Com. v. Hicks, A.

J-S43010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AARON HICKS
Appellant No. 1409 WDA 2016
Appeal from the Judgment of Sentence Entered August 22, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0006820-2015
BEFORE: STABILE, SOLANO, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 18, 2017
Appellant Aaron Hicks appeals from the August 22, 2016, judgment of
sentence entered in the Court of Common Pleas of Allegheny County (“trial
court”), following the revocation of his county intermediate punishment
(“CIP”) sentence. Upon review, we affirm.
On May 14, 2015, following an undercover narcotics operation, the
Commonwealth filed a criminal complaint against Appellant at docket
number 6820-2015 (“First Case”), accusing him of conspiracy to deliver a
controlled substance, delivery of a controlled substance, possession with
intent to deliver a controlled substance, possession of a controlled
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*
Former Justice specially assigned to the Superior Court.
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substance, and possession of drug paraphernalia.1 Subsequently, the
Allegheny County Crime Lab determined the drugs to be a non-controlled
substance (peppermint). See N.T. Guilty Plea, 2/24/16, at 10.
While the First Case was pending, Appellant was charged at docket
number 9112-2015 (“Second Case”) with, inter alia, possessing instruments
of crime (“PIC”), retail theft, and simple assault.2
On July 14, 2015, the Commonwealth charged Appellant in the First
Case with sale of a non-controlled substance (35 P.S. § 780-113(a)(35)(ii))
(peppermint), conspiracy to sell a non-controlled substance (18 Pa.C.S.A.
§ 903(a)(1)) (peppermint), and possession of drug paraphernalia (35 P.S.
§ 780-113(a)(32)). The Commonwealth consolidated the cases.
On February 24, 2016, in the First Case, Appellant pled guilty to sale
of a non-controlled substance, an ungraded felony carrying a maximum term
of five years’ imprisonment. See 35 P.S. § 780-113(j). In exchange, the
Commonwealth withdrew the charges of conspiracy and possession of
paraphernalia. The trial court sentenced Appellant to 36 months of CIP
under the terms of the drug court program, in part, so that he could receive
residential treatment for his heroin addiction. In the Second Case, Appellant
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1
18 Pa.C.S.A. § 903(a)(1), and 35 P.S. § 780-113(a)(30), (16) and (32),
respectively.
2
18 Pa.C.S.A. §§ 907, 3929 and 2701, respectively.
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pled guilty to PIC, retail theft and simple assault, and received a concurrent
sentence of CIP.
On March 3, 2016, consistent with the terms of his CIP sentence,
Appellant was admitted to an inpatient treatment program at Renewal. On
March 31, 2016, Allegheny County Adult Probation (“Adult Probation”)
terminated Appellant’s treatment at Renewal based on his various rule
violations at the facility, and returned him to Allegheny County jail. A
Gagnon I3 hearing was held on April 18, 2016, at which Adult Probation
offered the following explanation for the revocation of Appellant’s CIP
sentence:
[Appellant] had been in the restroom where smoking was
occurring. He was tardy to his group sessions on a daily basis,
sleeping in. They told him to cease his negative behaviors, come
into compliance. He continued to sleep at unauthorized times,
was consistently late for his group sessions, learned he had
sabotaged an interview for a halfway house.
He was caught with contraband, medication, razors, [and]
food in his locker.
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3
In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Supreme Court
determined a two-step procedure was required before parole or probation
may be revoked:
[A] parolee [or probationer] is entitled to two hearings, one a
preliminary hearing [Gagnon I] at the time of his arrest and
detention to determine whether there is probable cause to
believe that he has committed a violation of his parole [or
probation], and the other a somewhat more comprehensive
hearing [Gagnon II] prior to the making of a final revocation
decision.
Id. at 781-82.
