding the underling firearms offense at issue. Appellant's
likelihood of recidivism and [the] danger [he poses] to the
community were identified as salient sentencing factors.
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[T]he argument for the imposition of another period of probation
lacked prudence. Appellant had flagrantly disregarded [the trial
c]ourt's authority and ignored the rehabilitative conditions and
purposes of probation that were imposed when [the trial c]ourt
entered the original merciful sentence. At [the] time of [the]
original sentence, [the trial c]ourt provided fair warning to
Appellant that any violation would not be tolerated. Thus, there
was a proven need to vindicate the authority of [the trial c]ourt
that had been repeatedly and blatantly ignored.
Trial Ct. Op. at 8-9 (record citations omitted).
Because probation had proven ineffective, the trial court acted within its
discretion in finding that a sentence of confinement was necessary to vindicate
the authority of the court. See Malovich, 903 A.2d at 1254; see also
Carver, 923 A.2d at 498. The trial court also had the benefit of the PSI report,
and we can presume it was aware of the relevant sentencing factors. See
Walls, 926 A.2d at 967 n.7. Moreover, the trial court's statement of reasons
in support of the sentence demonstrates that it considered the factors set
forth in 42 Pa.C.S. § 9721(b). See Derry, 150 A.3d at 994 (reiterating that
after the revocation of probation, Section 9721(b) requires 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 defendant's rehabilitative needs). On this record, we conclude that the
trial court did not abuse its discretion, and Appellant is not entitled to relief on
his challenge to the discretionary aspects of sentencing. See Raven, 97 A.3d
at 1253.
Judgment of sentence affirmed.
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Judgment Entered.
seph D. Seletyn,
Prothonotary
Date: 8/2/19
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