Com. v. Robertson, J.

J-S61006-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUSTIN ROBERTSON :
:
Appellant : No. 582 EDA 2019
Appeal from the Judgment of Sentence Entered January 25, 2019
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0006922-2015
BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED MARCH 09, 2020
Justin Robertson appeals from the January 25, 2019 judgment of
sentence of three and one-half to seven years of imprisonment, imposed
following revocation of his probation. After thorough review, we affirm.
The following underlying facts are relevant to our review. Appellant
entered a negotiated guilty plea on January 26, 2016, to theft by unlawful
taking, criminal conspiracy, receiving stolen property, criminal mischief, and
loitering and prowling at nighttime. The charges arose from his theft of a
motorcycle from a Bucks County home in 2015. Trial Court Opinion, 6/5/19,
at 1. At the time he committed these offenses, he was on parole following his
2013 conviction for acquisition of a controlled substance by fraud, for which
he was sentenced to two and one-half to five years of incarceration. Id. at 1.
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* Former Justice specially assigned to the Superior Court.
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The trial court sentenced Appellant to time served to twenty-three
months on the theft charge, with immediate parole. On the criminal
conspiracy conviction, the court imposed three years of probation to run
concurrent with the sentence imposed for theft. At each of the remaining
charges, the court sentenced Appellant to one year of probation, to run
concurrently to the other sentences.
We glean the following from testimony adduced at the October 31, 2018
violation of probation (“VOP”) hearing.1 Appellant was released on probation
in January 2017, to reside with his father in Levittown. See N.T. VOP Hearing,
10/31/18, at 4. He was instructed to undergo a drug and alcohol assessment
and make payments on his fines, costs, and restitution. Id.
On June 14, 2017, while on probation, Appellant’s urine sample tested
positive for cocaine and opiates. Id. He admitted to using cocaine and
Percocet, and was instructed by his probation officer to obtain another drug
and alcohol assessment for purposes of treatment. Id. One month later,
Appellant submitted another urine sample that was positive for opiates, and
he admitted he used heroin several days before the sample was taken. Id.
His probation officer instructed him to check himself into an inpatient
detoxification program, and confirmed that he was enrolled and expected to
complete the program on August 16, 2017. Id. at 5. However, Appellant
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1Appellant waived his right to a Gagnon I hearing on the record at the VOP
hearing. See N.T. VOP Hearing, 10/31/18, at 3.
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discharged himself from the treatment program two weeks prior to that date.
Appellant assured his probation officer on August 16, 2017, that he would find
another program. He did obtain some detoxification services and treatment,
but he did not follow through with after-care. Id. at 6.
On September 29, 2017, Appellant was arrested in Philadelphia on drug
charges and released on his own recognizance. Id. He did not have
permission to be in Philadelphia. Id. at 11. His probation officer did not learn
of the Philadelphia arrest until October 18, 2017, and attempted to meet with
Appellant on that day at his approved residence in Levittown. Id. Upon arrival
at the house, a woman told the probation officer that Appellant was not there.
Id. The probation officer searched the house for Appellant, but did not find
him. Id. at 7. While conducting his search, however, the probation officer
found drug paraphernalia, including glass pipes, used and unused needles,
and plastic baggies in a room occupied by Appellant. Id.
Appellant contacted the probation officer later that evening and
informed the officer that he was at home. Id. The officer returned to the
residence that same evening, but again, Appellant was not present. More
drug paraphernalia was recovered. Id. Another search of the Levittown
home was performed on October 25, 2017, and Appellant could not be located.
Id. A search on December 6, 2017, revealed a “secret room” containing
baggies of heroin and needles. Id. at 9. Appellant was not present. Id. On
January 26, 2018, Appellant was arrested again in Philadelphia on drug
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charges, and later remanded to custody of the state parole board. Id. at 10.
The new charges were disposed of “without conviction.” Trial Court Opinion,
6/5/19, at 4.
Appellant’s probation officer testified at the VOP hearing that Appellant
violated the conditions of his probation and parole by leaving the district of
supervision without prior written permission from parole supervision staff, by
failing to maintain regular contact with parole supervision staff by reporting
regularly as required and avoiding contact, failing to notify supervision staff
within seventy-two hours after an arrest, possessing and using narcotics and
controlled substances, and failing to pay court-imposed fines and costs of
supervision. N.T. VOP Hearing, 10/31/18, at 11-13. Appellant admitted that
he was in violation of his probation for all of the aforementioned reasons. Id.
at 21-23.
The court advised Appellant that although the Commonwealth was
recommending an eighteen month sentence of incarceration, the court could
sentence him to three and one-half to seven years of incarceration for the
probation violation. Id. at 27. The court apprised Appellant that it was not
inclined to follow the recommendation “because you have demonstrated that
you are not committed to doing what you need to do to overcome your
addiction.” Id. at 27-28. It admonished Appellant for “playing games” with
State Parole and his own father, for his continued abuse of drugs after being
“in and out of rehabs,” for showing a “complete disregard for the authority of
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the Court.” Id. at 28. In conclusion, the Court stated he was a danger to
himself and the community, and announced its intention to sentence him to
the three and one-half to seven year maximum term of imprisonment. Id.
