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[U] Commonwealth v. Butler

Superior Court of Pennsylvania

May 31, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
ROBERT ANTHONY BUTLER, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
ROBERT ANTHONY BUTLER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence entered on May 23, 2012 in the Court of Common Pleas of Delaware County, Criminal Division, No. CP-23-CR-0000192-2008

Appeal from the Judgment of Sentence entered on June 20, 2012 in the Court of Common Pleas of Delaware County, Criminal Division, No. CP-23-CR-0000192-2008

BEFORE: BOWES, GANTMAN and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

In this consolidated appeal, Robert Anthony Butler ("Butler") appeals from the judgment of sentence entered following the revocation of his parole. We quash the appeal docketed at 2033 EDA 2012, and affirm the judgment of sentence, entered on June 20, 2012, in the appeal docketed at 2034 EDA 2012.

The trial court set forth the procedural history underlying this case as follows:

On December 13, 2007, [Butler] was arrested and charged with various offenses including Theft By Unlawful Taking-Movable Property, Harassment, Robbery, Receiving Stolen Property, and Assault. After the preliminary hearing, the Commonwealth withdrew several of the charges, and [Butler] proceeded to court on two counts of Theft By Unlawful Taking and one count of Harassment. On March 10, 2008, [Butler] pled guilty to Theft By Unlawful Taking and was sentenced to a period of confinement from 12 to 24 months (less one day).
At some point, [Butler] was granted parole. On May 14, 2012, the Adult Probation and Parole Services Department issued a Gagnon II[1] Hearing Request, noting that [Butler] was in violation of three [conditions] of his parole, and had been charged with Driving Under the Influence. On May 16, 2012, the Probation and Parole Department issued a Hearing Report recommending that [Butler] be found in violation of his parole, that his parole be revoked, and that he be resentenced to his full back time of 41[4] days ….
On May 23, 2012, [the trial c]ourt conducted a hearing, during which defense counsel indicated that he had no objection to the recommendation that [Butler] be sentenced to full back time of 41[4] days. [The trial c]ourt exceeded the sentencing recommendation and sentenced [Butler] to a period of one and a half to three years in a state correctional institution. The Assistant District Attorney objected to this sentence.
On May 29, 2012, defense counsel filed a Motion For Reconsideration in which he asked that [the trial c]ourt impose a sentence in accordance with the probation officer's recommendation of back time of 414 days. On June 19, 2012, this Court granted the [M]otion for reconsideration and imposed a sentence of 414 days [of] incarceration[, which was docketed on June 20, 2012.]
On June 21, 2012, and again on July 16, 2012, defense counsel [timely] filed a Notice of [a]ppeal to the Superior Court.

The Superior Court then entered an order consolidating the two appeals.

Trial Court Opinion, 11/13/12, at 1-2 (unnumbered; citations omitted; footnote added).[2]

On appeal, Butler raises the following issue for our review: "Whether the trial court erred and violated [Butler's] sentencing rights when it failed to state the required reasons on the record?" Brief for Appellant at 5.

Butler purports to raise a challenge to the discretionary aspects of his sentence. Regarding such a challenge to the sentence imposed by a parole revocation court, this Court has stated as follows:

Unlike a probation revocation, a parole revocation does not involve the imposition of a new sentence. Indeed, there is no authority for a parole-revocation court to impose a new penalty. Rather, the only option for a court that decides to revoke parole is to recommit the defendant to serve the already-imposed, original sentence. At some point thereafter, the defendant may again be paroled.
Therefore, the purposes of a court's parole-revocation hearing -- the revocation court's tasks -- are to determine whether the parolee violated parole and, if so, whether parole remains a viable means of rehabilitating the defendant and deterring future antisocial conduct, or whether revocation, and thus recommitment, are in order. The Commonwealth must prove the violation by a preponderance of the evidence and, once it does so, the decision to revoke parole is a matter for the court's discretion. In the exercise of that discretion, a conviction for a new crime is a legally sufficient basis to revoke parole.
Following parole revocation and recommitment, the proper issue on appeal is whether the revocation court erred, as a matter of law, in deciding to revoke parole and, therefore, to recommit the defendant to confinement. Accordingly, an appeal of a parole revocation is not an appeal of the discretionary aspects of sentence.
As such, a defendant appealing recommitment cannot contend, for example, that the sentence is harsh and excessive. Such a claim might implicate discretionary sentencing but it is improper in a parole-revocation appeal. Similarly, it is inappropriate for a parole-revocation appellant to challenge the sentence by arguing that the court failed to consider mitigating factors or failed to place reasons for sentence on the record. Commonwealth v. Shimonvich, 2004 PA Super 340, 858 A.2d 132, 135 (Pa. Super. 2004). Challenges of those types again implicate the discretionary aspects of the underlying sentence, not the legal propriety of revoking parole. Id.

Commonwealth v. Kalichak, 943 A.2d 285, 290-91 (Pa. Super. 2008) (most citations and footnote omitted; emphasis added).

In the instant case, Butler's sole claim on appeal is a purported attack on the discretionary aspects of the parole revocation court's sentence in recommitting him to serve the remainder of his sentence, without stating the court's reasons for the sentence imposed on the record. See Brief for Appellant at 8-10. This is not a proper claim on appeal from a parole revocation sentence. See Kalichak, 943 A.2d at 292-93; see also Shimonvich, 858 A.2d at 135-36.[3] Accordingly, Butler is not entitled to relief on appeal.

Appeal quashed as to case No. 2033 EDA 2012; judgment of sentence affirmed as to appeal at No. 2034 EDA 2012. Judgment Entered.


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