Com. v. Stevens, L.

J-S16035-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LLOYD CHARLES STEVENS,
Appellant No. 1208 WDA 2016
Appeal from the Judgment of Sentence July 14, 2016
in the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0017063-2014
BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 31, 2017
Appellant, Lloyd Charles Stevens, appeals from the judgment of
sentence imposed on July 14, 2016, following revocation of his probation.
Specifically, he challenges the discretionary aspects of his sentence. We
affirm.
We take the factual and procedural history in this matter from our
review of the certified record and the trial court’s November 9, 2016 opinion.
[Appellant] was charged with burglary, terroristic threats
and criminal mischief[1] in relation to an incident which occurred
at his ex-girlfriend’s residence in Crawford Village. He appeared
before [the trial court] on July 6, 2015, and, pursuant to a plea
agreement with the Commonwealth, [pleaded] guilty to one (1)
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3502(a)(1), 2706(a)(1), and 3304(a)(2), respectively.
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count of criminal trespass[2] and was immediately sentenced to a
term of probation of one (1) year with the special condition of
completion of the batterer’s intervention program. No post-
sentence motions were filed and no direct appeal was taken.
On July 14, 2016, [Appellant] appeared before [the trial
court] for a probation violation hearing. At the conclusion of the
hearing and upon finding that [Appellant] had been convicted of
another offense while on probation, his probation was revoked
and he was sentenced to a term of imprisonment of [not less
than eleven and one-half, nor more than twenty-three] months.
Timely post-sentence motions were filed and were denied on
August [15], 2016. This [timely] appeal followed.3
(Trial Court Opinion, 11/09/16, at 1-2) (unnecessary capitalization and some
footnotes omitted).
Appellant raises one issue on appeal.
1. Did the [trial] court abuse its discretion in sentencing
[Appellant] to a manifestly excessive and unreasonable
sentence of [eleven and one-half] to [twenty-three]
months [of] incarceration following probation revocation?
(Appellant’s Brief, at 8) (most capitalization omitted).
Appellant’s issue challenges the discretionary aspects of his sentence.
This Court has concluded that a challenge to a discretionary sentencing
matter after revocation proceedings is within the scope of its review. See
Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006),
appeal denied, 906 A.2d 1196 (Pa. 2006).
____________________________________________
2
18 Pa.C.S.A. § 3503(a)(1).
3
Appellant filed a concise statement of errors complained of on appeal on
October 7, 2016. The trial court entered its opinion on November 9, 2016.
See Pa.R.A.P. 1925.
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Such a challenge to the discretionary aspects of a sentence is
not appealable as of right. Rather, Appellant must petition for
allowance of appeal pursuant to 42 Pa.C.S.A. § 9781.
Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super.
2004).
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. The third and fourth of these
requirements arise because . . . [Appellant] must petition
this Court, in his concise statement of reasons, to grant
consideration of his appeal on the grounds that there is a
substantial question. Finally, if the appeal satisfies each of
these four requirements, we will then proceed to decide
the substantive merits of the case.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super.
2013)[, appeal denied, 77 A.3d 1258 (Pa. 2013)] (citations
omitted); see also Commonwealth v. Kalichak, 943 A.2d
285, 289 (Pa. Super. 2008) (“[W]hen a court revokes probation
and imposes a new sentence, a criminal defendant needs to
preserve challenges to the discretionary aspects of that new
sentence either by objecting during the revocation sentencing or
by filing a post-sentence motion.”) [(citation omitted)].
Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014),
appeal denied, 109 A.3d 678 (Pa. 2015).
Here, Appellant has properly preserved his issue by filing a post-
sentence motion for reconsideration of sentence, which the trial court
denied, and a timely appeal. Appellant’s brief contains a Rule 2119(f)
concise statement of reasons. (See Appellant’s Brief, at 9-10). In it,
Appellant argues “the sentencing court failed to take into account that he
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accepted responsibility for his actions, he has rehabilitative needs and he
has health issues.” (Id. at 10). “[A] claim that the sentencing court failed
to consider or accord proper weight to a specific sentencing factor does not
raise a substantial question.” Commonwealth v. Berry, 785 A.2d 994,
996 (Pa. Super. 2001) (citation omitted). However, Appellant later argues
that the sentence imposed after revocation of his probation is higher than
the aggravated range for his original offense and is manifestly excessive.
