Com. v. Bruno, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TRAVIS SHANE BRUNO,
Appellant No. 451 WDA 2013
Appeal from the Judgment of Sentence of February 19, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0017061-2010
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. and OLSON, J.
MEMORANDUM BY OLSON, J.: FILED AUGUST 5, 2014
Appellant, Travis Shane Bruno, appeals the judgment of sentence
entered on February 19, 2013 in the Criminal Division of the Court of
Common Pleas of Allegheny County following the trial court’s determination
that Appellant violated the terms and conditions of his probation. On
appeal, Appellant alleges that the trial court abused its discretion by
imposing a manifestly excessive sentence that constituted too severe a
punishment. In addition, Appellant invokes our en banc decision in
Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super. 2013) (en
banc), and claims that he is entitled to specific enforcement of a ten-year
registration term in his plea agreement. After careful review, we conclude
that the trial court did not abuse its discretion in sentencing Appellant
following his probation violation. We also conclude, in accordance with this
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Court’s decision in Commonwealth v. Partee, 86 A.3d 245 (Pa. Super.
2014), that Appellant’s probation violation vitiated his plea agreement,
thereby rendering its terms unenforceable. Hence, we affirm.
On January 27, 2011, the Commonwealth filed a criminal information
charging Appellant with the following offenses: unlawful contact with a
minor – prostitution (18 Pa.C.S.A. § 6318(a)(3)); promoting or encouraging
prostitution (18 Pa.C.S.A. § 5902(b)(3)); criminal solicitation – promoting or
encouraging prostitution (18 Pa.C.S.A. § 902(a)); corruption of minors (18
Pa.C.S.A. § 6301(a)(1)); harassment (18 Pa.C.S.A. § 2709(a)(4)); and,
criminal solicitation – involuntary deviant sexual intercourse/forcible
compulsion (18 Pa.C.S.A. § 902(a)). The charges stemmed from an incident
that occurred on October 28, 2010, during which Appellant solicited a
17-year-old female for a sexual encounter in exchange for payment. On
September 13, 2011, Appellant entered a negotiated guilty plea to unlawful
contact with a minor – prostitution and criminal solicitation – promoting or
encouraging prostitution. On December 5, 2011, pursuant to the parties’
plea agreement, the Commonwealth withdrew the remaining charges and
the trial court sentenced Appellant to 11½ to 23 months of intermediate
punishment, followed by five years of probation with special conditions.1, 2
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1
Given that Appellant’s charges both carried an offense gravity score of
eight and Appellant’s prior record score was repeat felony offender (“RFEL”),
the December 5, 2011 sentence represented a steep downward departure
from the mitigated range of the applicable sentencing guidelines. In fact,
(Footnote Continued Next Page)
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The agreement also called for ten years’ registration under Megan’s Law, 42
Pa.C.S.A. §§ 9791-9799.9.
On February 19, 2013, following a hearing, the trial court found
Appellant in violation of the terms and conditions of his probation.3
Accordingly, the trial court revoked Appellant’s probation and imposed a new
sentence of 40 to 80 months’ imprisonment, with credit for 209 days of time
served, to be followed by a term of five years’ probation.4 N.T., 2/19/13, at
_______________________
(Footnote Continued)
the guidelines reflect a mitigated range of 31 months and standard range of
42 months for Appellant’s offenses. Upon inquiry from the trial court, the
Commonwealth explained that the negotiated sentence reflected the victim’s
desire to avoid testifying at trial and the Commonwealth’s belief that the
public would be adequately protected by Appellant’s ten-year registration
under Megan’s Law. N.T., 9/13/11, at 4.
2
One of the special conditions of Appellant’s probation was to avoid contact
with minors.
3
The certified record confirms that Appellant incurred three technical
violations of his probationary sentence. First, although Appellant registered
as a sex offender under Megan’s Law, he failed to do so in a timely manner.
Second, during a field visit to Appellant’s residence by probation officers and
agents with Children and Youth Services, authorities observed Appellant in
the presence of the six-year-old daughter of his former girlfriend. Finally,
Appellant tested positive for opiates, cocaine, and marijuana on June 20,
2012.
