Com. v. Grillo, Sr., C.

J-S15024-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER J. GRILLO, SR. :
:
Appellant : No. 1619 MDA 2022
Appeal from the Judgment of Sentence Entered October 24, 2022
In the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0001278-2021
BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.
MEMORANDUM BY STABILE, J.: FILED: JUNE 27, 2023
Appellant, Christopher J. Grillo, Sr., was sentenced to one year’s
probation following his guilty plea to conspiracy to commit theft of secondary
metal, 18 Pa.C.S.A. § 903(a)(1). He was arrested for absconding from
probationary supervision and was incarcerated pending a violation hearing.
The court found him in violation of his probation and sentenced him to time
served to 24 months’ imprisonment in state prison. Appellant argues that the
court abused its discretion by imposing a state sentence because his probation
violation was technical in nature. We affirm.
On June 28, 2021, Appellant pled guilty to conspiracy and was
sentenced to one year’s probation. On September 27, 2021, a warrant was
issued for Appellant for several probation violations, including failure to report
as directed, failure to provide notice of a change of address, failure to pay
fines, costs, and restitution, and failure to comply with chemical testing.
J-S15024-23
Almost one year later, on September 6, 2022, Appellant was arrested and held
in custody pending a violation hearing.
On October 24, 2022, the court held a Gagnon II1 violation hearing.
Appellant admitted committing the above probation violations. The
Commonwealth recommended a sentence of 6-24 months’ imprisonment in
state prison, reasoning: (1) Appellant absconded for more than a year while
serving this term of probation, (2) while this was his first violation of this
probation, he violated probation two other times on prior probationary
sentences for indirect criminal contempt; and (3) his prior violations also
involved him absconding for more than six months. Furthermore, at the time
of this hearing, Appellant had an outstanding probation violation from another
county.
Counsel for Appellant requested a time-served sentence in a county
facility. Appellant testified that he had undergone extraordinary
circumstances leading to his relapse on drugs and his disappearance from
supervision. His mother had been struck by a car and killed, his uncle had
suffered a stroke and eventually passed, and his step-father had kicked him
out of the home. As a result, Appellant became homeless for a period of time
and started to use heroin again. Prior to his arrest, he had begun a
relationship with a new woman with whom he had a child, and he claimed they
were a good support system for him. He admitted using drugs until he was
____________________________________________
1 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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incarcerated. He stated that he is a trained butcher, that he can normally
obtain employment, and that he wanted drug treatment and rehabilitation.
The court stated that it considered everything stated at the hearing and
sentenced Appellant to a time-served sentence of 141 days to 24 months in a
state correctional facility and made him immediately eligible for parole. The
court added that it believed that a drug treatment program was highly
appropriate for Appellant.
Appellant filed timely post-sentence motions seeking a county sentence,
which the court denied, and this timely appeal followed. Both Appellant and
the court complied with Pa.R.A.P. 1925.
Appellant raises a single issue in this appeal, “Whether the lower court
abused its discretion by imposing a state sentence rather than a county
sentence on a first, solely technical probation violation with no new crime and
no indication that Appellant is likely to commit another crime.” Appellant’s
Brief at 4.
This is a challenge to the discretionary aspects of Appellant’s sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Griffin, 65 A.3d 932,
935 (Pa. Super. 2013). Before reaching the merits of a discretionary aspects
issue, this Court must conduct a four-part test to determine:
(1) whether the appeal is timely; (2) whether Appellant preserved
his or her 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
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the concise statement raises a substantial question that the
sentence is appropriate under the Sentencing Code.
Commonwealth v. Williams, 198 A.3d 1181, 1186 (Pa. Super. 2018). “To
preserve an attack on the discretionary aspects of sentence, an appellant must
raise his issues at sentencing or in a post-sentence motion. Issues not
presented to the sentencing court are waived and cannot be raised for the first
time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa.
Super. 2006).
