Com. v. Birchall, J.

J-S39039-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOHN CHARLES BIRCHALL, :
:
Appellant : No. 2115 MDA 2015
Appeal from the Judgment of Sentence November 5, 2015
in the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000971-2012
BEFORE: STABILE, PLATT,* and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 26, 2016
John Charles Birchall (Appellant) appeals from the November 5, 2015
judgment of sentence entered after the revocation of his probation. We
affirm.
Appellant has an extensive criminal history. At the docket number at
which this appeal was filed, Appellant was on probation following a guilty
plea to retail theft. On September 1, 2015, the trial court found that
Appellant violated the terms of his probation by, inter alia, incurring new
criminal charges, failing to report for probation appointments, and lying to
the court.1 Trial Court Opinion, 1/5/2016, at 1-2. Following the preparation
1
At the same time, and for the same reasons, the trial court revoked
Appellant’s parole at four other docket numbers related to Appellant’s
convictions for various theft-related crimes and simple assault. Trial Court
Opinion, 1/5/2016, at 1-2.
*Retired Senior Judge assigned to the Superior Court.
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and review of a presentence investigation, the trial court sentenced
Appellant to 30 to 60 months of imprisonment. Appellant timely filed a post-
sentence motion to modify sentence, then filed a notice of appeal before the
trial court ruled on the motion.
On appeal, Appellant claims that his sentence is “manifestly excessive
as to constitute too severe a punishment and contrary to the fundamental
norms underlying the sentencing process.” Appellant’s Brief at 4.
Appellant challenges the discretionary aspects of his sentence. We
consider his question mindful of the following.
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.
***
When imposing sentence, a court is required to consider
the particular circumstances of the offense and the character of
the defendant. In considering these factors, the court should
refer to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.
Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
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appellant has invoked our jurisdiction by considering the
following four factors:
(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. 720; (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).
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
Here, Appellant filed a notice of appeal after preserving the issue by
filing a motion to modify sentence. Further, Appellant’s brief contains a
statement pursuant to Pa.R.A.P. 2119(f), wherein he appears to claim that
his sentence is excessive “in light of the underlying technical violations” of
the terms of his probation, Appellant’s Brief at 8-9 (quoting
Commonwealth v. Carver, 923 A.2d 495 (Pa. Super. 2007); and that the
trial court failed to consider Appellant’s rehabilitative needs, id. at 9.
A claim that the trial court failed to consider Appellant’s rehabilitative
needs does not raise a substantial question.2 See, e.g., Commonwealth v.
2
Further, because the trial court had the benefit of a presentence
investigation report, it is presumed that it considered the relevant mitigating
factors. Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004)
(“[W]here the sentencing judge had the benefit of a presentence
investigation report, it will be presumed that he or she was aware of the
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.”).
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Griffin, 65 A.3d 932, 936-37 (Pa. Super. 2013) (collecting cases);
Commonwealth v. Lawson, 650 A.2d 876, 881 (Pa. Super. 1994) (holding
substantial question was not presented by claim that trial court ignored the
appellant’s rehabilitative needs).
However, this Court has held that “[a]n argument that the trial court
imposed an excessive sentence to technical probation violations raises a
substantial question.” Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa.
Super. 2012). Accordingly, we review the merits of that claim.
Regarding prison sentences imposed following the revocation of
probation, the Sentencing Code provides as follows:
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(c).
The trial court offered the following explanation for its sentence.
[The trial c]ourt noted that at age 57, [Appellant] has sufficient
maturity to understand the significance of his acts; he is
intelligent enough to understand the significance of his acts,
having received a high school diploma, and served in the United
States Air Force; and he has work history, predominantly in the
restaurant business, indicating he can follow instructions. [The
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trial c]ourt also considered [Appellant’s] lengthy criminal record.
More specifically, including the five criminal informations before
the [c]ourt on the instant case, the [c]ourt noted that between
1986 and 2012, [Appellant] amassed a criminal record consisting
of convictions for aggravated assault with a weapon, robbery,
simple assault, numerous trespass offenses, and at least a dozen
retail thefts. Additionally, the [c]ourt considered that
[Appellant] has also been incarcerated in state correctional
facilities in Kentucky, Arizona, Nevada, and Iowa.
Th[e trial c]ourt also noted [Appellant’s] long-term, heavy
abuse of drugs and alcohol. [It] further noted that [Appellant],
over the period of years when he continuously engaged in
criminal activity, also engaged in acts demonstrating a pattern of
willful deception – he used in excess of twenty different aliases,
provided more than five dates of birth, and offered at least six
different social security numbers. The [trial c]ourt also
considered that [Appellant’s] propensity for dishonesty appears
to still be ongoing; [Appellant] lied to the [c]ourt in 2014 when
he appeared before the Honorable Margaret C. Miller relative to
these same probation and parole sentences. Specifically,
[Appellant] informed the [c]ourt that he had a bed date at the
Veterans’ Affairs Hospital in Lebanon, Pennsylvania when, in
fact, the program [Appellant] claimed to be entering was not
even in existence at that time. Additionally, upon his release
from prison and placement on house arrest, [Appellant] failed to
provide an approved address to serve his sentence. In addition
to considering [Appellant’s] prior history, th[e trial c]ourt
considered that [Appellant] has violated his probation and parole
numerous times, dating back to at least 1989. The most recent
violations – which include [Appellant’s] disappearance, [his]
failure to report as required, and [his] receipt of new charges in
Chester County, Pennsylvania – align with the clear pattern of
dishonest and criminal behavior that [Appellant] has consistently
engaged in for nearly the past three decades.
Moreover, the [trial c]ourt considered the presentence
report and the penalties authorized by the Legislature. The [trial
c]ourt also properly accounted for the arguments of [Appellant’s]
counsel, as well as the statements and character of [Appellant].
In light of all factors reviewed on record, th[e trial c][ourt found
incarceration was warranted because a lesser sentence would
depreciate the seriousness of [Appellant’s] crimes, the
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seriousness of his total lack of concern for court orders, and the
length of time for which [Appellant] has constantly failed to be a
part of the criminal justice system in Lancaster County.
Trial Court Opinion, 1/5/2016, at 5-7 (footnotes omitted).
The trial court’s findings are supported by the record. See N.T.,
11/5/2015, at 6-9. Those findings support its conclusion that probation has
been ineffective in rehabilitating Appellant and that a significant prison
sentence is necessary to vindicate the authority of the court and protect the
public. See, e.g., Commonwealth v. Sierra, 752 A.2d 910, 915 (Pa.
Super. 2000) (holding no abuse of discretion in sentencing the defendant to
the statutory maximum following probation revocation where the judge
found the defendant “had been feigning certain mental problems as a means
to manipulate the criminal justice system” and “that she was a ‘time bomb
ticking’ with her history of violent behavior and that both she and society
needed protection”). Accordingly, we discern no abuse of discretion in the
trial court’s decision to sentence Appellant to 30 to 60 months of
imprisonment.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2016
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