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N.T. Gagnon I Hearing, 4/18/16, at 2-3 (sic). Following the hearing,
Appellant was returned to the Allegheny County Jail, where he remained
until June 29, 2016, when his detainer was lifted. Thereafter, Appellant was
sent to Gaiser for treatment. On July 25, 2016, he was discharged
unsuccessfully from Gaiser and sent to jail because of various technical
violations of the house rules, specifically his refusal to cease his pursuit of
inappropriate relations with female residents. On August 3, 2016, another
Gagnon I hearing was held on his dismissal from treatment at Gaiser. At
the hearing, Adult Probation established Appellant’s technical violations at
Gaiser.
On August 22, 2016, the trial court held a Gagnon II revocation
hearing, at which it remarked:
[Appellant] wasted my time. He wasted everybody’s time.
He really did. I mean, that’s what he did. He spent a year
wasting everybody’s time. My time is valuable. And when I
waste my time with him, it takes away from the time that I have
to spend with people that are serious about this. [Appellant] is
not serious.
....
He’s 22. He’s immature. And he’s not ready for this.
....
[The trial court has] tried everything with him. [It] really
[has]. I mean, I can’t believe that he is still in the program after
his behavior the last time he was here. I mean, I cut him a
million breaks, and all he did was spit in my face.
N.T. Gagnon II Hearing, 8/22/16, at 6-7. Following the hearing, the trial
court sentenced Appellant to 11½ to 23 months’ imprisonment in the First
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Case, followed by 2 years of probation. In the Second Case, the trial court
sentenced Appellant to time served (360 days).
On September 21, 2016, Appellant petitioned the trial court to
consider his post-sentence motions nunc pro tunc. On the same day, the
trial court granted Appellant’s petition. In his post-sentence motions,
Appellant challenged the discretionary aspects of his sentence imposed in
the First Case. The trial court denied his post-sentence motions. Appellant
timely appealed. Following his filing of a Pa.R.A.P. 1925(b) statement of
errors complained of on appeal, the trial court issued a Pa.R.A.P. 1925(a)
opinion.
On appeal,4 Appellant raises a single issue for our review:
I. In re-sentencing [Appellant] to 11½ to 23 months’
incarceration, to be followed by a consecutive period of
probation of two years, and specifically deeming him
ineligible for alternative housing, whether the trial court
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4
When reviewing a challenge to the trial court’s discretion, our 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
absent a manifest abuse of discretion. An abuse of discretion is
more than just an error in judgment and, on appeal, the trial
court will not be found to have abused its discretion unless the
record discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-
will.
Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012)
(quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super.
2002)), appeal denied, 64 A.3d 630 (Pa. 2013); see Commonwealth v.
Simmons, 56 A.3d 1280, 1283-84 (Pa. Super. 2012) (noting that the
imposition of sentence following a revocation is vested within the sound
discretion of the trial court), aff’d, 91 A.3d 102 (Pa. 2014).
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abused its sentencing discretion when [Appellant]
committed only technical violations of probation,[5] and the
requirements of 42 Pa.C.S.A. § 9721(b) were not met?
Appellant’s Brief at 5.
Essentially, Appellant argues that the trial court, in fashioning the new
sentence following the Gagnon II revocation hearing, did not consider the
requirements of Section 9721(b) 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.” 6 Appellant’s
Brief at 21 (citing 42 Pa.C.S.A. § 9721(b)).
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5
As discussed infra, although violations of probation and CIP generally are
treated similarly, Appellant fails to acknowledge that in this case he was
sentenced to CIP—not probation—and that it was his CIP sentence that was
revoked for technical violations.
6
To the extent Appellant claims that, at the revocation hearing, the trial
court did not consider mitigating factors evidencing (1) his acceptance of
responsibility for his technical violations of his CIP sentence, (2) his age, and
(3) his father’s medical condition, we reject this claim. Appellant’s Brief at
27-28. “[W]e have held that a claim that a court did not weigh the factors
as an appellant wishes does not raise a substantial question.”
Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014). We also
have held on numerous occasions that a claim of inadequate consideration of
mitigating factors does not raise a substantial question for our review.”
Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (citations
omitted); see also Commonwealth v. Berry, 785 A.2d 994, 996-97 (Pa.