Here, Appellant timely filed a notice of appeal, preserved his issues in
his post-sentence motion, and included a Rule 2119(f) statement in his brief.
We further conclude that Appellant has raised a substantial question for our
review. Id. at 1252 (claim that particular probation revocation sentence is
excessive in light of its underlying technical violations can present question
that this Court should review). Therefore, we will address Appellant’s
argument.
Our review is governed by the following principles:
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.
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008).
Additionally, our review of the discretionary aspects of a sentence is governed
by 42 Pa.C.S. § 9781(c) and (d):
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(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.
In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
(d) Review of record.—In reviewing the record the appellate
court shall have regard for:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(c)-(d).
Our review is governed by the following principles:
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.
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008).
Additionally, our review of the discretionary aspects of a sentence is governed
by 42 Pa.C.S.A. § 9781(c) and (d):
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(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.
In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
(d) Review of record.—In reviewing the record the appellate
court shall have regard for:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(c)-(d).
The legislature intended that the trial court consider the character of the
defendant and the facts of the offense, and accordingly impose a sentence
that is consistent with the protection of the public, the gravity of the offense,
and the rehabilitative needs of the defendant. Commonwealth v. Eby, 784
A.2d 204, 207 (Pa. Super. 2001). Notably, the sentencing court may properly
consider prior noncompliance with terms of probation in fashioning an
appropriate sentence upon revocation of the probation. Malovich, 903 A.2d
at 1254.
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Appellant does not contest the length of his sentence, but he objects to
the condition that he serve the sentence in state prison rather than county
prison. The trial court reasoned that a state sentence was appropriate:
While this was [Appellant]’s first violation of probation in this
docket, he had absconded for more than one year. In determining
[Appellant]’s amenability to supervision, the Court considered the
information provided by the supervising probation officer that
there is a warrant for [Appellant] in Lancaster County for
absconding on his reporting obligations there as well as the failure
to keep his address current with his probation officer and
additionally violations of probation in other local cases for indirect
criminal contempt. The Court considered the information provided
by defense counsel as to [Appellant]’s addiction relapse after the
death of his mother that created issues of homelessness. The
Court also considered the birth of a child and his now stable living
environment alter ending the volatile relationship which was the
basis for the indirect criminal contempt cases as well as
[Appellant]’s request for rehabilitation as he admitted to using
drugs until he was committed to the jail system for the violation
of probation. The Court acknowledges that there was not a new
conviction while under probation in this docket.
The trial court is in the best position to determine the proper
penalty for a particular offense based upon an evaluation of the
individual circumstances before it. Commonwealth v. Ward,
568 A.2d 1242, 1243 (Pa. 1990). This is the basis for the broad
discretion afforded to trial court judges. Considering the
procedural history, the recommendation of both [the]
Commonwealth and [the] defense, the allocution of the
[Appellant] and his background, as well as balancing the punitive
needs of the Commonwealth with the rehabilitative needs of
[Appellant] as well as his inability to succeed with the lesser
restrictions of probation, the sentence imposed is not manifestly
excessive nor grossly disproportionate to the crime and is
supported by the record.
Pa.R.A.P. 1925 Opinion, 12/28/22, at 4-5.
We consider the court’s decision to be a proper exercise of discretion.
Appellant consistently absconded from supervision while under county
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probation. During the present violation, he absconded for more than a year.
In addition, he admitted failing to notify his probation officer of his change of
residence, failing to comply with urine testing, and failing to pay fines, costs
and restitution. In his prior violations with the same probation office, he
absconded for at least six months. He admitted using narcotics up until the
day he was incarcerated, which shows that county supervision and probation
has failed to stop his drug use. Under these circumstances, the court had the
discretion to conclude that a state sentence was necessary to vindicate the
needs of the public and meet Appellant’s rehabilitative needs.
For these reasons, we hold that Appellant’s sentence was a proper
exercise of discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/27/2023
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