(See Appellant’s Brief, at 17). Although not specifically contained within the
2119(f) statement, we find that Appellant is not only arguing that the court
failed to consider certain factors, but also that such failure resulted in a
manifestly excessive sentence, which is above the aggravated guideline
range. See Commonwealth v. Anderson, 830 A.2d 1013, 1017–18 (Pa.
Super. 2003) (considering sentencing challenges although not contained
within Rule 2119(f) statement). “A claim that a sentence is manifestly
excessive such that it constitutes too severe a punishment raises a
substantial question.” Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa.
Super. 2011) (citation omitted). Thus, Appellant has presented a substantial
question and we will proceed to the merits of his claim.
Our standard of review of an appeal from a sentence imposed
following the revocation of probation is well-settled: “Revocation of a
probation sentence is a matter committed to the sound discretion of the trial
court and that court’s decision will not be disturbed on appeal in the absence
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of an error of law or an abuse of discretion.” Colon, supra at 1041 (citation
omitted).
In his issue, Appellant claims that his sentence was manifestly
excessive. (See Appellant’s Brief, at 14-17). Specifically, he claims that the
court did not consider his rehabilitative needs, health, or acceptance of
responsibility when sentencing him, thus resulting in imposition of an
unreasonable sentence. (See id.). We disagree.
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). “[U]pon revocation [of probation] . . . the trial court is
limited only by the maximum sentence that it could have
imposed originally at the time of the probationary sentence.”
Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super.
2013) (internal quotation marks and citations omitted). . . .
Colon, supra at 1044. “A sentencing 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 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), appeal
denied, 13 A.3d 475 (Pa. 2010) (citation omitted). We observe that “our
sentencing guidelines are not required to be consulted” when sentencing
upon revocation. Commonwealth v. Cartrette, 83 A.3d 1030, 1040 (Pa.
Super. 2013) (citing 204 Pa. Code. § 303.1(b)).
Here, a review of the probation violation hearing and sentencing
transcript reflects that the trial court engaged in a discussion of the facts
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and history of Appellant’s case. The Commonwealth established that
Appellant pleaded guilty to criminal trespass (his original conviction), and
admitted that he approached the victim (previously his paramour) at her
home, started a verbal altercation, and then entered her home without
permission. (See N.T. Plea and Sentencing Hearing, 7/06/15, at 4). The
record reveals that Appellant violated his probation when he was convicted
of a new charge. (See N.T. Probation Violation Hearing, 7/14/16, at 3).
The trial court heard testimony from the probation officer who explained that
Appellant’s supervision had been poor, that he had never attended batterers
intervention classes (a requirement of his probation), and that he failed to
appear for a domestic violence review hearing. (See id. at 2-3; N.T. Plea
and Sentencing Hearing, at 5).
Moreover, we note that the maximum sentence that the court could
have imposed at Appellant’s initial sentencing was seven years’
incarceration. (See N.T. Plea and Sentencing Hearing, at 3). Therefore, the
sentence, imposed upon revocation, of not less than eleven and one-half nor
more than twenty-three months of incarceration, is well within the maximum
sentence that could have been imposed. See 42 Pa.C.S.A. § 9771(b);
Colon, supra at 1044.
Thus, we conclude that the record reflects the court’s reasons for
Appellant’s sentence and its consideration of the circumstances of the
offense, Appellant’s background, and his character. See Crump, supra at
1283. The record also reflects that the sentence imposed was within the
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maximum sentence that could have been imposed originally. See Colon,
supra at 1044. Accordingly, the court did not err or abuse its discretion in
this regard. See id. at 1041. Appellant’s issue lacks merit.
Judgment of sentence affirmed.
Judge Ransom joins the Memorandum.
Judge Moulton concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/2017
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