Super. 2001) (explaining allegation that sentencing court failed to consider
certain mitigating factor generally does not raise a substantial question);
Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa. Super. 1995)
(“[a]n allegation that a sentencing [judge] ‘failed to consider’ or ‘did not
adequately consider’ certain factors does not raise a substantial question
that the sentence was inappropriate,”), appeal denied, 676 A.2d 1195 (Pa.
1996); Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa. Super.
(Footnote Continued Next Page)
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Appellant here does not challenge the revocation of his CIP sentence,
because he admits that he committed technical violations at the treatment
facilities. Id. at 22. As a result, his issue implicates only the discretionary
aspects of his sentence. In this regard, we note that it is well-settled that
“[t]he right to appeal a discretionary aspect of sentence is not absolute.”
Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011).
Rather, where an appellant challenges the discretionary aspects of a
sentence, the appeal should be considered as a petition for allowance of
appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).
_______________________
(Footnote Continued)
1997) (finding absence of substantial question where appellant argued the
trial court failed to adequately consider mitigating factors and to impose an
individualized sentence).
Moreover, insofar as Appellant argues that his sentence is excessive, we
reject his argument as waived. Appellant fails to develop, much less
mention, his excessiveness claim in the argument section of his brief. It is
settled that “[w]e shall not develop an argument for [the appellant], nor
shall we scour the record to find evidence to support an argument;
consequently, we deem this issue waived.” Commonwealth v. Beshore,
916 A.2d 1128, 1140 (Pa. Super. 2007), appeal denied sub nom.
Commonwealth v. Imes, 982 A.2d 509 (Pa. 2009); see Pa.R.A.P.
2119(a), (b). “The failure to develop an adequate argument in an appellate
brief may result in waiver of the claim under Pa.R.A.P. 2119.” Beshore,
916 A.2d at 1140 (Pa. Super. 2007) (internal citation and quotation marks
omitted); see also Commonwealth v. Freeman, 128 A.3d 1231, 1249
(Pa. Super. 2015) (explaining that the appellant “ha[d] made no effort
whatsoever to discuss the applicable law or link the facts of his case to that
law” and concluding that “[h]is failure to develop a coherent legal argument
in support of his claim results in waiver of [the] issue”); Commonwealth v.
Hakala, 900 A.2d 404, 407 (Pa. Super. 2006) (finding waiver where the
appellant “fail[ed] to offer either analysis or case citation in support of the
relief he seeks” and admonishing that “it is not this Court’s function or duty
to become an advocate for the [appellant]”).
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As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super.
2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[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. [708];[7] (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).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)). Whether a particular issue constitutes a substantial question about
the appropriateness of sentence is a question to be evaluated on a
case-by-case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811
(Pa. Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).
Here, Appellant has satisfied the first three requirements of the
four-part Moury test. Appellant filed a timely appeal to this Court,
preserved the issue on appeal through his post-sentence motions, and
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7
“A motion to modify a sentence imposed after a revocation shall be filed
within 10 days of the date of imposition. The filing of a motion to modify
sentence will not toll the 30-day appeal period.” Pa.R.Crim.P. 708(E).
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included a Pa.R.A.P. 2119(f) statement in his brief.8 We, therefore, must
determine only if Appellant’s sentencing issues raise a substantial question.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d
825, 828 (Pa. Super. 2007). We have found that a substantial question
exists “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. Phillips, 946
A.2d 103, 112 (Pa. Super. 2008) (citation omitted), appeal denied, 964
A.2d 895 (Pa. 2009). “[W]e cannot look beyond the statement of questions
presented and the prefatory [Rule] 2119(f) statement to determine whether
a substantial question exists.” Commonwealth v. Christine, 78 A.3d 1, 10
(Pa. Super. 2013), aff’d, 125 A.3d 394 (Pa. 2015).
This Court does not accept bald assertions of sentencing errors. See
Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006).
When we examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists, “[o]ur inquiry must focus on the
reasons for which the appeal is sought, in contrast to the facts underlying
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8
Rule 2119(f) provides that “[a]n appellant who challenges the discretionary
aspects of a sentence in a criminal matter shall set forth in his brief a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).
