Com. v. Civello, J.

J-S32030-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES CIVELLO :
:
Appellant : No. 1773 EDA 2018
Appeal from the Judgment of Sentence Entered May 24, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0005339-2011
BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.
MEMORANDUM BY NICHOLS, J.: FILED AUGUST 20, 2019
Appellant James Civello appeals from the judgment of sentence imposed
for a violation of his probation. Appellant contends that the trial court’s
violation of probation (VOP) sentence of nine months’ to three years’
imprisonment was manifestly excessive. We affirm.
We state the facts and procedural history as set forth by the trial court:
On June 25, 2012, [Appellant] entered an open guilty plea to one
count of corruption of minors and was sentenced on September
13, 2012 to serve no less than time-served and no more than
twenty-three months. This sentence was to be followed by three
years’ probation. After multiple violations, revocations, and jail
time, [Appellant] was released again on parole. During this period
of supervision, he was charged in Bucks County, Pennsylvania
with [driving under the influence (DUI)]: Highest Rate of Alcohol
and related offenses. On April 25, 2018, [Appellant] entered a
negotiated guilty plea. [Appellant] then stipulated to the direct
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and technical violations of his parole[1]for the underlying offense
and the Gagnon [hearing2] proceeded to sentencing before th[e
trial c]ourt on May 24, 2018. [Appellant] was re-sentenced to a
term of imprisonment for no less than nine months to no more
than three years in a state correctional institution.
[Appellant] filed a post-sentence motion for reconsideration of his
sentence on June 1, 2018 which was denied. A notice of appeal
was thereafter filed in a timely manner. Following receipt of the
aforementioned notice, this Court, pursuant to Pa.R.A.P. [] 1925,
directed [Appellant] to submit a concise statement of error
complained of on appeal. Upon the grant of leave for an extension
of time, [Appellant]’s statement was filed.
Trial Ct. Op., 5/24/18, at 1-2.
Appellant raises the following question on appeal: “Was the sentence of
nine months to three years of total confinement on a probation violation
manifestly excessive?” Appellant’s Brief at 4.
On appeal, Appellant asserts that the trial court failed to consider his
mental illness as a mitigating factor for the purposes of sentencing. Id. at
10-11. Appellant further contends that the trial court improperly focused on
Appellant’s mental health needs to justify a longer state sentence. Id. at 11.
Appellant emphasizes that “[t]he fact that county facilities are inadequate to
treat disabled inmates does not provide justification for a longer term of
confinement” in a state correctional institution. Id. at 11-12.
Appellant also claims the trial court erred in finding that he was not
amendable to treatment. Id. at 12-13. In support, Appellant takes issue with
____________________________________________
1 Although the trial court stated it sentenced on a revocation of parole, the
record indicates that the new sentence was for a violation of probation.
2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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the trial court’s statement that he “absconded” from treatment facilities. Id.Appellant asserts that the trial court failed to acknowledge that he voluntarily
sought treatment for his mental illness, which caused him to miss two
scheduled polygraph examinations. Id. at 12-13. Appellant further explains
that he was discharged from a mandatory counseling program because he was
unable to pay for a third polygraph examination upon his release from a
hospital. Id. at 12. Appellant concludes that the trial court gave undue weight
to his technical violations as evidence that he could not be treated in the
community. Id. at 12-13.
Lastly, Appellant contends that the trial court did not give “due
consideration” to Appellant’s previous time spent on probation prior to the
revocation. Id. at 10. In support, Appellant notes that he already served
“2.27 years and 122 days of probation.” Id. at 14. Appellant emphasizes
that he had no criminal record prior to his initial conviction for corruption of
minors. Id. at 10.
“[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 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]; (3) whether appellant’s brief
[complies with] 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.[] § 9781(b).
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Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa. Super. 2016) (citation
omitted).
Here, Appellant timely filed a notice of appeal, preserved his claim in a
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 an excessive sentence by failing to consider all relevant
sentencing factors presents a substantial question. See Commonwealth v.
Swope, 123 A.3d 333, 339 (Pa. Super. 2015). Therefore, we will review
Appellant’s claim.
In matters involving the discretionary aspects of a VOP sentence, our
standard of review is as follows:
Sentencing is a matter vested within the discretion of the trial
court and will not be disturbed absent a manifest abuse of
discretion. An abuse of discretion requires the trial court to have
acted with manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support so as to be clearly
erroneous.
Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa. Super. 2012) (citation
omitted). “[T]his Court’s scope of review in an appeal from a revocation
sentencing includes discretionary sentencing challenges.” Commonwealth
v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc).
The statute governing the modification or revocation of probation
provides:
§ 9771. Modification or revocation of order of probation
* * *
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(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
(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(b)-(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 (quoting
Cartrette, 83 A.3d at 1040-41) (emphasis omitted); see also 42 Pa.C.S. §
9721(b).
When imposing a VOP sentence, the trial court “need not undertake a
lengthy discourse for its reasons for imposing a sentence or specifically
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reference the statutes in question.” Commonwealth v. Pasture, 107 A.3d
21, 28 (Pa. 2014). As the Pennsylvania Supreme Court explained:
since the defendant has previously appeared before the
sentencing court, the stated reasons for a revocation sentence
need not be as elaborate as that which is required at initial
sentencing. The rationale for this is obvious. When sentencing is
a consequence of the revocation of probation, the trial judge is
already fully informed as to the facts and circumstances of both
the crime and the nature of the defendant, particularly where, as
here, the trial judge had the benefit of a [pre-sentence
investigation report (PSI)] during the initial sentencing
proceedings.
Pasture, 107 A.3d at 28. Where a PSI exists, we “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, the trial court explained its sentencing decision as follows:
All right then, the [c]ourt has the benefit of a presentence
investigation and report, together with the Rise Above report and
the Probation Department’s report. The [c]ourt has carefully
considered those, in addition to the information supplied today by
counsel and [Appellant].
His family history and background are set forth in the report, as
is his physical and mental condition, also drug and alcohol and his
education. I have considered all these things.
The Rise Above report does recommend that he be placed in a
drug and alcohol rehabilitation program, such as a halfway house,
after he is released from prison, and continue to work with sexual
offender therapy and continue work with a psychiatrist.
The Probation Department notes that this is [Appellant]’s third
violation of supervision for some of the same type of behavior.
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Here, as I said, he had a new arrest that was a serious matter.
He failed to report. He absconded. This is not appropriate
behavior.
His initial crime led to a prison sentence. That was a serious case.
Then his violation, as noted, he had a six month initial violation
and a nine month violation.
Certainly a prison sentence is necessary to vindicate the authority
of the [c]ourt and the Probation and Parole Department. He hasn’t
fared well under supervision. I will sentence him as follows:
He will undergo imprisonment for not less than nine months nor
more than three years. He’ll be sent to the Department of
Corrections.
The [c]ourt will make a note that he should receive mental health
treatment, if possible.
N.T., 5/24/18, at 9-11.
Following our review, we find no reversible error. The trial court
considered Appellant’s mental health needs, as well as the apparent lack of
success Appellant had attempting to address those issues through voluntary
admissions to mental health facilities in the community. Although it does not
appear from the record that Appellant absconded from those facilities, the trial
court was entitled to consider Appellant’s own statements that the treatment
he voluntarily received was inadequate.
Moreover, the trial court did not give undue weight to Appellant’s
technical violations, which included his failure to appear for two polygraph
examinations, and his eventual discharge from mandatory treatment based
on his inability to pay for a third polygraph examination. Appellant previously
violated his probation by having contact with the victim of his underlying
conviction for corruption of a minor, and, as noted by the trial court, the
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instant revocation proceeding was initiated based in part on a new DUI
conviction. Lastly, the trial court had the PSI, which was prepared in
anticipation of the VOP sentencing hearing, and we can presume it was aware
of the relevant sentencing factors contain in the report, including the length
of time Appellant spent on probation. See Walls, 926 A.2d at 967 n.7.
In sum, we conclude that the trial court adequately considered all
relevant sentencing factors. See Derry, 150 A.3d at 995. Appellant has not
identified a reversible abuse of discretion in the trial court’s decision to impose
a VOP sentence of nine months to three years’ confinement. Cf.
Commonwealth v. Sheller, 961 A.2d 187, 192 (Pa. Super. 2008) (noting
that even if the trial “court relies on a factor that should have not been
considered, there is no abuse of discretion when the decision of the [trial]
court has significant other support” (citations omitted)). Accordingly, we
discern no basis to disturb the trial court’s sentence. See Schutzues, 54
A.3d at 98.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/19
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