However, the court preferred that Appellant get long-term treatment for his
drug addiction by participating in the State Intermediate Punishment Program
(“SIP”). Id. at 28. The court then deferred sentencing until it could be verified
that Appellant would qualify for SIP. Id. at 31. Appellant reluctantly decided
to participate in SIP. The court found him in violation of his probation, revoked
it, and continued his sentencing to permit SIP screening.
At the resentencing hearing, Appellant’s probation officer advised the
court that Appellant had been admitted to SIP, but that he incurred a drug-
related misconduct and was terminated from further evaluation for the
program. See N.T. Resentencing Hearing, 1/25/19, at 3. The probation
officer recommended that Appellant be sentenced to three and one-half to
seven years of imprisonment with credit for time served. Id. Appellant’s
family addressed the court and confirmed that Appellant had a serious drug
problem and could die if he did not receive proper help. Id. at 13-14. The
court sentenced Appellant to three and one-half to seven years of
incarceration in state prison. Id. at 19.
Appellant filed a motion to reconsider the sentence, which was denied
on February 11, 2019. Appellant filed a timely notice of appeal to this Court
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on February 22, 2019, and complied with the court’s order to submit a
Pa.R.A.P. 1925(b) concise statement of errors on appeal.
Appellant raises one issue for our review: “Whether a maximum
sentence of three and one-half to seven years upon revocation of probation
for technical probation violations was manifestly excessive?” Appellant’s brief
at 4. Appellant does not dispute that incarceration was warranted, but he
maintains that the length of sentence imposed was excessive for technical
violations such as “using drugs, absconding and traveling to Philadelphia, and
failing to pay his costs, fines, and restitution.” Appellant’s brief at 9.
Appellant presents a discretionary sentencing challenge. An appeal of
discretionary aspects of a sentence is not a matter of right. See 42
Pa.C.S. § 9781(b). An appellant challenging the discretionary aspects of a
court’s sentence must invoke this Court’s jurisdiction by:
(1) filing a timely notice of appeal;
(2) properly preserving the issue at sentencing or in a motion to
reconsider and modify the sentence;
(3) complying with Pa.R.A.P. 2119(f), which requires a separate
section of the brief setting forth “a concise statement of the
reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence;” and
(4) presenting a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code.
Commonwealth v. Padilla-Vargas, 204 A.3d 971, 975 (Pa.Super. 2019)
(citing Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa.Super. 2015)).
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Appellant filed a post-sentence motion and a timely notice of appeal.
His appellate brief contains a Pa.R.A.P. 2119(f) statement setting forth the
basis for his petition for allowance of appeal. Appellant’s brief at 10-11. The
only question remaining is whether he has presented a substantial question.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Griffin, 65 A.3d 932,
935 (Pa.Super. 2013). Appellant contends that he presents a substantial
question because imposition of a maximum sentence following a revocation of
probation for technical violations is “manifestly excessive” and “so
disproportionate as to implicate the fundamental norms of the sentencing
process.” Appellant’s brief at 11. Such claims have been held to constitute a
substantial question. See Commonwealth v. Williams, 69 A.3d 735, 740
(Pa.Super. 2013); see also Commonwealth v. Mouzon, 812 A.2d 617, 622
(Pa. 2002) (plurality) (opining that a claim that a sentence violates
fundamental norms underlying the sentencing process raises a substantial
question). Hence, we proceed to address the merits of Appellant’s
discretionary sentencing claim.
Our standard of review of discretionary sentencing claims following
revocation of probation is well-settled:
The imposition of sentence following the revocation of probation
is vested within the sound discretion of the trial court, which,
absent an abuse of that discretion, will not be disturbed on appeal.
An abuse of discretion is more than an error in judgment—a
sentencing court has not abused its discretion unless the record
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discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.
Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa.Super. 2014) (citing
Commonwealth v. Simmons, 56 A.3d 1280, 1283-84 (Pa.Super. 2012)).
Additionally, when reviewing whether a sentence is manifestly excessive, we
must accord weight to the sentencing court’s discretion, “as he or she is in the
best position to measure factors such as the nature of the crime, the
defendant’s character, and the defendant’s display of remorse, defiance, or
indifference.” Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa.Super.
2003).
When a sentencing court imposes a new sentence upon revocation of
probation, it is limited to the sentencing options that existed at the time of
the initial sentencing. See 42 Pa.C.S. § 9771(b). In addition, “the court shall
make as a part of the record, and disclose in open court at the time of
sentencing, a statement of the reason or reasons for the sentence imposed.”
42 Pa.C.S. § 9721(b). “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). When
imposing a sentence, “a trial court does not necessarily abuse its discretion in
imposing a seemingly harsh post-revocation sentence where the defendant
originally received a lenient sentence and then failed to adhere to the
conditions imposed on him.” Commonwealth v. Schutzues, 54 A.3d 86 at
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99 (Pa.Super. 2012). We will find an abuse of discretion when the sentencing
court fails to give “careful consideration to all relevant factors in sentencing
[the appellant].” Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super.