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the appeal, which are necessary only to decide the appeal on the merits.”
Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008)
(quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)).
A Rule 2119(f) statement is inadequate when it “contains incantations of
statutory provisions and pronouncements of conclusions of law[.]”
Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005) (citation
omitted).
Here, Appellant asserts in his Rule 2119(f) statement that the trial
court did not consider Appellant’s rehabilitative needs in fashioning his
sentence. Appellant states:
[T]he trial court noted that a number of technical violations of
[CIP] had been established at [Appellant’s] Gagnon I hearing.
Specifically, [Appellant] had been removed from the Renewal
Center for being in a restroom where smoking was occurring, for
being late to multiple group sessions, for sleeping at
unauthorized times, and for having food, medication, and razors
in his locker. The trial court further observed that [Appellant]
had been discharged from another treatment facility for pursuing
inappropriate relationships with female residents. On behalf of
[Appellant], [the Assistant Public Defender (the “ADP”)] did not
dispute the allegations. However, in light of the fact that
[Appellant’s] violations were all technical in nature, he was only
22 years old, and his father was currently undergoing dialysis
treatment, [the APD] asked the trial court to re-sentence
[Appellant] to an appropriate period of probation. Alternatively,
[the APD] asked the trial court to impose a new sentence of
house arrest.
....
[T]he requirements of [Section 9721(b)] had not been met.
Appellant’s Brief at 17-19 (record citation omitted). Based on his Rule
2119(f) statement, we conclude that Appellant has raised a substantial
question with respect to his sentencing claim. It is settled that a claim that
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the trial court failed to consider the requirements of Section 9721(b) raises a
substantial question. See Commonwealth v. Buterbaugh, 91 A.3d 1247,
1266 (Pa. Super. 2014) (en banc) (noting that “arguments that the
sentencing court failed to consider factors proffered in [Section 9721] does
present a substantial question.”). Accordingly, we grant Appellant’s petition
for allowance of appeal.
As a prefatory matter, we observe that the revocation of a CIP
sentence is equivalent to the revocation of probation. 9 See
Commonwealth v. Melius, 100 A.3d 682, 685 (Pa. Super. 2014) (“[T]he
revocation of a county intermediate punishment sentence is equivalent to
the revocation of probation.”). Section 9773 of the Judicial Code provides
that “[u]pon revocation and subject to section 9763(d),[10] the sentencing
alternatives available to the court shall be the same as the alternatives
available at the time of initial sentencing.” 42 Pa.C.S.A. § 9773(b)
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9
Accordingly, we may borrow from case law pertaining to discretionary
aspects of sentencing claims arising in the context of probation violations.
10
Section 9763(d) of the Judicial Code provides:
The sentence to be imposed in the event of the violation of a
condition under subsection (b) shall not be imposed prior to a
finding on the record that a violation has occurred.
Notwithstanding any other provision of law requiring notice prior
to sentencing, in the event of a violation of a condition under
subsection (b), the attorney for the Commonwealth may file
notice at any time prior to resentencing of the Commonwealth's
intention to proceed under an applicable provision of law
requiring a mandatory minimum sentence.
42 Pa.C.S.A. § 9763(d).
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(emphasis added). Upon revocation of a CIP sentence, therefore, the trial
court is limited only by the maximum sentence that it could have imposed
originally at the time of the CIP sentence. The trial court, however, shall not
impose a sentence of total confinement unless it considers the Section
9721(b) requirements and 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).11 It is settled that the trial court “is not required to
parrot the words of the sentencing code, stating every factor that must be
considered under Section 9721(b), [however,] the record as a whole must
reflect due consideration by the court of the statutory considerations” at the
time of sentencing. Commonwealth v. Coulverson, 34 A.3d 135, 145 (Pa.
Super. 2011) (citations omitted); see Commonwealth v. Malovich, 903
A.2d 1247, 1253 (Pa. Super. 2006) (noting that a trial court need not
undertake a lengthy discourse for its reasons for imposing a sentence or
specifically reference the statute in question, but the record as whole must
reflect the trial court’s consideration of the facts of the crime and character
of the offender).