4
It appears that, as of the date that the trial court revoked his probation,
Appellant may still have been on intermediate punishment. Nevertheless, it
is well-settled in Pennsylvania that a trial court possesses the authority to
revoke a probationary sentence in anticipation of its commencement. See
Commonwealth v. Ware, 737 A.2d 251, 253 (Pa. Super. 1999), appeal
denied, 747 A.2d 900 (Pa. 1999).
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7. The trial court also notified Appellant that, in view of the passage of the
Sexual Offenders Registration and Notification Act (“SORNA”) 42 Pa.C.S.A.
§§ 9799.10-9799.41, it was likely that he would now be subject to a longer
registration requirement.5 N.T., 2/19/13, at 7-8.
On February 28, 2013, Appellant filed a counseled post-sentence
motion alleging that his revocation sentence was excessive and that he was
entitled to specific enforcement of the ten-year registration term
incorporated into his plea agreement. The trial court denied Appellant’s
motion on March 1, 2013. Appellant lodged a timely notice of appeal on
March 8, 2013. After several extensions, Appellant, on June 25, 2013, filed
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). The trial court issued its opinion on August 30, 2013. This appeal
followed.
In his brief, Appellant raises two questions for our review:
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5
Appellant’s brief and the trial court’s opinion state that Appellant is now
subject to a 25-year registration requirement because of his conviction for
criminal solicitation. See Appellant’s Brief at 37; see also Trial Court
Opinion, 8/13/30, at 3 n.5, citing 42 Pa.C.S.A. § 9799.14(c)(18). As our
review and recitation of the record reveals, however, Appellant pled guilty to
both unlawful contact with a minor and criminal solicitation of prostitution.
SORNA classifies both of these crimes as Tier II offenses. See 42 Pa.C.S.A.
§§ 9799.14(c)(5) (unlawful contact) and 9799.14(c)(18) (criminal
solicitation of prostitution, a listed Tier II offense). Under SORNA, two or
more convictions for offenses listed as Tier II crimes shall be treated as a
Tier III sexual offense (42 Pa.C.S.A. §§ 9799.14(d)(16)), which carries a
lifetime registration requirement. 42 Pa.C.S.A. § 9799.15(a)(3). As neither
party has raised or addressed this apparent discrepancy on appeal, we shall
address it no further.
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Was the sentence imposed on [Appellant] unreasonable and
manifestly excessive in that the court did not explain the reasons
for the increase in sentence, and further did not focus, as it
must, on the sentence factors outlined in 42 Pa.C.S.A.
§ 9721(b), especially on the technical violation’s impact upon the
victim of the crime, the community in general, and the
defendant’s need for rehabilitation?
Did the trial court err in refusing to impose the period of
registration as a sex offender under SORNA [Megan’s Law] that
was initially imposed and agreed upon, such that [Appellant]
may obtain the benefit of his plea bargain and only register for a
[ten] year period?
Appellant’s Brief at 7 (complete capitalization omitted).
In his first claim, Appellant challenges the discretionary aspects of his
sentence.6 We begin by setting forth our standard of review in addressing
such challenges:
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.
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6
It is now well-settled that an appellant may challenge the discretionary
aspects of a revocation sentence before this Court. Commonwealth v.
Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc) (“To eliminate
the discord between what we seem to say and what we do, we unequivocally
hold that this Court's scope of review in an appeal from a revocation
sentenc[e] includes discretionary sentencing challenges.”); see also
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010), appeal
denied, 13 A.3d 475 (Pa. 2010).
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The right to appellate review of the discretionary aspects of a
sentence is not absolute, and must be considered a petition for
permission to appeal. An appellant must satisfy a four-part test
to invoke this Court's jurisdiction when challenging the
discretionary aspects of a sentence.
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal; (2) whether the
issue was properly preserved at sentencing or in a motion to
reconsider and modify sentence; (3) whether appellant's brief
has a fatal defect; and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code.
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265-1266 (Pa. Super.
2014) (citations omitted).
Appellant fulfilled the first two elements by filing a timely notice of
appeal and by preserving his claim in a post-sentence motion challenging
the discretionary aspects of his sentence. Appellant also met the third
element because his brief contains the necessary concise statement of the
reasons relied upon for appeal. Therefore, we consider whether Appellant's
challenge to the discretionary aspect of his sentence raises a substantial
question.
Whether a particular challenge to a sentence amounts to a substantial
question is determined on a case-by-case basis. See Commonwealth v.
Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011). “A substantial question
exists only when the appellant advances a colorable argument that the
sentencing [court’s] actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
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which underlie the sentencing process.” Commonwealth v. Glass, 50 A.3d
720, 727 (Pa. Super. 2012) (citations and internal quotation marks omitted).
In relevant part, Appellant’s Rule 2119(f) concise statement of matters
relied upon for allowance of appeal asserts that the trial court abused its
discretion in imposing an unreasonable and manifestly excessive punishment
“in that the court failed to consider, as it must, all factors under 42 Pa.C.S.A.
§ 9721(b) prior to imposing sentence.” Appellant’s Brief at 13. Such a
contention raises a substantial question. Although a claim asserting that the
trial court failed to consider certain mitigating facts does not raise a
substantial question, “[a]rguments that the sentencing court failed to
consider the factors proffered in 42 Pa.C.S. § 9721 do[] present a
substantial question.” Buterbaugh, 91 A.3d at 1266, quoting
Commonwealth v. Dodge, 77 A.3d 1263, 1272 n.8 (Pa. Super. 2013).
Turning to the substance of Appellant’s first claim, Appellant argues
that the trial court abused its discretion and imposed an excessive sentence
under the circumstances of this case because it disregarded the factors
outlined in § 9721(b) when it issued a revocation punishment significantly
greater than that which was originally assessed. Specifically, Appellant
maintains that the escalation of his sentence from 23 months of
intermediate punishment followed by five years of probation to a sentence of
40 to 80 months of incarceration also followed by five years of probation
constitutes too great an increase given the technical nature of his violations,
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the potential risk he posed to the community, and the impact on the victim.
See Appellant’s Brief at 16-21. Appellant also claims that the trial court
failed to state its reasoning on the record. In developing his claims,
Appellant admits that he initially received a light sentence. See id. at 15.
Moreover, Appellant does not dispute that his revocation sentence falls
within the standard range of the sentencing guidelines.
Although Appellant does not specifically challenge the imposition of
total confinement, we begin our examination of Appellant’s claim by
referring to § 9771 of the Sentencing Code. Section 9771 permits the trial
court to revoke probation upon proof that the defendant violated specific
probationary conditions and to order total confinement where it appears
likely that the defendant will reoffend or where incarceration is needed to
vindicate the court’s authority. In relevant part, § 9771 provides:
§ 9771. Modification or revocation of order of probation
(a) General rule.-The court may at any time terminate continued
supervision or lessen or increase the conditions upon which an
order of probation has been imposed.
(b) Revocation.-The court may revoke an order of probation
upon proof of the violation of specified conditions of the
probation. Upon revocation the sentencing alternatives available
to the court shall be the same as were available at the time of
initial sentencing, due consideration being given to the time
spent serving the 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
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(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(a), (b), and (c).
While Appellant concedes that the sentencing guidelines do not apply
in this case because it involves re-sentencing upon revocation of probation,
he nevertheless urges that we consider the guidelines in evaluating his
contentions on appeal. In assessing the propriety of a sentence under the
guidelines, § 9781 states:
§ 9781. Appellate review of sentence
* * *
(c) Determination on appeal.-The appellate court shall vacate
the sentence and remand the case to the sentencing court with
instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable;
or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
42 Pa.C.S. § 9781(c). We are also guided by the provisions of 42 Pa.C.S.
§ 9721, which state the general standards that a court is to apply in
sentencing a defendant.
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When imposing a sentence, the sentencing court must consider
the factors set out in 42 Pa.C.S. § 9721(b), that is, the
protection of the public, gravity of offense in relation to impact
on victim and community, and rehabilitative needs of defendant,
and it must impose an individualized sentence. The sentence
should be based on the minimum confinement consistent with
the gravity of the offense, the need for public protection, and the
defendant's needs for rehabilitation.
Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006),
appeal denied, 906 A.2d 1196 (Pa. 2006). Guided by the foregoing
standards, we must determine whether the court abused its discretion by
imposing a manifestly excessive sentence that constituted too severe a
punishment. Id. We are also mindful that “[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.” Crump, 995 A.2d at 1283.
We are not persuaded that the trial court abused its discretion in
escalating Appellant’s punishment, upon revocation, to a standard range
sentence. Our review of the sentencing transcript in this case confirms that
the trial court carefully considered Appellant’s presentence report, the terms
of the parties’ plea agreement, the sentencing guidelines, and the nature of
Appellant’s probation violations (including the reasons Appellant offered for
his transgressions). In view of the trial court’s consideration of these
materials and circumstances, we are reluctant to find an abuse of discretion.
See Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)
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(“Our Supreme Court has determined that where 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, and that where the court
has been so informed, its discretion should not be disturbed.”), appeal
denied, 987 A.2d 161 (Pa. 2009).
Moreover, as the trial court explained in its Rule 1925(a) opinion:
[The trial c]ourt did not abuse its discretion in sentencing
Appellant to a forty to eighty month period of incarceration.
Appellant was serving an intermediate punishment sentence for
[u]nlawful [c]ontact with a [m]inor and [c]riminal [s]olicitation
when his probation was revoked for technical reasons. [The trial
c]ourt was concerned about Appellant’s inability to be supervised
safely in the community due to his rapid violation of multiple
supervision conditions, specifically: failing to register, testing
positive for three illegal substances (opiates, cocaine and
marijuana), and having a minor in his home when the probation
officer made his first visit. Appellant failed to take responsibility
for his probation violation and was unable to make any
assurances to the [c]ourt that he would comply with probation
requirements in the future. Instead, Appellant chose to deflect
blame, specifically stating: “I let her [Appellant’s ex-girlfriend]
come and get her stuff, you know what I mean? House arrest is
right there behind her, you know. She turned me in. She
wanted to do it. She knew I was on [probation]” as his reason
for violating probation by having his ex-girlfriend’s minor child in
his house. Also, Appellant argued that the reason he did not
register for Megan’s Law was because “he lost contact with her
[his probation officer].” It was well within the [trial c]ourt’s
discretion to find these statements to be both dishonest and
unpersuasive. In light of these reasons, the [trial c]ourt properly
sentenced Appellant to a period of total confinement of forty to
eight[y] months[’] incarceration, a sentence well within the
standard range of the guidelines given Appellant’s [offense
gravity scores and r]epeat [f]elony [o]ffender (RFEL) status.
Trial Court Opinion, 8/30/13, at 6-7. For each of these reasons, we conclude
that Appellant has failed to establish, by reference to the record, that the
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sentencing court ignored or misapplied the law, or exercised its judgment in
a biased or prejudicial manner. Hence, Appellant is not entitled to relief
based on his claims that the court failed to offer sufficient reasons on the
record or imposed a manifestly excessive sentence.
In his second claim, Appellant argues that his ten-year registration
requirement was an essential term of his plea agreement and that it should
be specifically enforced. In a post-argument communication, he directs our
attention to this Court's en banc decision in Hainesworth, supra wherein
this Court specifically enforced a negotiated plea agreement that did not
require the defendant to report as a sex offender under Megan's Law,
despite subsequent amendments to the statute that would have subjected
him to enhanced registration requirements. Hainesworth entered a
negotiated guilty plea to three counts each of statutory sexual assault and
indecent assault, and one count each of indecent assault and criminal use of
a communication facility in February 2009. None of these convictions
required registration under the then-prevailing version of Megan's Law.
Pursuant to plea negotiations, the Commonwealth withdrew other charges
that would have imposed a registration requirement.
Hainesworth filed a motion seeking to terminate supervision effective
one week prior to the effective date of SORNA. The trial court denied the
petition to terminate supervision, but held that application of SORNA's
registration requirements to Hainesworth violated due process. On appeal,
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this Court, sitting en banc, concluded first that Hainesworth correctly framed
the issue as one of contract law. To assess whether the non-registration
provision constituted a component of the parties’ plea agreement, we
considered whether the parties reasonably understood that provision to be
an element of their bargain. Hainesworth, supra, quoting
Commonwealth v. Fruehan, 557 A.2d 1093, 1095 (Pa. Super. 1989). We
looked to the “totality of the surrounding circumstances” and “[a]ny
ambiguities in the terms of the plea agreement are construed against the
[Commonwealth].” Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa.
Super. 1995). The dispositive question was “whether registration was a
term of the bargain struck by the parties.” Hainesworth, 82 A.3d at 448.
We examined the record, noting that the terms of the plea agreement
included a discussion of the fact that the offenses to which the defendant
pled guilty did not require registration and supervision as a sex offender.