2000).
Here, Appellant concedes that he should be imprisoned for technical
violations of his probation, and is only disputing the length of the sentence
itself.2 Appellant’s brief at 9. He maintains that forty-two to eighty-four
months of incarceration is manifestly excessive for technical probation
violations. He directs our attention to our decision in Commonwealth v.
Parlante, 823 A.2d 927 (Pa.Super. 2003), where we held that four to eight
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2 Even though Appellant concedes that incarceration was warranted, we find
that the requirements for a sentence of confinement following revocation of
probation were met. By statute, the court shall not impose a sentence of total
confinement upon revocation of probation 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 evidence overwhelmingly indicated that Appellant was likely to continue
his drug use and commit another crime if he was not imprisoned. In addition,
a sentence of imprisonment was necessary to vindicate the authority of the
court due to Appellant’s repeated violations of his probation orders. See N.T.
VOP Hearing, 10/31/18, at 11-14.
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years of imprisonment was manifestly unreasonable for seven technical
violations and four direct violations involving non-violent crimes.
Our decision in Parlante was based on the trial court’s failure “to
consider Parlante’s age, family history, rehabilitative needs, the pre-sentence
report or the fact that all of her offenses were non-violent.” Id. at 930. In
contrast, in Sierra, supra, we upheld imposition of a statutory maximum
term of imprisonment even though the appellant committed only technical
violations of her probation. We found no abuse of discretion because the trial
judge “gave careful consideration to all relevant factors [when] sentencing
[Sierra], including her significant criminal record.” Id. at 913-14.
Appellant has not alleged or demonstrated herein that the trial court
failed to consider any of the relevant sentencing factors in imposing sentence
herein. At its essence, Appellant’s claim is solely that his sentence is
manifestly excessive for technical violations of probation. Appellant has not
established that the sentencing court abused its discretion.
At both the VOP hearing held on October 31, 2018, the court thoroughly
explained its rationale for sentencing Appellant to the maximum sentence,
although it deferred the sentencing to permit screening for SIP. The court
cited Appellant’s drug abuse, his numerous failed attempts at drug
rehabilitation and detoxification, and the danger Appellant’s drug use posed
to himself and the community as warranting a decision to sentence him to the
maximum. N.T., VOP Hearing, 10/31/18, at 28. While on probation, Appellant
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repeatedly violated the conditions of his probation by leaving for Philadelphia
without permission, continuing to use controlled substances, failing to notify
his probation officer of his subsequent arrest, and failing to pay court-imposed
costs, restitution, fees, and costs of supervision. Id. at 11-14. At the VOP
hearing, the court found that Appellant was not committed to overcoming his
addiction and that he was a danger to the community and to himself. Id. at
27-28. He had prior opportunities to participate in drug treatment programs
while on probation, and he failed to complete them or enroll in them.
At the subsequent sentencing hearing, the court expounded on its
reasons for the sentence imposed. Although the trial court offered Appellant
the alternative of SIP, he squandered that opportunity when he abused drugs
while in the program. N.T. Resentencing Hearing, 1/25/19, at 4. Appellant
admitted that he continued to struggle with drug addiction and that past
efforts to rehabilitate him had been unsuccessful. Id. at 5. Appellant’s family
members addressed the court. They confirmed that Appellant has a drug
addiction problem and that he could die from drug abuse if he did not
successfully complete a rehabilitation program. Id. at 7, 12-14.
The sentencing court reiterated that Appellant’s participation in other
rehabilitative measures had been unsuccessful and that he remained addicted
to drugs. Id. at 14-15. Its stated goal was to get Appellant “isolated away
from where [he] can get drugs.” Id. at 15. The court noted, however, that
Appellant’s conduct indicated an unwillingness to reform as his prior
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incarceration had no deterrent effect on his drug use and he consistently failed
to complete any of the rehabilitation programs that his probation officer
instructed him to complete.
On the record before us, we find no abuse of discretion on the part of
the trial court in imposing the maximum sentence upon revocation of
Appellant’s probation. The court had the ability to sentence Appellant to any
sentence it could have imposed originally, which included the sentence
imposed herein. See 42 Pa.C.S. § 9771(b). The court applied the proper
sentencing factors and determined that Appellant was likely to continue to
commit further crimes if not imprisoned, and that prior less-restrictive efforts
to rehabilitate him and get him away from drug usage had failed. The court
thoroughly considered Appellant’s history and determined that the sentence
imposed was the best option because prior methods of rehabilitation had been
unsuccessful. Appellant had been shown leniency and given numerous
opportunities for rehabilitation that were significantly less restrictive than a
maximum sentence of confinement, and he was unable to take advantage of
the opportunities afforded to him by the court.
The record establishes that the sentencing court considered the proper
sentencing factors and exercised its sound discretion in imposing the
maximum sentence. Moreover, there is no evidence that the court’s judgment
was “the result of partiality, prejudice, bias or ill-will.” Colon, supra at 1043.
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Hence, we accord the decision of the trial court the deference it deserves, and
affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2020
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