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11
Appellant does not argue that the trial court failed to consider the
requirements of Section 9771(c) in imposing his new sentence.
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With the foregoing in mind, we now address Appellant’s claim that the
trial court did not consider the requirements of Section 9721(b). Based
upon our review of the Gagnon II hearing transcript, as recited earlier, and
the trial court’s Rule 1925(a) opinion, we conclude that the trial court
adequately considered the statutory requirements of Section 9721(b) in
sentencing Appellant to 11½ to 23 months’ imprisonment. As the trial court
stated in its Rule 1925(a) opinion:
During the violation hearing of April 18, 2016, Joe Rose, the
Drug Court Coordinator, testified that when he went to Renewal,
on March 22, 2016, he was informed that [Appellant] had been
at Renewal for less than one month and had already incurred
multiple program violations. [Appellant] was returned to the
Allegheny County Jail on March 31, 2016.
On June 29, 2016, [Appellant] was released from
Allegheny County Jail and placed at Gaiser treatment center.
When the Drug Court team spoke with the staff at Gaiser, on
July 19, 2016, [Appellant] was already on a last chance contract
due to repeated violations of house rules. [Appellant’s] primary
violation was his failure to stop pursuing inappropriate relations
with female residents. [Appellant] continued this behavior and
was unsuccessfully discharged from Gaiser and incarcerated on
July 25, 2016.
This [c]ourt revoked Drug Court at a violation hearing on
August 22, 2016. Defense counsel requested probation but this
[c]ourt sentenced [Appellant] to incarceration. [Appellant] was
provided numerous opportunities to comply with the Drug Court
program but he failed to conform to the rules of the program.
He wasted the [c]ourt[’]s time. This [c]ourt had informed
[Appellant] that he needed to follow the rules of the Drug Court
program, but [Appellant] failed to comply. This [c]ourt’s
sentence of 11½ months to 23 months, plus 2 years of probation
was significantly below the maximum sentence that could have
been imposed.
Here [Appellant] had been provided an opportunity to
participate in the Drug Court program. [Appellant] was provided
many chances to remain in the Drug Court program, but he
failed to take advantage of them. The record indicates that this
[c]ourt properly considered the facts of the crime and the
character of the offender before imposing a new sentence.
[Appellant’s] behavior indicated that it is likely that he would
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commit another offense if he was not imprisoned, since he was
addicted to heroin and failed to successfully complete a drug
treatment program.
Furthermore, a sentence of confinement was necessary to
vindicate the authority of the [c]ourt. [Appellant] repeatedly
failed to follow the rules of the two treatment programs and was
unsuccessfully discharged, and he failed to comply with the
terms of Drug Court program. Incarceration is proper where
technical violations are flagrant and indicative of an inability to
reform. It was proper for the trial court to impose a sentence of
total incarceration where Drug Court was revoked due to
[Appellant’s] misconduct in Drug Court, such as where a
defendant displays an attitude problem and an unwillingness to
change.
Trial Court Rule 1925(a) Opinion, 3/6/17, 3-5 (internal citations omitted).
As the trial court noted, Appellant, who is addicted to heroin, committed
various drug crimes, retail theft, PIC and assault. The trial court sentenced
him to CIP so that he could turn his life around. Specifically, Appellant was
provided opportunities at Renewal and Gaiser—two treatment facilities—to
combat his heroin addiction. As Appellant himself admits, he committed
technical violations of his CIP sentence by failing to follow the rules at the
treatment facilities. Additionally, it is worth noting that the record sub
judice indicates that, while Appellant’s First Case was pending, he was
charged with, among other things, PIC, retail theft, and simple assault in the
Second Case. Given Appellant’s criminal history, and his rejection of
treatment services provided at Renewal and Gaiser, we conclude that the
trial court did not abuse its discretion in sentencing him to 11½ to 23
months in prison followed by 2 years of probation.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2017
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