Ultimately, we held that avoidance of a registration requirement was an
essential component of Hainesworth’s plea agreement and that he was
entitled to the benefit of his bargain.
For purposes of our analysis in this case, we will assume that both
Appellant and the Commonwealth reasonably understood that the ten-year
registration period formed part of the terms of the parties’ plea agreement.
As the Commonwealth acknowledged at Appellant’s plea hearing, its two
major concerns in obtaining a plea in this case were the avoidance of calling
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the victim to testify at trial and the protection of the public secured by
Appellant’s ten-year registration under Megan’s Law. N.T., 9/13/11, at 4-5.
Under the rationale we embraced in Hainesworth, Appellant arguably
would be entitled to enforcement of the plea agreement.
For its part, however, the Commonwealth argues that, to the extent
that Appellant's ten-year registration requirement is seen as a product of the
parties’ plea agreement, Appellant's subsequent probation violation
constituted a breach of that agreement. See Commonwealth’s Brief at
23-24. Thus, the Commonwealth maintains that Appellant cannot seek
specific performance of the underlying plea agreement since there is no
longer a plea bargain to enforce. It cites Commonwealth v. Parsons, 969
A.2d 1259 (Pa. Super. 2009), for the proposition that “where the original
sentence evolved from a plea bargain, and a defendant later violates his
parole or probation, the defendant has effectively abrogated the underlying
plea bargain.” Id. at 1270 n.6.
In Partee, supra, this Court recently held that an appellant was not
entitled to enforcement of a registration requirement negotiated as part of a
plea agreement where the appellant violated the terms of his probation. We
observed that:
As our Supreme Court held in Commonwealth v. Wallace, 870
A.2d 838, 842–843 (Pa. 2005), where probation is violated, the
trial court is free to impose any sentence permitted under the
Sentencing Code and is not restricted by the bounds of a
negotiated plea agreement between a defendant and prosecutor.
The Court explained,
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The rationale for giving the trial court such discretion upon
resentencing is grounded in the nature of a negotiated
guilty plea, which is a two-sided agreement that imposes
obligations on both the defendant and the Commonwealth.
On the one hand, the Commonwealth agrees not to
prosecute the defendant to the full extent of the law and to
recommend a circumscribed punishment. The defendant,
on the other hand, accepts this benefit with the implicit
promise that he will abide by the terms of the agreement
and behave in accordance with the legal punishment
imposed by the court. See Commonwealth v. Coles, 530
A.2d 453 (Pa. Super. 1987) (holding that the benefit of the
bargain principle commonly applied to the prosecution is
also equally applicable to the defendant and imparts upon
him the obligation to abide by the negotiated terms of his
sentence).
[Wallace] at 843 n.6[; s]ee also Commonwealth v. Tann, 79
A.3d 1130, 1133 (Pa. Super. 2013) (citing Wallace for the
proposition that once defendant violated the terms of his
probation, he “forfeited the benefit of the expectations that
induced his plea[]”).
[Partee] does not address the Commonwealth's argument or the
legal effect of his probation violation upon the original plea
agreement. We agree with the Commonwealth that, having
failed to abide by the terms of the plea bargain, that agreement
is no longer in effect, and hence, [Partee] is not entitled to
specific performance. Hainesworth is not controlling.
Partee, 86 A.3d at 249-250 (parallel citations omitted).
Like Partee, Appellant has no answer to the Commonwealth’s
contentions regarding the legal effect of his probation violation upon the
parties’ original plea agreement. Therefore, in accordance with Partee, we
conclude that Hainesworth is not controlling, that the parties’ plea
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agreement is no longer in effect, and that Appellant is not entitled to specific
performance.7 Appellant’s second claim merits no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2014
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7
We recognize, of course, as did the trial court, that Appellant’s enhanced
registration requirement under SORNA was not a function of the court’s
imposition of a new sentence but instead arose from the passage of a new
law affixing different collateral consequences to Appellant’s convictions. See
N.T., 2/19/13, at 7-8. Our decision is not based, however, on the premise
that the trial court enjoyed the authority to impose new registration terms.
Instead, our conclusion flows from Partee, which holds that Appellant’s
probation violation vitiated the legal effect of the parties’ plea agreement.
This rebuts Appellant’s contention on appeal that he is entitled to specific
enforcement of his initial ten-year registration requirement because it
formed part of his plea bargain with the Commonwealth.
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